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A Brief Rejoinder to Haque on the ICRC’s Interpretation of NIAC

by Kevin Jon Heller

My thanks to Adil Haque for his response to my post. Adil and I rarely disagree in any profound way about IHL, so it’s enjoyable to spar with him about whether a first-strike by government forces against an organized armed group automatically creates a NIAC — thus triggering IHL — or whether a certain intensity of hostilities between the two is required.

I will have more to say about Adil’s response soon, but I wanted to quickly address one particular implication in his post: namely, that the ICRC’s Commentary on AP II supports his claim that a single military operation by government forces or by an organized armed group is sufficient to trigger a NIAC because it is more than a “sporadic act of violence.” Here is what he writes:

In my view, a military operation by State armed forces that meets with no armed response and may never be repeated is not a “sporadic act of violence” within the meaning of APII 1(2). On this point, I follow the ICRC Commentrary to APII, which negatively defines “isolated and sporadic acts of violence, as opposed to military operations carried out by armed forces or armed groups.” APII 1(2) describes disturbances and tensions created by disorganized or unarmed groups, criminal gangs, and individuals. APII 1(2) does not describe “acts of violence against the adversary in offence or defence” (that is, attacks as defined by API).

With the exception of ambiguous quotes like the one above, there is little support in the ICRC’s Commentary on AP II or in any of the ICRC’s commentaries for Adil’s position. The ICRC clearly believes that any kind of NIAC — AP II or Common Article 3 — requires adequately intense hostilities.

Let’s start with the AP II Commentary Adil cites. The Commentary opens its discussion of AP II by emphasizing (p. 1343) that CA3 and AP II have the same structure — and that neither applies in the absence of sufficiently intense hostilities (emphasis mine):

The content and scope of all of these articles will be analysed in the respective comments on them. Before doing this it seems useful to have a closer look at the basic pattern of Part I, which reveals the similarity of the ideas which inspired Protocol II and common Article 3. To understand the scope of the Protocol one should indeed always bear in mind the fact that this instrument supplements and develops common Article 3; it is an extension of it, and is based on the same structure.l Their common characteristics find expression, explicitly or implicitly, in Part I. These can be summarized as follows…

The threshold where Protocol II becomes applicable is determined by the criteria expressed in Article 1 (Material field of application), which means that it is intended to apply only to conflicts of a certain degree of intensity.

Later, the Commentary discusses (p. 1355) what AP II means by “internal disturbances,” taking the position that such disturbances include situations in which military operations by government forces — even against an organized armed group — do not lead to sufficiently intense hostilities (emphasis mine):

[T]he ICRC gave the following description of internal disturbances during the first session of the Conference of Government Experts in 1971:

“This involves situations in which there is no non-international armed conflict as such, but there exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts of violence. These latter can assume various forms, all the way from the spontaneous generation of acts of revolt to the struggle between more or less organized groups and the authorities in power. In these situations, which do not necessarily degenerate into open struggle, the authorities in power call upon extensive police forces, or even armed forces, to restore internal order. The high number of victims has made necessary the application of a minimum of humanitarian rules.”

[snip]

In short, as stated above, there are internal disturbances, without being an armed conflict, when the State uses armed force to maintain order; there are internal tensions, without being internal disturbances, when force is used as a preventive measure to maintain respect for law and order.

Finally the Commentaries specifically point out (p. 1356) that such “internal disturbances” do not create a NIAC and do not trigger IHL:

Internal disturbances and tensions are not at present within the field of application of international humanitarian law; the ICRC has carried out activities in this field on an ad hoc basis. However, this does not mean that there is no international legal protection applicable to such situations, as they are covered by universal and regional human rights instruments. 31 It is not within the scope of this commentary, however, to go into that subject.

The ICRC’s position on CA3 and AP II NIACs — as requiring hostilities of a certain intensity, and thus as not being triggered by “first strikes” — is an old one. Here is what Pictet said (p. 49) in the ICRC’s 1952 Commentary on the First Geneva Convention (emphasis mine):

[I]t was suggested that the term “conflict” should be defined or, which would come to the same thing, that a certain number of conditions for the application of the Convention should be enumerated. The idea was finally abandoned — wisely, we think. Nevertheless, these different conditions, although in no way obligatory, constitute convenient criteria, and we therefore think it well to give a list of those contained in the various amendments discussed; they are as follows:

(1) That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.

(2) That the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.

This statement only implicitly endorsed an intensity requirement, so Pictet clarified that the was talking about actual hostilities between government forces and an organized armed group in the ICRC’s 1960 Commentary on the Third Geneva Convention (p. 37):

Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with armed forces on either side engaged in hostilities –conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country.

And just in case that statement remained ambiguous (“both” would have been more precise than “either”), the ICRC clarified in its 2016 Commentary on the First Geneva Convention that of the various indicia of NIAC that Pictet discusses, intensity is one of the two most important ones (emphasis mine):

387  A situation of violence that crosses the threshold of an ‘armed conflict not of an international character’ is a situation in which organized Parties confront one another with violence of a certain degree of intensity. It is a determination made based on the facts.

421  Over time, of the criteria enumerated in the Pictet Commentaries, two are now widely acknowledged as being the most relevant in assessing the existence of a non-international armed conflict: that the violence needs to have reached a certain intensity and that it must be between at least two organized Parties/armed groups. The existence of a non-international armed conflict thus needs to be assessed according to these specific criteria.

422  The wording of common Article 3 gives some rudimentary guidance on its threshold of application: what is required is an ‘armed’ ‘conflict’ not of an international character, in which ‘Part[ies] to the conflict’ are involved. This indicates that for common Article 3 to apply, a situation of violence must have reached a certain level of intensity, characterized by recourse to arms by non-State armed groups that are capable of being Parties to an armed conflict.

