Archive of posts for category
General

Weekly News Wrap: Monday, May 30, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Planning for Detention

by Deborah Pearlstein

Picking up on Jens’ post about the Administration’s apparent lack of plans for holding detainees picked up in Iraq/Syria, I too found the Times report troubling. In part I suspect it was because I was immediately reminded of one of the findings of the many Pentagon investigative reports issued after the revelations of torture at Abu Ghraib and other U.S. detention facilities in Iraq. All apart from criticisms of changes in policy and legal interpretation, some of the harshest blame for the widespread nature of the abuse was the total failure of preparation. In particular, according to the report prepared by Lt. Gen. Anthony R. Jones, tasked with investigating the Abu Ghraib Prison and the 205th Military Intelligence Brigade in Iraq: “[P]re-war planning [did] not include[] planning for detainee operations.” The finding always seemed stunning to me, given the months long (or longer) lead up to the 2003 invasion, and the certainty from the beginning that the war was going to involve a significant U.S. commitment of resources, including ground troops. But the Pentagon was of course then laboring under Defense Secretary Rumsfeld’s preference for keeping forces light, insisting that it was possible to minimize the amount of supplies and surrounding support required to overthrow the regime. Of all the lessons out of the 2003 invasion and the years that followed, it seemed to me the failure of that attack-now-plan-later approach was among the clearest.

The latest U.S. engagement in Iraq and Syria is of course in key respects different. U.S. troops are there, we have maintained, to support the Iraqis in their efforts against ISIL. Our commitment of ground “personnel” has been steadily growing (making Congress’ failure to authorize the use of force in this new conflict even more problematic than it already was), but it is far, far from anything like the 2003 invasion and prolonged occupation. All the same, it is not as though we don’t have a series of models from past conflicts for how to handle the inevitable detention problem – models ranging from our own establishment of vast detention operations (in, e.g. World War II and after 9/11) to shared arrangements with allies (in, e.g. Vietnam and the 1991 Gulf War). All of these models have had issues, but some far far fewer than others. I got curious a few years back so finally did some digging and wrote up this little survey. Here, for example, is 1991 in sum.

Between January 22, 1991, when the first prisoner was captured, and May 2, 1991, when the United States transferred the final prisoner from its custody, U.S. detention facilities processed nearly 70,000 detainees, including through the use of battlefield hearings on prisoner status pursuant to Article 5 of the Geneva Convention (III)…. At the outset of hostilities, the United States quickly secured military-to-military agreements with allies France and the United Kingdom, setting forth the process to be followed by any capturing forces in processing prisoners of war or other detainees, initially through U.S. detention or medical facilities in theater. Although American military police and combat engineers raced to build prison facilities in theater from scratch, the United States also undertook a separate agreement with Saudi Arabia that authorized the subsequent transfer of many of these prisoners to existing Saudi facilities. By the end of the conflict, more than 35,000 prisoners were held in U.S. facilities, with 63,000 more held in Saudi Arabia…. Ultimately, the vast majority of prisoners in Saudi Arabia were repatriated to Iraq under ICRC auspices after Saddam Hussein issued a general amnesty. In all events, all prisoners had been transferred from U.S. custody by May 2, 1991. On August 23, the ICRC announced that the repatriation of Iraqi prisoners was complete. And the ICRC concluded that the “treatment of Iraqi prisoners of war by U.S. forces was the best compliance with the Geneva Conventions by any nation in any conflict in history.”

Don’t be misled, there were plenty of issues post-1991 (including controversy surrounding the resettlement of some Iraqi prisoners/refugees in the United States, described elsewhere in the piece), and plenty more differences between that conflict and this. But particularly as this Administration barrels toward transition, with no chance U.S. involvement in the region will have come to an end by January, now’s the time to put pen to paper with the allies, in the region and beyond, who share the anti-ISIL goal. Securing commitments, to resources and to upholding the detainee protections required by law, is tough. But not nearly as tough as paying the human rights and strategic costs of detention without a plan.

