Archive of posts for category
General

Open Consultation on UN GGE Recommendations on Responsible State Behavior in Cyberspace

by Jessica Dorsey

Leiden University’s The Hague Program for Cyber Norms is inviting an open consultation on how to best implement the UN Group of Governmental Experts’ (UN GGE) recommendations on responsible State behavior in cyberspace. Partner in these consultations is the ICT4Peace Foundation. The Call for commentary and implementation guidelines can be found here.

To participate, please send your questions, comments, recommendations to Mr. Walle Bos.

Background

The UN GGE’s 2015 report (U.N. Doc. A/70/174, July 22, 2015) proposed 11 voluntary, non-binding norms on cooperation, mutual assistance, information exchange, respect for Human Rights, integrity of the supply chain, and critical infrastructure protection. Since then, there has been little public debate on these norms.

In June of this year, the fifth consecutive UN GGE concluded its negotiations without producing a consensus report. In the absence of such a report to offer guidelines on the implementation of the proposed norms contained in the 2015 report, this project aims to support the UN GGE’s work by conducting open consultations in order to produce a commentary with implementation guidelines that includes a wide variety of relevant views.

MH17 Downing Suspects to be Prosecuted Before Dutch Domestic Courts – An Obstacle or an Advantage for International Justice?

by Aaron Matta

[Dr. Aaron Matta is an expert in international law with working experience at International Courts. He also recently co-founded The Hague Council on Advancing International Justice, a network for and with practitioners, academics, and policymakers in the area of international justice. I would like to thank Dr. Philip Ambach and Anda Scarlat for their feedback on earlier drafts of this commentary.The views expressed here are of the authors alone]

After nearly three years since the downing of the Malaysia Airlines MH17 flight, the countries comprising the Joint Investigation Team (JIT) – namely Australia, Belgium, Malaysia, the Netherlands and Ukraine – announced on 5 July their decision to initiate domestic investigations and prosecutions in the Netherlands in relation to the incident. To facilitate these procedures, a bilateral treaty on international legal cooperation between Ukraine and the Netherlands was signed on July 7. The treaty provides that those suspected of downing flight MH17 can be prosecuted in the Netherlands in respect of all 298 victims, which originate from 17 different countries. This means that all next of kin will have the same rights in the Dutch criminal proceedings regardless of their nationality.

These new developments are not surprising given that most of the victims were Dutch and the Netherlands has led the investigation and coordinated the international team of investigators thus far. This move also shows the determination of the JIT states to bring to justice those responsible, particularly after failed attempts to establish an ad hoc international MH17 Court had failed due to Russia’s veto in the United Nations Security Council. However, the recent decision to prosecute suspects in a Dutch domestic court raises challenges, particularly in view of the ongoing preliminary examination in Ukraine by the Prosecutor of the International Criminal Court (ICC). While international law provides several legal avenues for redress for this incident, in both criminal and civil proceedings, – which I extensively analyzed in an earlier blog post – the avenues analyzed here fall under the category of individual criminal responsibility.

So why can the Netherlands exercise its criminal jurisdiction in this case, if the incident occurred in Ukraine? In principle, Ukraine would retain the primary right to investigate and prosecute those responsible according to the legal principle of territorial jurisdiction – based on where the crime was committed. The Ukrainian leadership determined, however, that it would be very difficult to carry out the investigations and prosecutions due to the ongoing conflict in the Donbass region, where the MH17 incident took place. As a result, Ukraine triggered the ICC’s jurisdiction over crimes allegedly committed on its territory from 20 February 2014 onwards via two declarations under the ICC Statute, requesting the ICC Prosecutor to investigate the matter. Currently, following these requests, the ICC Prosecutor is undertaking a preliminary examination that could lead to the opening of a criminal investigation. Such investigation could potentially include the downing of the MH17 flight as an alleged war crime.

Nonetheless, the other JIT states, including the Netherlands, can also assert their domestic jurisdictions over this matter based on the legal principle of passive personality jurisdiction, due to the fact that their citizens were killed in this incident. In light of last week’s decision, the Dutch domestic criminal specialized courts will now be able to investigate and prosecute those responsible for the downing of MH17 on the basis of four main legal sources: first, as domestic crimes under the Dutch penal code, such as murder or manslaughter; second, as an international crime under the Dutch International Crimes Act of 2003; thirdly, as a crime on the basis of the 1971 Montreal Convention, which allows the domestic prosecution of any person committing unlawful acts against the safety of civil aviation; and finally, the bilateral judicial cooperation agreement recently signed with Ukraine.

However, the concurrent use of multiple criminal prosecution mechanisms, namely the Dutch domestic courts and the ICC, may cause difficulties. First, issues may arise under the basic principle of ‘ne bis in idem’, which states that no person can be tried twice for the same crime. Thus, if a Dutch court prosecutes an individual, this may prevent the ICC from prosecuting the same individual for the same crime. It is therefore essential for the JIT states to coordinate and cooperate with each other, and more importantly with the ICC, when it comes to gathering evidence, selection of suspects and conducting fair trials, to avoid duplication and wasting resources.

