Since the recent al Bahlul en banc decision before the D.C. Circuit, I have been thinking a lot about the Common Law of War. As others have already analyzed in detail (Steve, Peter, Jonathan, Marty & Steve), the D.C. Circuit upheld Bahlul’s conviction for conspiracy but threw out his conviction for material support for terrorism and solicitation. Material support and solicitation are unavailable for pre-2006 conduct because they are neither international crimes nor historically charged before military commissions. Conspiracy, on the other hand, is a different story. While it seems pretty clear that conspiracy is not a stand-alone offense under international law, the government has relied on the argument that conspiracy is historically chargeable before a military commission as part of the “common law of war.”

The exact status of the common law of war theory remains unknown because the court’s majority applied “plain error” review and not de novo review on the merits. Some judges concluded that Bahlul waived his objections by not raising them at trial (when Bahlul was declining legal assistance). For his part, Judge Kavanaugh appeared sympathetic to the common law of war argument, which arguably departs from his previous notes of skepticism regarding the theory in Hamdan II.

Since the common law of war idea is still wide open, I’ve been trying to come to terms with it and articulate precisely why I’ve been uncomfortable with it in the past. Indeed, when I first heard the government’s assertion of this theory, I was deeply skeptical and found it almost outrageous. The law of war is international by definition—it is the same for everyone and that’s the whole point of it. The law of war is based on reciprocity and it makes no sense to think of it as a creature of domestic law.

That being said, I think the issue is more complicated than I initially assumed.  In particular, it is important to note that Lieber himself makes reference to the common law of war in article 13 of the Lieber Code. Also, Richard Baxter, in his famous article on spies and unprivileged belligerency, concludes that acts of belligerency by an unprivileged belligerent simply aren’t violations of international law at all – they are violations of domestic criminal law. That’s absolutely correct. The absence of the privilege means that the unprivileged belligerent cannot exempt himself from the demands of domestic law. That’s something far different from an international crime. Unfortunately, Baxter also says in the preceding sentence that the saboteurs in Ex Parte Quirin were “no doubt” triable under the statutes and “military common law of the captors” – though he never explains what he means by this. Presumably he felt that the saboteurs in Quirin were subject to military commission jurisdiction despite the fact that their crimes were domestic violations, though he never articulates his reasoning. Of course, I don’t want to parse Baxter’s article like it’s gospel; I find there’s too much of that already with people treating semi-authoritative Commentaries like treaties. But I still find it interesting that both Baxter and Lieber used the phrase or something close to it.

So why is it so difficult to understand the common law of war? Here are four possible reasons:

1. We no longer live a common law world. Well not exactly. The U.S. is still part of the common law, in the historical sense, but really the common law doesn’t play the role it once did. It has substantially evolved. Statutes and regulations play a much larger role now – and this applies in almost every field of law. This certainly applies in the criminal law, where even the idea of a common law crime sounds just bizarre to today’s students. It’s just so far removed from how the law operates today.

2. Although state courts in the U.S. continue to evolve the common law in each jurisdiction in subject areas that are not covered by a particular statute (say tort law), this endeavor is temporally removed from its historical roots in common law England. Although the law in each jurisdiction can all be traced back to a common source, the doctrines have been developed in unique and different ways in each court. The common law – as something truly common across jurisdictions – has receded into history.

3. The law of war in general, and the jurisdiction of military commissions in particular, were woefully under-theorized in previous generations. This was certainly true in the Civil War, when other than Ex Parte Milligan as an enduring constraint on military jurisdiction, there was insufficient attention paid to developing a deep theory of military jurisdiction. Famously, Ex Parte Quirin was a rush decision, arguably fast-tracked because the Supreme Court was concerned that the administration might execute the prisoners before a decision was reached – which would have dealt a near-fatal blow to the Supreme Court’s institutional legitimacy and its self-asserted purview, announced in Madison v. Marbury, to say what the law is. It is no surprise that we now look back on Quirin as “not this Court’s finest hour” (Hamdi v. Rumsfeld, Scalia J. dissenting). One way of putting the point is to follow Steve Vladeck and say that the Court has never fully rationalized why military commissions are exempt from the Article III requirement of trial before a regular court. Another way of putting the point is that during the Civil War the concept of military jurisdiction was under-theorized and we are only now playing catch-up.