No Detention Plan for ISIS

by Jens David Ohlin

Today’s New York Times tells us that the Obama Administration currently has no active plan for holding Islamic State (ISIS) detainees captured on the battlefields of Iraq or Syria. The article makes clear that the lack of a plan isn’t because the Obama Administration hasn’t been thinking about the issue. In reality, the lack of a plan stems from the fact that the Obama Administration refuses to develop one.

Why not? After the fiasco known as Guantanamo Bay, the administration apparently has no interest in getting into the detention business. As in, not just the CIA not getting into the detention business — but the whole government not running a detention facility.

So this triggers an obvious question: Where will the detainees go?

One worry expressed in the article, echoed by former administration lawyer William Lietzau, is that the lack of a detention program might have perverse incentives. Some non-U.S. forces fighting against ISIS might decide that it is better to execute detainees rather than capture them, given the lack of a viable detention plan or facility run by the United States. It doesn’t take an international lawyer to know that executing prisoners, or soldiers otherwise hors de combat, is a war crime (and a particularly egregious one).

So far, the assumption has been that the Iraqi government will run a detention program itself (at least for detainees captured on Iraqi territory). According to the Times:

The potential for a large number of prisoners presenting these kinds of challenges — for somebody — has been raised at planning meetings for months both inside the Obama administration and with coalition partners, according to officials familiar with internal deliberations.

But with no good options, the Obama administration’s default policy is to take custody of the highest-value detainees for interrogation, something the United States has done only twice with Islamic State prisoners. Both were later moved to Kurdish prisons.

The assumption is that the Shiite-dominated Iraqi government or the Iraqi Kurdish forces will hold and, if appropriate, prosecute any suspected foot soldiers and sympathizers they capture.

“We’re not equipped for long-term detention,” said Col. Steve Warren, the spokesman for the American military forces in Baghdad. “We’re not set up here for that, so we’re not in that business.”

It is not clear to me what would happen to ISIS forces captured on Syrian territory by moderate rebels who are also fighting the Syrian government.  It doesn’t seem likely to me that they would transfer the detainees to the Iraqi government (but I don’t know), and they surely won’t transfer the detainees to the Syrian government.  And it is unclear to me whether these rebels will have the infrastructure necessary to run their own detention program.

Everybody Has Friends, Why Not the ICC: On the Court’s Power to Appoint Amicus Curiae Prosecutors

by Ekaterina Kopylova

[Ekaterina Kopylova is a PhD candidate at MGIMO-University, Moscow, and a former Legal Assistant with the ICC Office of the Prosecutor on the Bemba, et. al case]

A month ago the ICC Trial Chamber V(A) vacated without prejudice the charges of crimes against humanity against the sitting Kenyan Vice-President William Ruto. This case involved intense cross-parties allegations of witness tampering. Some of these allegations have been found serious enough to substantiate a warrant of arrest against a former journalist Walter Barasa, who is suspected of having influenced or sought to influence several persons to withdraw as Prosecution witnesses.

At trial, the Ruto Defense alerted the Prosecution and the Chamber to the conduct of certain Prosecution witnesses that, in its view, might be constitutive of offences against the administration of justice, to no avail. On May 2, 2016, it decided to take these allegations to the next level. It requested in essence that the Trial Chamber directs the Prosecutor to appoint an amicus to investigate several Prosecution witnesses, intermediaries and officials for the possible violations of article 70 of the Rome Statute.

The Office of the Prosecutor should not have to go to great pains to convince the Chamber to reject the Defense request. Although a Chamber may refer facts to the Prosecutor, the choice of whether and how to proceed, including what safeguards against possible conflicts of interests to put in place, is clearly hers. Specifically, pursuant to article 41(2) of the Statute, the Office shall act independently, and neither solicit, nor accept instructions from any external source.

However, the Ruto Defense may reconsider the relief sought and ask the Court to appoint an amicus curiae prosecutor directly.

Article 70 stipulates that “the Court has jurisdiction over […] offences against its administration of justice.” The Court determines on a case-by-case basis the best way to exercise this jurisdiction. Like any international organisation, the Court is free to act in any manner consistent with its founding treaty to achieve the goals of that treaty. For example, the Pre-Trial Chamber in the Bemba, et al. case appointed an independent counsel answerable directly to it to vet the evidence received from the domestic authorities for any privileged material.