According to the ICRC, in short, all NIACs require adequately intense hostilities. The difference between a CA3 NIAC and an AP II NIAC is one of degree rather than kind.

The ICRC Commentaries are only as good as the analysis they contain, so Adil is obviously free to defend an interpretation of Art. 1 of AP II and of Common Article 3 that reads the intensity requirement out of NIAC. In doing so, however, he is clearly breaking with the ICRC.

First Strikes & NIAC: Thoughts on the Haque/Horowitz Debate

by Kevin Jon Heller

I have been following with great interest the debate at Just Security between Adil Haque and Jonathan Horowitz over whether the existence of a non-international conflict (NIAC) exists the moment a state launches a “first strike” at an organized armed group or whether hostilities of a certain intensity between the two are required. Adil takes the former position (see here, here, and here); Jonathan takes the latter one (see here and here).

Though Adil’s posts exhibit his typical brilliance, my sympathies lie with Jonathan. To begin with, as a matter of the lex lata, I don’t think the argument is even close: the Tadic test, which requires both organization on the part of the armed group and adequately intense hostilities, has overwhelming support from states. After all, the test is based squarely on Art. 1(2) of Additional Protocol II, ratified by 168 states, which provides that the “Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” And, of course, as the ICRC notes in its new commentary on the First Geneva Convention, the AP II standard is used by a number of more recent conventions that apply to all NIACs — Common Article 3 or AP II — such as the Rome Statute (1998), the Second Protocol to the Hague Convention for the Protection of Cultural Property (1999), and the Convention on Certain Conventional Weapons (2001).

Adil, it is worth noting, has a different interpretation of AP II, one that does not require intensity:

In my view, if an organized armed group has the capacity to sustain military operations then any military operation by or against that group should be constrained by the law of armed conflict. The organization and capacity of the group is sufficient to distinguish military operations by or against the group from “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.”

This is a difficult position to defend. The text of Art. 1(2) of AP II clearly contemplates actual hostilities, not a single act by government forces. What could be a more “sporadic act of violence” than a single act that does not meet with a response from the targeted group and may never be repeated by the government? More importantly, despite some stray practice cited by Michael J. Adams and Ryan Goodman in this post, states have simply never interpreted the AP II standard to require only organization.

Even more problematic, though, is Adil’s argument that the “object and purpose” of IHL counsels against conditioning the application of IHL on adequately intense hostilities:

In my view, we should interpret both the substantive rules of IHL and the conditions for the application of IHL in light of the object and purpose of IHL. The primary object and purpose of IHL is to protect human beings against dangers arising from military operations. Accordingly, IHL should apply to all such military operations. To postpone the application of IHL until a first strike triggers an armed response, or until military operations reach a high level of intensity, would be inconsistent with the object and purpose of IHL.

As regular readers know, whenever I see arguments based on the supposed “object and purpose” of a treaty, I reach for my pen. All too often, such arguments simply use object and purpose to justify interpreting a treaty in a manner that specifically contradicts the intention of the states that drafted and concluded it. And unfortunately I think that is what Adil does here. He defends applying IHL to first strikes by claiming that the “object and purpose” of IHL is “to protect human beings against dangers arising from military operations” (emphasis mine). But that is misleading: the object and purpose of IHL is to protect human beings against dangers arising from military operations in armed conflict. If there is no armed conflict, IHL has nothing to say about the danger of military operations — because IHL doesn’t apply. And as discussed above, states have always insisted that a first-strike military operation is not enough to create an armed conflict — IHL applies only once there are adequately intense hostilities between government forces and the organized armed group.

Adil is free, of course, to normatively argue that IHL should apply to first strikes in NIAC because doing so would better protect human beings. I would disagree, but the claim is coherent and deserving of discussion. What he can’t do is base that claim on the object and purpose of IHL, because that would be to use an object and purpose that only applies within armed conflict to justify changing the definition of armed conflict itself. The definition of when IHL applies cannot be determined by reference to what the goals of IHL are once it applies. That definition has to be sought outside of the IHL system — and again, it is clear that states do not want IHL to apply to first-strike military operations against organized armed groups.

There is, however, an even deeper problem with Adil’s argument that the need to protect human beings from military operations counsels a definition of NIAC that does not require adequately intense hostilities: if that is true, there is also no reason why the application of IHL should require armed groups to be organized. All of Adil’s arguments against the intensity requirement apply equally to the organization requirement. If we need to protect human beings from the dangers of first-strike military operations by states against organized armed groups, surely we also need to protect them from the dangers of first-strike military operations by states against unorganized armed groups. After all, Adil’s central argument is that the inherent danger of military operations means that IHL should apply to a first-strike regardless of whether that military operation leads to any kind of hostilities.

I see no convincing response to this criticism. It is tempting to argue that the organization requirement is important because a first-strike military operation against an organized armed group is much more likely to lead to actual hostilities than a first-strike military operation against an unorganized armed group. But Adil rejects the idea that hostilities are relevant to the application of IHL. He believes IHL should apply even if a first-strike military operation meets with no response whatsoever.

Another potential response would be to argue that first-strike military operations against organized armed groups pose greater dangers for innocent civilians than first-strike military operations against unorganized armed groups. But that would be a difference of degree, not of kind — and thus far from a convincing basis for applying IHL to the former and not the latter. I’m also not sure whether the claim is even empirically sound. It is at least equally plausible to assume that states are more willing to use military force against unorganized individuals whom they can assume will not fight back (or will not fight back effectively) than against an organized armed group with the capacity to respond to a first strike with military operations of its own.

Adil’s desire to protect human beings from the dangers of military operations is laudable, but his claim that IHL should apply to first strikes against organized armed groups cannot be sustained. Not only have states insisted that IHL applies only to hostilities that reach a certain level of intensity, the idea that protecting individuals from the danger of military operations requires eliminating the intensity requirement is underinclusive. Those dangers exist for all military operations, even those against unorganized armed groups. So the only consistent — if still objectionable — position is that IHL applies to any military operation launched by a state, regardless of its object. I’m curious whether Adil would be willing to take that position.

