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The New Iran Deal Doesn’t Look Legally Binding. Does it Matter?

by Duncan Hollis

A flurry of news today over the announcement that Iran has cut a deal with six major world powers — the Permanent 5 members of the UN Security Council — the US, Russia, China, France and the UK — plus Germany.  The text of the ‘Joint Plan of Action’ is also widely available (see here or here).

My first reaction on looking at this ‘deal’ is that it’s not legally binding under international law.  Look at how the Preamble begins:

The goal for these negotiations is to reach a mutually-agreed long-term comprehensive solution that would ensure Iran’s nuclear programme will be exclusively peaceful. Iran reaffirms that under no circumstances will Iran ever seek or develop any nuclear weapons….

The ‘goal’ implies something aspirational rather than required.  The big-ticket commitment that Iran won’t seek or develop nuclear weapons is also referenced as a ‘reaffirmation’ rather than an affirmative commitment via this text.

Similarly, the operative paragraphs maintain an emphasis on avoiding language of legal intent:

Elements of a first step

The first step would be time-bound, with a duration of 6 months, and renewable by mutual consent, during which all parties will work to maintain a constructive atmosphere for negotiations in good faith.

Iran would undertake the following voluntary measures:

  • From the existing uranium enriched to 20%, retain half as working stock of 20% oxide for fabrication of fuel for the TRR. Dilute the remaining 20% UF6 to no more than 5%. No reconversion line
  • Iran announces that it will not enrich uranium over 5% for the duration of the 6 months. . . . .

*********
In return, the E3/EU+3 would undertake the following voluntary measures:

  • Pause efforts to further reduce Iran’s crude oil sales, enabling Iran’s current customers to  purchase their current average amounts of crude oil. Enable the repatriation of an agreed amount of revenue held abroad. For such oil sales, suspend the EU and U.S. sanctions on associated insurance and transportation services.
  • Suspend U.S. and EU sanctions on:
    • Iran’s petrochemical exports, as well as sanctions on associated services.5
    • Gold and precious metals, as well as sanctions on associated services.
  • · Suspend U.S. sanctions on Iran’s auto industry, as well as sanctions on associated services . . .

(emphasis added)

Note the operative verb in these paragraphs is ‘would’ not ‘shall’ (which everyone would agree connotes an intention to be legally bound) or even ‘will’ (which the United States often uses to convey a legal intent even through the British and several other countries insist signals an agreement meant to have political, in lieu of legal, force).

To further emphasize the political and non-legally binding nature of this agreement, note the two sides emphasize that the measures listed are ‘voluntary’.  Moreover, the document is unsigned and lacks final clauses.  So, the bottom line for me . . . this isn’t binding under international law.  It’s a political commitment, not a legal one.

OK.  Say I’m right?  Why does it matter if this is not a treaty?  To be clear, there’s nothing entirely novel about concluding a major political document in a non-legal form — from the Atlantic Charter, to the Shanghai Communique to the Helsinki Accords, there are plenty of ‘big ticket’ precedents for doing major deals in legally non-binding texts.  Nor is it that political commitments are devoid of content — to be sure they can contain much that is aspirational or even puffery.  But, many political commitments can contain significant expectations of changes to future behavior and, at first glance, I’d say the Joint Plan of Action falls in the latter category.  The text is chock full of commitments both sides indicate they’ll be taking in the next six months on the path to a comprehensive settlement with respect to the future of Iran’s nuclear program.

That said, I think there are at least three significant implications of the choice of a non-treaty form for this deal.  First, I think it offers all sides flexibility – all seven parties are cloaking their expectations of what’s going to happen now behind terms that allow them to turn on a dime as necessary, either to back away from their ‘voluntary measures’ or to adjust them as all involved carefully monitor the other side’s performance.  Indeed, I expect that such flexibility was a key criterion for the sort of cooperation this deal envisages.  Second, by choosing a political deal rather than a legal one, I think the results are less credible than if they’d been done via a more august instrument like a treaty.  The treaty signals a level of commitment that just isn’t available with respect to an unsigned ‘joint plan’.   Now, maybe a major legal text wasn’t possible in the time frame all sides were working under, but I’d be surprised if any subsequent, final deal isn’t coached in a legal form given the greater credibility that accompanies those sorts of promises.

