Archive of posts for category
UN and other Int’l Organizations

Let Me Be Clear: Taiwan Should Be Defended, Even Though the Defense is Illegal

by Julian Ku

So I managed to anger lots of folks (mostly on twitter) with my post Friday (republished in the Diplomat and RealClearWorld yesterday) on the international legal problems created by any Japanese intervention to defend Taiwan from an attack by China.  I don’t mind angering people (especially on twitter), but I do want to make sure they are angry with me for the right reasons. Many readers seem to think I want China to invade Taiwan, which is in fact the complete opposite of my policy goal.   So let me offer some clarifications of my position on policy, and a few rebuttals of legal responses to my arguments.

1) Policy: I am squarely in favor of U.S. military intervention to defend Taiwan against any PRC military attack. I am even in favor of intervention in the case of a declaration of independence by Taiwan as long as Taiwan acts in a responsible way so as not to threaten China’s national security.(My only hesitation on this is the cost to the US, but not on the merits of Taiwan’s case). Given how strong China is these days, I am pretty sure Taiwan could not be a real military threat to China (nor would it want to be).  Whether the US would actually protect Taiwan is the zillion dollar policy question that I don’t have the answer to.  I hope it does, but I don’t know if it will.

2) Law: However, my favored US policy is in deep tension with, or even direct conflict with, traditional understandings of the international law governing the use of force.  For those of us who love and cherish Taiwan, it is no use pretending as if the law supports a US or Japanese military intervention to defend Taiwan. It doesn’t. It would be better for all concerned if we faced this legal problem head-on rather than try to come up with complicated not-very-persuasive workarounds.  Here are the two most obvious workarounds, raised in this very angry and excited post by Taiwan-expert J. Michael Cole:

a) Responsibility to Protect and Humanitarian Intervention
Here is a simple response: R2P are non-binding principles that, even if they were binding, seems to require Security Council consent.  Humanitarian intervention remains deeply contested and doubtful in international law, and would not apply to Taiwan in any case until it was probably too late. Kosovo is a great example of how contested this doctrine is. Syria is another.

b) The ROC is a separate legal entity.
I get that this is a complicated issue, but I don’t think I am “misreading” historical documents when I write that i) the US recognizes the PRC as the government of China and that the US accepts that Taiwan is part of China; 2) Japan recognizes the PRC as the government of China, and Japan accepts that Taiwan is a part of China.  Sure, neither country recognizes that Taiwan is a part of the PRC, but both the US and Japan have made clear that China is a single legal entity that includes Taiwan, and that the PRC is the sole government in charge of this entity. We can futz around the details, but there is a reason why neither the US nor Japan (nor almost anyone else) have diplomatic relations with Taiwan.

Here is one interesting and unexpected policy consequence of Taiwan’s current legal position: it would be safer from a legal perspective for Taiwan to declare independence, since that would protect it from this legal problem I’ve identified. Of course, that legal position would probably be the least safe from a policy perspective, since it is the mostly likely to spark a Chinese attack.

Which brings me to my real point: the increasing irrelevance of Article 51 of the UN Charter to decisions by major powers on whether to use military force. The decision on whether to defend Taiwan should not depend on workarounds for Article 51. It should depend on the combination of moral values and national interests the US and Japan consider worth protecting here in Taiwan. I think Taiwan is worth protecting, but it is important to recognize that the law is not on Taiwan’s side.

Why Japan Would Violate International Law If It Militarily Intervened to Defend Taiwan (But Why Japan Should Do So Anyway)

by Julian Ku

I’ve been swamped with various projects and distractions here in Taiwan (mostly food-related), so I didn’t notice until today this very interesting Zachary Keck post about how Japan’s recent decision to re-interpret its constitutional provision to allow expanded overseas military activities would enable Japan to help defend Taiwan against an attack from China.  It’s a fascinating post, but it also made me think of an interesting wrinkle that cuts against his argument.  It is almost certainly true that international law prohibits any military action by Japan (or the US) to defend Taiwan from a Chinese attack.

In his post, Keck notes that Japan’s decision to reinterpret its constitution does NOT allow Japan to fully exercise its rights to collective self-defense under international law, but it does allow Japan to provide military support to allies where Japan itself is threatened.  But he then argues that even under this more narrow “collective self-defense” right, Japan could  (and probably would) intervene to assist Taiwan in a military defense against a Chinese invasion.

I think this could be right as a matter of Japanese constitutional law if an invasion of Taiwan could be plausibly construed as a threat to Japan, but there is a strange international law flaw to this argument.  Under black-letter international law, Japan cannot use military force in Taiwan absent China’s consent, even if the Taiwan government requests its assistance.  Why? Because the UN Charter’s Article 51 only authorizes an act of “collective self-defense if an armed attack occurs against a Member of the United Nations.” Taiwan is not a member of the United Nations, and to make matters worse from Taiwan’s perspective, Japan recognizes the government in Beijing as the rightful government of China, and Japan further recognizes that Taiwan is part of China. 