Homage to California? (More on What Calexit Teaches Us About Secessionist Movements)

by Chris Borgen

Law professors should not be political prognosticators.  That’s probably something on which we can all agree.  Nonetheless, here’s my prediction: despite the current buzz (see also, this), California will not secede from the United States. Sorry, Silicon Valley Hamiltons.  However, the “Yes California” movement, spurred on by a Trump presidential victory can be instructive on the law,  psychology, and incentives behind more robust secessionist movements around the world.

As Julian mentioned in a post earlier today, the “#Calexit”  movement is seeking a referendum on secession in 2019.  The  group’s website states:

“As the sixth largest economy in the world, California is more economically powerful than France and has a population larger than Poland. Point by point, California compares and competes with countries, not just the 49 other states.”

In our view, the United States of America represents so many things that conflict with Californian values, and our continued statehood means California will continue subsidizing the other states to our own detriment, and to the detriment of our children.

Although charity is part of our culture, when you consider that California’s infrastructure is falling apart, our public schools are ranked among the worst in the entire country, we have the highest number of homeless persons living without shelter and other basic necessities, poverty rates remain high, income inequality continues to expand, and we must often borrow money from the future to provide services for today, now is not the time for charity.

This statement, and much about the movement, is like a study in secessionist politics, albeit with a sun-kissed white wine and Jacuzzis twist.  OK, that Jacuzzi quip may be snarky, but I wanted to attach an image to this idea: the yearning for Calexit, such as it is, is an example of a wish for a “secession of the successful” (to use a term political geographers John O’Loughlin, Gerard Toal, and Rebecca Chamberlain-Creanga used to describe the attempted  Transnistrian secession from Moldova, actually). These types of separatist movements, in which the separating group wants to stop paying rents to the central government and/or keep resources within their own territory for themselves, are generally called “tax exits.”

The Transnistrian, Slovenian, and Croatian separations or or attempted secessions all had elements of tax exits. (See P. Collier & A. Hoeffler, ‘The Political Economy of Secession’, in H. Hannum & E. F. Babbitt (eds), Negotiating Self Determination (2006), 46 (concerning Slovenia and Croatia)). This is not even a solely a phenomenon of nation-building.  In the U.S., we have even had new towns made up of wealthy neighborhoods that separated themselves from exiting municipalities over tax allocations.

Perhaps the best analogy, though, is Catalonia.  Relatively wealthy,  a large export economy, and the hub of creative industries in Spain, Catalonia even looks like parts of California (or vice versa). A common complaint is that wealth generated in Catalonia is redistributed by the national government to regions that are economically weak.

Now, here’s what the Calexiters argue:

Since 1987, California has been subsidizing the other states at a loss of tens and sometimes hundreds of billions of dollars in a single fiscal year. As a result, we are often forced to raise taxes and charge fees in California, and borrow money from the future to make up the difference. This is partly why California presently has some of the highest taxes in the country, and so much debt. Independence means that all of our taxes will be kept in California based on the priorities we set, and we will be able to do so while repaying our debts and phasing out the current state income tax.

You can’t state more clearly that a tax exit is a significant motivating factor for Calexit.

So, if a majority of Californians say “yes to California,” do they have a right to become their own country under domestic law or international law?

Julian answered the domestic law question in his post.

As for international law, the right to self-determination is described in Article 1 of both the International Covenant of Civil and Political Rights Covenant and the International Covenant on Economic, Social and Cultural Rights:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

However, while Catalans, for example, can make a credible argument that they are  a distinct people with its own language and culture and a heritage as a significant nation in European history, Calexiters are mainly upset about the recent election and would like to hang on to more tax revenues.  Those are disputes over policy, but not claims of an independent national identity.

Regardless, since the birth of the United Nations, diplomats and jurists emphasized that a right of self-determination does not provide a remedy of secession outside of the context of decolonization. A broad right to secession would have clashed with a cornerstone of the UN, the territorial integrity of states. Outside of the context of decolonization, the right of self-determination for communities that are within already existing states is understood as a right to “internal” self-determination: the pursuit of political, cultural, linguistic, and other rights within the existing state (in this case, the U.S.).

However, secession is not in and of itself illegal under international law (although it may be linked to an act that is breach in international law, such as a military intervention by another state: think Russia invading Georgia to assist South Ossetia.)

While secession may be neither a right nor illegal under international law, secessionist acts are usually illegal under domestic laws.  Taken together, whether or not a secession is successful begins as a domestic political struggle, framed by the legal system of the pre-existing country and sometimes implicating international law due to intervention by other countries (or if the secession becomes a non-international armed conflict, but that’s another story).

All this sounds quite exotic in the context of some tech industry founders applying their credo of “disruption” to national politics. (I’m just waiting for the first Calexiter to say he or she aims to “break shit.”)  The short answer is that there is no right for California to secede under either domestic or international law.

However, the rhetoric of self-determination is enticing to would-be nation-builders and Calexiters make many of the same mistakes as other tax exit secessionists:

First, they assume there is a clear path to secession, when that is rarely the case.  Talk to the Catalans about this.  They have mustered hundreds of thousands of people in the streets in (more…)

Opinio Juris and the Trump Presidency

by Chris Borgen

A couple of weeks ago a group of Opinio Juris bloggers held a round-table discussion at St. John’s University Law School about the international law and policy issues facing the next American President. In front of a full room, we considered issues ranging from relations with China and Russia, to the future of national security policy, human rights, international trade agreements and the UN.  We fielded questions from the audience, went past our scheduled closing time, and still had not answered all the questions in the room. It was clear that there is a need and a desire for intelligent discussion on these and other issues of international law and U.S. policy. There were, and are, significant questions of law and policy before the American public.