4. There is something that unites our use of the terms “international law” today with how the term “common law” might have been used in previous generations. This might help explain why there is an international law of war today and a common law of war in the past.  Although they are different, what unites them is a shared participation in a larger legal culture. For international law, the larger legal culture is the international order, with its unique sources for lawmaking (treaties, custom, etc.) and international organizations. For the common law, the larger legal culture is the law that is “common” to many jurisdictions who are all participating in a common legal culture and apply its law together – the “common law.” Although the common law is not the same as international law, it is something larger than pure domestic law, and as such it could, in theory, and historically as well, fulfill some of the demands of reciprocity that the laws of war demand. The problem, of course, is that the common law doesn’t function that way in today’s world. The whole point of the law of war is that it has to be bigger than just domestic law. And maybe the common law in the past was just big enough to support the law of war in some limited sense. Whether that’s enough in today’s world, I really don’t know.

A background paper for a High Level Review of Sanctions currently underway at the UN raises some important and interesting questions about the increasing “jurisdictional overlap” between individuals designated on targeted sanctions lists and international criminal courts.   In relevant part, the paper states:

Increasingly, the reach of sanctions has gone beyond those responsible for initiating and supporting threats to, or breaches of, international peace and security, to include perpetrators of conduct that could be crimes within the jurisdiction of the ICC (especially violations of international humanitarian law, human rights, attacks against civilians, recruitment of child soldiers, sexual and gender based violence), thus increasing the overlap. Inevitably, in some cases the same individuals are or could be subject to both ICC proceedings and to UNSC targeted sanctions.

Even where their “jurisdiction” overlaps, sanctions and the ICC have different objectives (and evidentiary standards): sanctions applied to a particular individual seek to protect “the peace” or, more concretely, civilians, from future actions of the individual, by constraining the individual’s ability to act; an ICC proceeding seeks to determine the accountability of that individual for past actions.

This overlap is significant for a number of reasons.  First, it shows an important evolution in sanctions design, from comprehensive sanctions, to targeted measures against specific individuals which run the risk “criminalizing” certain behaviors without a judicial process.   I should be clear that from the work I have seen of sanctions committees, restraint rather than overstepping has been the norm.  Nonetheless, it does present issues of “individualization” (which have been analyzed by Larissa van den Herik in the context of human rights and the Kadi and Nada cases in Europe).  Second, it raises issues of how the ICC and Security Council and its subsidiary bodies cooperate.  The ICC – UN Relationship agreement is a framing instrument here, as is Part IX of the ICC statute on cooperation.  That said, the absence of a general policy at the UN to designate individuals on sanctions lists (where a relevant sanctions regime exists) is striking.  The most high profile (read: political) example of that involves Omar Al-Bashir – despite an outstanding ICC arrest warrant against him, ongoing sanctions regime against the situation in Sudan, and a Security Council referral of the situation to the ICC, Bashir has never been designated under the sanctions regime.  As I argued in this post last year, a travel ban would have been one way to restrict his efforts to attend the General Assembly meetings in New York in 2013.  Finally, write large, it presents the old “peace versus justice” debate because of the different goals of sanctions (conflict management) and criminal prosecutions (atrocity for past acts.)

In two decisions (here and here) handed down this morning, the European Court of Human Rights has found that Poland violated its obligations under the European Convention of Human Rights for its complicity in the United States’ running of a CIA black site and high-value detainees program on Polish territory.

One of the cases involved al-Nashiri, who was prosecuted before a U.S. military commission and the subject of protracted habeas litigation in the DC Circuit. He was accused of orchestrating the attack against the USS Cole in 2000. In federal court his lawyers raised the very interesting issue of whether there existed an armed conflict with al-Qaeda at that time (i.e. before 9/11), and whether a military commission could properly assert jurisdiction over a crime that was allegedly committed before (in their view) the commencement of the armed conflict.

Nashiri was captured in Dubai in 2002, transferred to a CIA prison in Afghanistan (called the “Salt Pit”), then to a CIA facility in Bangkok (called “Cat’s Eye”) where detainee Abu Zubaydah (the subject of the other case) also was held. Both were then transferred to the CIA black site in Poland. After his time in Poland, he was transferred briefly to Morocco on his way to Guantanamo Bay, Cuba.