So unless Japan is able to plausibly claim that an attack on Taiwan triggers Japan’s own inherent self-defense right (and I think this is a non-starter as a legal argument), and unless a Chinese invasion could be said to justify humanitarian intervention (another very difficult argument), Japan would violate the U.N. Charter if it used military force in a way that violated the territorial integrity of another UN member (China).  Japan could not invoke its collective self-defense rights unless it recognized Taiwan as an independent nation.  And even that would probably not be enough to satisfy international law requirements, since Japan’s unilateral recognition of Taiwan as an independent state would necessarily satisfy international law either.  And good luck, Taiwan, getting U.N. membership.

By the way, this analysis applies equally (or even with greater force) to the United States.  The U.S. quasi-defense guarantee to Taiwan has it completely backwards (from a legal point of view):

  • If Taiwan declares independence, the U.S. has signaled it would not consider itself bound to defend Taiwan against a Chinese invasion. Yet that would be (at least in theory) one state (China) committing aggression against another state (Taiwan), and almost certainly illegal.
  • If Taiwan keeps the status quo and does not declare independence, and China still invades, the U.S. has signaled that it would come to Taiwan’s defense. But that would be one state (China) using force within its own territory to put down secessionists (a la Ukraine) and almost certainly legal.

So the U.S (and maybe Japan) are now committed to defend Taiwan only in a situation that would require the US and Japan to violate the U.N. Charter.  It’s international-law-bizarro world!

Of course, this bizarro-from-a-legal-point-of-view policy suits U.S. purposes, since it is the policy most likely to avoid military conflict with China.  But it also reveals how use of force rules in the U.N. Charter have little relevance to shaping the behavior of the U.S., Japan (and probably China) in any conflict over Taiwan.  Japan and the US should (and probably are) ready to ignore these legal rules when making their determinations about whether to defend Taiwan.  And all in all, that’s a good thing (especially while I am still here in Taipei!).

The CIA and the Public Authority Justification: A Response to Orr

by Kevin Jon Heller

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It’s a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don’t find his arguments convincing.

Orr begins by citing Art. 43 of the First Additional Protocol (AP I), which defines the armed forces as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” In Orr’s view, that means the CIA qualifies as “armed forces” under Art. 43, because the CIA is responsible to President Obama, the Commander in Chief:

The CIA may not be a part of the US military, not subordinate to the Secretary of Defense, but it is hard to claim it is not in any way an armed “group” or “unit” which is under the Command of the responsible party – the same person with responsibility for the military services, namely the Commander in Chief.

Orr’s argument, however, proves too much. By his logic, every armed organisation in the federal government that is ultimately responsible to Obama would qualify as the “armed forces” of the US — the FBI, the DEA, the ATF, even the US Marshals Service. That can’t possibly be correct.

To be fir, Orr recognises that it is not evident a “paramilitary” group like the CIA qualifies as the armed forces of the US and thus has the right to participate in hostilities. In particular, he acknowledges that, at a minimum, the CIA would have to comply with the four criteria set out in Art. 4 of the Third Geneva Convention (GC III): (1) responsible command; (2) a fixed distinctive sign; (3) open carry of arms; and (4) compliance with IHL. Here is his argument that it does:

(a) and (c) seem to apply (remotely piloted aircraft are operated in the open). The claim is made that (d) applies. Does (b)? Hard to say, but it’s also hard to understand how this criteria has modern relevance with stand-off weapons of any sort.

I don’t think it’s hard to say at all that (b) is not satisfied. CIA agents does not wear uniforms, nor do they wear anything that identifies them as CIA — particularly at a distance. And why would they? The CIA is an intelligence organisation that operates almost exclusively in secret; as noted by its own website, the CIA’s mission is “conducting effective covert action as directed by the President.” Fixed distinctive signs are the last thing CIA agents would ever wear.

Indeed, that’s almost certainly why Orr downplays the role of a fixed distinctive sign, saying that its “hard to understand how this criteria has modern relevance with stand-off weapons of any sort.” But that comment gives away the ballgame. Orr is not really arguing that the CIA is entitled to participate in hostilities because its members comply with the four criteria in GC III, art. 4. On the contrary, he is arguing that the CIA only has to comply with three of the four criteria — conveniently, the three with which it can comply. The inconvenient fourth criteria is simply wished out of existence. (And note that the question is not whether the CIA’s weapons have a fixed distinctive sign; it’s whether the CIA’s agents have one. Which they don’t.) Lex ferenda, not lex lata.

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It’s a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don’t find his arguments convincing.