For the United States, though, I think the third, and most significant, implication of this deal taking a political form is the fact that the Obama Administration doesn’t have to get the Senate or the Congress as a whole to approve it.  Legally binding treaties and international agreements require the conclusion of specific domestic approval procedures.  The Constitution contemplates the Senate giving advice and consent by a 2/3rd majority to Treaties (and most arms control agreements are done as Treaties).  Modern practice meanwhile more regularly favors ‘congressional-executive’ agreements where Congress approves of the conclusion of the agreement before or after the deal is done.  In other cases, the President may invoke his sole executive powers to authorize the conclusion of a deal by himself.  But, when it comes to political commitments, there are no constitutional precedents requiring that Congress as a whole or the Senate authorize the commitment’s conclusion.  Now, together with Josh Newcomer, I’ve argued previously that this status quo is constitutionally problematic where political commitments can function in much the same way as treaties.  I fear political commitments may function as a loop-hole for the Executive to do deals that he could not do if he had to go to Congress or the Senate.  I’m not sure that this is such a case, but it’s certainly worth thinking about the consequences of having the United States pursue this major foreign policy shift where the U.S. legislature has so little say in the matter (at least until such time as any deal requires changes to U.S. law itself).

What do others think?  Am I right the Joint Plan of Action is not intended to be a treaty or an international agreement?  And do you agree that it was a means for the United States to conclude a deal without involving a Congress, at least some portion of which has been overtly hostile to any negotiations with Iran?

[Update: over at Lawfare, Ingrid Wuerth rightly calls me to task for my earlier title -- referencing a 'U.S.-Iran' deal when there are 7 States involved -- en route to discussing whether this text would've required congressional or Senate approval IF it was legally binding.  I've fixed the title accordingly and recommend readers check out Ingrid's post.]

A Note of Caution About the Bemba Arrests

by Kevin Jon Heller

The ICC has announced that four individuals associated with the Bemba case, including Bemba’s lead counsel and case manager, have been arrested on suspicion of witness tampering and manufacturing evidence:

On 23 and 24 November 2013, the authorities of the Netherlands, France, Belgium and the Democratic Republic of the Congo (DRC) acting pursuant to a warrant of arrest issued by Judge Cuno Tarfusser, the Single Judge of the Pre-Trial Chamber II of the International Criminal Court (ICC), arrested four persons suspected of offences against the administration of justice allegedly committed in connection with the case of The Prosecutor v. Jean-Pierre Bemba Gombo. This warrant of arrest in respect of the same charges was also served on Jean-Pierre Bemba at the ICC’s detention centre, where he has been detained since 3 July 2008.

On 20 November 2013, Judge Tarfusser issued a warrant of arrest for Jean-Pierre Bemba Gombo, his Lead Counsel Aimé Kilolo Musamba, Jean-Jacques Mangenda Kabongo (a member of Mr Bemba’s defence team and case manager), Fidèle Babala Wandu (a member of the DRC Parliament and Deputy Secretary General of the Mouvement pour la Libération du Congo), and Narcisse Arido (a Defence witness).

Judge Cuno Tarfusser found that there are reasonable grounds to believe that these persons are criminally responsible for the commission of offences against the administration of justice (article 70 of the Rome Statute) by corruptly influencing witnesses before the ICC and presenting evidence that they knew to be false or forged. The suspects, it is alleged, were part of a network for the purposes of presenting false or forged documents and bribing certain persons to give false testimony in the case against Mr Bemba.

Commentators are celebrating the arrests. Mark Kersten, for example, writes that they “will likely (and hopefully) have a significant impact on the conduct of counsel – both prosecution and defence – with respect to the treatment of evidence and witnesses during trial.”

If Bemba’s lead counsel and case manager are guilty of witness tampering and manufacturing evidence, they deserve to be punished. But I’ll say this: the OTP better be right. Because if they are not — and all four arrestees are, of course, presumed innocent — the Court has deprived Bemba of his right under Art. 55(2)(c) of the Rome Statute to have “legal assistance of his choosing” and crippled his defense in the middle of trial. Lead counsel plays a critical role on a defence team, and in many ways a case manager plays an even more important role. So I have no idea what happens now with Bemba’s trial — although I suspect the Court will pretend new lawyers can simply slide into the roles previously occupied by the arrested lawyers, perhaps adjourning the trial for a month or so to give the new lawyers time to “get up to speed.”

Just curious: are the commentators celebrating the arrests willing to go on record and say that, if Bemba’s lawyers are acquitted, Bemba is entitled to a new trial when he is convicted?

