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UN and other Int’l Organizations

Should the U.S. Even Bother to Invoke Article V of the North Atlantic Treaty After Paris?

by Julian Ku

Ilya Somin of the Volokh Conspiracy has suggested that if NATO invokes Article V’s collective self-defense language against ISIS as a result of the terrible Paris attacks over the weekend, President Obama’s ongoing use of military force against ISIS could be “legalized” as a matter of U.S. constitutional law.  Here is Ilya:

Article 5 provides a much stronger justification for the war against ISIS than the previous extremely dubious rationalizations presented by the Obama administration. But it cannot retroactively legalize the President’s previous illegal actions, or the similarly unconstitutional war against Libya in 2011.

I agree with Ilya that the Obama Administration’s current domestic legal justification for the war against the Islamic State is sketchy at best.  But I am not sure I agree with him that Article V should be read as a “pre-authorization” for the President to use military force without going back to Congress for a specific authorization.

Here is the full text of Article V:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security .

I agree that the horrible Paris attacks would constitute an “armed attack” on a member of NATO “in Europe or North America.”  But I don’t think Article V requires the other NATO members to provide military assistance.  Rather, “if such an armed attack occurs,” a NATO member “will assist the Party so attacked [France]…by taking forthwith…such action as it deems necessary, including the use of armed force.” (emphasis added).

I read this language as requiring the U.S (for instance) to assist the attacked party (France), and that this assistance could “include the use of armed force.”  But I don’t think it has to.

Moreover, Article IX of the North Atlantic Treaty states that “[t]his Treaty shall be ratified and its provisions carried out by the Parties in accordance with their respective constitutional processes.” (emphasis added).  I read this as requiring Parties to carry out provisions like Article V “in accordance with their respective constitutional processes.”  If you are someone who believes that Congress must authorize the use of force by the President in most cases, than this language would mean that the President has to go back to Congress.  This might actually happen. Republican presidential candidate Jeb Bush actually called for a “declaration of war on ISiS” today.  

Of course, if you believe (as I do) that the President has independent constitutional authority to use military force without Congress in most circumstances, than all Article XI does not limit the President much.

In any event, I don’t think it makes sense to read the NATO Treaty as saying much at all about domestic allocation of war powers.  The main legal purpose of Article V was (is) to allow NATO countries to act consistently with the U.N. Charter’s limitations on the use of force (such as they are).  Invoking Article V should allow the U.S. to use armed force to assist France consistently with the UN Charter.  That might have mattered if the U.S. and France weren’t already using military force against ISIS in Syria in ways somewhat inconsistently with the UN Charter.  But they have been bombing for months already, so I am not sure it is even worth invoking Article V at this point.

The Daily Caller and Alan Dershowitz’s Dishonest Attack on MSF

by Kevin Jon Heller

It was only a matter of time before the far right began to attack Medicins Sans Frontieres (MSF) for being in league with the Taliban — and thus implicitly (nudge nudge, wink wink) the actual party responsible for the US’s notorious assault on its hospital in Kunduz. And the attack has now begun. Here is a snippet from an article today in the Daily Caller:

International law experts are blasting Doctors Without Borders for forcibly removing civilian patients from the aid group’s Kunduz, Afghanistan, hospital and replacing them with wounded Taliban fighters when the city fell to the rebel control in late September.

Alan Dershowitz, an acclaimed Harvard constitutional lawyer and authority in international law, said that he was not surprised that the group, known as Medecins Sans Frontieres, favored Taliban fighters over civilian patients, telling The Daily Caller News Foundation in an interview that he regards Doctors Without Borders as “Doctors Without Morals.”

Dershowitz charged the group with having a long history of anti-Western political stances and of not being neutral. He says MSF “is a heavily ideological organization that often favors radical groups over Western democracies and is highly politicized.”

The lawyer said the doctors also were hypocritical. “What they violate is their own stated mandate and that is of taking no political ideological position and treating all people in need of medical care equally. It’s just not what they do.”

[snip]

Yet MSF itself may have violated a whole host of humanitarian laws by its own admission that Kunduz hospital administrators agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.

The acknowledgement was buried inside a Nov. 5 “interim” report released by MSF that traced the internal activities at their hospital leading up to the attack.

MSF disclosed in its report that on Sept. 28, the day the city fell to rebels, hospital administrators “met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged.”

On Sept. 30, MSF passively reported that “a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative.”

I want to focus here on the claim that MSF “admitted” in its November 5 report that it “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.”

Quite simply, that is a lie. MSF makes no such admission in the report.