In addition, an investigation by the Dutch national authorities will most likely block any investigation by the ICC by virtue of the latter’s complementarity to national courts of its States Parties. According to this principle, states are primarily responsible for investigating and prosecuting international crimes. The ICC only intervenes if states parties to the Rome Statute of the ICC are unable or unwilling to prosecute individuals’ suspected/accused of the most serious crimes of concern to the international community. With this in mind, a division of labor between the different jurisdictions, and among the different actors involved, could be arranged. For example, the Netherlands could focus in prosecuting those most responsible for the MH17 incident, while the ICC concentrates its efforts and limited resources to investigating other crimes committed in the Ukrainian territory.

Other challenges that will be faced by all of the jurisdictions involved are, for example, meeting the high standards of proof required for establishing the suspects’ guilt beyond reasonable doubt. This includes notably the requirement to prove the alleged perpetrator’s ‘knowledge and intent’ to commit a war crime. Additionally, there will be several procedural obstacles when it comes to judicial cooperation and the sharing of crucial potential evidence. Clear examples of this are the thousands of intercepted telephone calls gathered by Ukrainian law enforcement and intelligence agencies. While some of this evidence can easily be shared with the JIT investigators, as well as with the Dutch and ICC prosecutors, in several instances much of this data cannot be shared due to some restrictions in the Ukrainian legal system. This is the case, for example, with evidence that may have been acquired or intercepted following special legal procedures into the downing of the MH17, such as investigations carried out in the interest of state security and the fight against terrorism.

The bilateral agreement between the Netherlands and Ukraine addresses some of these issues by reducing or simplifying some procedural hurdles. For example, the agreement tackles the issue of examination of Ukrainian defendants via video link or the transferring of enforcement of prison sentences that may be imposed, due to extradition restrictions in the Ukrainian legal system.

Finally, a major obstacle will prove to be obtaining custody of the potential suspects, particularly if they are Russian nationals and/or located on Russian territory. The Russian Federation will most likely not be willing to extradite potential Russian suspects, in spite of international pressure, in light of the current geopolitical tensions prevailing in the region. In this respect, trials in absentia (where the suspect is absent from the legal proceedings), which are provided for in the Dutch criminal code could prove to be a limited yet practical solution.

Regardless of these numerous challenges, the decision to initiate judicial proceedings in the Netherlands providing a solid avenue for legal redress for the incident should be welcomed. Such an initiative would further show that the JIT states are serious about seeking justice for the victims of this tragic incident and their relatives.

Amicus Brief in Al Bahlul Military Commission Case

by Jens David Ohlin

I have filed an amicus brief in the Al Bahlul case.  Al Bahlul was charged and convicted before a military commission for multiple offenses including conspiracy. On appeal, several of the charges were thrown out, but the conspiracy conviction remains and is the subject of his cert petition before the U.S. Supreme Court. Although the government once held the position that conspiracy is an offense under the international law of war, the government eventually switched legal theories and argued that conspiracy is a domestic law offense triable before a military commission. As should be clear from the excerpt below, my own view is that the jurisdiction of military commissions is limited to international offenses under the law of war.

Here is a summary of the brief’s argument:

In this case, petitioner Al Bahlul was convicted of multiple offenses before a military commission, including conspiracy, solicitation, and material support for terrorism. See United States v. Al Bahlul, 820 F. Supp. 2d 1141, 1167, 1183 (U.S.C.M.C.R. 2011). On appeal, the U.S. Court of Appeals for the D.C. Circuit vacated the convictions for solicitation and material support. Al Bahlul v. United States, 767 F.3d 1, 5 (D.C. Cir. 2014). The sole remaining charge at issue in this litigation is Bahlul’s conviction for conspiracy.

In Hamdan, Justice Stevens’s four-vote plurality opinion concluded that a stand-alone conspiracy charge was not prosecutable at a military commission because it was not a violation of international law. Hamdan v. Rumsfeld, 548 U.S. 557, 604 (2006). In this case, however, the U.S. government has not relied on the classification of conspiracy as an international law offense. Instead, the government maintains that military commissions have jurisdiction to adjudicate the charge of inchoate conspiracy, despite the incongruity between that criminal offense and international law.

In proceedings below, counsel for the U.S. government has advanced various arguments for why military commissions have jurisdiction to try conspiracy – a domestic offense – even though the Supreme Court has made clear in prior decisions that the jurisdiction of military commissions is limited to the adjudication of violations of the law of war. These arguments all rely on the implausible suggestion that the “law of war” straddles the divide between international and domestic law, and that there exists a little-known domestic body of law called the American common law of war. According to the government, conspiracy is consistent with this newly re-discovered American law of war because the offence is entrenched in the common law, the legal culture of the United States, and Civil War commission practice.