Now we know who the next President will be. Sustained and informed commentary about international law and the United States’ role in the world has never been more relevant.  We founded Opinio Juris as a forum for engaged and intelligent discussion on a broad range of international legal issues.  We have fostered a dialogue with voices from varying political, legal, and national perspectives. Among the hundreds (if not thousands) of issues we have covered, we have had commentary by sitting Department of State Legal Advisers on Bush Administration policies in the War on Terror and also concerning the U.S. operation against Osama Bin Laden during  the Obama Administration, as well as expert observations from the negotiations in Paris leading to the climate change agreement (see, for example, 1 and 2), examinations of the development of international criminal law, analyses of the  work of international courts and tribunals, emerging technologies and international law, and conversations about U.S. policy on the conflict in Syria. For the last eleven years we have tried to reflect upon the breadth and depth of international law and policy.

As the U.S. begins its transition into what will be the Trump Administration, we will continue to provide commentary that is informed by expertise in international law and is engaged with the policy debates of our time. A brief scan of the list of initiatives Donald Trump listed in October as the priorities for his first 100 days in office is full of international legal implications. He stated that on his first day in office, among other things:

* FIRST, I will announce my intention to renegotiate NAFTA or withdraw from the deal under Article 2205

* SECOND, I will announce our withdrawal from the Trans-Pacific Partnership

* THIRD, I will direct my Secretary of the Treasury to label China a currency manipulator

* FOURTH, I will direct the Secretary of Commerce and U.S. Trade Representative to identify all foreign trading abuses that unfairly impact American workers and direct them to use every tool under American and international law to end those abuses immediately…

* SEVENTH, cancel billions in payments to U.N. climate change programs and use the money to fix America’s water and environmental infrastructure

Additionally, on the first day, I will take the following five actions to restore security and the constitutional rule of law:

* FIRST, cancel every unconstitutional executive action, memorandum and order issued by President Obama

* SECOND, begin the process of selecting a replacement for Justice Scalia from one of the 20 judges on my list, who will uphold and defend the Constitution of the United States

* THIRD, cancel all federal funding to Sanctuary Cities

* FOURTH, begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won’t take them back

* FIFTH, suspend immigration from terror-prone regions where vetting cannot safely occur. All vetting of people coming into our country will be considered extreme vetting.

This is only part of the list. For example, other statements from President-elect Trump or his surrogates have concerned whether the new administration would honor U.S. obligations under the Geneva Conventions and international humanitarian law, the future of NATO, and commitments to address climate change, to take three examples.  As the transition proceeds and President-elect Trump’s actual agenda takes shape, we will assess and address the international legal issues implicated by his proposals and stances. More generally, we will continue to thoughtfully consider the expansive international legal and policy issues facing the U.S. We hope to add to an informed public discourse.

We started this website as a forum for debate and discussion about international law and policy. Almost 10,000 posts later, this conversation has never been more important and we look forward to hearing what you have to say in the days and weeks to come.

How President Obama Gave President-elect Trump the Power to Undo the Iran Deal and Paris Agreement

by Julian Ku

As regular readers of this blog probably guessed, I did not support Donald Trump for President (I didn’t support Hillary Clinton either, but that’s another story). I did, however, take the possibility of his election seriously and published a couple of posts (see this one here) analyzing the legal issues raised by his campaign promises to withdraw from existing U.S. international agreements such as the Iran Nuclear Deal, the Paris Climate Change Agreement, and the North American Free Trade Agreement.

In general, I concluded in my prior posts that President-elect Trump has the clear constitutional authority to withdraw from the Iran Nuclear Deal and the Paris Climate Change Agreement without seeking the approval of Congress.  It is somewhat less clear, but it is certainly possible that a President-elect Trump has the constitutional authority to withdraw from trade agreements like NAFTA without Congress, but that is less certain.

It is important to keep in mind that the reason a President Trump can unilaterally withdraw from the Iran Nuclear Deal and the Paris Climate Change Agreement is that President Obama chose to avoid submitting either agreement to Congress or the Senate for approval.  Indeed, President Obama’s lawyers went even farther to clarify that the Iran Nuclear Deal was a nonbinding political agreement and that the emissions targets in the Paris Climate Change Agreement were also legally nonbinding.

This important concession was made to avoid any need to submit these controversial agreements to approval by a (very) hostile Congress.  At the time, the legal sophistication and dexterity of the Obama team’s strategy was lauded, and I supported their legal position even though I disagreed with the policies embodied in the agreements.  But I warned that the cleverness of their legal positions came at a price: a future President could unilaterally undue both agreements without the approval of Congress and without even incurring US violations of those agreements since both are largely legally nonbinding.

Well, the day to pay the cost of this strategy is at hand.  Trump has won the presidency and there is no legal obstacle to his unilateral reversal of two of President Obama’s signature foreign policy achievements.  No filibuster will save them. And President Obama will have no one to blame but himself and his legal team for this fact.

The larger lesson from this saga is that legal rules and processes matter more than even we lawyers acknowledge.  A smart political achievement that cuts the corners on the law will come at a cost.  Past and future presidents should probably keep this in mind.

International Law and the U.S. Election: Trumpxit, Syria and State Marijuana Laws

by Julian Ku

Those of us here in the US are pretty obsessed with tomorrow’s U.S. presidential election (and from what I can tell, those of you outside the States are pretty interested as well). International law has not been a huge issue in the election, but I do think tomorrow’s result could have at least three big impacts on the international legal system.

Trumpxit

As I have noted in earlier posts, Republican nominee Donald Trump has been notable for pledging to renegotiate and possibly terminate numerous U.S. international agreements.  Most clearly, he has pledged to withdraw from the Paris Climate Change Agreement and the Iran Nuclear Agreement. He has also pledged at various times to withdraw from the North American Free Trade Agreement, the US-Japan Defense Treaty, and the North Atlantic Treaty Organization.