We can begin with September 28. Prior to that date, most of the wounded combatants in the MSF hospital in Kunduz were government soldiers and police officers. As of September 28, however, the balance shifted to Taliban combatants:

As was the case since the opening of the Trauma Centre, the vast majority of the wounded combatants were observed to be government forces and police. In the week starting 28 September, this shifted to primarily wounded Taliban combatants… As far as our teams are aware, after this time [the afternoon of the 28th], no more wounded Afghan government forces were being brought to the Trauma Centre.  (p. 4).

The next day, faced with an excessive number of patients, MSF met with the Taliban:

MSF met with a Taliban representative to discuss the need to free beds for other critical patients due to the ongoing fighting, and therefore for some patients to be discharged and for those who required nursing follow-up to be referred to the MSF Chardara medical post (p. 5).

At this point — September 29 — half of the wounded in the hospital were wounded Taliban fighters (p. 5). Patients then began to leave the hospital the next day, September 30:

Starting this same day a large number of patients discharged from the hospital, including some against medical advice. It is unclear whether some of these patients discharged themselves due to the discussion to free some beds between MSF and the Taliban representative or whether there were general concerns about security as rumours were circulating of a government counter-offensive to reclaim Kunduz city. At the same time as patients were being discharged from the hospital, new patients were being admitted (p. 5).

The MSF report is careful not to identify whether the discharged patients were civilians or combatants. But there is no indication in the report that MSF agreed with the Taliban “to discharge Afghan civilian patients”; that MSF actually discharged civilian patients because of any such agreement; or that discharged civilian patients were replaced by “wounded rebel soldiers.” Literally none.

Indeed, everything in the report points to precisely the opposite conclusion: namely, that MSF convinced the Taliban to remove wounded rebel fighters from the hospital to open beds for new patients. The patients that left the hospital were not “removed by MSF”; the report makes clear that they “discharged themselves,” in some cases “against medical advice.” Are we supposed to believe that MSF ejected civilian patients against the advice of its own doctors and then dishonestly claimed the patients left voluntarily? That’s Ben Carson conspiracy land.

Did some civilians voluntarily leave the hospital because fear of the fighting? Perhaps. But it’s difficult to imagine why civilians would trade the relative security of a well-marked civilian hospital for the uncertainty of weathering intense urban fighting in their homes — especially if leaving was “against medical advice.” It is far more likely that the wounded who discharged themselves were Taliban fighters worried about their safety — even in a civilian hospital, and despite their wounds — given the possibility of a “government counter-offensive.” After all, as noted above, more than half of the patients in the MSF hospital were Taliban on September 30.

To be clear, because of MSF’s commitment to neutrality, it is impossible to state categorically that most of the patients who left the hospital on September 30 were Taliban fighters, not civilians. But it is fundamentally dishonest for the Daily Caller and Alan Dershowitz to claim that MSF “agreed to discharge Afghan civilian patients at the behest of Taliban officials and replace them with wounded rebel soldiers.” MSF admitted no such thing.

When Is a “Plain Meaning” Not Plain?

by Kevin Jon Heller

In my post on biological and chemical weapons yesterday, I rejected the idea that Art. 8(2)(b)(xviii) “squarely appl[ies]” (Ralf Trapp) or “plainly applies” (Alex Whiting) to chemical and biological weapons by arguing that the drafters of the Rome Statute intended Art. 8(2)(b)(xviii), the war crime of “[e]mploying asphyxiating, poisonous or other gases,” to have precisely the kind of “special meaning” that Art. 31(4) of the VCLT requires us to take into account when interpreting that provision.

After the post went up, Alex and I had a heated but typically friendly exchange on Twitter concerning “plain meaning” treaty interpretation. Interested readers can start with this tweet. Our debate did not focus on the applicability of Art. 31(4) of the VCLT. Instead, we argued about whether simply reading the text of Art. 8(2)(b)(xviii) makes it plain that it criminalises chemical and biological weapons. Alex thinks it’s evident that it does; not surprisingly, I disagree.

The problem with the debate is both obvious and timeless: if two people disagree about the correct interpretation of a text, how do they determine whose interpretation is correct? Alex rightly rightly pointed out that we should not reject a particular “plain meaning” simply because one person disagrees with it; any such standard would deny the possibility of plain meaning altogether. (Which, to be clear, I’d be happy to do on other grounds, because I follow the neo-pragmatic approach to interpretation associated with Stanley Fish. See, for example, this fantastic essay.)

But if one person’s disagreement cannot render a “plain meaning” not plain, how many people is enough? Five? 10? 100? At some point disagreement over the meaning of a text has to negate the possibility of any particular interpretation being considered “plain.” Alex and I went around and around on this, and he finally advocated what is essentially a procedural solution to the problem: the “plain meaning” of Art. 8(2)(b)(xviii) is whatever the ICC’s judges ultimately say it is.