The decision goes into extensive detail of the CIA interrogation program, including a review of internal CIA documents explaining the interrogation methods that officers were authorized to use against detainees, as well as the unauthorized techniques that were sometimes used. The court concluded that (para. 417):

Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that:

(1)  on 5 December 2002 the applicant, together with Mr Abu Zubaydah, arrived in Szymany on board the CIA rendition aircraft N63MU;

(2)  from 5 December 2002 to 6 June 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename “Quartz” and located in Stare Kiejkuty;

(3)  during his detention in Poland under the HVD Programme he was interrogated by the CIA and subjected to EITs and also to unauthorised interrogation techniques as described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report;

4)  on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P.

The ECHR then concludes that Poland was aware of (and complicit) in the CIA activities:

442.  Taking into consideration all the material in its possession (see paragraphs 418-439 above), the Court finds that there is abundant and coherent circumstantial evidence, which leads inevitably to the following conclusions:

(a)  that Poland knew of the nature and purposes of the CIA’s activities on its territory at the material time and that, by enabling the CIA to use its airspace and the airport, by its complicity in disguising the movements of rendition aircraft and by its provision of logistics and services, including the special security arrangements, the special procedure for landings, the transportation of the CIA teams with detainees on land, and the securing of the Stare Kiejkuty base for the CIA’s secret detention, Poland cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory;

(b)  that, given that knowledge and the emerging widespread public information about ill-treatment and abuse of detained terrorist suspects in the custody of the US authorities, Poland ought to have known that, by enabling the CIA to detain such persons on its territory, it was exposing them to a serious risk of treatment contrary to the Convention (see also El‑Masri, cited above, §§ 217-221).

443.  Consequently, Poland was in a position where its responsibility for securing “to everyone within [its] jurisdiction the rights and freedoms defined …. in [the] Convention” set forth in Article 1 was engaged in respect of the applicant at the material time.

The Court holds that Poland violated Article 3 of the Convention for its failure to adequately investigate the mistreatment, and for failing to ensure that “individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals .”  Again, here is the Court’s holding (para. 517):

Notwithstanding the above Convention obligation, Poland, for all practical purposes, facilitated the whole process, created the conditions for it to happen and made no attempt to prevent it from occurring. As the Court has already held above, on the basis of their own knowledge of the CIA activities deriving from Poland’s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “war on terror” to terrorist suspects in US custody the authorities – even if they did not witness or participate in the specific acts of ill-treatment and abuse endured by the applicant – must have been aware of the serious risk of treatment contrary to Article 3 occurring on Polish territory.

Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory (see paragraph 452 above and El-Masri, cited above, §§ 206 and 211).

The Court also found a violation of the article 5 prohibition against arbitrary detention (para. 532), the article 8 prohibition against interference with family life for holding him incommunicado (para. 540), the article 13 requirement of an effective domestic remedy (para. 551), and the article 6 prohibition against an unfair trial (para. 569).

The last holding on article 6 required the Court to conclude that the petitioner’s trial before a U.S. military commission would be unfair — which is a substantial legal determination. Unfortunately, the Court’s analysis on this point is incredibly thin, and relies mostly on the U.S. Supreme Court’s determination in Hamdan that the creation of the tribunals was procedurally defective and violated Common Article 3 of the Geneva Convention, without much independent analysis. There is no discussion of post-Hamdan military commission reforms.

Finally, the Court concludes that Poland violated its Protocol 6 (abolition of the death penalty) obligations because of the risk that the petitioner would be subject to capital punishment before a U.S. military commission (para. 579).

The recent downing of Malaysian Airlines Flight 17, apparently by an anti-aircraft missile fired from within rebel-controlled territory in the Ukraine, has raised the specter that Russia is covertly (or not so covertly) supplying arms and assistance to the pro-Russian separatists operating within eastern Ukraine. Obviously, the facts here are somewhat contested and I have no insider or independent information about the firing of the missiles. What I say here is based on news reports in The New York Times and elsewhere, and our understanding of the situation is rapidly evolving.