As a legal matter, there is no doubt in my mind that a President Trump would have the legal power to terminate the Paris Agreement and the Iran Agreement on his first day in office without any authorization by Congress.  Both of those agreements were concluded as sole executive agreements, and most of the provisions are also legally nonbinding political agreements.

I also think that under existing US precedent, a President Trump could unilaterally terminate US participation in NATO and the US-Japan Defense Treaty.  As I noted earlier, the US Supreme Court in Goldwater v. Carter refused to block a similar presidential termination of the US-Republic of China (Taiwan) Defense treaty and although that case is not entirely clear, it seems likely that the president can do this on his own.

As I also noted, however, it is much less clear if the President can unilaterally withdraw from NAFTA and other trade agreements because those agreements have been codified by statute.  This would raise the “Brexit” scenario currently embroiling the UK.

In any event, I think “Trumpxit” is probably one of the biggest consequences of electing the GOP nominee because his powers in this area are largely unilateral and do not require Congress.

US Military Action in Syria

As Deborah has explained on this blog in recent weeks, the US is currently engaged in some sort of “armed conflict” in Syria that doesn’t seem to clearly fit into the Geneva Convention’s categories for either international or non-international armed conflicts.  On a domestic legal front, the US Congress has not specifically authorized the action in Syria as well, making its domestic legality questionable at the very least.

The next President will have to decide how to frame the Syria conflict under international and US constitutional law. My guess is that both Clinton and Trump would follow the Obama approach of treating the conflict as a non-international armed conflict against the Islamic State that is authorized by the 2001 congressional authorization for the use of force.  But this is something the next President will have to engage with seriously, since there continue to be serious doubts about the legality of US actions in Syria.

More US Violations of Drug Control Treaty

Five more US states have referenda tomorrow to legalize recreational marijuana.  If approved, this would mean nine US states plus the District of Columbia have legalized recreational marijuana, and many more have legalized medical marijuana.

It seems clear that continued non-federal enforcement of marijuana prohibitions in these states would violate US obligations under drug control treaties.  There are at least three that arguably conflict with legalized marijuana: The 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.  As this fine Brookings Institution report notes, the US is going to be in clear violation of these treaties soon and needs to renegotiate them to accommodate US state laws.  Presumably, this is on the agenda of the next President (low on the agenda, but on there somewhere).

Ratification of the Law of the Sea Treaty

Most projections indicate the US Senate will remain deeply divided (maybe even 50/50) between Democrats and Republicans.  If so, I don’t think there is a high likelihood that proponents of US ratification of the UN Convention for the Law of the Sea will have enough votes to push it over the 67 vote threshold.  We may see another effort, however, if the Democrats unexpectedly pick up a strong majority of seats (say in the 53 plus range).  There continues to be strong support in the US Navy and in US energy circles for US ratification so it is still on the agenda.

o o o

I am sure I am missing a few issues. Readers should feel free to add in the comments any other international law issues that are likely to be affected by tomorrow’s results.

Addressing the Urban Future

by Chris Borgen

Urbanization is our present and it is our future. Between the recently completed UN Habitat III conference in Quito, Ecuador, and Iraqi Special Operations entering Mosul, starting what may be a complex urban battle, we face constant reminders that  much of the world’s population now lives in cities. How we protect rights, foster development, interact with the environment, organize politically, and fight wars is increasingly an urban story.

Consider the bleak picture of megacities and the future of combat in this leaked Pentagon video (at the link and also embedded above). Some key take-aways from the video:

  • By 2030 60% of world’s population will be in cities. Most of the urban growth will be in the developing world.
  • Illicit networks will fill the gaps left by overextended and undercapitalized governments.
  • Growth will magnify the increasing economic separation between rich and poor, even thought they may be in close proximity. Uneven growth means that slums and shantytowns will rapidly expand alongside ever increasing levels of prosperity.
  • Moreover, religious and ethnic tensions will be a defining element of these urban environments
  • Megacities are complex systems where people and structures are compressed together in ways that defy both our understanding of city planning and military doctrines.
  • Living habitats will extend from the high-rise to the ground level cottage to subterranean labyrinths, each defined by its own social code and rule of law.
  • Social structures will also be stressed. Criminal networks will offer opportunity for the growing class of unemployed  and will be part of the nervous system of non-nation state, unaligned, individuals and organizations that live and work in the shadow of national rule.
  • There will be increasing complexity of human targeting as proportionally smaller number of adversaries mix with an increasingly large population of citizens.
  • The interactions of governmental failure, illicit economies,  economic growth and spreading poverty, informal networks, environmental degradation, and other factors leads to an environment of convergence hidden within the enormous scale and complexity of megacities, which become the source of adversaries and hybrid threats.
  • Classic military strategy counsels either (a) avoiding the cities or establishing a cordon to wait out the adversary  or (b) draining the swamp of non-combatants and then engaging the adversary in high-intensity conflict. But megacities are too large to isolate or cordon in their entirety.  The U.S. military will need to operate within the urban environment and current counterinsurgency  doctrine is  inadequate to address the sheer scale of megacities
  • “This is the world of our future. It is one we are not prepared to effectively operate within and it is unavoidable.”

According to FoxtrotAlpha, this video was produced for a course at the Joint Special Operations University on “Advanced Special Operations Combating Terrorism,” it is focused on urbanization from the perspective of military planning. A 2010 issue of the International Committee of the Red Cross’s journal was devoted to humanitarian law and conflict in built-up urban areas. The ICRC also had recommendations for the UN’s Habitat III conference that just ended.