Orr begins by citing Art. 43 of the First Additional Protocol (AP I), which defines the armed forces as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” In Orr’s view, that means the CIA qualifies as “armed forces” under Art. 43, because the CIA is responsible to President Obama, the Commander in Chief:

The CIA may not be a part of the US military, not subordinate to the Secretary of Defense, but it is hard to claim it is not in any way an armed “group” or “unit” which is under the Command of the responsible party – the same person with responsibility for the military services, namely the Commander in Chief.

Orr’s argument, however, proves too much. By his logic, every armed organisation in the federal government that is ultimately responsible to Obama would qualify as the “armed forces” of the US and be entitled to participate in hostilities — the FBI, the DEA, the ATF, even the US Marshals Service. That can’t possibly be correct.

To be fair, Orr recognises that it is not evident a “paramilitary” group like the CIA qualifies as the armed forces of the US and thus has the right to participate in hostilities. In particular, he acknowledges that, at a minimum, the CIA would have to comply with the four criteria set out in Art. 4 of the Third Geneva Convention (GC III): (1) responsible command; (2) a fixed distinctive sign; (3) open carry of arms; and (4) compliance with IHL. Here is his argument that it does:

(a) and (c) seem to apply (remotely piloted aircraft are operated in the open). The claim is made that (d) applies. Does (b)? Hard to say, but it’s also hard to understand how this criteria has modern relevance with stand-off weapons of any sort.

I don’t think it’s hard to say at all that (b) is not satisfied. CIA agents does not wear uniforms, nor do they wear anything that identifies them as CIA — particularly at a distance. And why would they? The CIA is an intelligence organisation that operates almost exclusively in secret; as noted by its own website, the CIA’s mission is “conducting effective covert action as directed by the President.” Fixed distinctive signs are the last thing CIA agents would ever wear.

Indeed, that’s almost certainly why Orr downplays the role of a fixed distinctive sign, saying that its “hard to understand how this criteria has modern relevance with stand-off weapons of any sort.” But that comment gives away the ballgame. Orr is not really arguing that the CIA is entitled to participate in hostilities because its members comply with the four criteria in GC III, art. 4. On the contrary, he is arguing that the CIA only has to comply with three of the four criteria — conveniently, the three with which it can comply. The inconvenient fourth criteria is simply wished out of existence. (And note that the question is not whether the CIA’s weapons have a fixed distinctive sign; it’s whether the CIA’s agents have one. Which they don’t.)

It is important to recognize, though, that Orr’s argument concerning Art. 43 of AP I and Art. 4 of the GC III is ultimately beside the point. Orr may think that, as a matter of international law, the CIA is part of the US’s armed forces and thus has the right to participate in hostilities. But the US government doesn’t. Footnote 44 in the drone memo makes that exquisitely clear…

Let’s Call Killing al-Awlaki What It Still Is — Murder

by Kevin Jon Heller

As everyone on Twitter knows by now, the US government has released the notorious memorandum in which the OLC provides the supposed legal justification for killing Anwar al-Awlaki. I’m a bit disappointed not to get a mention in the memo; people in the know have suggested that a post I wrote in April 2010 led the OLC to substantially rewrite it. Vanity aside, though, I’m more disappointed by the memo’s failure to adequately address the most important issue regarding the “public authority justification,” which is at the heart of the memo’s conclusion that it would be lawful to kill al-Awlaki: how can the CIA be entitled to the public-authority justification when the CIA had no authority to use force against Al Qaeda in the Arabian Peninsula (AQAP)?

To understand why that’s a problem, let’s step back and consider what the memo says about whether the Department of Defense (DoD) had the legal authority to kill al-Awlaki. Remember, the memo was written before al-Awlaki was killed, at a time when it wasn’t clear which organisation — the DoD or the CIA — would actually kill him. (It was also written long after al-Awlaki was put on the kill list, as Hina Shamsi reminds us.)

The memo begins by emphasizing (p. 14) that its analysis — for both the DoD and the CIA — turns on whether 18 USC 1119, the foreign-murder statute, incorporates the “public authority justification” (PAJ). Indeed, it notes in n. 24 that the PAJ is the only defence it will consider. The memo then concludes (p. 20), after five pages of analysis, that in fact s 1119 does incorporate the PAJ. It’s an impressive analysis, and I find it convincing. So let’s grant that the PAJ potentially applies to the killing of al-Awlaki.

The question then becomes: who can invoke the public authority justification? The memo has little problem concluding that the DoD would be entitled to it, because (p. 20) “the operation would constitute the ‘lawful conduct of war’ — a well-established variant of the public authority justification.” In reaching that conclusion, the memo argues (1) that the AUMF covers AQAP, (2) that al-Awlaki qualifies as a targetable member of AQAP; (3) that the US is involved in a NIAC with AQ, making the laws of war applicable; and (4) that the DoD had pledged to obey the laws of war in any lethal operation.