But let’s assume, for the sake of argument, that this story (or something similar) turns out to be true. Let’s assume that the “BUK” anti-aircraft missile system was either provided to the Ukrainian rebels by Russian operatives, or that it was stolen by the rebels from the Ukrainian military, and then operated with assistance from Russian operatives and military advisors. It seems more likely that the missile system was provided directly by Russia, but even if the rebels stole it from the Ukrainian military, it seems unlikely that the untrained militia-members would have been capable of deploying it without Russian assistance. (Again, let’s just take this as an assumption, because alternate hypotheses exist, including the contention that the militia members are trained in anti-aircraft missile deployment because they are local defectors from the Ukrainian military).

If this story is true, it reveals how important the debate is, in international jurisprudence, between competing theories of control. This might seem like an obvious point, but the current situation in the Ukraine (vis-à-vis Russian influence) may stand at precisely the fault line between “effective control” and “overall control” – the two competing doctrines of attribution in international law.

As most readers already know, the effective control test was articulated in the ICJ’s Nicaragua judgment and offers a fairly robust set of standards for attributing the actions of an armed group to a particular state, essentially requiring that the armed units are operating on the instruction, or at the direction of, the foreign state. In these circumstances, the actions of the armed group can be attributed to the foreign state.

In contrast, the ICTY in Tadic declined to follow the ICJ’s Effective Control Test, and instead formulated and applied the broader Overall Control Test. The test was originally designed to determine in Tadic whether the armed conflict was an international armed conflict or a non-international armed conflict. If the conduct was attributable to a foreign state, then the armed conflict was international in nature. Subsequently, Cassese argued (correctly) that the test was, in fact, a general test for state responsibility. The test allowed for state responsibility in situations where a foreign power helped to coordinate the actions of an organized and hierarchically structured armed group by equipping, financing, or training the paramilitary force.

The dispute between these two tests is crucial because they really do give different answers in important cases. It seems to me that the Ukrainian situation falls directly on the fault line between the overall and effective control tests. If the Effective Control test applies, then it is not clear whether the shooting down of the airliner can be directly attributed to the Russian government (although that conclusion depends on which facts are unearthed in the investigation). On the other hand, if the Overall Control test applies, then there is a plausible argument that the shooting of Flight 17 can be attributed to Russia because their operatives probably helped train and equip, and coordinate, the activities of the pro-Russian militia. The Overall Control test supports the attribution of responsibility to Russia, while the Effective Control test probably does not.

Either way, one important insight about both tests is their black-and-white nature. Instead of a spectrum of control yielding different degrees of responsibility, the tests act as an on-off switch. Either there is state responsibility or there is not; either the acts are attributed or they are not. There is no sliding scale of responsibility based on the degree of foreign involvement or entanglement in the local affairs of the militia or paramilitary organization.

A final note on a related but distinct topic. It also seems pretty clear that pro-Russian militia were acting incompetently in shooting down the plane, assuming incorrectly that they were shooting down a military aircraft. How should one understand their level of culpability here? Recklessness comes to mind as the appropriate mental state since they probably did not engage in the appropriate due diligence to distinguish between military and civilian aircraft.

Although it is unclear whether this should be treated as an international crime (killing of civilians during an armed conflict) or a domestic crime (murder), I have to say that I have never found international criminal law’s treatment of crimes of recklessness particularly satisfying. Under domestic law, reckless killings are either classified as manslaughter or as the lowest degree of murder (such as depraved indifference to human life) depending on the jurisdiction and depending on the severity of the recklessness. Domestic law therefore produces a grading of the offense based on the lower mental state. In contrast, international criminal law has no lower offense for crimes of recklessness. Unlike the distinction between murder and manslaughter, a defendant is either convicted or acquitted of the war crime of killing civilians (with nothing in between).

[Jonathan Hafetz is Associate Professor of Law at Seton Hall Law School.  He has represented several Guantanamo detainees and has filed amicus briefs in previous legal challenges to military commissions.]