Nothing in the statutory framework prevents the Court from appointing an amicus curiae prosecutor, at least with respect to the article 70 proceedings and in other cases, where appropriate. This may be the case, for example, when the allegations concern a member of the Office or a witness who testified for it. Proceedings contaminated by suspicion of collusion are unlikely to meet the standards of international justice. It is the Court’s duty to ensure such situations do not happen.

Under article 42(1) of the Statute, the Office is an organ “responsible for receiving referrals and any substantiated information on crimes […], for examining them and for conducting investigations and prosecutions before the Court.” This article merely describes the Office’s duties within the Court’s system without prohibiting their temporary transfer to another person or entity, if the good administration of justice so requires.  Neither the Statute, nor the Rules of Procedure and Evidence suggest that the Office of the Prosecutor has exclusive power to conduct investigations and prosecutions of the offences within the Court’s jurisdiction for the Court’s benefit.

Appointing an amicus to deal with the contemptuous conduct is normal practice at the ad hoc tribunals, including when the Prosecutor may be conflicted. Admittedly, there is an express provision to this effect in their Rules. Nevertheless, the parallel with the ad hocs seems apposite. No statute provides for the power of those tribunals to punish contempt or the modalities of its exercise; however, such powers are not expressly prohibited, either. Thus, the contempt cases are a good illustration of the international courts taking initiative to face challenges that have not necessarily been articulated by the drafters.

To allay the conflict of interests related concerns, the Office of the Prosecutor may envisage the creation of a special division dedicated exclusively to the investigation and prosecution of the article 70 offences. Such division should be comprised of investigators and trial lawyers acting independently and reporting directly to the Prosecutor or a special Deputy Prosecutor. Those who work interchangeably on the core crimes and article 70 offences naturally tend to employ the same techniques and strategies to both, losing in efficiency and speed, as what is good for the core crimes is usually bad for the article 70 offences. Specifically, whereas the core crimes cases are largely predicated on witness evidence, in the article 70 cases such evidence alone may be insufficient to sustain a finding of guilt. Having a focused team will enhance productivity and effectiveness in full respect of the Statute and the fair trial rights of the accused.