I would quibble with much of the analysis, particularly the memo’s discussion of the scope of the non-international armed conflict between the US and “al-Qaeda.” But I’m prepared to accept that, in the abstract, the DoD would be entitled to invoke the PAJ. My problem is with the memo’s casual assertion that the PAJ applies equally to the CIA, which actually killed al-Awlaki. Here is its conclusion (p. 32)…

Analysing the US Invocation of Self-Defence Re: Abu Khattallah

by Kevin Jon Heller

Most of the discussion about Abu Khattallah’s capture in Libya has focused on the operation’s basis — or lack thereof — in domestic US law. Less attention has been paid to whether international law permitted the US to use force on Libyan soil. As Marty Lederman recently noted at Just Security, Abu Khattallah’s capture can potentially be justified on two different grounds: (1) Libya consented to the capture operation; or (2) the capture operation represented a legitimate act of self-defence under the UN Charter. The first justification does not appear open to the US; the available evidence indicates that the operation was conducted without Libya’s consent. So it’s not surprising that the US has claimed — in a letter submitted to the UN by Samantha Power on June 17 — that Article 51 permitted the operation:

The investigation also determined that [Abu Khattallah] continued to plan further armed attacks against U.S. persons. The measures we have taken to capture Abu Khattallah in Libya were therefore necessary to prevent such armed attacks, and were taken in accordance with the United States’ inherent right of self-defense. We are therefore reporting these measures to the Security Council in accordance with Article 51 of the United Nations Charter.

Power’s letter obscures far more than it reveals. In fact, the US’s invocation of self-defence raises four very difficult questions:

  • Can a non-state actor launch an “armed attack” that triggers the right of self-defence?
  • If so, must that armed attack be attributable in some fashion to the state whose territory is the object of “self-defensive” force?
  • Do all uses of armed force qualify as an “armed attack” for purposes of Article 51?
  • Does the right of self-defence permit force to be used anticipatorily?

In this post, I want to put aside the first two questions. I have no doubt that a non-state actor can launch an armed attack within the meaning of Article 51, and my views on the “unwilling or unable” test are well-known. It’s worth spending some time, though, on the third and fourth questions.

The third question is interesting because it’s not clear that all uses of force qualify as “armed attacks” for purposes of Article 51. The UN Charter itself distinguishes between the “use of force” (Art. 2(4)) and “armed attack” (Art. 51), and the ICJ has suggested in both Nicaragua and Oil Platforms that at least some uses of force may be so de minimis that they do not entitle the victim state to use force in self-defence. (As opposed to taking other countermeasures.) On the other hand, customary international law seems to indicate that the threshold of force for an armed attack is extremely low. Here is Tom Ruys’ conclusion in his magisterial book “Armed Attack” and Article 51 of the UN Charter (p. 155):

In the end, customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.

In sum, the following general conclusions can be made: (1) the travaux of the Definition of Aggression suggest that a minimal gravity is indeed required and seem to rule out the aforementioned Option 3; (2) ‘concrete’ customary evidence nonetheless makes clear that the gravity threshold should not be set too high and that even small-scale attacks involving the use of (possibly) lethal force may trigger Article 51.

If Ruys is right — and he has examined state practice and opinio juris far more carefully than any other scholar writing on the use of force — the attack on the US embassy in Benghazi almost certainly was, in fact, an “armed attack” for purposes of Art. 51.

What, then, about the fourth question? Here is where the US claim of self-defence regarding the Abu Khattallah operation becomes problematic. The US clearly cannot use the original Benghazi armed attack to justify the operation — although a state’s response to an armed attack may not have to be immediate, the prohibition on armed force in Art. 2(4) of the UN Charter would be meaningless if a state could “pocket” an armed attack and respond to it with armed force much later — nearly two years later, in the case of Benghazi. Indeed, Power seems to acknowledge as much when she emphasises that Abu Khattallah was planning further armed attacks. Does that planning mean the capture operation was a legitimate act of self-defence by the US?

Answering that question, of course, requires us to address the temporal limits of self-defence under Art. 51. Three basic positions on that issue are possible:

  • Self-defence permits the use of force only in response to an armed attack; force cannot be used pre-emptively or preventively (“responsive self-defence”)
  • Self-defence permits the use of force to pre-empt an imminent armed attack but not to prevent a temporally more remote armed attack (“pre-emptive self-defence”)
  • Self-defence permits the use of force to prevent even a temporally remote armed attack (“preventive self-defence”)

Unfortunately, because of the US’s typical lack of transparency concerning its use of force, Power’s letter says nothing about the time-frame of the armed attacks Abu Khattallah was supposedly planning. (Nor does it provide any evidence of that planning, but that’s another question.) The time-frame doesn’t matter, however, if responsive self-defence is the correct position – as noted, the capture operation cannot be justified as a response to the original Benghazi attack.