This domestic “law of war” argument is problematic for multiple reasons. Although prior cases in this Court and elsewhere include references to something called the “common law of war,” see, e.g., Quirin, 317 U.S. 1, at 34, it would be legally and historically inaccurate to conclude that this phrase refers to a domestic body of law. Rather, an analysis of every mention of this phrase over the last 200 years demonstrates that the “common law of war” refers to international law – a law “common” to all mankind.

Determining the proper scope of the “law of war” in this context – i.e., whether it is international or domestic – has large implications for establishing the outer contours of the jurisdiction of military commissions. Given that military commissions operate outside of Article III, without the right to a jury trial protected by the Fifth and Sixth Amendments, the resolution of this case is essential for demarcating the proper boundaries between a civilian system of criminal justice and a military system for prosecuting detainees captured pursuant to the laws of war. For these reasons, it is imperative for this Court to grant certiorari to resolve this fundamental federal question pursuant to Rule 10(c).

The full amicus brief can be found here.

UN faces a second Cholera Challenge in New York Courts

by Kristen Boon

Waiver of immunity is at the center of another cholera case against the UN, this time in the Eastern District of New York.  In LaVenture et al v. United Nations, the plaintiffs argue that they have two distinct questions on waiver that distinguish this litigation from the recent decision upholding the UN’s absolute immunity in Georges et al.  The questions for the court in this new case revolve around waiver, and specifically:

whether the fact that the UN has stated, repeatedly and unambiguously, that they would accept liability for damages caused by UN peacekeeping forces not in the service of operational necessity is an express waiver of immunity from legal process as required by Article II, Section 2 (“Section 2”) of the U.N. Convention on the Privileges and Immunities of the United Nations (“CPIUN”). Flowing from this is a second, related question: whether, under Section 2 of the CPIUN, an express waiver of immunity is only effective if given in each single, individual claim, at the time such claim is presented before a court.

 

The Plaintiff’s most recent filing is available here LaVenture et al v United Nation[recent].

The facts of the Haiti cholera litigation are well known:  Multinational peacekeepers, members of the United Nations Stabilization Mission in Haiti (“MINUSTAH”), have been stationed in Haiti since 2004.  Their ranks swelled significantly in the aftermath of the deadly earthquake of 2010.  Some of these peacekeepers were from Nepal, a country which has endured an outbreak of Cholera.  While stationed in their barracks, human waste from the latrines from the MINUSTAH peacekeepers seeped directly into the groundwater and the Artibonite River — a lifeline for tens of thousands of local residents, many of whom are reliant on the river for drinking water. Shortly thereafter, a significant cholera epidemic emerged among the Haitian population.

Several suits stemming from the Cholera epidemic were filed in United States Federal Courts — originating from affected parties who reside in both Haiti and the United States.  Some blogs and reporting on the Georges et al case are here, here and here.  A complete set of legal documents regarding Georges et al is available on the website of the IIDH.

Currently, the Eastern District of New York is considering an almost-identical case in LaVenture v. United Nations. In light of the ruling in Georges, the Court asked the Plaintiffs to provide a reason why the case should go on, in spite of the Second Circuit precedent. They did so on March 30, 2017, asserting that the case is not moot and can be distinguished from Georges because the United Nations allegedly waived its immunity when the General Assembly passed a resolution promising payment for injuries and deaths caused by peacekeepers in 1998.   That resolution, A/RES/52/247, established that the United Nations will pay no more than $50,000 per person in damages for personal injuries or deaths, provided the complaint is filed within six months of the occurrence or its discovery. The standard for waiver as defined in the CPIUN requires “express” action by the Secretary-General in most circumstances. According to August Reinisch in The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies: A Commentary, the wording “in any particular case” implies that advance waiver is generally impossible, and waiver by the executive must be in response to a case at hand.  If the court adopts this interpretation, the Plaintiffs’ argument  that a resolution passed more than a decade before the epidemic began can affirmatively waive immunity  is unlikely to succeed.

The United States submitted a statement of interest before the Court on May 24, 2017, arguing  the case should be dismissed. Although the Plaintiffs proposed an extensive scheduling order, the response of the Court, dated June 12, 2017, questioned the Plaintiffs’ legal reasoning and significantly limited the scope and time granted to the Plaintiffs to reply to the United States’ statement.  The documents filed are available here: LaVenture et al v United Nation~LaVenture_et_al_v._United_Nati_25LaVenture_et_al_v._United_Nati_24.

Thanks to my RA Chris Mrakovcic for his assistance with this blog post.