Why Is the New Agreement Between P5+1 and Iran Not Void?

by Kevin Jon Heller

A few days ago, in response to reports of an imminent deal between P5+1 and Iran concerning Iran’s uranium enrichment, Tyler Cullis and Ryan Goodman debated whether Iran has a “right” to develop nuclear power for civilian purposes. Tyler argued that Iran does, citing (inter alia) Art. IV of the Treaty on Non-Proliferation of Nuclear Weapons (NPT):

Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with articles I and II of this Treaty.

Ryan disagreed, arguing that any such “right” in the NPT has been superceded by a series of Security Council resolutions — beginning with Res. 1696 in 2006 — demanding that Iran cease its enrichment activities. In defense of his position, Ryan cited a number of eminent non-proliferation scholars, such as Larry D. Johnson, a former Assistant-Secretary-General for Legal Affairs at the United Nations:

While Iran claims that it has a right to enrich uranium as part of its peaceful nuclear energy program, the IAEA Board of Governors found that there had been a history of concealment and failure to declare certain activities to the agency, and therefore reported the matter to the Security Council. The Council has decided that over and above its obligations under NPT and the safeguards agreement with the IAEA, Iran was required, under Chapter VII of the Charter, to suspend all proliferation-sensitive nuclear activities, including all enrichment-related and all reprocessing activities, as confidence-building measures.

I think Ryan are Johnson are right that the “inalienable right” guaranteed by Iran’s ratification of the NPT is nullified — at least for now — by the various Security Council resolutions. So here is my question: why is the just-announced agreement between P5+1 and Iran not void ab initio for the same reason? SC Res. 1737 categorically prohibits Iranian uranium enrichment (emphasis mine)…

Proposals for RPE 134 — and an Unsuccessful Defence of Trial By Skype

by Kevin Jon Heller

A couple of days ago, I blogged about proposals that will soon be debated at the ICC’s Assembly of States Parties (ASP) to excuse Kenyatta and Ruto from having to be physically present at trial. Colum Lynch has kindly posted the text of the two proposals, both of which would amend Rule 134 of the Rules of Procedure and Evidence (RPE). Here is the first one — which the Chair’s Compilation document does not attribute to a particular delegation, but is almost certainly Kenya’s:

4.      Notwithstanding paragraphs 1 to 3 above, if the accused is a sitting Head of State or Government, or a person entitled to act in such capacity, has prior to the commencement of the trial submitted to the jurisdiction of the Court (discussed alternative: “who is subject to a summons to appear”), appearance by such person throughout the trial may, if he or she so wishes, be by counsel, provided a notice in writing has been filed with the Court stating that the accused has explicitly waived his or her right to be present at the trial and the trial chamber is satisfied that the rights of the accused will be fully ensured in his or her absence.

There are two problems with this proposal. The primary one is that, as I explained in my previous post, it is inconsistent with Art. 63(1) of the Rome Statute, which requires the accused to be physically present at trial. Art. 51(4) of the Rome Statue provides that “[t]he Rules of Procedure and Evidence, amendments thereto, and any provisional Rule shall be consistent with this Statute,” while Art. 51(5) provides that “[i]n the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.” Permitting the accused to be “present” at trial through his counsel, therefore, requires amending Art. 63(1), not Rule 134.

The other problem with the proposal is that it does not even purport to generally redefine the meaning of presence in Art. 63(1). Even if presence could be redefined through the RPE, there would be no justification for excusing only sitting heads of state from physical presence at trial. There is thus little doubt that the proposal is nothing more than an instrumental attempt by Kenya to get around Art. 63(1).

The second proposed amendment to Rule 134 is more interesting…

LJIL Symposium: A Response to Professor Eeckhout and Professor de Wet

by Devika Hovell

[Devika Hovell is a Lecturer at the London School of Economics]

Academics should be in the business of proposing new ideas, though it is only through close scrutiny that deep truths can be winnowed from deep nonsense. I am very grateful to the LJIL and Opinio Juris blog editors for providing the opportunity for closer scrutiny of the ideas in my article, ‘A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-making’. I am particularly grateful to Professor Eeckhout and Professor de Wet for their generous and insightful engagement with these ideas. I respond to their comments below.