On July 14, the en banc U.S. Court of Appeals for the D.C. Circuit issued its long-awaited (and deeply fractured) opinion in Al Bahlul v. United States (.pdf), addressing the scope of military commission jurisdiction over offenses—material support for terrorism, solicitation, and conspiracy—that are not crimes under international law.  In a nutshell, the D.C. Circuit vacated Bahlul’s conviction for material support and solicitation, but affirmed his conviction for conspiracy against an ex post facto challenge.  While the ruling takes material support and solicitation off the table for commission prosecutions (at least for prosecutions of current Guantanamo detainees), it does not resolve the viability of charging conspiracy as a stand-alone offense because the en banc holding is based on the application of plain error review to Bahlul’s case (due to its conclusion that Bahlul failed to preserve his ex post facto challenge below).  The decision thus leaves open the fate of conspiracy under de novo review.  By implication, it also leaves open the viability of the U.S. government’s domestic war crimes theory not only with respect to other commission cases charging conspiracy (including the ongoing prosecution of the 9/11 defendants), but also with respect to Bahlul’s other legal challenges to his conspiracy conviction, which the en banc court remanded to the original D.C. Circuit panel.

This post will examine the multiple opinions in Bahlul addressing the U.S. government’s domestic war crimes theory, which posits that the Military Commissions Act of 2006 (2006 MCA) retroactively authorizes, and that the Constitution allows, the prosecution by military commission of conduct that is not a crime under the international law of war.  (For excellent summaries of the Bahlul decision, see posts at Just Security by Steve Vladeck here and by Steve and Marty Lederman here).  The theory’s viability is central to the retroactivity arguments addressed by the en banc court as well as to the additional arguments under Article I and Article III that will be considered on remand.
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Professor Jens David Ohlin of Cornell Law School will be guest blogging with us over the next two weeks. Many readers may know Jens from his blogging at Lieber Code and from his many articles on international criminal law, the laws of war, cyberwar, and comparative criminal law, among other topics.

Jens is also the author or editor of four books, including his forthcoming The Assault on International Law (Oxford) and Targeted Killings: Law and Morality in an Asymmetrical World (Oxford 2012), for which he was a co-editor.

We are very happy to have Jens participating on Opinio Juris for the next couple of weeks and look forward to the conversation!

Your weekly selection of international law and international relations headlines from around the world:

Africa

• Suspected Islamists raided the remote northeast Nigerian town of Damboa over the weekend, shooting dead more than 40 residents and burning down houses in a familiar pattern of killing that has forced tens of thousands to flee their homes this year.
• South Sudanese rebels and government soldiers clashed in the northern town of Nasir on Sunday, adding to fears that a shaky ceasefire agreement signed in May could totally collapse.

Asia

• A US drone attack has killed at 11 people in the Pakistan’s northwestern tribal region near the border with Afghanistan, Pakistani officials said.
• The U.N. Security Council on Thursday condemned recent ballistic missile launches by North Korea describing the three rounds of Scud short-range missiles fired in June and July as a violation of council demands on Pyongyang.

Europe

• U.S. Secretary of State John Kerry laid out what he called overwhelming evidence of Russian complicity in the shooting down of Malaysia Airlines flight MH17 as international horror deepened over the fate of the victims’ remains.
• Britain’s new Foreign Secretary Philip Hammonds reiterated his position from two years ago that if Britain does not get good renegotiation, it should leave the European Union.
• A former Libyan Islamist commander who says he suffered years of torture by Muammar Gaddafi’s henchmen after British and U.S. spies handed him over to Libya will try this week to overturn a ruling blocking legal action against the British government.
• The remains of 284 victims of the Bosnian war were laid to rest on Sunday having been unearthed from what is believed to be the largest mass grave of Europe’s worst conflict since World War Two.
• Spain summoned the British ambassador to complain about Britain’s handling of an incident on Wednesday involving the Spanish Navy near the disputed territory of Gibraltar.

Middle East and Northern Africa

• Two Israeli soldiers were killed in a cross-border attack by Hamas militants on Saturday, the army said, as the Palestinian death toll from the conflict rose above 300 with no diplomatic solution in sight. 
• Italian rescuers have found 18 bodies on a boat carrying hundreds of asylum-seekers and another died while being evacuated, the ANSA news agency reports.

Americas

• Central American leaders will ask U.S. President Obama to support a regional development and security plan to stem the tide of illegal child migrants to the U.S. at a meeting next week, a Honduran minister said on Saturday.
• Pope Francis called for justice to be served in his native Argentina on Friday, the twentieth anniversary of the deadly bombing of a Buenos Aires Jewish commuity center that local courts blamed on Iran.
• The CIA station chief in Berlin who was told to leave by Germany due to new allegations of U.S. spying has now left the country, a spokesman for Germany’s foreign ministry said on Thursday.