That Syria War Power Debate, Continued

by Deborah Pearlstein

Cross-posted at Balkinization

If, as I argued earlier this week, the 2001 AUMF passed by Congress cannot be read to authorize the growing set of U.S. military actions against Syrian and Iranian forces in Syria, does the President’s Article II power standing alone support these strikes? The best articulated argument I’ve seen that the President has the Article II power to attack Syrian aircraft (or Iranian drones or any non-ISIS force in Syria) in the interest of defending U.S.-allied Syrian government rebels goes something like this. The President surely has Article II authority to act in defense of U.S. facilities and troops overseas without first waiting for congressional authorization, a necessary extension of the President’s power (on which there is near uniform agreement) to “repel sudden attacks.” As relevant here, this authority should be understood to extend to the defense of certain organized third parties (whether a state like Britain or our allied non-state Syrian Democratic Forces) operating (as Bobby Chesney puts it) “in close coordination with the U.S. military in a combat setting.” In such a situation, I take the idea to be, our interests are closely enough aligned and our military forces closely enough entangled, that an attack (or threatened attack) on a third party ally is effectively the same as an attack on us.

This ‘third party self-defense’ theory of the scope of Article II power is in one sense quite a bit narrower the currently prevailing position of the Justice Department Office of Legal Counsel – which, under President Obama, took the view that the President has constitutional authority to use military force on his own so long as an important U.S. interest was at stake, and so long as the quantum or nature of contemplated force didn’t actually amount to “war” within the meaning of the Constitution’s “declare war” clause. Under this OLC view – based in part on OLC’s assessment of post-World War II presidential practice – one need not develop any specialized theory of third party self-defense to justify the use of executive power here; the current President could surely assert one of several U.S. concerns in Syria as the important interest at stake (say, protecting the interest of regional stability), and so long as the strikes were limited in scope and duration (i.e. less than “war”), all of these actions could be said to fall within the scope of Article II, whether defense of battlefield allies was among the expressly named interests or not.

Yet there are at least three ways in which this ‘third party defense’ notion may be said to go beyond even the broad 2011 OLC conception of presidential power: (1) I am not aware of any previous practice in which the President has asserted the particular national interest of defending battlefield allies as such as a justification for authorizing the use of force abroad. Now it is surely one of the difficulties with the 2011 OLC opinion that it leaves so open-ended the question of what counts as an national interest sufficiently important for the President to use force, but if we are to take seriously the notion that past practice matters here, it would seem important to identify some at least analogous illustration on which to rely. (2) To the extent past examples of “important” national interests matter, the case for using force to protect a zone in a foreign country within which our own military might train opposition forces strikes me as vastly less impressive than the interest in, say, ridding the world of the scourge of chemical weapons. Indeed, the “de-confliction” zone we are now using force to protect is geographically just over the border from a country (Iraq) in which we have every right (thanks to that nation’s consent) to be operating militarily and, presumably, training anti-ISIL forces all we like. Above all, (3) in the 2011 Libya strike (and almost all previous post-World War II operations), unilateral executive uses of force abroad were taken in concert with UN authorities. For reasons I alluded to briefly in my previous post, both our downing of the Syrian jet and the recent U.S. strikes to preserve its non-state allies’ right to operate in the “de-confliction” zone appear to be in violation of the UN Charter (a treaty we are obligated to observe as supreme law of the land under our own Constitution’s Article VI). Whether one considers that an Article II problem, an Article VI problem, or simply a violation of international law – the United States’ legal position here is as precarious as it gets.

OJ Bloggers in Salim v Mitchell

by Kevin Jon Heller

As many readers are probably aware, the ACLU is currently bringing an ATS action against the two psychologists, James Mitchell and John Jessen, who allegedly designed and administered the CIA’s torture program. Here is the ACLU’s summary of the case, Salim v. Mitchell:

The CIA paid the two men and the company they later formed tens of millions of dollars over the next eight years [since 2002] to implement and refine the resulting program. Mitchell and Jessen designed the abusive procedures, conditions, and cruel treatment imposed on captives during their rendition and subsequent detention, devised the torture instruments and protocols, personally tortured detainees, and trained CIA personnel in administering torture techniques. In a clear conflict of interest later acknowledged by the CIA, the two men were also tasked with evaluating the “effectiveness” of the program from which they reaped enormous profits.

The plaintiffs in the case are Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and the estate of the late Gul Rahman, who died as a result of his torture. They are three of 119 victims and survivors of the CIA program named in the Senate torture report. All three were experimented on and tortured in accordance with Mitchell and Jessen’s specifications. All were subjected to severe physical and psychological abuse including prolonged sleep deprivation and nudity, starvation, beating, water dousing, and extreme forms of sensory deprivation – methodically administered with the aim of psychologically breaking their will.

The plaintiffs are suing Mitchell and Jessen under the Alien Tort Statute for their commission of torture; cruel, inhuman, and degrading treatment; non-consensual human experimentation; and war crimes.

I am not going to comment on the merits of the case. Instead, I want to let readers know that Opinio Juris bloggers are involved on both sides of it. I am the expert witness for the plaintiffs concerning the human-experimentation claim; Julian is the expert witness for the defendants on both the human-experimentation claim and the torture claim. You can find my declaration here, and Julian’s response here. We have also each submitted rebuttal declarations. Mine is here (scroll down to p. 48); Julian’s is here.

The New York Times published a long article about the case last weekend. It’s well worth a read.