The main idea motivating the article is that it may be necessary to re-conceptualize the judicial function of domestic and regional courts when courts engage in the review of decision-making by international institutions such as the Security Council. Never has this been more evident than in the wake of the decision by the European Court of Justice in Kadi II where the Grand Chamber assumed the power to engage in the ‘full review’ of sanctions listings by the Security Council Sanctions Committee, including a determination as to whether the reasons for sanctions listings by the Council were well founded in fact. I argue that the assumption of such authority by courts to review decisions sourced in international institutions could be regarded as a move as revolutionary as Marbury v Madison and equivalent kairotic moments across domestic jurisdictions. It is not a move that should be made without significant thought being given to the legitimizing foundations of judicial authority in this context. When domestic and regional courts engage in such review, they cannot ignore the broader system in which they operate and the powers and limitations of the domestic judiciary as defined within that broader system. In particular, I argue that two traditional features of the domestic judicial function, namely (1) the notion of bindingness (restricting courts to the application of existing binding law) and (2) the use of hierarchy (as a description of the relationship between judicial and political organs as in judicial supremacy or parliamentary sovereignty) can prove problematic when applied to the review of international decision-making. I argue for a reconceptualization of the judicial function in these circumstances: in brief, domestic courts should recognize that they have enhanced power in this context stretching beyond law enforcement to law-making, though more limited authority in the sense that the persuasive value of their decisions is more important than their binding nature. Domestic courts engaging in review of Security Council decision-making play a valuable role, but their role is not the traditional one of acting as ‘transmission belts’ for domestic law. Instead, domestic courts act as ‘junior partners’ in a broader collaborative enterprise to determine legal principles applicable to international decision-makers.
(more…)

LJIL Symposium: A Comment on Devika Hovell’s “A Dialogue Model: The Role of the Domestic Judge in Security Council Decision-Making”

by Erika de Wet

[Erika de Wet is Co-Director of the Institute for International and Comparative Law in Africa and Professor of International Law, University of Pretoria, as well as Professor of International Constitutional Law, Universiteit van Amsterdam.]

The article has a refreshing perspective on the relationship between courts and the UNSC in a decentralized international legal order. Devika aptly notes ‘that the reliance by (domestic) courts on a public law model of the judicial function has served to distort and fragment applicable international law’ [p 580]. She tries to find middle ground and an appropriate place for the judicial function through what she refers to as the ‘dialogue model’ [p 590]. In accordance with this model, domestic courts can either (i) invalidate UNSC resolutions, (ii) interpret them in a human rights friendly way (iii) declare resolutions incompatible with human rights, or (iv) abstain from review [p 594]. She favors option (ii) and submits that the ECtHR’s Nada-decision in 2012 is ‘the best example to date of a court acting to harmonize conflicting obligations through interpretation rather than invalidation of Security Council resolutions’.

My current response tests this assertion and is based on a more extensive appraisal of the Kadi and Nada decisions entitled: ‘From Kadi to Nada: judicial techniques favoring human rights over United Nations Security Council sanctions’. The response concludes that while a human rights friendly interpretation indeed has the potential of being less fragmentary it also has its limitations in this regard. At the outset, it needs to be pointed out that no court or other governmental organ can ‘invalidate’ UNSC decisions. All that a domestic state organ (or regional organ in the case of the EU) can do is to invalidate the implementing measures, as a result of which UNSC measures will not apply (in an unqualified manner) within a specific jurisdiction. The measures themselves remain binding on the international level until such a time as the UNSC chooses to amend or withdraw them. In such a situation one is left with a ‘limping decision’.

Furthermore, the most influential decisions in which the implementing measures of UNSC decisions were at issue generated from regional courts and not domestic courts, namely the ECJ and the ECtHR. Whereas the former’s approach in the Kadi decisions to the conflict between the right to judicial protection and obligations resulting from UNSC decisions are comparable to that of a domestic and dualistically inclined court, the ECtHR in the Nada case attempted to find a solution through harmonious interpretation of conflicting obligations under international law.

While Devika refers to the technique of human rights friendly interpretation as ‘judicial dialogue’, I prefer to describe it as the technique of systemic integration. (more…)

LJIL Symposium: Dialogue Without Hierarchy?

by Piet Eeckhout

[Piet Eeckhout is a Professor at University College London and a leading authority in EU Law and international economic law. He notes that he has been involved in the Kadi litigation on the side of Sheikh Kadi.]