Weekly News Wrap: Monday, May 9, 2016

by Jessica Dorsey

Here’s your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: May 8, 2016

by Jessica Dorsey

Sponsored Announcements

  • Admissions to the Venice Academy of Human RightsBacklash against Human Rights? (4 – 13 July 2016), organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC) are open until 22 May 2016. The Venice Academy of Human Rights is a centre of excellence for human rights education, research and debate. The  Venice Academy provides an enriching forum for emerging ideas, practices and policy options in human rights research, education and training. It hosts distinguished experts to promote critical and useful research, innovation and exchange of current knowledge. The theme Backlash against Human Rights? – International and regional human rights systems have witnessed remarkably outspoken critiques that emphasise a movement back towards the nation State and national sovereignty. The European Court of Human Rights is occasionally openly criticised, if not attacked, for overstepping its competencies and intervening in national affairs. National supreme courts reassert their own status and authority. Professor Robert McCorquodale, Director of the British Institute of International and Comparative Law in London, is the General Course Responsible “Two Steps Forward, One Step Back: Dancing to the Human Rights Beat”. Developments in human rights in recent years have seen the expansion of obligations on states, the extension of human rights responsibilities to international organisations and corporations, and the application in situations of armed conflict. There have also been resistance to these advances by groups within and across states. This series of lectures will explore these types of advance and resistance, and the opportunities and dangers these may indicate for human rights protections. The enrolment fee for the Venice Academy of Human Rights is – 1320 EUR including accommodation in a single room from 3-13 July – 1050 EUR including accommodation in a shared double room from 3-13 July – 700 EUR without accommodation. The fee includes: tuition, lunches on class days (Monday-Friday), refreshments, social events, accommodation (if applicable).
    Theme: Backlash against Human Rights?
    Dates: Monday, 4 July – Wednesday, 13 July 2016
    Faculty: András Sajó (opening lecture), Robert McCorquodale (general course), Helen Fenwick, Mark Goodale, Geir Ulfstein
    Participants: Academics, practitioners, PhD/JSD and master students
    Type of courses: Lectures, seminars, discussion sessions and panel presentations
    Number of hours: 34 hours
    Venue: Monastery of San Nicolò, Venice – Lido, ItalyInterested candidates should register by compiling the online application form. For any query about the Venice Academy please contact us at venice [dot] academy [at] eiuc [dot] org.
  • Admissions to the Venice School of Human Rights – Human Rights as Our Responsibility (24 June – 2 July 2016), organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC) are open until 22 May 2016, early bird 15 April 2016 with 10% discount. The Opening Lectures of the School will be held by Prof. Manfred Nowak, Professor at the University of Vienna and EIUC Secretary General, one of the most renowned human rights experts (his academic career includes more than 400 publications) by Andrew Anderson, member of the Advisory Board of the Centre for Applied Human Rights at the University of York, Front Line Defenders on the Board of the EU Human Rights Defenders Mechanism, and by Hauwa Ibrahim, human rights lawyer who won the European Parliament’s Sakharov Prize in 2005. After a first session common to all participants dedicated to a general introduction on international systems of protection of human rights and related mechanisms, the programme will develop into the three thematic clusters – Business and Human Rights, Technical Progress and Human Rights and Violence against Women as Gender Based Violence. From ‘CEDAW’ To Istanbul And Beyond – among which participants will have to choose.The Venice School is addressed to graduate students from all academic backgrounds, students from the different regional masters in human rights and democratisation, to E.MA alumni as well as to human rights practitioners willing to deepen and improve their knowledge in human rights issues. Training language: All courses will be held in English. It is, therefore, essential that all participants understand and speak English fluently. All participants attending the Venice School of Human Rights will receive a certificate of participation upon completion of the course.The enrolment fee for 2016 Venice School of Human Rights is 1100,00 € and it will include:
    • tuition fee
    • lunches on class days
    • accommodation with breakfast included in a shared double-room for 9 nights (23 June – 2 July 2016) in Venice at the Crociferi residence (Crociferi)
    • free shuttle to/from EIUC site on class days at the starting and ending of lectures

    Interested candidates should register by compiling the online application form. For any query about the Venice School please contact us at veniceschool [at] eiuc [dot] org

Call for Papers

  • The Editorial Board of UCL Journal of Law and Jurisprudence is pleased to call for submissions for the second issue of 2016. This will be our ‘City Issue’ and the Editorial Board welcomes submissions that engage with this general theme. The topic is broadly conceived and leaves scope for any area of law or jurisprudence (domestic, regional or international) that is deemed to be ‘City’ related. See here for a non-exhaustive list of potential topics. The editors accept articles of 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with the Oxford University Standard for Citation of Legal Authorities (OSCOLA). Contributions that have already been published or that are under consideration for publication in other journals will not be considered. The (extended) deadline for submissions is 15th May 2016. Manuscripts must be uploaded via the submissions section on the website. For further information and guidelines for authors please visit the website.

Announcements

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

A Quick Bleg

by Kevin Jon Heller

Does anyone have an idea of what would be a fair hourly rate for someone to cite-check — both for substance and for accuracy of citation — a leading international law treatise published by a leading university press? Rates in pounds, dollars, or euros would be most appreciated!

What the European Convention on Human Rights Has Actually Done For You

by Patrick Wall

[Patrick Wall is studying for an LL.M. in International Law at the Graduate Institute of International and Development Studies, Geneva, as the Sir Ninian Stephen Menzies Scholar in International Law.]

Last week, the British home secretary, Theresa May, called for the United Kingdom to withdraw from the European Convention on Human Rights.

Describing ‘the case for Britain remaining in organisations such as NATO, the World Trade Organisation and the United Nations’ as ‘clear’, Ms May argued that ‘the case for remaining signatory of the European Convention on Human Rights, which means that Britain is subject to the jurisdiction of the European Court of Human Rights, is not clear’:

The [European Convention] can bind the hands of parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights. So regardless of the EU referendum, my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave but the [European Convention] and the jurisdiction of its court.