Is Now a Good Time to Go Back to that U.S. War Power Debate?

by Deborah Pearlstein

Cross-posted at Balkinization

Because it’s too easy for our growing war in Syria to get lost amidst other also-pressing news, I want to be sure to note that last week ended with the Senate Foreign Relations Committee formally requesting the Trump Administration’s legal justification for a growing set of clashes between the U.S. military and armed forces allied with Syrian President Bashar Assad. The U.S. military has of course been engaged in anti-ISIL operations in Syria since 2014. But this recent violence – including the incident last week in which the U.S. military shot down a Syrian jet it said was firing on U.S.-allied non-state forces on the ground, as well as multiple U.S. efforts to defend its creation of a “de-confliction zone,” an area in Syria surrounding a garrison used by U.S. Special Forces to train partner forces there – involves the United States far more directly in state-to-state conflict with Syria (and its allies, Iran and Russia) than we have previously undertaken. Apart from the mammoth policy implications of this kind of escalation, it is far from clear what domestic legal authority supports it. In this post, I’ll address the notion that an existing statute authorizes these operations. In a later post, I’ll take up the suggestion the President’s inherent power under Article II of the Constitution does the job.

One possibility the Administration has advanced to justify its recent conduct is that the anti-Syria actions are (at least implicitly) authorized by the 2001 authorization for the use of military force (AUMF), which gave the President the power to use “all necessary and appropriate force” against those nations, organizations or persons he determines were responsible for the attacks of September 11. The Obama Administration indeed relied on the 2001 AUMF for its operations against ISIL in Syria. And while many of us have written critically (e.g. here) about the plausibility of relying on a 2001 AUMF to attack a group that did not come into existence until years after 2001 (and is indeed today the sworn enemy of the group, Al Qaeda, that all agree was responsible for the attacks of 2001), we might just for a moment set those arguments aside to consider the new claim on its own. The new claim is that to the extent the AUMF supports U.S. operations in Syria at all, it surely also must include the implied authority to defend U.S. forces operating there against whomever might subject them to attack.

The notion that the AUMF contains some implied authority for U.S. troops engaged in operations under its auspices to defend themselves against foreign attack is in one sense entirely plausible. If, as the Supreme Court held in 2004’s Hamdi v. Rumsfeld, the AUMF contains the implied authority to detain war prisoners under its auspices because such detention was a recognized incident of the use of force under international law, then surely self-defense of one’s own forces (at least to the extent permitted by international law) should also be within the realm of implied statutory authority. The problem is, U.S. self-defense is not what most (or maybe all) of these recent incidents have involved. (For a nice list of recent actions in Syria, see here.) By the United States’ own account, the Syrian SU-22 we shot down last week was firing on local anti-Assad fighters the United States supports, but there was no indication U.S. forces themselves were remotely at risk. CENTCOM rather explained that the move was in “collective self-defense” of coalition-partnered forces – a concept that appears pulled from Article 51 of the UN Charter (to which the United States is of course party) providing in relevant part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” Even if one were to assume the text of the AUMF should be interpreted with guidance from relevant international law, Article 51 by its terms limits the right of “collective” self-defense to UN member states. Local anti-Assad forces, whatever their merits, aren’t states. More, especially to the extent that what we are doing in establishing our “de-confliction zone” is effectively seizing an area inside Syrian territory for our use and defending it from incursion by Syrian or other forces, we are not engaging in defense (self or otherwise) at all, but rather in the partial armed occupation of another country – which is, without putting too fine a point on it here, the opposite of a recognized incident of force under international law.

So what about finding a relevant implied authority in the AUMF under other principles of statutory interpretation? Ignore international law for a moment – could the AUMF be read based on its text, context or legislative history to authorize the military operations we’ve carried out against Syria and Iran on behalf of anti-ISIL allies here? To pursue this theory, it is impossible to look just at the Administration’s latest interpretive move, but rather at the set of inferences one would have to draw from the AUMF itself. For buying the notion that the 2001 AUMF authorizes U.S. bombing of Syrian aircraft or Syrian-allied forces in Syria in all the circumstances we have in recent weeks requires us to embrace not just one dicey inference, but three: (1) that a statute limited by its text to authorizing force against the groups that attacked us in 2001 extends to a group that did not exist in 2001 (and is itself at war with the group that did attack us in 2001); (2) that the statute includes some implied authority to defend our own forces from attack not only against those nations and organizations the statute authorizes us to fight, but as against any nations and organizations anywhere worldwide our AUMF operations, whether or not our assertion of self-defense complies with international law; and (3) that statute further authorizes us to “defend” any local group with which we might ally in the course of global AUMF operations – up to and including apparently excluding a sovereign state from its own territory for the purpose of carving out some training space for the local group.