Devika Hovell’s paper is an excellent attempt at conceptualising the relationship between the domestic judge and the UN Security Council (UNSC).  That relationship has come about as a consequence of the UNSC’s smart sanctions policies, which intrude in the daily lives of those which are subject to them.  Most of the significant case law is in the sphere of counter-terrorism, but the policies are wider, and also target regime members.

The attraction of Hovell’s dialogue model is that it tries to plod a much-needed middle course – or to find a sweet spot – in a triangle of three unsatisfactory options: (a) the domestic judge declines to review UNSC Resolutions or their implementation; (b) the judge reviews domestic implementation, thereby jeopardising the implementation of the resolutions; or (c) the judge arrogates to herself the power to review the resolutions under international law.  The sweet spot consists of rejecting bindingness and hierarchy, which are features of a public-law model, to the benefit of a dialogue model which urges domestic courts to employ tools of consistent interpretation and of declaration.  At most, UNSC resolutions ought to be interpreted consistently with human-rights norms, and where that is impossible the judge should do no more than issue a declaration of incompatibility, to allow the UNSC to react and adapt.

The paper is perceptive and clear, and a major contribution to the literature.  A dialogue is of course needed, and its merits are undisputable.  To craft a dialogue model, however, is less straightforward.  (more…)

Can the ASP Permit Trial by Skype?

by Kevin Jon Heller

As Mark Kersten discusses today at Justice in Conflict, one of the reasons the Security Council rejected Kenya’s request to defer the Kenyatta and Ruto prosecutions is that it believes the issue of their presence at trial is better addressed by the Assembly of States Parties. Here is how Mark summarizes what could happen at the ASP:

At this year’s ASP, Kenya is hoping to see a number of amendments to the Rome Statute adopted. Chief among them is a change to provisions pertaining to whether an accused (and especially a Head of State) is required to be continuously present and his/her trial in The Hague. The problem for Kenya, however, is that even if a sufficient number of ICC states parties agreed to amend the Rome Statute, those changes would only come into effect after one year. Kenyatta’s trial is due to begin in early February, less than three months from now.

Consequently, Kenya will also seek amendments to Rule 134 of the ICC’s Rules of Procedure and Evidence. In particular, the ASP will examine proposed amendments to sections pertaining to the ‘presence’ of defendants during their trial. In plain language, proposals will be made to amend this rule in order to: 1) allow a defendant to be ‘present’ during trial via “video technology” and 2) allow a defendant to be personally excused at trial but be ‘present’ during trial via his/her counsel. There is every indication that other member-states, as well as the Obama administration, are inclined to support these amendments. Crucially, and unlike the proposed changes to the Rome Statute itself, if these amendments are passed by a two-thirds majority of states parties at the ASP, they would take effect immediately. An ICC trial by Skype is emerging as a real possibility.

Mark argues that “The ASP faces two key hurdles: first, any amendments have to be consistent with the Rome Statute and, second, any amendment will have to jive with previous Appeal Chamber decisions.” I don’t think the second issue is particularly important: if the ASP amends the Rome Statute or the RPE, that amendment would presumably trump any judicial interpretation of the provision’s previous incarnation.

The first issue, however, is critical — and I don’t see how the ASP can get around the amendment provisions in the Rome Statute by amending RPE 134 instead of Art. 63(1) itself. Rule 134 says nothing about the defendant’s presence at trial; it simply establishes the procedures governing motions relating to trial proceedings. More importantly, as Mark notes, the RPE are subordinate to the Rome Statute — and Art. 63(1) specifically provides that “[t]he defendant shall be present at trial.” There is no question that “presence” in Art. 63(1) refers to physical presence; after all, Art. 63(2) provides that “[i]f the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber may remove the accused.” Presence also means physical presence throughout the RPE, as indicated by, inter alia, Rules 122, 123, and 124 (concerning the defendant’s presence at the confirmation hearing.)

Given the clear meaning of Art. 63(1), I don’t think the ASP can excuse Kenyatta and Ruto from being physically present at trial by redefining presence in the RPE. Indeed, I think it would be disingenuous for the ASP to try. The problem, of course, is that amending Art. 63(1) would not help Kenyatta and Ruto; as Mark notes, unlike amendments to the RPE, amendments to the Rome Statute do not immediately take effect. In fact, Mark significantly understates how long it would take for an amendment to Art. 63(1) to be activated: pursuant to Art. 121(4), non-substantive amendments come into force one year after 7/8 of States Parties have accepted the amendment, not one year after the amendment is approved by the ASP. That could take years.