As a descriptive matter, Alex is absolutely correct. But unless we believe the ICC’s judges are legally infalliable — and I certainly don’t! — we have to accept the possibility that they could be wrong about the “plain meaning” of Art. 8(2)(b)(xviii). So we are right back where we started: trying to determine how much disagreement over the interpretation of a text has to exist before we conclude the text has no plain meaning.

I have no easy answer. But I would still maintain that it strains credulity to believe that the “plain meaning” of Art. 8(2)(b)(xviii) indicates that it criminalises chemical and biological weapons. To see why, we don’t even have to return (as I think we should) to the drafting history of Art. 8. It is sufficient to note that a significant number of states still believe that Art. 8(2)(b)(xviii) does not criminalise chemical or biological weapons. How do we know that? Because 14 states formally proposed amending Art. 8 to criminalise those weapons at the ICC’s Review Conference in 2010: Argentina, Belgium, Bolivia, Burundi, Cambodia, Cyprus, Ireland, Latvia, Luxembourg, Mauritius, Mexico, Romania, Samoa and Slovenia. Here, in relevant part, are the provisions the 14 states wanted to add to Art. 8(2)(b):

xxvii) Using the agents, toxins, weapons, equipment and means of delivery as defined by and in violation of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, London, Moscow and Washington, 10 April 1972.

xxviii) Using chemical weapons or engaging in any military preparations to use chemical weapons as defined by and in violation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Paris, 13 January 1992.

These proposed amendments make no sense if the “plain meaning” of Art. 8(2)(b)(xviii) already criminalises chemical and biological weapons. So how can that interpretation be considered the “plain meaning,” given that at least 11% of the States Parties to the Rome Statute do not understand Art. 8(2)(b)(xviii) in the supposedly plain manner? Surely such disagreement indicates that there is no “plain meaning” of the war crime.

Does that mean the 14 states are right? Of course not. Perhaps Art. 8(2)(b)(xviii) really does criminalise chemical and biological weapons. All I’m saying is that we cannot reach that conclusion by looking to Art. 8(2)(b)(xviii)’s “plain meaning.” The meaning of the war crime is at best ambiguous or obscure.

But that, of course, is a critical realisation. Because it means that we have to look to the drafting history of the Rome Statute to determine the correct interpretation of Art. 8(2)(b)(xviii) even if we accept a plain-meaning approach to treaty interpretation. (Which we should not.) Here is Art. 32 of the VCLT:

Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:

(a) Leaves the meaning ambiguous or obscure.

Even though my understanding of the VCLT accords with Julian Davis Mortenson’s, I am willing to entertain the idea that the meaning of some provisions of the Rome Statute is so plain that we have no practical need to examine their drafting history. Art. 8(2)(b)(xviii), however, is not such a provision. Given the widespread disagreement among states concerning whether the war crime criminalises chemical and biological weapons, the best interpretation of Art. 8(2)(b)(xviii) is that it has no plain meaning.

The Rome Statute Does Not Criminalise Chemical and Biological Weapons

by Kevin Jon Heller

Over the past week, two posts at Just Security have argued that the ICC can prosecute the use of chemical and biological weapons as a war crime, even though they — unlike other types of weapons — are not mentioned in Article 8 of the Rome Statute. The first post was written by Ralf Trapp, who argued as follows:

Furthermore, there are the provisions of the Rome Statute of the International Criminal Court (ICC). Even though it does not use the terminology of the CWC (“chemical weapons”), there is no doubt that the terms “employing poison or poisoned weapons” and “employing asphyxiating, poisonous or other gases, and all analogous liquid, materials or devices” found in the list of war crimes under the statute’s Article 8 would squarely apply to the use of chlorine or mustard gas as a weapon of war. Any such use would consequently come under the jurisdiction of the ICC.

Trapp does not even acknowledge any other interpretation of Article 8. By contrast, the second post, written by Alex Whiting, admits that a different interpretation is possible. But Whiting nevertheless sides with Trapp, citing an earlier post by Dapo Akande at EJIL: Talk!:

The Rome Statute originally included a direct ban on chemical and biological weapons, but it was dropped at the same time as a ban on weapons causing unnecessary suffering was narrowed to apply only to those weapons listed in an annex (which does not exist because the States Parties never adopted one). This narrowing was done to avoid having the broader provision apply to nuclear weapons. The direct chemical and biological weapons prohibition was then dropped, apparently because some negotiators thought that there should be parity in approach to nuclear weapons (possessed by wealthy nations) and chemical and biological weapons (the more likely option for poorer countries). The claim that that the Statute therefore does not cover chemical and biological weapons was reinforced by Belgium’s efforts at the ICC Review Conference in Kampala in 2010 to amend the Statute to include a ban on chemical and biological weapons, indicating that there was an understanding among at least some States Parties that the Statute as written did not already do so.