It is, to put it mildly, implausible that the Congress that passed the 2001 AUMF thought it was authorizing all this. The textual limitation of the 2001 AUMF to the groups responsible for the attacks of 9/11; the Charming Betsy canon of interpretation and others that would favor reading a statute to accord with our binding treaty obligations where possible; and the total absence in legislative history of any intention to authorize force against Syria and Iran – all weigh against any such construction. Which leaves us, alas, with the President’s power under Article II of the Constitution. I’ll pick up in a future post there.

William Bradford Fails Upward — and Is Still Lying About His Credentials

by Kevin Jon Heller

When last we met William Bradford, he had just published an article in the National Security Law Journal (NSLJ) accusing centrist national-security-law professors of treason and advocating prosecuting them for providing material support to terrorists. After many scholars, including me, pointed out that the article was both absurd and deeply offensive, the NSLJ repudiated the article. (Alas, the journal has since scrubbed the repudiation from its website.)

Bradford’s article was not his first brush with controversy He was forced to resign from Indiana University at Indianapolis after Inside Higher Education revealed that he had lied about his military service, falsely claiming, inter alia, that he had fought in Desert Storm and Bosnia and had won a Silver Star. Bradford then later resigned from West Point — whose decision to hire him still boggles the mind — after it came to light that he had falsely claimed that he had been an assistant professor at the National Defense University (NDU), run by the Department of Defense. According to the NDU, to quote the Guardian, “he was not a professor there, nor even a staff employee…. He is said to have worked for a Waynesboro, Virginia-based translations and business consultant, Translang, which had a contract with the university.”

You would be forgiven for thinking that someone who has accused respected law professors of committing treason and who was forced to resign from two academic institutions for lying about his credentials might have a difficult time finding a new — and more important — position. But if you do think that, you have never met Donald J. Trump, for whom no one is too dishonest or too incompetent to hire. Because Trump has recently appointed Bradford to the be the Director of the Office of Indian Energy at the Department of Energy (DoE).

That’s appalling in and of itself. But the awfulness doesn’t end there, because Bradford is still lying about his credentials. Here is a screenshot of Bradford’s bio on the DoE website (in case the DoE reads this and decides to scrub it):

Notice the text inside the red rectangle: Bradford is still claiming to have been a faculty member at the NDU — the same claim that led to his resignation from West Point.

In any sane administration, Bradford would be fired in the next 48 hours. But this is the Trump administration, so I’m not holding my breath.

Dear Secretary Tillerson (and the World Media): Qatar is NOT Under a “Blockade”

by Julian Ku

Longtime readers of this blog may have noticed that one of my pet peeves is the incorrect usage of international legal terms in public and diplomatic discourse.  Hence, Israel did NOT commit “piracy” during the 2010 Gaza flotilla raid despite lots of governments claiming otherwise.  Cuba is not under a “blockade” despite tons of Cuban government propaganda otherwise. So you can imagine my dismay when U.S. Secretary of State Rex Tillerson issued this statement yesterday calling the situation in Qatar a “blockade.”

We call on the Kingdom of Saudi Arabia, the United Arab Emirates, Bahrain, and Egypt to ease the blockade against Qatar. There are humanitarian consequences to this blockade.

(Emphasis added). Global media is using the term  “blockade” as well.

I don’t doubt that Qatar is under severe economic pressure.  It is reported that all of Qatar’s neighbors in the Gulf have cut off air, land and sea trade with Qatar.  Saudi Arabia has blocked the only land border into Qatar, which is a peninsula.  But as powerful as these economic pressures are, they do NOT constitute a blockade as defined by international law.  As this definition from the Max Planck Institute Encyclopedia of Public Law explains:

A blockade is a belligerent operation to prevent vessels and/or aircraft of all nations, enemy and neutral from entering or exiting specified ports, airports, or coastal areas belonging to, occupied by, or under the control of an enemy nation.

There is no evidence, as far as I know, that Saudi Arabia and other Gulf nations are preventing “vessels and/or aircraft of all nations” from entering Qatar ports.  Instead, the Gulf nations are simply preventing anyone in their territories from traveling to or trading with Qatar.  A blockade would mean that the Gulf nations actually used military force to interdict all shipping and flights into Qatar by any nation and through international waters.  Israel has essentially established such a blockade of the Gaza Strip, but that has not happened to Qatar (yet). Until that happens, there is no blockade.

Why is it so shocking that Secretary Tillerson did not recognize this legal distinction? Because the U.S. frequently engages in economic sanctions of the sort currently being imposed against Qatar.  The U.S. has either strict economic sanctions or full-scale embargoes on countries like North Korea, Cuba, and Iran.  Cuba in particular has tried to label the US embargo on it as a “blockade” even though the U.S. does not use military force to prevent other countries from trading with Cuba. The U.S. should not and cannot water down the legal definition of “blockade” without imperiling an crucial tool in its diplomatic toolbox.   Moreover, since “blockades” are traditionally seen as an “act of war,” they would probably constitute a “use of force” under Article 2(4) of the U.N. Charter.  The U.S., more than any country, should want to maintain the legal right to impose embargoes.