UN/Other

• UN Secretary-General Ban Ki-moon has condemned the killing of dozens of Palestinians in the Gaza Strip by Israeli shelling as an “atrocious action” and called for an immediate end to almost two weeks of fighting.
• According to the IAEA, Iran has turned all of its enriched uranium closest to the level needed to make nuclear arms into more harmless forms.
• The U.N. Security Council is due to vote today on a resolution that would condemn the downing of a Malaysian passenger plane in Ukraine and demands that those responsible be held accountable and that armed groups don’t compromise the crash site integrity.
• The United Nations accused Islamic State fighters in Iraq of executions, rape and forced recruitment of children during a campaign to seize much of northern Iraq, part of a conflict it said has killed almost 5,600 civilians this year.
• The International Monetary Fund expects to decide within weeks on issuing the second tranche of a $17-billion bailout to Ukraine, whose economy is likely to contract by 6.5 percent this year, its Kiev mission chief said on Friday.

On Wednesday, a Dutch Court handed down a hotly anticipated decision on the Mothers of Srebrenica case, finding the Dutch state responsible for the deaths of 300 people who were sheltering with Dutchbat in July 1995, when the safe haven at Srebrenica fell.  The English translation is available here.

This ruling means the relatives of those 300 Bosniaks will be entitled to compensation.  Significantly, however, The Netherlands was cleared for the deaths of the more than 7000 other victims who were in and around Srebrenica, such as those who fled to the woods nearby.

This case follows a related decision, in which the UN was found immune from process for the deaths at Srebrenica.   See the 2012 decision of the Dutch High Court here.   And a subsequent decision by the ECHR confirming the UN’s immunity.

In the present decision, the concept of effective control was central to the Court’s findings.  In para. 4.33 the Court cited the Nuhanovic decision and DARIO Art. 7, and defines effective control as “factual control” of the State over Dutchbat’s specific actions. (Later, in para. 4.46 the court suggests that effective control is “actual say over specific actions whereby all of the actual circumstances and the particular context of the case must be examined.”) In Para. 4.37 the Court noted that command and control of Dutchbat was transferred from the Dutch state to the UN, which took place for the purpose of a UN peacekeeping operation based on Chapter VII of the UN Charter. The court found the Netherlands responsible for the deaths of those 300 because they were within its effective control.   See paras. 4.87 – 88.    In contrast, the 7000 who “fled to the woods”, and according to several claimants, did so on the basis of hand signals by Dutch soldiers, were not under the effective control of the Dutch state and hence not attributable to the Dutch state. The majority of those individuals then fell to Bosnian Serbs. Paras. 4.101 – 4.106.

The ruling also indicated that the Netherlands was responsible because the Dutch peacekeeping force, outnumbered by raiding Bosnian Serb forces, had handed over the same 300 Bosnian Muslim men and boys of fighting age after Gen. Ratko Mladic, commander of the forces, ordered that they be screened for war crimes. Para. 4.212. The District Court ruling said the peacekeeping force should have known that the Muslims were likely to be killed by the Serbs.

In my view, this decision will have three implications:

• First, it will be of interest to Troop Contributing Countries, in that the determination of a national court that a state is responsible for the failure to prevent an atrocity and might be found liable for wrongs committed during a peacekeeping mission, despite an overarching UN Mandate, broadens the spectre of legal liability significantly.  In this vein, it should be considered alongside the Nuhanovic decision of 2013, also rendered by the Dutch Supreme Court, in which the Netherlands was found responsible for the deaths of 3 individuals during the 1995 massacre. I blogged about this case here.   On the relationship of the Nuhanovic decision to the Mothers of Srebrenica decision, see paras. 4.10 – 4.12.

• Relatedly, it indicates the relevance of shared responsibility scenarios in international law. It develops the doctrine of attribution and related concept of effective control proposed by the ILC in the Articles on the Responsibility of IOs, and indicates that both a state and an IO can share effective control, and hence, potentially, responsibility, despite the UN’s presumptive immunity. See e.g. para. 4.45 in which the Court decides it does not need to examine whether the UN also had effective control, given the possibility of dual attribution. For magisterial treatments of this topic, see the work of the SHARES research project at ACIL, Amsterdam, run by Professor Andre Nollkaemper.   I note that I have a research interest in effective control, and have a forthcoming article on the topic to be published in the Melbourne Journal of International Law later this year.