But Akande persuasively argues (reinforcing what Trapp intuits) that the language in the Statute prohibiting poisonous and asphyxiating gases and analogous liquids, materials, and devices plainly applies on its own terms to most — if not all — chemical and biological weapons. Since the treaty text is clearly written, there is no need to consider the history of its drafting, per the Vienna Convention on the Law of the Treaties. In this case, the difficulty with relying on the negotiation history in the first instance is that it is highly indeterminate: Assessing what 120 countries “intended” when they adopted the Rome Statute is nearly impossible, and therefore the plain language of the treaty should govern when it is clear, as it is here.

I disagree with Trapp and Whiting. I won’t rehash the arguments I made in response to Dapo’s post; interested readers can see our exchange in the EJIL: Talk! comments section. But I do want to flag three critical problems with the argument advanced by Trapp and Whiting: one factual, one theoretical, and one political.

The factual problem is that this is simply not a situation in which the drafting history is “highly indeterminate.” Few drafting disputes are as well known as the dispute over the criminalisation of nuclear weapons, chemical weapons, and biological weapons. And as Whiting’s own account makes clear, we know with absolute certainty that not enough states favoured criminalising the use of chemical and biological weapons — because the proposal to criminalise them failed. The reason why states opposed criminalising their use is irrelevant; I’m quite sure that some may have wanted to reserve the right to use them, while others were happy to criminalise their use but did not want to alienate the nuclear states. All that matters is that it is undisputed states tried and failed to criminalise the use of chemical and biological weapons.

It does not matter, then, whether “[a]ssessing what 120 countries ‘intended’ when they adopted the Rome Statute is nearly impossible.” What matters is whether we know how 120 states understood Art. 8 of the Rome Statute. And we do…

Missing Charges in the OTP’s Georgia Request

by Kevin Jon Heller

I  have finally made my way through the OTP’s 162-page request to open an investigation into the situation in Georgia. I hope to write a few posts in the coming days on various aspects of the request; in this post I simply want to note my surprise that the OTP has not alleged that Georgia is responsible for two interrelated war crimes: Art. 8(2)(b)(ix), “[i]ntentionally directing attacks against… hospitals and places where the sick and wounded are collected, provided they are not military objectives”; and Art. 8(2)(b)(xxiv), “[i]ntentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.” Paragraph 175 of the request, which discusses an attack by Georgian armed forces on Russian Peacekeeping Forces Battalion headquarters (RUPKFB HQ), would seem to amply justify both charges (emphasis added):

According to information provided by the Russian authorities, at around 06h35 on 8 August 2008 a Georgian tank, located on the road leading from Zemo-Nikozi to Tskhinvali, fired at the Glaz observation post, located on the roof of the RUPKFB HQ barracks, wounding Jun Sgt I.Ya. Lotfullin.240 Following this attack on the RUPKFB HQ, Georgian armed forces carried out a larger attack on the RUPKFB HQ using small arms, mortars, artillery and tank guns. The attack lasted around 20 minutes. At approximately 07h00, Georgian tanks moving towards Tskhinvali allegedly fired on and destroyed an infantry fighting vehicle (type BMP-1, hull number 619) and an armoured patrol car (type BRDM) that had been placed on the Tshkinvali road to separate the opposing sides. Two peacekeepers on duty are alleged to have been killed. The Georgian armed forces allegedly reopened fire on the RUPKFB HQ at 07h40 and 8h00, killing another two Russian peacekeepers. In the course of the attack on the RUPKFB HQ, the Georgian armed forces also allegedly targeted a medical aid post and ambulances which were located inside the compound and appropriately marked with Red Cross symbols. The shelling of the RUPKFB HQ is said to have continued through the day until 9 August 2008.

The absence of charges involving the medical facility and the ambulances is particularly baffling given that, as Patryk Labuda has ably discussed, the OTP might find it difficult to prove its more general allegations concerning Georgia’s attacks on Russian peacekeepers. The attacks on the medical facility and ambulances would be criminal even if the Russian soldiers at the RUPKFB HQ did not legally qualify as peacekeepers at the time of the attack. So it is clearly in the OTP’s interest to pursue Art. 8(2)(b)(ix)&(xxiv) charges in addition to the Art. 8(2)(b)(iii) peacekeeper charges — even if only as a fallback should the peacekeeper charges fail.