So please, Secretary Tillerson, consult your many talented and knowledge State Department lawyers.  Qatar is NOT being blockaded, and the U.S. (of all countries) should avoid saying so.

Emailing Does Not Pass the Kiobel Test: US Court Dismisses ATS Case Against Anti-Gay Pastor

by Julian Ku

Distracted by #ComeyDay and other international crises, I missed this recent U.S. federal court decision in Sexual Minorities of Uganda v. Livelydismissing an Alien Tort Statute lawsuit on Kiobel extra-territoriality grounds.  While using unusually critical language to denounce U.S. pastor-defendant Scott Lively’s involvement in Uganda’s anti-homosexual laws and actions, the U.S. District Court for Massachusetts held:

…Defendant’s status as an American citizen and his physical presence in the United States is clearly not enough under controlling authority to support ATS extraterritorial jurisdiction. The sporadic trail of emails sent by Defendant to Uganda does not add enough to the record to demonstrate that Plaintiff’s claims “touch and concern the territory of the United States . . with sufficient force to displace the presumption against extraterritorial application.” Kiobel, 133 S. Ct. at 1669.

What is notable about this case is that the same court and judge refused to dismiss this case on Kiobel grounds back in 2013 with largely the same allegations. The main difference with the result in 2017 seems to be that discovery revealed that Lively, the U.S. pastor, did not provide any

financial backing to the detestable campaign in Uganda, he directed no physical violence, he hired no employees, and he provided no supplies or other material support. His most significant efforts on behalf of the campaign occurred within Uganda: itself, when he appeared at conferences, meetings, and media events.

On these facts, this seems like the right result.  Kiobel requires something more than communications from the United States to “displace the presumption against extraterritoriality.” But caselaw continues to be a little muddy and I fully expect this to be appealed.

 

Beyond the Globalism/Nationalism Divide: The Rise of Cities and Corporations Seeking International Obligations

by Anthea Roberts

[Anthea Roberts is an Associate Professor at the School of Regulation and Global Governance, Australian National University.]

In withdrawing from the Paris Accord, President Donald Trump emphatically rejected globalism in favor of nationalism. “As president, I can put no other consideration before the well-being of American citizens,” he explained. “I am fighting every day for the great people of this country. Therefore, in order to fulfill my solemn duty to protect America and its citizens, the United States will withdraw from the Paris Climate Accord.” But might this strong endorsement of nationalism exacerbate divisions within the state, leading sub-state actors (like cities) and non-state actors (like corporations) to seek to undertake international obligations beyond the state?

The old domestic political divide between left and right, liberal and conservative, is giving way to a new division between globalists and nationalists. As White House advisers H.R. McMaster and Gary Cohn recently explained of Trump and his America First policy:

 The president embarked on his first foreign trip with a clear-eyed outlook that the world is not a “global community” but an arena where nations, nongovernmental actors, and businesses engage and compete for advantage. We bring to this forum unmatched military, political, economic, cultural, and moral strength. Rather than deny this elemental nature of international affairs, we embrace it.

Similar rhetoric has emerged in other domestic confrontations, such as in Marine Le Pen’s description of the battle in the French election as being one between “globalists” and “patriots.”

But focusing on the nationalist/globalist divide may encourage one to overlook how divided the “national” has become. In particular, cities are frequently more open, plural and cosmopolitan than their surrounding rural areas, and this is often particularly true of “global” cities like New York and London. Think of London’s vote to remain in the European Union as an example, or how votes are divided between the east and west coasts of America and much of the rest of America.

If many cities are more globalist than the nation states in which they are located, we may expect them to buck a return to nationalism. For instance, in withdrawing from the Paris Accord, Trump explained that: “I was elected to represent the citizens of Pittsburgh, not Paris.” Pittsburgh’s Mayor Bill Peduto quickly took to Twitter to reject his city’s name being taken in vain: “Pittsburgh stands with the world & will follow Paris Agreement. As the Mayor of Pittsburgh, I can assure you that we will follow the guidelines of the Paris Agreement for our people, our economy and future.”

Pittsburgh is not alone. A group of 30 mayors, three governors, more than 80 university presidents and more than 100 businesses are now trying negotiate with the United Nations to sign up to the Paris Accord. This effort is being led by Michael Bloomberg, the former New York City mayor. Such an attempt is extraordinary given that international law is generally premised on obligations being accepted by states, not sub-state units or non-state actors. But it is also echoes McMaster and Cohn’s statement that the international system is one “where nations, nongovernmental actors, and businesses engage and compete for advantage.”

The possibility of non-state actors or sub-state actors taking on international obligations is controversial, but not unheard of. Sandesh Sivakumaran and I have argued that certain non-state actors should be permitted to issue binding unilateral declarations through which they commit to international law obligations. There is some practice in support of such an approach. For example, Geneva Call, a Geneva-based organization, created a Deed of Commitment on anti-personnel mines that can be signed by “armed non-state actors.” The Deed largely parallels the commitments incumbent upon states parties to the Ottawa Convention on the Prohibition of Anti-Personnel Mines.