The topics covered, though, are very much the province of law and lawyers, including the needs of the urban poor, the operations of criminal networks, environmental degradation and climate change, the law of armed conflict and targeting in built-up areas, informal rulemaking in communities (“order without law”), informal markets and economies,  and the role of non-state actors, to name only some of the topics that crop up. While this video is (understandably) focused on the implications on combat operations, what I also see is the need for sustained  engagement in the protection of human rights, the distribution of public goods, the fostering of inter-communal dispute resolution, and the spurring of bottom-up economic development in megacities.

The video emphasizes that the future is urban. But, as the writer William Gibson has said, “The future is already here; it’s just not very evenly distributed.”

 

A Quick Reply to Stephen Rapp About the US and the ICC

by Kevin Jon Heller

The inimitable David Bosco dropped quite the bombshell yesterday at FP.com: The Office of the Prosecutor at the ICC intends to open a formal investigation into the situation in Afghanistan — a situation that includes, as the OTP discussed in its most recent preliminary-examination report, US torture of detainees between 2003 and 2005. I’ll have more to say about the possibility of an investigation in the coming days, when I’m a bit less harried. But I wanted to briefly respond to something Stephen Rapp, the former US War Crimes Ambassador, recently said about that torture — a comment that David reprints in a post today. Rapp contrasted US torture in Afghanistan with the kinds of crimes international criminal justice normally addresses:

[T]he alleged crimes committed during US enhanced interrogations do not reach anything like the scale of these other violations. The Durham review was looking into 101 cases of alleged abuse, including those of two detainees who died in custody. A broader inquiry could increase those number, but even with the widest scope, the numbers of victims pale in comparison to those in the situations that have come before international courts and tribunals.

As is often the case when people discuss crimes potentially within the ICC’s jurisdiction, Rapp’s comment elides the critical difference between situational gravity and case gravity. If the OTP was considering opening an investigation only into US torture in Afghanistan (not “enhanced interrogation”), Rapp would have a point — the situational gravity would almost certainly be insufficient to justify a formal investigation. Israel’s attack on the Mavi Marmara is a good point of comparison: however unjustifiable Israel’s actions, the numbers simply weren’t large enough to investigate. (And I say that as perhaps the earliest opponent of a quantitative approach to situational gravity.)

But that is not what Bosco says the OTP will do. According to Bosco, and consistent with its previous statements, the OTP will be opening a formal investigation into the situation in Afghanistan generally — not only crimes committed not by US forces, but also crimes committed by the Taliban, by Afghan government forces, and by other members of the coalition. At most, therefore, US torture will be one case within the overall situation in Afghanistan. That’s critical, because it means that the scale of US torture should be compared to the scale of crimes at issue in other individual cases the OTP has pursued, not to the scale of crimes in other situations as a whole. And there is no question that the OTP has pursued similarly limited cases. To take only the most striking example, Ahmad Al Faqi Al Mahdi was charged with and convicted of purely victimless crimes — destroying cultural property. If the Al Mahdi case was grave enough for the OTP, surely US torture in Afghanistan would be.

To be clear, I do not expect the OTP to bring charges against an American anytime soon. But if no such case materialises despite the OTP opening a formal investigation into Afghanistan, it won’t be because US torture there is insufficiently grave enough to prosecute.

NOTE: I am using Rapp’s comment to make a point, not to criticise him. I have great respect for Rapp’s commitment to international criminal justice, and I like him very much as a person.

Trump Advocates World War III

by Kevin Jon Heller

I know pointing out stupid things Donald Trump says is a fool’s errand — pretty much everything Donald Trump says is stupid. (Note to non-hack conservative friends: I genuinely feel sorry for you.) But I’m struck by how little attention pundits have paid to this gem:

I think that once the nuclear alternative happens, it’s over. At the same time, we have to be prepared. I can’t take anything off the table.Because you look at some of these countries, you look at North Korea, we’re doing nothing there. China should solve that problem for us. China should go into North Korea. China is totally powerful as it relates to North Korea.

There are, shall we say, a couple of problems with this suggestion. First, Trump is openly advocating China invading North Korea without provocation. You don’t have to be a Kim Jong-un apologist to suggest that international law might look rather unkindly at that. Second, although China is no doubt “totally powerful” compared to North Korea, North Korea has something of an equalizer — nuclear weapons. (The topic Trump had been asked to discuss.) Does anyone doubt that Kim Jong-un would use them against China if, as Trump wants, China tried to wipe North Korea off the face of the earth?

PS: I’m being good and not pointing out that Trump was openly advocating genocide…

Russia and the DNC Hack: What Future for a Duty of Non-Intervention?

by Duncan Hollis

There are lots of important issues implicated by this morning’s above-the-fold story in the New York Times that U.S. officials and certain cybersecurity experts (e.g., Crowdstrike) have concluded Russian government agencies bear responsibility for hacking the Democratic National Committee’s servers and leaking internal e-mails stored on them to Wikileaks (Russian responsibility for the hack itself was alleged more than a month ago).  The domestic fall-out is already on evidence with the resignation of Debbie Wasserman Schultz and I’m sure we’ll see other impacts here in Philadelphia at this week’s Convention (although Senator Sanders so far is not using the event to walk back his endorsement of Hillary Clinton). U.S. national security officials are treating the news as a national security and counter-intelligence issue (as they absolutely should).

But what does international law have to say about a foreign government obtaining and leaking e-mails about another country’s on-going election processes? This is obviously not a case violating Article 2(4) since that only prohibits the “threat or use of force against the territorial integrity or political independence of any state” and there’s no force at work in the current distribution of data otherwise intended to remain confidential.  But alongside the Charter’s prohibition on the use of force, customary international law has long recognized a ‘duty of non-intervention’ that applies to State behavior in cases falling short of the use of force.  The question then becomes whether the duty applies to this case and if so to what end?  For my part, I see at least three distinct sets of issues:  (i) attribution; (ii) the duty’s scope; (iii) the relevance of international law more generally to cyber security incidents like this one.