We’ll see what the ASP does. Colour me skeptical, though, that the Security Council made a wise decision by punting the presence issue to the ASP.

Why It’s Not Surprising Syria Is Destroying Its Chemical Weapons

by Kevin Jon Heller

A couple of weeks ago, Mother Jones blogger Kevin Drum said he was surprised that Syria has, by all accounts, voluntarily given up its chemical-weapons capability:

I don’t really have any comment about this, except to express a bit of puzzlement. As near as I can tell, Bashar al-Assad is really and truly sincere about destroying his chemical weapons stocks.1 But why? I very much doubt it’s because he fears retaliation from the United States. And given his past behavior, it’s hardly likely that it’s driven by feelings of moral revulsion.

So what’s his motivation? For reasons of his own, he must have decided that he was better off without chemical weapons than with them. Perhaps it has to do with the internal political situation in Syria. Or maybe Russia got fed up for some reason. But it’s a bit of a mystery, and not one that I’ve seen any plausible explanations for.

I don’t think it’s a mystery at all. Here is the explanation:

Forces loyal to Syrian President Bashar Assad have firmly seized the momentum in the country’s civil war in recent weeks, capturing one rebel stronghold after another and triumphantly planting the two-starred Syrian government flag amid shattered buildings and rubble-strewn streets.

Despite global outrage over the use of chemical weapons, Assad’s government is successfully exploiting divisions among the opposition, dwindling foreign help for the rebel cause and significant local support, all linked to the same thing: discomfort with the Islamic extremists who have become a major part of the rebellion.

The battlefield gains would strengthen the government’s hand in peace talks sought by the world community.

Both the Syrian government and the opposition have said they are ready to attend a proposed peace conference in Geneva that the U.S. and Russia are trying to convene, although it remains unclear whether the meeting will indeed take place. The Western-backed opposition in exile, which has little support among rebel fighters inside Syria and even less control over them, has set several conditions for its participation, chief among them that Assad must not be part of a transitional government — a notion Damascus has roundly rejected.

“President Bashar Assad will be heading any transitional stage in Syria, like it or not,” Omar Ossi, a member of Syria’s parliament, told The Associated Press.

The government’s recent gains on the outskirts of the capital, Damascus, and in the north outside the country’s largest city, Aleppo, have reinforced Assad’s position. And the more the government advances, the easier it is to dismiss the weak and fractious opposition’s demands.

As I have pointed out before, the US’s obsession with chemical weapons was manna from heaven for Assad. There is still no hard evidence that Assad personally ordered the Syrian military to use chemical weapons, and it would have been suicide for anyone associated with the Syrian government to risk US military intervention by using them again. Assad thus essentially traded his strategically useless chemical-weapons capability for the right to wage a ruthless counter-insurgency with impunity. That trade has obviously worked — there is almost no chance at this point that the rebels will overthrow Assad’s government, and it is equally unlikely that Assad will ever step down as part of some kind of negotiated peace agreement. Why would he? He is winning the war, and the West has essentially lost interest in the mass atrocities he has committed, and continues to commit, against innocent Syrian civilians. Indeed, the Syrian military is now routinely using incendiary weapons to kill civilians, yet the West remains silent.

But at least Assad no longer has chemical weapons. Success, right?

New Book: Hidden Histories of War Crimes Trials (Updated)

by Kevin Jon Heller

9780199671144_140I am delighted to announce the publication of a new book that I co-edited with my colleague and dear friend Gerry Simpson, The Hidden Histories of War Crimes Trials. As the title indicates, the book contains a number of essays that discuss little-known trials (such as the Franco-Siamese Mixed Court)  or re-narrate better known but misunderstood trials (such as the trial of Peter von Hagenbach). Here is the table of contents:

 

1: Gerry Simpson: Introduction

Part 1: Pre-Histories: From Von Hagenbach to The Armenian Genocide
2: Gregory S. Gordon: The trial of Peter von Hagenbach: Reconciling history, historiography, and international criminal law
3: Benjamin Brockman-Hawe: A supranational criminal tribunal for the colonial era: the Franco-Siamese Mixed Court
4: Jennifer Balint: The Ottoman state special military tribunal for the Genocide of the Armenians: ‘Doing government business’