Chase Madar on the Weaponisation of Human Rights

by Kevin Jon Heller

Last week, the inestimable Chase Madar gave a fascinating talk at SOAS entitled “The Weaponisation of Human Rights.” More than 100 people showed up, and I was privileged — along with Heidi Matthews, a British Academy postdoc at SOAS — to respond to Chase’s comments. Here is Chase’s description of the talk:

Human rights, once a rallying cry to free prisoners of conscience and curb government abuses, is now increasingly deployed as a case for war, from Yugoslavia to Iraq, from Libya to Afghanistan. Human rights lawyers in and out of government are weighing in on how wars should be fought: in the United States, the phrase “human rights-based approach to drones” passes without much comment in the legal academy and mainstream media. As the grandees of the human rights movement enter high office throughout North America and Western Europe, what is the effect of this legal doctrine on warfare–and vice versa?Will this blossoming relationship bring about more humanity in warfare? Or is human rights being conscripted into ever more militarized foreign policy?

SOAS has now made the video of the event available on YouTube; you can watch it below:

 

 

The video contains Chase’s talk, along with my response and Heidi’s response. We apologize for the middle section, where the lighting is bad; I don’t know why that happened. But the audio is excellent throughout.

Please watch!

OTP Formally Requests First Non-African Investigation

by Kevin Jon Heller

Fatou Bensouda has just formally asked the Pre-Trial Chamber to authorise an investigation into war crimes and crimes against humanity committed by South Ossetian and Georgian forces between 1 July 2008 and 10 October 2008. Here are the relevant paragraphs from the ICC’s press release:

The Situation in Georgia has been under preliminary examination by the Office of the Prosecutor since August 2008, when armed clashes between the breakaway region of South Ossetia and Georgia degenerated into an armed conflict, which also involved the Russian Federation.

The Prosecutor finds a reasonable basis to believe that war crimes and crimes against humanity were committed during in the context of the armed conflict. This includes alleged crimes committed in the context of a campaign to expel ethnic Georgians from South Ossetia as well as attacks on peacekeepers by Georgian forces, on the one hand, and South Ossetian forces, on the other.

The information available to the Office of the Prosecutor indicates that between 51 and 113 ethnic Georgian civilians were killed as part of a forcible displacement campaign conducted by South Ossetia’s de facto authorities, with the possible participation of members of the Russian armed forces. Between 13,400 and 18,500 ethnic Georgians were forcibly displaced and more than 5,000 dwellings belonging to ethnic Georgians were reportedly destroyed as part of this campaign. The Office of the Prosecutor alleges, based on the information in its possession, that these offences, together with attendant crimes of looting and destruction of civilian property, were committed on a large scale as part of a plan and in furtherance of a policy to expel ethnic Georgians from the territory in South Ossetia. As a result, the Prosecutor estimates that the ethnic Georgian population living in the conflict zone was reduced by at least 75 per cent.

The Prosecutor also finds a reasonable basis to believe that both South Ossetian and Georgian armed forces committed the war crime of attacking personnel or objects involved in a peacekeeping mission.  Georgian peacekeepers were reportedly heavily shelled from South Ossetian positions, killing two Georgian peacekeepers and injuring five more.  In a separate incident, ten Russian peacekeepers were reportedly killed and 30 wounded as a result of the attack against their facility by Georgian forces. The Russian peacekeeping force’s base was reportedly destroyed, including a medical facility.

The OTP’s formal request is 162 pages long, not counting the numerous annexes, so I won’t have substantive thoughts on the investigation for a while. I will just note that the request, as summarised by the Court’s media office, generally tracks the OTP’s 2014 Preliminary Examination Report, with one notable exception: the Georgian attack on the Russian peacekeepers. Given that the 2014 Report concluded that information about the attack was “inconclusive,” the OTP’s preliminary examination must have uncovered enough additional evidence of Georgian responsibility that Bensouda felt comfortable including it in her request for a formal investigation.

Assuming that the PTC approves Bensouda’s request, which seems highly likely, Georgia will obviously become the first non-African situation to be formally investigated by the ICC. The timing of the request is, of course, more than a little propitious, given that the ANC has been threatening to withdraw South Africa from the ICC because of its supposed anti-African bias. I doubt that the mere act of opening a non-African investigation will mollify the ANC and other African leaders; I imagine nothing short of actual charges against a suspect will have much impact. But the Georgia investigation is clearly a step in the right direction.

More soon!

PS: It’s worth noting that the Georgia request is almost four times as long as the request the OTP filed in 2009 with regard to Kenya — and that isn’t counting the numerous annexes in the Georgia request. It would seem that the OTP has learned its lesson from the Kenya fiasco. Recall that, with regard to Kenya, the PTC immediately asked the OTP to provide it with a great deal of supporting information. That kind of information appears to already be included in the Georgia request, which is smart prosecutorial practice.