Ms May has faced a ‘huge backlash’ over her comments. Amnesty International has said that withdrawing from the European Convention would ‘strike at the very architecture of international protection’, whilst Liberty criticised Mrs May for ‘playing fast and loose’ with the legacy of one of the Conventions’ early architects, Sir Winston Churchill.

Ms May’s comments also put her at odds with colleagues on both sides of the aisle in the House of Commons. On her own side, the Ministry of Justice has confirmed that withdrawal is not government policy—for the time being, at least—while Tory MP and former attorney general Dominic Grieve said that he was ‘disappointed because it shows a lack of understanding of the positive impact the [European Convention] is for the EU’.

Across the aisle, shadow justice secretary Charles Falconer has described Ms May’s comments as ‘so ignorant, so illiberal, so misguided’:

Ignorant because you have to be a member of the [European Convention] to be a member of the EU [and Ms May supports the UK remaining in the EU].

Illiberal because…there has to be a source external to a government determining what human rights are.

And misguided because it will so damage the standing of the UK, a country that above all plays by the rules and that is going around the world saying we should comply as a world with human rights.

This is so, so appalling.

The Guardian newspaper (affectionately known to some as The Grauniad) has responded somewhat differently; it has released a film—modelled on Monty Python’s ‘What have the Romans ever done for us?’—starring Sir Patrick Stewart as a would-be Prime Minster who sees the European Convention as his ultimate nemesis (do be mindful of an expletive at the end):

Whilst the film is undoubtedly enjoyable, I do wonder whether it might do more harm than good.

As might be expected from a production for popular consumption, the film’s claims aren’t entirely accurate. In addition to suggesting—incorrectly—that the European Convention is an institution of the European Union, many of the rights that the Convention is said to have ‘given’ the British (one is reminded of God giving Moses the Ten Commandments) existed in some form well before anyone had ever thought of having a European Convention on Human Rights. Slavery, for example, was abolished in England and Wales by Lord Mansfield’s decision in Somerset v Stewart in 1772. Although their precise contours have developed since the 50s, fair trial standards and notions of privacy, freedom of religion and non-discrimination were far from unknown to the British legal system. This is recognised towards the end of the film, of course, when one of Prime Minister Stewart’s colleagues recognises the role of British lawyers and British law in drafting the Convention.

Furthermore, whilst the Good Friday Agreement certainly requires the Northern Ireland Assembly to comply with the European Convention, the suggestion that ‘we would need to make peace all over again’ if Britain withdrew is plainly untrue. WTO Agreements frequently incorporate the provisions of other treaties that are then binding on members, regardless of whether or not they are parties to the incorporated treaty.

The point is not to nit-pick over factual errors in the film. As a political enterprise, certain dramatic license is understandable. The suggestion, however, that the main achievement of the European Convention was to bestow upon a grateful British people rights that were previously unknown to them, as well as the subsequent admission that this wasn’t the case, makes the film hopelessly confused. My concern is that this confused account of the benefits of the European Convention gives fodder for those who advocate Britain’s withdrawal.

Furthermore, it obscures the real arguments in favour of the European Convention. The great innovation contained in the European Convention was not the agreement between the High Contracting Parties as to what rights were worthy of protection; the rights enshrined are broadly reflective of those in the Universal Declaration of Human Rights, which the governments of Europe were active in formulating and unanimously supported. The Convention did not enshrine the next generation of human rights, but the next generation of human rights enforcement through the establishment of a strong mechanism—the European Court of Human Rights—to hold States’ feet to the fire when the temptation to abandon principles for reasons of expediency or popularity was strong. This interpretation is supported by the travaux préparatoires and is reflected in the Convention’s preamble (‘Being resolved, as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration’).

By playing a leading role in the drafting and adoption of the European Convention, the United Kingdom did the cause of human rights a great service. It clearly asserted that, to be truly meaningful and effective, human rights must be enforceable. If the UK were to withdraw, the cause of human rights would take a large backward step; not just in Britain, not just in Europe, but everywhere. After all, if this great contribution to the protection of human rights can be reversed, what else can be?