• Third, the decision brings us back to a very hot topic: the scope of UN immunity. Questions of UN immunity are front and center these days because of the three pending cases against the UN involving the introduction of cholera in Haiti. An important distinction between the Srebrenica decisions, and the Haiti Cholera cases, however involves operational necessity.   In the Srebrenica case, courts have been clear that the decision not to evacuate some of the Bosniacs near the safe haven fell within the context of operational necessity, which is central to the Security Council’s mandate under Chapter VII. Questions of operational necessity are considered “public” matters, which do not trigger the Art. 29 obligation to provide alternative means of settlement.   The idea behind the disctinction of public / private it that immunities are meant to protect the UN from vexatious litigation. By way of contrast, operational necessity has never been raised in the Haiti Cholera cases. To see my take on this distinction see my blogs here and here.

There are many dads who have played make-believe with their little girls, perhaps taking the part of kindly king to his daughter’s princess.  Not many people have turned this game into an international legal incident concerning state formation.  But  at least one man has. According to the Washington Post:

Jeremiah Heaton was playing with his daughter in their Abingdon, Va., home last winter when she asked whether she could be a real princess.

Heaton, a father of three who works in the mining industry, didn’t want to make any false promises to Emily, then 6, who was “big on being a princess.” But he still said yes.

“As a parent you sometimes go down paths you never thought you would,” Heaton said.

Within months, Heaton was journeying through the desolate southern stretches of Egypt and into an unclaimed 800-square-mile patch of arid desert. There, on June 16 — Emily’s seventh birthday — he planted a blue flag with four stars and a crown on a rocky hill. The area, a sandy expanse sitting along the Sudanese border, morphed from what locals call Bir Tawil into what Heaton and his family call the “Kingdom of North Sudan.”

There, Heaton is the self-described king and Emily is his princess.

Wow. Heaton just upped the ante for all non-royal dads. The Washington Post also reports:

Heaton says his claim over Bir Tawil is legitimate. He argues that planting the flag — which his children designed — is exactly how several other countries, including what became the United States, were historically claimed. The key difference, Heaton said, is that those historical cases of imperialism were acts of war while his was an act of love.

“I founded the nation in love for my daughter,” Heaton said.

That’s sweet. Really. But let’s turn to the international legal argument… (more…)

Professor Yann-huei Song of the Academia Sinica here in Taipei has notified me of the recent passing of his friend and fellow Law of the Sea scholar William T. Burke of the University of Washington.  His Seattle Times obituary is here.  Professor Burke’s academic publications included The Public Order of the Oceans (coauthored with Myres S. McDougal), published in 1962 and revised in 1987, and The New International Law of Fisheries(1994; translated into Japanese, 1996).  Before joining the UW faculty in 1968, Professor Burke taught at Yale Law and Ohio State Law.  There is a nice 2008 profile of him in the UW alum magazine here.  The following is a personal note from Professor Song: 

We both are students of the New Haven School for the legal studies, where I met Professor Myres S. McDougal when attending the annual policy science meeting held at Yale Law School. His book entitled THE NEW INTERNATIONAL LAW OF FISHERIES: UNCLOS 1982 AND BEYOND (Oxford: Clarendon Press, 1994) is one of the most authoritative textbooks for students who are interested in studying the international fisheries law. In addition, the book he co-authored with Myres S. McDouglas, THE PUBLIC ORDER OF THE OCEANS, A CONTEMPORARY INTERNATIONAL LAW OF THE SEA (Yale University Press, 1962), is a classic writing on law of the sea issues with the application of the new policy-oriented approach to the law of the sea. This book is one of four volumes in which McDougal and his associates approached the entire field of international law.  I met Professor Burke also at the UC-Berkeley’s Law of the Sea Institute’s meetings. As far as I can remember, he was critical to the US government’s position and policy of fisheries and law of the sea issues at the time.

 

Students of international law, in particular, international fisheries law, have been influenced by his writings. If I have the honour, on behalf of the international law of the sea community, in particular, the Chinese (Taiwan) Society of International Law, I wish to express our heartfelt condolences to the family of Professor Burke for their sad loss. 