France Fails to Adopt “Unwilling or Unable” in Syria

by Kevin Jon Heller

Last month, Ashley Deeks claimed that France appeared “to be prepared to invoke the ‘unwilling or unable’ concept in the Syria context.” France did indeed attacks ISIS targets in Syria. And it reported those strikes to the Secretary-General of the UN, claiming self-defence under Art. 51 of the UN Charter as a rationale for violating Syria’s sovereignty. But then something funny happened on the way to the Forum: France did not invoke the “unwilling or unable” theory. Here is its Art. 51 letter:

CRCbbTFWIAAokDC

Looks like the “broad consensus” in favour of “unwilling or unable” now stands at three states — the US, UK, and Australia — not four.

Hat-Tip: Thierry Randretsa, author of the blog Dommages civils.

Defending the FSA Against Russia — the Jus ad Bellum Perspective

by Kevin Jon Heller

It’s been widely reported over the past few days that Russia has been bombing the Free Syrian Army under the pretext of joining the fight against ISIS. That development spurred an interesting post at Lawfare by Bobby Chesney about whether Art. II of the Constitution — the Commander-in-Chief Clause — would permit the US to defend the FSA, which it has been equipping and training. As Bobby points out, rather skeptically I think, the USG seems to believe it would (internal block quote omitted):

[I]t is an interesting legal question, especially in light of recent testimony from Under Secretary of Defense for Policy Wormuth to the effect that Article II could be invoked to permit U.S. forces to defend DOD-trained Syrian forces in the event of an attack on them by Assad regime forces.  Wormuth’s position was repeated by an unnamed “senior administration official” a few days ago.

Given this position, is there any reason to think the answer would be different if we are talking instead about Russian forces attacking those same DOD-trained units?  I see no reason why that would be the case, though the policy stakes obviously are immensely different.  Next, is there anything different if instead we are talking about CIA-trained, rather than DOD-trained, Syrian forces.  Again, I can’t see why this would alter the analysis; under the apparent theory of the Obama administration, the government already possesses whatever legal authority would be needed to use force to prevent Russian jets from striking U.S.-sponsored Syrian units.

I have no doubt Bobby’s right — as I said on Twitter, he has forgotten more about Art. II than I ever knew. I just want to point out that invoking Art. II to defend the FSA against Russia would be more than a little perverse given the status of such an attack under international law — the jus ad bellum, in particular.

Let’s start with Russia. Although its attacks on the FSA might have violated the jus in bello — I certainly wouldn’t be surprised — they did not violate the UN Charter’s prohibition on the use of force with regard to Syria, because they were conducted with the Syrian government’s consent. Nor is there any plausible argument for viewing the Russian actions as an armed attack on the US — whatever the Art. II argument about the US’s “national interest” (see this skeptical Jack Goldsmith post), an attack on the FSA is not a use of force against the US’s “territorial integrity or political independence.”

What this means, of course, is that the US could not invoke self-defense under Art. 51 to justify using force against Russia to defend the FSA — say, by destroying a Russian bomber. Not only would such a use of force create an international armed conflict between the US and Russia, it would itself qualify as an armed attack under Art. 2(4), thereby permitting Russia to use force against the US in self-defense. Russia would simply be responding to an unlawful act of aggression by the US.

(To be sure, the same analysis would apply to any US use of force against Syria in defense of the FSA. But it would obviously be a much bigger deal for the US to commit an aggressive act against a major Western power — one that is also a permanent member of the Security Council.)

Again, I have no idea how these jus ad bellum considerations affect the Art. II analysis. Knowing the US, the fact that attacking Russia would qualify as an unlawful act of aggression might be irrelevant. The optics of using Art. II to justify such an attack would nevertheless be deeply troubling, to say the least.

The U.S. Embargo on Cuba May Be a Bad Idea, But It Doesn’t Violate the UN Charter

by Julian Ku

The UN General Assembly is set to vote once again (for the 24th consecutive year) on a Cuba-sponsored resolution condemning the United States’ economic, commercial, and financial embargo against Cuba.  This resolution will probably get near majority support, and perhaps even unanimous support.  Indeed, there are rumors that the U.S. government itself may abstain from voting against the resolution, which is certainly odd and perhaps unprecedented.  Cuban President Raul Castro’s speech at the UN reiterated his demand that the U.S. end its embargo and sanctions on Cuba.

I don’t want to get into the merits of whether the U.S. should have an embargo on Cuba here, but I am baffled by the implication that the embargo violates international law.  The GA resolution doesn’t quite condemn the US embargo as illegal, but it comes close.  From last year‘s resolution:

2. Reiterates its call upon all States to refrain from promulgating and applying laws and measures of the kind referred to in the preamble to the present resolution, in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation;

Now Cuba has long called the U.S. embargo a “blockade”, which would be illegal under international law.  But despite some economic penalties on third-party countries trading with Cuba (largely never applied and always suspended), the U.S. does not actually prevent, militarily or otherwise, other countries from trading with Cuba.