Most readers — at least those in the West — will no doubt be inclined to reject responsive self-defence as too narrow, even though it is the only position consistent with the text of Article 51, which permits self-defence “if an armed attack occurs.” Surely customary international law does not require a state to wait until an armed attack has already taken place to defend itself, no matter what the UN Charter says.

This issue is much more difficult issue than it may appear. Those interested should read the relevant section of Ruys’ book; I’ll just quote his bottom line (pp. 341-42):

In light of the available evidence, it can be concluded that there has indeed been a shift in States’ opinio iuris insofar as support for pre-emptive self-defence, fairly rare and muted prior to 2001, has become more widespread and explicit in recent years. At the same time, it seems a bridge too far to claim that there exists today widespread acceptance of the legality of self-defence against so-called “imminent” threats. Such assertion tends to forego the opposition of a considerable group of mainly Latin-American, north-African and Asian States. In the present author’s view, it would therefore be more appropriate to argue that the crack in opinio iuris among States has widened, without, however, identifying one approach or the other as the majority view. The implication is that, taking account of the Charter “baseline” and the absence of a concrete precedent in State practice which convincingly demonstrates the international community’s support for some form of anticipatory self-defence, it is impossible to identify de lege lata a general right of pre- emptive – and a fortiori preventive – self-defence.

Ruys’ reference to the UN Charter’s “baseline” is important, because Art. 51′s adoption of responsive self-defence indicates that states who support a more relaxed concept of self-defence, such as the US, have the obligation to find sufficient state practice and opinio juris to establish a broader rule. And such state practice and opinio juris is simply lacking — unless, as is too often the case with custom, we simply ignore the views of the Global South.

Even if responsive self-defence is too narrow, however, that does not mean the Abu Khattallah operation was a legitimate act of self-defence. If the US had evidence that Abu Khattallah was about to launch another armed attack, it is reasonable to assume Powers would have said so in her letter. That she failed to do so thus seems to indicate — though is clearly not dispositive — that the US did not believe another armed attack was imminent when it launched the capture operation. Power’s letter may well indicate, therefore, that the US is promoting the broadest understanding of self-defence possible — preventive self-defence instead of pre-emptive self-defence. If so, as Ruys notes (pp. 336-38), the US is on shaky ground indeed:

[T]here can be no doubt that even among States adhering to the “counter-restrictionist” view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation “Iraqi Freedom” avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of “preventive self-defence.” Likewise, the French politique de defense unequivocally “rejects… the notion of preventive self-defence.”

What is more, even the “traditional” adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to “In Larger Freedom” was rather cautious: it simply “[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack.” Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence “in the event of both actual and imminent attacks.” As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: “It is… the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote.”…

[W]e may therefore conclude that the trend in State practice has been broadly similar to that in legal doctrine: support for anticipatory self-defence has increased, but has by and large restricted this concept to imminent threats.

Again, in the absence of additional information, we cannot categorically reject the US’s insistence that the Abu Khattallah operation was a legitimate act of self-defence. But there is considerable reason to be skeptical. Indeed, the US’s lack of transparency concerning its understanding of Art. 51 of the UN Charter may well indicate it has adopted a position that even its closest allies formally disavow.

Bensouda Accuses UNAMID of Covering Up Sudanese Crimes

by Kevin Jon Heller

I’m not sure how I missed this, but these are very strong — and atypically blunt — allegations by Fatou Bensouda:

The International Criminal Court (ICC) prosecutor Fatou Bensouda urged the United Nations Security Council (UNSC) to investigate reports that the UN peacekeeping force in Darfur (UNAMID) deliberately contributed in covering up crimes in the restive region.

In reference to US-based Foreign Policy (FP) magazine reports, Bensouda asked the council to authorize a “thorough, independent and public inquiry” probe into allegations that UNAMID being subject to “manipulation” through acts committed “with the intentional effect of covering up crimes committed against civilians and peacekeepers”.

FP obtained confidential internal UN memos from UNAMID ex-spokesperson Aicha ElBasri that asserts how the UN peacekeeping force suppressed negative information on violations that occurred in Darfur by Sudanese government and other parties.

The ICC prosecutor said that the responsibility for the “cover-up” may lie “with a handful of individuals” but warned that it undermines the credibility of the peacekeeping mission.

Africa Review adds some additional detail to ElBasri’s disturbing allegations:

Last April, former Unamid spokeswoman Aicha Elbasri, revealed that the unit had misinformed the UN by withholding important details about Darfur.

Unamid has observed the government forces indiscriminately bombing entire villages, targeting civilian and military targets alike. However, these observations are never publically reported in the regular updates by the UN Secretary General to the UNSC,” Ms Elbasri claimed.

She reported that the UN peacekeeping mission did not tell the world that the Khartoum government failed to disarm the Janjaweed militias; that it, conversely, reintegrated them into paramilitary forces under new names, and let them continue committing their widespread, systematic attacks directed against the civilian population in Darfur.