The naturalization ceremony is now a part of the July 4th ritual, right up there with picnics, parades, and fireworks. The script is faithfully recounted in newspapers across the country. Dignified surroundings (courtrooms, historic sites, ballparks) with presiding local luminaries (judges, office holders, public intellectuals), celebratory family members in tow. US flag-waving applicants from [fill-in-the-blank] number of countries. Short summaries of patriotic speeches, interviews with newly-minted citizens overjoyed by their new status. Perfect assignment for a cub reporter working the holiday weekend, a piece that practically writes itself.

This year was no exception, with the accelerant of President Obama’s presiding over a naturalization ceremony for active-duty military personnel (who, by the way, can pretty much become instant citizens — no residency requirement applies).

I don’t want to detract from the accomplishment that naturalization can represent (especially for those with less education, who are forced to pass tests on civics, history, and facility in the English language to attain full equality in their place of habitual residence, as well as for those with refugee status). The sentiments voiced are no doubt genuine, and for some naturalization remains a transformative experience.

But the picture these reports paint distorts the reality of naturalization today in at least these three ways:

1. Naturalization ceremonies are always so dignified. Hardly. More than half of all applicants are sworn in ceremonies at local Department of Homeland Security offices. These can be drab affairs, the proceedings supervised by lower-level USCIS bureaucrats following a strict operating-manual protocol. Think one-step up from the DMV. In some cities, deportation proceedings are being held across the hallway. (Not that court-presided ceremonies are always so dignified. See page 8 of this 2008 DHS ombudsman report for some less-than-inspiring examples; note also the use of “oathed” as a transitive verb.)

2. Applicants are mostly naturalizing for sentimental reasons. Naturalization is not about being proud to be an American. A Pew Research poll found that only 6 percent of naturalization applicants are motivated by “their sense of identity as an American or their love of the U.S.” Eighteen percent cite civil and legal rights as the primary reason for naturalization (that more closely aligns with a conventional trope that naturalization is about getting the vote). Sixteen percent are interested in the “benefits and opportunities” of citizenship, including the value of travelling on a US passport, being able to apply for certain public sector jobs, and acquiring eligibility for public benefits. In other words, many who naturalize are (quite rationally) doing it for instrumental reasons.

3. Naturalization applicants are transferring their allegiance to the United States. The vast majority of naturalizing citizens are also keeping their citizenship of origin. A clear majority of countries allow dual citizenship — according to one survey, 19 out of the top 20 source states for immigrants to the US allow naturalizing citizens to keep their citizenship. Others that don’t recognize the status fail to police against it (China for example). Only a few take dual citizenship bans seriously — Japan is probably the best example. When it comes to the July 4th accounts, it’s hard to know whether this is an implicit distortion or whether it’s just not reported on. My guess is that most native-born Americans would be surprised to discover that dual citizenship is the new normal among naturalized Americans.

So why the continuing convention of July 4th naturalization accounts? USCIS keeps up the pace, this year with more than 100 ceremonies across the country in the week leading up to and including the 4th. From a PR perspective, this is money well spent. From the reporters’ perspective, why rain on the parade? They probably understand this isn’t a battle to pick with their putatively patriotic readership (an assumption that may be thinning on a generational basis, according to this NYT report). For others, finally, it may be politically risky business to challenge naturalization tropes. For proponents of immigration reform, highlighting a less-than-pure path to citizenship is hardly going to help move the ball forward. Political and other elites, even on the progressive side, are still nationalists. So no one has much of an interest to leave the script, even if it no longer jives with circumstances on the ground.

This week of Opinio Juris, Chris discussed the significance of Ukraine’s, Moldova’s, and Georgia’s signing of Association Agreements with the European Union. Peter, meanwhile, pointed out two provisions in Canada’s citizenship-stripping legislation of questionable compatibility with international and human rights law, and explained how the US Supreme Court’s Recess Appointments case speaks to foreign relations law.

Jessica wrapped up the news and I listed events and announcements. For further interesting reading over the holiday weekend, the US Department of State has just released the 2013 Digest of U.S. Practice in International Law.

And if you have enough of the FIFA World Cup, maybe Chris’s post on the ConIFA—the competition for teams from unrecognized entities and would-be states may provide an antidote.

Have a nice weekend!