Such an approach might cross-apply to other non-state actors, like corporations. We did not consider whether a similar approach could apply to sub-state actors, like cities and states within a federal system. This approach may well be prohibited by the domestic laws of particular states that prevent sub-state entities from engaging in foreign relations. But perhaps, as a matter of international public policy, this approach should be permitted when non-state and sub-state actors seek to take on obligations in excess of those accepted by their state.  This would surely be controversial, however, as states jealously guard their law-making powers as a key attribute of statehood.

Yet in a world in which many cities and some companies are more globalist and environmentally concerned than their states, perhaps pressure for this sort of action will begin to mount. Indeed, we are starting to see collaborations emerging among cities and mayors both within and across nation states to deal with global issues like climate change. Consider, for example, the climate alliance established by California, New York and Washington and the Global Parliament of Mayors. If this trend continues, we will not have a nationalist world or a globalist one but a far more complicated reality where states, sub-state actors and non-state actors collaborate and compete both within and across state borders.

Far from a strong assertion of nationalism resulting in the primacy of the state, a strong America First approach in these circumstances may actually undermine the pre-eminence of the state, leading to greater domestic divisions between globalist, cosmopolitan cities and more nationalist, parochial rural areas. If global cities find that they have more in common with each other than with their states, what will this mean for the stability of a neo-nationalist approach? It may well be that in reasserting the primacy of nationalism, Trump will end up kicking another own goal.

Sound and Fury on the Paris Agreement – But Does It Signify Anything?

by Daniel Bodansky

[Daniel Bodansky is Foundation Professor of Law at the Sandra Day O’Connor College of Law, Arizona State University.]

As usual, in his announcement yesterday about the Paris Agreement, President Trump spoke loudly but carried a small stick.  Duncan laid out the options for withdrawal in his post earlier this week.  Rather than choosing the “nuclear option” of withdrawing from the UN Framework Convention on Climate Change, which President Trump could have initiated immediately and would have resulted in US withdrawal from the Paris Agreement a year from now, he opted to withdraw from the Paris Agreement pursuant to the Paris Agreement itself – a much slower process that requires him to wait until November 2019 to provide notice of withdrawal, and another year before the withdrawal takes effect.  Needless to say, a lot can happen between now and then.   Whether Trump feels the same way in 2019 as he does today is by no means certain, particularly since, judging from both his words and deeds, Trump views consistency as the hobgoblin of little minds.  As a result, his announcement throws red meat to his supporters and gives the finger to the rest of the world  (much the same thing) – but it doesn’t do anything concrete to withdraw the United States from the Paris Agreement.

But if the Trump announcement was weak on substance it was strong on rhetoric.  David Roberts has an excellent post over at Vox on “The 5 Biggest Deceptions in Trump’s Paris Climate Speech.” So I’ll be brief.  Suffice it to say that, in justifying his decision to withdraw from the Paris Agreement, President Trump trotted out the same warmed-over arguments that the Bush Administration made about the Kyoto Protocol:  it’s unfair to the US because it lets China and India off the hook; it’s a threat to US sovereignty, by putting the United States under the thumb of UN bureaucrats; and it would wreck the US economy.  These agreements may have had a kernel of truth with respect to the Kyoto Protocol, but they are completely wrong about the Paris Agreement.  The Paris Agreement was, in fact, designed to be the un-Kyoto. In contrast to Kyoto, it calls on all countries to make commitments to control emissions.  Rather than imposing internationally negotiated targets on countries, it gives parties complete flexibility to nationally-determine their emission reduction plans.  And rather than putting countries in a legal straightjacket that threatens their sovereignty, countries’ national emission commitments under the Paris Agreement are not legally binding.

Although the US will remain in the Paris Agreement through at least 2020, President Trump said that the US would stop implementing it in the meantime.  This appears directly at odds with general rule of treaty law, reflected in the Vienna Convention on the Law of Treaties, requiring states to perform in good faith treaties to which they are a party.  So long as the United States is a party to the Paris Agreement, it is obligated to comply with its commitments under the agreement.

For Trump, announcing his intention to withdraw from the Paris Agreement was a win-win-win: it shored up support among his base, diverted attention away from the Russia investigation, and allowed him to look decisive (after weeks of dithering about what to do).  For the rest of the world (including non-Trump America), the announcement was a significant setback in the international effort to address climate change.  But how serious a setback will depend, in part, on the reaction by other countries and by sub-national actors within the United States.   So far, the response has been encouraging.  Other countries, including China, Russia, India and European countries, have reaffirmed their commitment to the Paris Agreement and states and cities within the United States have created the United States Climate Alliance, dedicated to achieving the US goal of reducing emissions by 26-28% below 2005 levels by 2025.  If the United States reengages with the Paris Agreement after the 2020 elections, the Trump announcement may turn out to be a pothole for the United States, rather than a plunge off the cliff for the world.