1. Attribution — Did Russia do this?  Attribution has both a factual and a legal element, both of which are at issue in the DNC case.  Factually, there’s the question of who actually perpetrated these hacks — the hacker(s) named Guccifer 2.0 claims responsibility but cybersecurity investigators suggest two separate penetrations tied to two different Russian hacker groups, “Cozy Bear” and “Fancy Bear” (international lawyers take note of how much more fun cybersecurity officials have in naming stuff than we do).  Making the factual case of who did what in hacks such as this is always difficult even as recent technological advancements have improved the ability to trace-back in certain cases. Just as importantly, however, there’s always the possibility of a ‘false flag’ where the true perpetrator goes to great lengths to make investigators think some other actor was responsible (i.e, planting evidence/code in a particular language or using coding patterns associated with a particular group of actors).  Ironically, the potential for a false flag means that a State caught red-handed can always invoke plausible deniability and suggest that they are themselves a victim as some other, unknown super-sophisticated actor is trying to frame them.  One can safely assume, for example, that Russia will make this argument in the DNC case.  Indeed, even in cases that appear clear cut like Sony Pictures, there are still those who resist FBI’s assertions of North Korean responsibility.

A second aspect of the attribution inquiry is a more legal one — namely, assuming the individual actors who perpetrated the hack can be identified, when can their actions be attributed to a State? This is not really at issue if the perpetrators are in a State’s direct employ (e.g. military officers or intelligence officials).  But what happens if the perpetrators are nonstate actors?  How much control would a State like Russia need to exercise over the DNC hack and later leak for it to bear responsibility?  That question is one that different international fora have answered differently in different contexts (the ICJ’s Nicaragua case and ICTY’s Tadic case‘s competing tests of effective versus overall control being the most famous examples).  As such, it’s difficult to say at present what relationship a State must have with nonstate hackers or hacktivists to bear responsibility for what they do.  That may not be a bad thing overall, as one can imagine how a clear line might incentive States to proliferate behavior just short of crossing the line in lieu of being chilled from acting generally if the whole area is cast as a truly grey zone.  That said, the ability to debate what international law requires in terms of the State-nonstate actor relationship complicates any application of the duty of non-intervention in individual cases.

2. Scope: What behavior violates the duty of non-intervention?  Assuming that Russia was responsible (which I should be clear at this point is just an assumption), the next question is whether its hacking and leaking of DNC data violated the duty of non-intervention?  Here again, international lawyers will encounter some uncertainty as the precise scope of the duty has never been fully resolved.  To be clear, there’s widespread consensus that a duty of non-intervention is customary international law.  The problems are more the duty’s contents.  The most famous formulation is undoubtedly that put forth by the ICJ in the Nicaragua case (para. 205), prohibiting interventions

bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.

The ICJ’s take suggests that intervention requires methods of coercion, forcing the victim State to make different choices than it might were it free of coercive interference.  This pairs with key parts of the earlier 1970 UN General Assembly Declaration on Friendly Relations Among States:

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.

Thus, much of the debate over the duty of non-intervention has focused on identifying which coercive measures below the use of force threshold are covered by the prohibition. But, looking at the DNC hack, there’s little evidence that Russia is trying to coerce any particular result. Indeed, it’s not even clear that the goal of the hack was to support Trump’s candidacy.  The operation could have other purposes; for example, I’ve seen suggestions that it might have been a response to Russian presumptions that the United States bears responsibility for the Panama Papers, a data breach that caused some discomfort to Putin’s administration.  Given this, might we not simply write this hack-off as a particularly visible form of espionage?  Is this case equivalent, for example, to the OPM hack?  That hack, while clearly contrary to U.S. national security interests, was not terribly susceptible to claims of an international law violation given international law’s longstanding, complicated relationship with surveillance (for more see Ashley Deek’s recent article).

I’m not so sure, however, that the duty of non-intervention can be dismissed so quickly.  For starters, the hackers did not just take the data and use it to inform their own policies or behavior. They also leaked it, and did so in a way where the timing clearly sought to maximize attention (and corresponding impacts) on the U.S. domestic political campaign process.  Perhaps we need to separate out this incident into two parts — the espionage (i.e., the hack itself) and the interference in the U.S. campaign using the fruits of that espionage.  Doing so suggests the leaking might be the problematic act under a less quoted paragraph of the 1970 U.N. General Assembly Declaration’s description of the duty of non-intervention:

Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.

Interference in ‘any form’ is clearly a broader formulation than coercive acts, suggesting that actions designed to impact public support for not just a particular candidate, but an entire “political” party, could implicate the duty of non-intervention here.  That said, there are others who’ve been thinking much more carefully on the question of non-intervention and cyberspace than I have.  Later this year, for example, we should be able to read the fruits of Tallinn 2.0, the much-anticipated follow-up to the Tallinn Manual and its take on international law applicable to cyberwar.  Tallinn 2.0 will offer the views of an independent group of experts on how international law regulates cyberspace outside of the use of force and jus in bello contexts, including the duty of non-intervention.  I imagine I’m not alone in wanting to know whether and how its contents will speak to the current DNC crisis.

3. Remedies:  Does International Law Really Matter Here? Talking about this case in the last 24 hours, I’ve had a couple of non-lawyer friends express skepticism over international law’s relevance to the DNC hack.  Given our age, my friends hearken back to the Cold War, suggesting that Russia can and will ignore international law with impunity here (one of the more sanguine among them, also pointed out that the United States has its own history of interfering in foreign elections, a point Jack Goldsmith made earlier today at Lawfare). And, to be sure, there’s some merit to this critique.  After all, Russia’s Security Council veto ensures the inability of that body to respond to these events in any way. And U.S. resistance to the jurisdiction of international courts and tribunals precludes any real chance that a third-party would review the case.