Part 2: European Histories I: Prosecuting Atrocity
5: Rosa Ana Alija-Fernández: Justice for no-land’s men? United States military trials against Spanish Kapos in Mauthausen and universal jurisdiction
6: Dov Jacobs: A narrative of justice and the (re)writing of history: French trials after World War II
7: Frédéric Mégret: The Bordeaux Trial: Prosecuting the Oradour-sur-Glane massacre

Part 3: European Histories II: Americans in Europe
8: Grietje Baars: Capitalism’s victor’s justice? Prosecution of industrialists post WWII
9: Stephen Vladeck: Eisentrager’s (Forgotten) Merits: Military commissions and collateral review

Part 4: European Histories III: Contemporary Trials
10: Benedetta Faedi Duramy: Making peace with the past: Federal Republic of Germany’s accountability for World War II massacres before the Italian Supreme Court
11: Tamás Hoffman: Trying communism through international criminal law? The experiences of the Hungarian historical justice trials
12: Rain Liivoja: Competing histories: Soviet war crimes in the Baltic States
13: Julia Selman-Ayetey: Universal jurisdiction: Conflict and contoversy in Norway

Part 5: African Histories
14: Jackson Maogoto: Reading the shadows of history: The bridges between Turkish and Ethiopian ‘internationalised’ domestic crime trials
15: Firew Kebede Tiba: Mass trials and modes of responsibility for international crimes: Ethiopia

Part 6: Southern Histories
16: Georgina Fitzpatrick: War crimes trials, victor’s justice, and Australian military justice in the aftermath of the second world war
17: Narrelle Morris: Justice for ‘Asian’ victims: Australian war crimes trials of the Japanese 1945-51
18: Peter Rush: Dirty War crimes: Jurisdictions of memory and international criminal law

Part 7: Histories of a Type: Excavating the Crime of Aggression
21: Roger Clark: The crime of aggression: From the trial of Takashi Sakai in August 1946 to the Kampala Review Conference in 2010
22: Mark Drumbl: ‘Germans are the lords and Poles are the servants’: The trial of Arthur Greiser in Poland, 1946
23: Immi Tallgren: The Finnish war-responsibility trial in 1945-56: Flawed justice, anxious peace?

You can purchase a hard copy of the book at the OUP website here. You can also — as part of an experimental OUP initiative — download a complete PDF of the book for free at either www.oup.com/uk or www.oapen.org. If you cannot afford the £70.00, by all means download the PDF.

UPDATE: The free open-access version of the book is now available on the webpage linked to above.

Autonomous Weapons and a Campaign for a Treaty Ban

by Kenneth Anderson

The debate over autonomous weapons is not so visible in the United States, but the ban campaign launched by Human Rights Watch a year ago – an international NGO coalition called the “Campaign to Stop Killer Robots” – has been quite active in Europe and at the UN, where a number of countries raised the issue in their statements to the General Assembly’s First Committee (disarmament issues).  Matthew Waxman and I have been writing about this issue for several years; we have a short policy paper on the topic available at SSRN, “Law and Ethics for Autonomous Weapon Systems,” and we’re pleased to note our op-ed in the Wall Street Journal on Monday (November 4), “Killer Robots and Laws of War.”  We argue against a ban, on a number of grounds (it can be found open access at RealClearPolitics, here).  Here are a couple of grafs from midway through the piece (later on I’ll add links to the ban campaign and some other resources; must go teach class!):

[A] ban is unlikely to work, especially in constraining states or actors most inclined to abuse these weapons. Those actors will not respect such an agreement, and the technological elements of highly automated weapons will proliferate.  Moreover, because the automation of weapons will happen gradually, it would be nearly impossible to design or enforce such a ban. Because the same system might be operable with or without effective human control or oversight, the line between legal weapons and illegal autonomous ones will not be clear-cut.

If the goal is to reduce suffering and protect human lives, a ban could prove counterproductive. In addition to the self-protective advantages to military forces that use them, autonomous machines may reduce risks to civilians by improving the precision of targeting decisions and better controlling decisions to fire. We know that humans are limited in their capacity to make sound decisions on the battlefield: Anger, panic, fatigue all contribute to mistakes or violations of rules. Autonomous weapons systems have the potential to address these human shortcomings. No one can say with certainty how much automated capabilities might gradually reduce the harm of warfare, but it would be wrong not to pursue such gains, and it would be especially pernicious to ban research into such technologies.