The UNAMID situation obviously requires a UN investigation, so it’s encouraging to see that Bensouda request was quickly supported by both Australia and Rwanda. The UK’s statement, however, is disappointingly tentative, suggesting that the Secretariat — and not the Security Council — should investigate. Given the seriousness of the allegations, that’s simply not good enough.

Charles Taylor Requests Transfer to Rwanda

by Kevin Jon Heller

Full disclosure: Taylor is represented by John Jones QC, who is my colleague at Doughty Street Chambers.

Charles Taylor has filed a disturbing motion with the Special Court for Sierra Leone’s Residual Mechanism, requesting that he be transferred from prison in the UK to a prison in Rwanda because of his mistreatment by the British government. Here are the key paragraphs from the motion’s introduction:

Charles Taylor is the first and only person sent by an international court to serve their sentence, against their wish, outside of their continent of origin. This previously invariable practice accords with a basic requirement of humane treatment: that prisoners should be able to receive periodic visits from their families. International human rights standards, including as recently affirmed by the European Court of Human Rights (“ECtHR”) in Khodorkovskiy, prohibit sending a prisoner unnecessarily for away from the habitual residence of family members, or otherwise creating obstacles that prevent periodic visits.

That is precisely the consequence of Mr. Taylor’s detention in the United Kingdom (“UK”). The extraordinary cost and difficulty of travel for Liberian citizens to the UK, given the financial circumstances of Mr. Taylor’s family, means that Mr. Taylor will seldom, if ever, see his wife and three young daughters, let alone the rest of his family, again. That deprivation will continue, given the length of Mr. Taylor’s sentence, for the remainder of his life unless significant measures are taken to facilitate those visits. The UK has, to the contrary, obstructed such visits. Visa requests by Mr. Taylor’s wife and two of his young daughters have been denied even though the UK was well aware of the purpose of the requested visit. Mr. Taylor has not seen his wife and children since being transferred to the UK eight months ago. This already constitutes a human rights violation: the ECtHR has specifically held that even shorter periods of deprivation of family contact constitute a violation of the right to family life.

Even if these legal impediments were to be surmounted, neither the UK nor the RSCSL has demonstrated any willingness to overcome the inherent difficulties and cost of travel to the UK so as to permit family visits of even a minimally acceptable frequency. The United Kingdom and the RSCSL are jointly and severally responsible for the violation of not only Mr. Taylor’s right to family life, but that of his family members. An immediate remedy is required to put an end to this ongoing violation, and a remedy is readily available to the RSCSL: terminate his enforcement in the UK and transfer Mr. Taylor to Rwanda.

Mr. Taylor’s isolation is exacerbated by the conditions in which he is, and must be, held in the UK. Mr. Taylor has been confined to the prison’s hospital wing, effectively in isolation, since his arrival there. The prison authorities believe, correctly, that Mr. Taylor is too much of a target and too vulnerable to be accommodated within the general prison population. The seriousness of the danger is underscored by the interception of an anonymous letter, possibly originating from within the prison itself, threatening Mr. Taylor with bodily harm and death. Radislav Krstić, whose crimes were less notorious than those for which Mr. Taylor has been found responsible, suffered a near-fatal attack by fellow inmates in a UK prison in 2010. The ICTY was apparently sufficiently concerned about the UK’s ability to ensure adequate conditions of detention for Mr. Krstić that he was transferred back to The Hague. The RSCSL should be equally concerned about the real threat faced by Mr. Taylor, and the unsuitability of a UK prison to ensure that he is kept in a situation that meets the minimum standards required by international law.

The RSCSL should accordingly exercise its authority pursuant to Article 9(2) of the Enforcement of Sentences Agreement between the Court and the UK on 10 July 2007 (“SCSL-UK Enforcement Agreement”) and immediately terminate the enforcement of Mr. Taylor’s sentence, and order that he be transferred directly to Rwanda or, in the alternative, to The Hague pending further deliberations. Rwanda is a location that will permit reasonably frequent family visits and provide Mr. Taylor with a safe environment without being segregated from all other prisoners.

The motion’s allegations, which are supported by hundreds of pages of annexes, are profoundly unsettling. I’d like to say I’m surprised that I haven’t heard more about Taylor’s situation, but I’m not: the media generally pay attention only to individuals accused of international crimes, producing article after article about the allegedly cushy conditions in the UN Detention Unit — the so-called “Hague Hilton.” Once defendants are convicted, journalists seem to lose interest in them. I hope this new motion will spur more coverage of post-conviction detention, which is anything but cushy even in places as “advanced” as the UK — as Taylor’s situation demonstrates.

It will be interesting to see if the SCSL takes the motion seriously. It should.