I am heartened to see that the GA thinks the UN Charter reaffirms the freedom of trade and navigation, but I am not aware of any authority for the proposition that a country’s choice not to trade with another country is a violation of the Charter’s non-existent textual references to the freedom of trade and navigation.

Here’s the problem with U.S. (and other nations’) acquiescence with the Cuba resolution’s language.  It strongly suggests that a country cannot impose a unilateral embargo on another country without somehow violating its UN Charter obligations.  This can’t possibly be something the EU or Canada can or should sign onto as a matter of principle.  And it is even odder for the U.S. administration to agree to this idea, when its main policy for dealing with foreign aggression (e.g. Russia in Ukraine) is the unilateral imposition of sanctions.

So I think it would be perfectly appropriate (and indeed necessary) for the U.S. and other countries that impose unilateral sanctions to oppose this resolution on principle.  They won’t of course, but they should.

Poor ICC Outreach — Uganda Edition

by Kevin Jon Heller

The ICC has always had a legitimacy problem in Uganda. In particular, as Mark Kersten ably explained earlier this year, the Court is widely viewed by Ugandans as partial to Museveni, despite the fact that the OTP is supposedly investigating both the government and the LRA:

From the outset, the ICC showcased a bias towards the Government of Yoweri Museveni. In 2004 and following months of negotiations, then ICC Chief Prosecutor Luis Moreno-Ocampo infamously held a joint press conference with Museveni to announce that Kampala had referred the LRA to the ICC. This was no accident. Moreno-Ocampo was made aware by his staff of the appearance of partiality that this would create. Moreover, while the referral was later amended to cover the “situation in northern Uganda”, severe damage to the independence of the Court had been done. To many in northern Uganda as well as the Court’s supporters, the Prosecutor had shown his true colours: he would only prosecute the LRA and only the LRA. In 2005, five arrest warrants were issued, all for senior LRA commanders, including leader Joseph Kony. To this day, the ICC has never emerged from under this cloud of apparent bias towards the Museveni Government. Recent events won’t foster much hope that it ever will.

Given this history, you would think the Court would go out of its way to make sure people understand that it is not investigating only the LRA. You would be wrong. As I was perusing the ICC website yesterday, I found myself on the page dedicated to the Uganda situation. Other than providing information about ongoing cases, the page simply links to two press releases — one reporting the 29 January 2004 self-referral, and one reporting the OTP’s 29 July 2004 decision to open a formal investigation. Here is the self-referral press release:

President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC

ICC-20040129-44

Situation: Uganda

In December 2003 the President Yoweri Museveni took the decision to refer the situation concerning the Lord’s Resistance Army to the Prosecutor of the International Criminal Court. The Prosecutor has determined that there is a sufficient basis to start planning for the first investigation of the International Criminal Court. Determination to initiate the investigation will take place in the coming months.

President Museveni met with the Prosecutor in London to establish the basis for future co-operation between Uganda and the International Criminal Court. A key issue will be locating and arresting the LRA leadership. This will require the active co-operation of states and international institutions in supporting the efforts of the Ugandan authorities.

Many of the members of the LRA are themselves victims, having been abducted and brutalised by the LRA leadership. The reintegration of these individuals into Ugandan society is key to the future stability of Northern Uganda. This will require the concerted support of the international community – Uganda and the Court cannot do this alone.

In a bid to encourage members of the LRA to return to normal life, the Ugandan authorities have enacted an amnesty law. President Museveni has indicated to the Prosecutor his intention to amend this amnesty so as to exclude the leadership of the LRA, ensuring that those bearing the greatest responsibility for the crimes against humanity committed in Northern Uganda are brought to justice.

According to the Rome Statute, the Prosecutor has to inform all States Parties to the Statute of the formal initiation of an investigation. Following this the Prosecutor may seek an arrest warrant from the Pre-trial Chamber. To take this step, the Prosecutor must determine that there is a reasonable basis to proceed with an investigation. The Prosecutor will work with Ugandan authorities, other states and international organisations in gathering the necessary information to make this determination.

President Museveni and the Prosecutor of the International Criminal Court will hold a press conference on Thursday 29 January 2004 at 18:00 at the Hotel Intercontinental Hyde Park, London.