That said, autonomous weapons warrant careful regulation. Each step toward automation needs to be reviewed carefully to ensure that the weapon complies with the laws of war in its design and permissible uses. Drawing on long-standing international legal rules requiring that weapons be capable of being used in a discriminating manner that limits collateral damage, the U.S. should set very high standards for assessing legally and ethically any research and development programs in this area. Standards should also be set for how these systems are to be used and in what combat environments.

Is David Miranda a Terrorist? Legally, It’s Close — Which Is Precisely the Problem

by Kevin Jon Heller

In my previous post, I mocked Scotland Yard’s assertion that David Miranda, Glenn Greenwald’s partner, committed an act of terrorism by transporting documents stolen from the US government by Edward Snowden. Mockery remains the appropriate response, given the vast chasm that separates Miranda’s actions from any defensible conception of terrorism — such as the one I quoted from UN General Assembly Resolution 49/60, “[c]riminal acts intended or calculated to provoke a state of terror in the general public, a group of persons, or particular persons for political purposes.” Yet it is important to avoid focusing solely on Scotland Yard’s abuse of its power, because the real problem lies not with those who apply the law — whose good faith we should never assume — but with the law itself. Simply put, the UK’s Terrorism Act 2000 is so overbroad that, in fact, Miranda’s actions come perilously close to qualifying as terrorism under it. Here is the Act’s definition of terrorism:

1.—(1) In this Act “terrorism” means the use or threat of action
where—
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to
intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political,
religious or ideological cause.

(2) Action falls within this subsection if it—
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person
committing the action,
(d) creates a serious risk to the health or safety of the public or a
section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an
electronic system.

Let’s examine each of these elements. First, is transporting Snowden documents “to influence the government or to intimidate the public or a section of the public”? Not to intimidate, surely. But transporting the documents is designed to facilitate their release, and the release of the documents is indeed “designed to influence the government” — namely, to convince Britain to abandon its mass surveillance of its citizens and the citizens of other European countries. That is a noble design, but it is a design nonetheless. And the Terrorism Act 2000 does not limit terrorism to acts that seek to influence the government to adopt bad policies. That’s one of its problems.

Second, is transporting Snowden documents done “for the purpose of advancing a political,
religious or ideological cause”? Yes, of course it is — releasing the documents is designed to promote greater transparency in government and to minimize unwarranted interference with people’s privacy. That is a noble political or ideological cause, but it is still a political or ideological cause. And once again, nothing in the Act says that actions in the service of a noble political or ideological cause cannot qualify as terrorism. That’s another problem.

Third, and finally, does transporting Snowden documents “fall within subsection (2)”? It clearly does not involve “serious violence against a person” or “serious damage to property.” But the other three categories of harm are a much closer call. I do not believe that releasing the Snowden documents endangers a person’s life, creates a serious risk to the safety of the public, or is designed to seriously disrupt an electronic system. But it is very easy to imagine an overzealous prosecutor arguing that their release would do any or all of those things — particularly the final one, because the surveillance abuses revealed by the documents are all the product of electronic systems. And given that UK courts have not exactly covered themselves with glory in the terrorism context, it is also all too easy to imagine a court buying that overzealous prosecutor’s argument.

That’s it. That’s all the Terrorism Act 2000 requires. It does not require a violent act. It does not require the intent to cause terror. It does not exclude peaceful acts designed to promote progressive policy change. It does not exclude pacifist or humanist causes. It simply requires the accused commit an act that is designed to influence the government for political or ideological reasons and that directly or indirectly endangers a person, the public, or a computer system.

To be clear: I do not think that David Miranda’s actions qualify as terrorism — even under the woefully overbroad Terrorism Act 2000. In particular, I think the mere act of transporting documents is too causally removed from endangering a person, the public, or a computer system to satisfy subsection (2) of the Act. But Miranda’s actions are far too close for comfort, given the Act’s definition of terrorism — and the actions of a person who actually releases Snowden documents, such as my friend Glenn Greenwald himself, are closer still. Indeed, I find it all too easy to imagine Glenn or one of his former colleagues at the Guardian being successfully prosecuted for terrorism under the Act.

And that, ultimately, is my point. It is a serious problem that Scotland Yard believes Miranda is a terrorist. But the more significant problem is that, viewed solely in terms of the law, its position is anything but absurd. Under the indefensible Terrorism Act 2000, many actions qualify as terrorism that are not, in fact, even remotely terrorist. Perhaps even Miranda’s.