Was the Kunduz Hospital Attack a War Crime?

by Jens David Ohlin

The Pentagon has released its report on the U.S. air assault against a hospital in Kunduz, Afghanistan, in October. The picture painted by the Pentagon report is pretty damning. The attack killed 42 people and turned out to be a giant mistake. The U.S. attacked the wrong building.

Initially, some Afghanistan officials suggested that insurgents had taken up positions in the hospital—an allegation that spurred an intense legal debate about whether, and when, the presence of such fighters would render the hospital a legitimate military target under LOAC. The Pentagon report makes clear that these allegations were unfounded. The insurgents were located in a different building, and the U.S. hit the wrong target.

The Pentagon report details a litany of mistakes—not just a single mistake but indeed a “cascade” of errors. The mistakes were clearly evidence of unprofessional behavior and deserving of reprimands. A total of 16 Americans involved in the attacked were officially disciplined administratively.

But was the attack criminal? The problem is that the killing of the innocent civilians was not intentional, it was accidental. As a matter of criminal law, it was either reckless or negligent (more on that later), but the civilian killings were not performed with purpose.

The New York Times had this to say about reckless attacks on civilians:

The failure to bring any criminal charges was “simply put, inexplicable,” said John Sifton, the Asia policy director of Human Rights Watch.

There are legal precedents for war crimes prosecutions based on acts that were committed with recklessness, he added, and recklessness or negligence does not necessarily absolve someone of criminal responsibility under the United States military code.

Is Sifton right about this?

The answer to this question is complicated. I’ve written an entire article about this, Targeting and the Concept of Intent, and I can’t go into that level of detail in a blog post. And even my full-length article did not fully address all angles of the question. The issue is exceedingly complex. But let’s make some preliminary observations.

The Rome Statute includes two particular war crimes of interest to the discussion.

The first provision defines as a war crime:

Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

The second provision defines as a war crime:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;

The first war crime is a violation of the principle of distinction: intentionally killing civilians. The second war crime is a violation of the principle of proportionality: causing disproportionate collateral damage.

The problem with applying the first war crime provision from the Rome Statute is that the attack against the civilians in the Hospital building in Kunduz did not obviously involve “intentionally directing attacks against the civilian population.”

Now here is where things get complicated. The word “intentionally” does not have a stable meaning across all legal cultures. As I note in my article, the word intentionally is generally understood in common law countries as equivalent to purpose or knowledge, depending on the circumstances. But some criminal lawyers trained in civil law jurisdictions are more likely than their common law counterparts to give the phrase “intentionally” a much wider definition, one that includes not just purpose and knowledge but also recklessness or what civilian lawyers sometimes call dolus eventualis. Now for present purposes I am going to avoid the difficult controversy of whether dolus eventualis is equivalent to recklessness or a higher mental state (residing somewhere above recklessness but well below knowledge), and for the purposes of this discussion simply assume that dolus eventualis and recklessness are similar mental states dealing with risk-taking behavior.

Now here is the key point. In the civilian tradition, the concept of intent is a wider category that in some circumstances might include recklessness. This equation sounds odd to a common-law trained criminal lawyer, because to an American student of criminal law, intent and recklessness are fundamentally different concepts. But just for the sake of argument, what would happen if intent were given this wider meaning? Could the U.S. service members be prosecuted for intentionally directing an attack against the civilian population because “intentionally” includes lower mental states such as dolus eventualis or recklessness?

I worry about this argument. And here’s why. If intent = recklessness, then all cases of legitimate collateral damage would count as violations of the principle of distinction, because in collateral damage cases the attacker kills the civilians with knowledge that the civilians will die. And the rule against disproportionate attacks sanctions this behavior as long as the collateral damage is not disproportionate and the attack is aimed at a legitimate military target. But if intent = recklessness, then I see no reason why the attacking force in that situation couldn’t be prosecuted for the war crime of intentionally directing attacks against civilians, without the court ever addressing or analyzing the question of collateral damage. Because clearly a soldier in that hypothetical situation would “know” that the attack will kill civilians, and knowledge is certainly a higher mental state than recklessness. That result would effectively transform all cases of disproportionate collateral damage into violations of the principle of distinction and relieve the prosecutor of the burden of establishing that the damage was indeed disproportionate, which seems absurd to me.