New ILO Treaty on Forced Labor Victims

by Duncan Hollis

With all the talk of the End of Treaties and Treaty Survival, it’s worth noting that the wheels of multilateral treaty-making have not come to a complete stop.  Earlier today, the ILO adopted a Protocol to ILO Convention No. 29, the 1930 Forced Labour Convention.  On paper, the 1930 Convention was a success — it currently has 177 parties.  But it’s also considered outdated within the human rights community, which has emphasized the continuing and significant costs of forced labor in humanitarian and economic terms, necessitating new legal tools to limit or mitigate the effects of this horrible practice.

Some of the 2014 Protocol’s provisions are standard treaty fare on modern global problems — i.e., requiring “national” plans of action and domestic legislation on forced labor issues.  Other provisions reflect the need to update the 84 year old Convention itself (i.e., deleting provisions on forced labor in overseas “colonies”).  The heart of the treaty appears to be Article 4:

Article 4
1. Each Member shall ensure that all victims of forced or compulsory labour, irrespective of their presence or legal status in the national territory, have access to appropriate and effective remedies, such as compensation.

2. Each Member shall, in accordance with the basic principles of its legal system, take the necessary measures to ensure that competent authorities are entitled not to prosecute or impose penalties on victims of forced or compulsory labour for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to forced or compulsory labour.

I’d be interested in reactions from those who follow the ILO and forced labor subjects more closely. Is this Protocol significant in the ongoing efforts to deal with human trafficking and forced labor? How important is the expansion of the right to relief to include migrants who might otherwise be labeled “illegal” via their immigration status?  And is the “entitlement not to prosecute” that significant a requirement?  It presumably still gives State authorities the ability to prosecute forced labor victims engaged in ‘unlawful’ behavior like sex work or drug offenses even if they were coerced into doing so. Thus, it seems more like an aspirational goal than a provision that will mandate changes in State behavior. Comments most welcome.

How Does a Hybrid Tribunal for Iraq and Afghanistan Sound?

by Kevin Jon Heller

Colum Lynch reports today at FP.com that the United States is pushing for the creation of a hybrid international criminal tribunal for Syria by… the UN General Assembly:

[P]eople familiar with the matter say that the United States is already engaged in informal discussions with foreign governments over a plan to seek a mandate from the U.N. General Assembly to establish such a court, which would be comprised of Syrian, regional, and international judges, lawyers, and prosecutors. The two likeliest homes for the tribunal are Jordan and Turkey, these people said.

The plan currently under consideration is for the U.N. General Assembly to adopt a resolution inviting one of Syria’s neighbors, probably Jordan or Turkey, to work with the U.N. Secretary General to establish a so-called hybrid court, comprised of local, international, and Syrian prosecutors and judges. The court would be funded by voluntary contributions from governments that support the effort.

Lynch notes that a hybrid tribunal for Syria would be a first for the UNGA, because — unlike the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia — it would need to be created without the consent of the territorial state. (Syria would obviously never consent to such a court.)

In a recent post, Derek Jinks questions whether the UNGA has the authority to create a hybrid tribunal without Syria’s consent. I find his analysis compelling. But here is what I want to know: does the US really want to lead the charge for such a nonconsensual hybrid tribunal? After all, what’s sauce for the goose is sauce for the gander: if the US endorses the UNGA creating a nonconsensual hybrid tribunal for Syria, it will hardly be able to complain if the UNGA later creates, say — just spitballing here — a nonconsensual hybrid tribunal to deal with crimes committed in Iraq and Afghanistan. Either states need to consent to international criminal tribunals or they don’t. So does the US really want to give its blessing to what is an obvious attempt to circumvent P-5′s stranglehold over the Security Council?

Inquiring minds want to know…

Guest Post: Cullis on Iran Sanctions

by Tyler Cullis

[Tyler Cullis is a Policy Associate at National Iranian American Council.]

Introduction

We’ll soon find out whether the decade-old nuclear dispute with Iran can be resolved diplomatically, as the parties return to Vienna next month to hammer out a comprehensive agreement. So far, negotiations have been deftly handled by both US and Iranian negotiators – the positive atmosphere, so critical to staving off domestic opposition, having been maintained over several months. But still, the most difficult issues remain on the table, including the number (and type) of centrifuges Iran will be permitted, the duration of a final agreement, and the timing of sanctions relief. Successfully concluding a nuclear deal will require compromise from both parties on each of these issues.

While much attention has zeroed in on Iran’s obligations under a final deal, few have discussed the specific modes by which the US will comply with its own commitments. This is troubling, especially insofar as the White House’s ability to provide Iran measurable sanctions relief, absent an affirmative act of Congress, is not assured. In fact, relieving the sanctions will involve difficult questions of law and policy that deserve far more extensive discussion than received at present. Below, I discuss a few of these issues, posing as they do hurdles perhaps as sizeable as Iran’s own centrifuges.

Treaty or Not to Treaty?