And here is the investigation press release:

Prosecutor of the International Criminal Court opens an investigation into Nothern Uganda

ICC-OTP-20040729-65

Situation: Uganda

The Chief Prosecutor of the International Criminal Court (ICC), Luis Moreno-Ocampo, has determined that there is a reasonable basis to open an investigation into the situation concerning Northern Uganda, following the referral of the situation by Uganda in December 2003. The decision to open an investigation was taken after thorough analysis of available information in order to ensure that requirements of the Rome Statute are satisfied.

The Prosecutor has notified the States Parties to the ICC and other concerned states of his intention to start an investigation, in accordance with article 18 of the Rome Statute.

Notice the subtle change of language: whereas the first press release refers to “the situation concerning the Lord’s Resistance Army,” the second press release refers to “the situation concerning Northern Uganda.” That change reflects the OTP’s rejection of the one-sided nature of Uganda’s first self-referral, as Mark discusses above. But it’s a subtle change — and the Court does not explain it on the Uganda page or anywhere else on the website. If you’re an ICC expert, you will probably pick up on the difference yourself. But if you’re a layperson, you will come away from reading about the Uganda situation believing precisely what Mark accurately describes as being so devastating to the Court’s legitimacy: namely, that the ICC is investigating the LRA — and only the LRA.

Mark and I have each complained (see here and here) about the ICC’s inability to maintain an accessible and useful website. But at least those complains were just about how difficult it is to get documents in a timely fashion. The issue with regard to Uganda goes much deeper than that — the webpage affirmatively (if unintentionally) misleads the reader about the Court’s work in a manner that can only harm the Court.

For a struggling institution, that’s simply unacceptable.

President Rubio/Walker/Trump/Whomever Can Indeed Terminate the Iran Deal on “Day One”

by Julian Ku

Professors Bruce Ackerman and David Golove argue in this Atlantic essay that the next President cannot withdraw from the Iran agreement because it is a “congressionally authorized executive agreement.” They argue that Senator Marco Rubio’s pledge to terminate the Iran Deal on day one “would destroy the binding character of America’s commitments to the IMF, the World Bank, NAFTA, and the World Trade Organization….The President can no more walk away from them than he can from any other law or treaty.”

I am sorry to say that this article, which comes from two super-respected legal scholars, is deeply and badly mistaken.

This argument is based on the premise that the “legislation that Congress adopted last May, …explicitly grants the Administration authority to negotiate and implement binding legal commitments with Iran.” In their view, the Iran Deal is a simply a congressional-executive agreement exactly akin to U.S. trade agreements like NAFTA.

But this premise is wrong.  The U.S. government has repeatedly stated (see here)  that the “Joint Coordinated Plan of Action” between Iran and the P-6 powers is a “nonbinding” political commitment. And the JCPOA itself talks only of “voluntary measures.” (see Dan Joyner’s discussion of this here).   Even the United Nations Security Council Resolution that implements the JCPOA does not legally bind the U.S. to stick to the JCPOA (as John Bellinger argues here).

Nor does the Iran Nuclear Agreement Review Act explicitly (or implicitly) authorize the President to make an agreement with Iran that would go beyond the President’s existing constitutional powers to make sole-executive agreements or nonbinding political commitments. The Review Act simply sets up a disclosure and timetable regime for the President’s disclosure of his foreign affairs activities that he wouldn’t otherwise have to disclose to Congress.

It is nothing like the Trade Promotion Authority that the President has received to conclude trade agreements like NAFTA or the WTO. While the Review Act discusses agreements that were already made and sets out disclosure and timing requirements, Trade Promotion Authority laws (like the most recent one) say things like: “the President— (A) may enter into trade agreements with foreign countries before” certain dates and then cannot afterwards.”  This is explicit authority, and no similar language can be found in the Iran Nuclear Agreement Review Act.

In any event, Ackerman and Golove are also mistaken on a more mundane point. Even if the Iran Deal is a binding congressionally authorized international agreement, a future President could withdraw from such an agreement unilaterally.  This is true because: 1) the JCPOA itself has an “exit ramp” under Paragraph 36 which allows the U.S. to terminate its participation after 35 days if its concerns about Iran’s compliance are not satisfied; and 2) the President appears to have broad constitutional powers to unilaterally terminate treaties without Congress or the Senate’s approval.  Surely, the President could terminate a nonbinding voluntary “plan of action” without going back to a Congress that didn’t really authorize him to make an agreement in the first place.

Even though I am increasingly convinced that the Iran Nuclear Deal is a bad deal for the U.S. and Europe (not to mention Israel), I have publicly defended the legality of President Obama’s decision to conclude a nuclear “agreement” with Iran without going to Congress to get approval. But the decision to bypass Congress has got to have a price for the President.  And that price is that the Iran Deal does not bind his predecessor either as a matter of constitutional or international law.