The correct result, it seems to me, is to explicitly codify a new war crime of recklessly attacking civilians, and the codification of such a crime should use the word “recklessly” rather than use the word “intentionally.” The idea would be to create a duty on the part of attacking forces and then penalize them for failing to live up to it. (Of course, the scope and content of that duty would then have to be elucidated through case law adjudication.) And the existence of a separate war crime would help signal the moral difference between intentionally killing civilians and recklessly killing them.

If such a hypothetical prosecution were to take place, is there sufficient evidence that the attacking force was reckless in the Kunduz hospital case? Unfortunately yes. Among the factual issues are:

1. The targeting system of the AC-130 gunship was not operating correctly because the gunship had to take evasive maneuvers due to ground fire.

2. The targeting system therefore identified the target as an empty field, which forced the gunship’s crew to locate the correct target visually.

3. Using visual confirmation, the crew located the wrong building—the hospital—instead of the actual building where the insurgents were located.

4. Apparently the crew of the gunship either did not have a list of no-fire targets on board or failed to check the hospital coordinates against the list.

5. Commanders at HQ failed to check the coordinates of the hospital target with the coordinates on their no-fire target list. Had they done so, they would have realized that the gunship was about to engage a no-fire target.

6. After the attack began, hospital workers and MSF officials began frantically calling and texting the U.S. military to stop the attack, but there was a substantial delay before the attack was finally halted.

7. According to the Times report, at least one commander was hesitant to stop the attack when they did not have “situational awareness” (SA) on the ground. Apparently he was concerned that friendly ground forces might remain in danger even as they called off the attack. Of course, the opposite turned out to be true: because they lacked SA, they continued to attack the wrong target without a firm understanding of who or what they were really attacking. Obviously it was a mistake for them to have attacked the target in the first place given that they had no SA.

Does all of this add up to a crime of recklessness? I don’t know. That would be for the fact-finder to decide, but a prosecutor could certainly make out a prima facie case that targeting “best practices” were not followed in this case, leading to the identification of the wrong target, and the loss of 42 innocent lives. But I don’t think this is a Rome Statute case. There may be sound moral reasons to create a new war crime provision for accidents of this type, but I don’t think this conduct falls under the existing law as it stands now.

The $50 BILLION Treaty Interpretation Question: Dutch Court Sets Aside Yukos Award Against Russia

by Julian Ku

Russia scored a huge victory today when the Hague District Court in the Netherlands court set aside a $50 billion arbitral award in favor of former shareholders of Yukos.  The $50 billion Yukos award (that’s BILLION, with a “B”),  is the largest arbitration award ever issued, was issued under the authority of the Energy Charter Treaty.  The arbitral tribunal (hosted at the Permanent Court of Arbitration) had found that the Russian government was liable for expropriating the former shareholders of Yukos through use of tax laws, harassment, criminal punishments, and other government measure without providing adequate compensation.

The Hague District Court set aside the award on jurisdictional grounds.  According to this English-language summary, the Dutch court held that Russia was not bound to arbitration under the Energy Charter Treaty because it never ratified the ECT.  The arbitral tribunal held in its interim award that Russia was bound under Article 45, which calls for provisional application of the treaty pending ratification.  But the Hague District Court disagreed.

Here is Article 45(1) and (2)(a):

(1) Each signatory agrees to apply this Treaty provisionally pending its entry into force for such signatory in accordance with Article 44, to the extent that such provisional application is not inconsistent with its constitution, laws or regulations.

(2) (a) Notwithstanding paragraph (1) any signatory may, when signing, deliver to the Depository a declaration that it is not able to accept provisional application. The obligation contained in paragraph (1) shall not apply to a signatory making such a declaration. Any such signatory may at any time withdraw that declaration by written notification to the Depository.

Russia did not make such an Article 45(2) declaration, but the Dutch Court held that Article 45(1) still acted as a jurisdictional bar on the arbitral tribunal’s jurisdiction because it requires the arbitral tribunal to go back and assess whether the dispute resolution provision (Article 26) of the Energy Charter treaty is “inconsistent” with Russia’s “constitution, laws or regulations.”  the Dutch court concluded that Russia’s constitution does not permit it to be bound to an arbitration assessing the legality of its tax laws without the consent of its legislature.