Soon after the Joint Plan of Action was inked in Geneva last November, questions arose as to the legal nature of the preliminary agreement: Was it binding as a matter of international law? If so, would it need to be submitted to the Senate (or, in Iran’s case, to the Majles) for approval?

Consensus, here and elsewhere, said no: the interim deal was left unsigned by the parties and had couched its commitments as “voluntary measures,” not mandatory ones. This, it was argued, signified that the P5+1 and Iran did not intend for the document to be either binding on the parties nor governed by international law. Drawbacks to this approach were obvious, but the upside was that each of the parties avoided the need for legislative approval at home (Iran, too, has constitutionally-mandated procedures to follow before an international agreement can be entered into and take domestic effect). Now that we are more than halfway through the interim period and both parties remain in full compliance with their “voluntary” obligations, the choice of informal agreement looks to have been the correct one.

Going forward, however, the central question will be whether the parties replicate this model in a final deal or instead cement a binding international agreement (i.e., a treaty). While the White House remains keen on insulating Congress as much as possible from playing spoiler and is thus unlikely to submit a final deal to the Senate for approval, there are several factors that ward against replicating the “soft law” nature of the Joint Plan of Action.

First, because the US will be required to offer more lasting sanctions relief than that provided under the Joint Plan of Action and, as of now, the President is limited in the kind of sanctions relief he can provide, Congress will be called upon to lift the sanctions at some point in this process. Whether to include Congress at the front- or back-end of a final deal remains a strategic question for the White House, but avoiding Congress altogether is no longer a plausible scenario. (Nor is more aggressive action from the White House likely. It is improbable that the White House will attempt to conclude a sole executive agreement with Iran that overrides contrary federal law and gives the President the authorities he needs to provide Iran the requisite sanctions relief. Such a step would prove a legal leap beyond that of Dames & Moore — the President not acting pursuant to Congressional authorization or acquiescence but rather in ways contrary to Congress’s clear direction.)

Second, unlike the interim deal, which was intended as both a confidence-building measure and a place-holder to allow the parties time to negotiate a final deal, the final agreement will be one where the obligations actually matter. (more…)

Ukraine Parliament to Amend Constitution Re: the Rome Statute

by Kevin Jon Heller

As I’ve noted before, Ukraine’s Constitutional Court has held that the Ukraine cannot ratify the Rome Statute because — in the words of the ICRC — “the administration of justice is the exclusive competence of the courts and… judicial functions cannot be delegated to other bodies or officials.” According to the Coalition for the International Criminal Court (on twitter), the Rada is now considering a bill that would amend Ukraine’s constitution to make ratification possible. The text of the bill is in Ukrainian; if anyone out there would like to provide a translation (the bill is short), I’d be most appreciative:

Проект
вноситься народним депутатом України
Ю. Б. Дерев’янком
та іншими народними депутатами України

ЗАКОН УКРАЇНИ
Про внесення змін до статті 124 Конституції України

Верховна Рада України постановляє:

1. Доповнити статтю 124 Конституції України (Відомості Верховної Ради України, 1996 р., № 30, ст. 141) частиною шостою такого змісту:

“Україна може визнати юрисдикцію Міжнародного кримінального суду на умовах, передбачених Римським статутом Міжнародного кримінального суду.”

2. Цей Закон набирає чинності з дня, наступного за днем його опублікування.

Голова Верховної Ради  О. ТУРЧИНОВ
України

I’m intrigued by the fact that Ukraine’s parliament believes it has to amend the constitution in order to ratify the Rome Statute, but is free to accept the ICC’s jurisdiction on an ad hoc basis. The decision of the Constitutional Court prohibits any delegation of Ukraine’s jurisdiction to an international tribunal — which would seem to include ad hoc delegations as well as permanent delegations. But I’m obviously not an expert on Ukrainian law!

The Security Council Won’t Even Go Dutch with the ICC on Syria

by Kevin Jon Heller

There are many reasons to be skeptical of the Security Council referring the situation in Syria to the ICC, not the least of which is that an ICC investigation is unlikely to accomplish anything given the ongoing conflict. (One that Assad is almost certainly going to win.) But just in case that’s not enough, take a gander at this provision in the draft referral:

[The Security Council] recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily and encourages States to make such contributions.

In other words, the UN just wants to refer the situation; it doesn’t want to pay for the ICC’s investigation. So much for Art. 115 of the Rome Statute, which provides that “[t]he expenses of the Court and the Assembly of States Parties… shall be provided by the following sources… Funds provided by the United Nations, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to referrals by the Security Council”…

I have previously urged the Prosecutor to refuse to open an investigation into the situation in Syria unless the Security Council is willing to fund it. The draft referral makes clear that the Security Council has no intention of doing so. In the unlikely event that the referral ever passes, I hope the Prosecutor will consider my suggestion.