I don’t have a strong view on who is right here. I will note that Russia is represented by the well-known New York law firm Cleary Gottlieb (where I once toiled as a young summer associate) and that Russia mustered an impressively long list of international law experts on its behalf such as Martti Koskenniemi, Alain Pellet, and Gerhard Hafner (to list just a few).  The claimants had their own impressive list including James Crawford and my former Yale professor Michael Reisman.  This is a truly difficult treaty interpretation question, which just happens to have $50 billion riding on it.  So we can be sure there will be an appeal of the Hague District Court’s ruling.

It is worth noting that also that Russia has a lot riding on this case, but it also decided to litigate this matter fully even though it believes the tribunal has no jurisdiction.  This turns out to be a smart move, since they seem to have won (for now) and because not litigating would have still subjected them to lots of enforcement actions against them around the world. So litigation seems to have worked out for Russia this time. I wonder if that will encourage Russia  to try its hand at litigation in future cases as well?

 

Stay in Your Lane! When Political Scientists Become Bad International Lawyers

by Julian Ku

Next month’s issue of Foreign Affairs, a leading journal of highbrow foreign policy in the U.S., features an important article on the United States as “The Once and Future Superpower” (subscription).  Based on their forthcoming book, professors Steven Brooks and William Wohlforth of Dartmouth College argue that China is not going to displace the United States as the world’s leading superpower in the near or even mid-range future.

As an article analyzing global power politics, it seems fairly (although not completely) persuasive.  But I was struck by how the otherwise carefully argued piece descends into complete gibberish when it tries to explain how “international law” can be a tool for the United States to constrain and manage China’s activities in the South China Sea.

And if Beijing tried to extract economic gains from contested regions [in the South China Sea], Washington could facilitate a process along the lines of the proportional punishment strategy it helped make part of the World Trade Organization: let the Permanent Court of Arbitration, in The Hague, determine the gains of China’s illegal actions, place a temporary tariff on Chinese exports to collect exactly that much revenue while the sovereignty claims are being adjudicated, and then distribute them once the matter is settled before the International Court of Justice.

Whaaaahhht?

In this one sentence, the authors propose that an arbitral tribunal convened under UNCLOS issue an award granting money damages to the Philippines. This is somewhat unlikely, but it is theoretically possible.  But who exactly is going to place a “temporary tariff on Chinese exports”?  The United States? A country that is not party to the dispute between China and the Philippines? And why exactly wouldn’t this cause a trade war with China and why wouldn’t it violate the WTO Agreement? And when exactly did the International Court of Justice get involved given that China has not consented to that court’s compulsory jurisdiction?  

Not only is this not a plausible mechanism for sanctions against China (the world’s second largest economy), but it is not a plausible mechanism for sanctions against almost any country in the world.  It has never been done before outside of the trade context, where every country specifically agreed to the trade sanction system in advance! 

The authors’ casual, offhand explanation of how “international law” is an asset that can be used for pursuing policy goals irrespective of existing legal institutional frameworks and legal principles is something I’ve noticed before in political science literature.  The “law” argument is not a bad one in principle, but it requires a deeper understanding of law as an independent analytical field than political scientists are willing to give it credit for.

As it stands now, this otherwise interesting article loses credibility with policymakers because the authors didn’t bother to try to understand how law and legal institutions are organized.  Maybe they should just skip over the legal stuff, and stay in their own lanes.  Or maybe they could find a reader up there in New Hampshire with a J.D. (I’m always available!).

Interview with David Remnick About Syria

by Kevin Jon Heller

I had the pleasure about a week ago to discuss Syria with David Remnick for the New Yorker Radio Hour. Most of the questions, not surprisingly, focused on whether I thought there was any realistic prospect that Assad would face justice. (My answer: probably not.) The show went live a couple of days ago — I was traveling and didn’t have access to internet — but you can find the podcast here. My interview lasted about 25 minutes, and I highly recommend the segment on Syria that precedes it.

Thoughts most welcome!