Still, I think it’s important to raise the international legal issues for at least three reasons.  First, and perhaps most obviously, international law does provide self-help remedies in cases of state responsibility, including retorsion (otherwise legal acts done in response to unlawful behavior) and counter-measures (behavior that would otherwise be unlawful but for the fact that it is itself in response to unlawful behavior).  Thus, if Russia was responsible for the DNC hack and that hack did violate the duty of non-intervention, it would free the United States to engage in counter-measures vis-a-vis Russia that would otherwise be unlawful.  Time and space preclude me from surveying all the various counter-measure options that the United States might have, although I’d note there’s an interesting ancillary question of whether international law might limit the U.S. from pursuing certain counter-measures — such as interfering in Russia’s own domestic political process — if doing so is analogous to humanitarian obligations, which are non-derogable (i.e., you cannot violate the human rights of another State’s nationals just because they violated your nationals’ human rights).  I’d welcome reader thoughts on such limits as well as a more open discussion of the types of counter-measures that might be legally available in this case or any collective measures that could be in play.

Second, there’s the question of what happens if international law is not invoked or applied to this case? To the extent state practice can involve acts and omissions, might silence suggest that this sort of behavior (hacking and releasing political parties’ internal communications) is perceived as lawful (or at least not internationally wrongful)?  In other words, how States react to this case will have follow-on effects on future expectations of responsible State behavior, leading to new norms of behavior in cybersecurity.  This is a topic on which I’ve been spending A LOT of time lately with a forthcoming article in the American Journal of International Law that I’ve co-authored with Martha Finnemore (we’ve not posted it yet, but interested readers should e-mail me if they’d like to see a draft).

Finally, there’s an academic reason to undertake this analysis.  In recent years, scholars have debated and emphasized ways to shrink the duty of non-intervention, under the banner of things like human rights (unseating the old assumption that international law did not care what a State did vis-a-vis its own citizens in its own territory) or humanitarian intervention (the idea that responding to a State’s failure to protect those within its borders is more important than the duty of other States to stay out of domestic jurisdiction matters).  I wonder if these arguments are relevant to the current controversy?  Have they inadvertently created space for additional exceptions or otherwise shifted the scope and reach of any duty of non-intervention?  I might be wrong to worry about any such link, but I do think the issue warrants further study.

Thus, I think this is an important case that bears close attention.  I’d like to see how the United States responds publicly, if at all, to the allegations, not to mention how other States or actors view the behavior in question.  For international lawyers, moreover, I’d hope to see further discussions of how to attribute responsibility in cyber security incidents as well as more detailed analyses of how the duty of non-intervention applies in cyberspace than we have had to date.  To that end, I’d welcome reader thoughts and comments.  What have I got wrong?  What am I missing?

 

Will Today’s Blockbuster South China Sea Award Save or Destroy UNCLOS Dispute Settlement?

by Julian Ku

I have been mildly obsessed with the dispute between the Philippines and China for over three years now. It touches on so many areas of my research interest: international courts, China, and the UN Convention of the Law of the Sea. So I am almost sad that the dispute, at least for legal purposes, finally ended today with the arbitral tribunal’s sweeping award in favor of the Philippines.

Since the beginning of the arbitration process, I have wondered what the impact of China’s boycott would be on the future viability of the UNCLOS system of dispute settlement. For the first two years of the dispute, I was skeptical that China would suffer any meaningful damage from defying the UNCLOS arbitral system. Thus, I wondered if, combined with Russia’s almost cavalier defiance of an ITLOS proceeding involving Greenpeace, the end result in this process would be a toothless UNCLOS dispute settlement process of little value or significance. This was one of the reasons I sharply criticized the Philippines for adopting a fruitless “lawfare” strategy.

Time will tell, but early reviews point to me being wrong. China is much more vulnerable to “shamefare” than I had imagined. The evidence for China’s vulnerability lies, I think, in the extraordinary over-the-top global public relations campaign to denigrate and delegitimize the award before it was even issued. If China thought the award would have little impact, it would not have dragooned its diplomatic service, its state-run media, and even its civil society into a huge, sometimes nasty PR effort against the award.

Still, the game must run its course. The key is how other nations not named the Philippines or the U.S. react to the award. If most key nations, including China’s regional neighbors, follow the line set out by the U.S. and call upon China to comply with the award, then China’s isolation on this issue will be significant.   The G-7 is expected to follow this path, and it is possible that Vietnam, Malaysia, Singapore, and Indonesia will do so as well. If South Korea, Australia, and India can also be brought on board, then China will have suffered a diplomatic as well as a legal defeat. Why? Because any aggressive Chinese action to respond to the award, such as by militarizing its artificial islands or even building new ones, will be framed as a further violation of China’s international obligations. China will have its own mini-Crimea crisis, and it will be hard for it to gain legitimacy for its actions.

On the other hand, no matter how many government press releases denounce China, it is hard to imagine China ever complying with the award. It can’t, even if it wanted to, since it has locked itself into a rigid public position against the award in front of the world and its own people. So the arbitral award will go unenforced and unimplemented for the foreseeable future. No matter how you slice it, an unenforced award is not a sign of a strong and effective legal system. UNCLOS dispute settlement can be ignored, not without cost, but certainly it can be ignored.

On balance, however, the UNCLOS system seems to have been strengthened by today’s ruling. The U.S. and other key countries seem to have rallied in support of it, and the tribunal’s findings seem to carry a fair amount of credibility with most governments. Indeed, the U.S. now seems to endorse the UNCLOS dispute settlement system with more vigor than one might expect for a non-party. It seems that UNCLOS dispute settlement will survive in a post-Philippines v. China world after all.

Venezuela’s Crisis Tests the OAS’ Legal Commitment to Defending Democracy

by Julian Ku

Foreign Policy has a great report from Michael Shifter on the ongoing diplomatic battle within the members of the Organization of American States over how to respond to Venezuela’s ongoing political and economic crisis.  According to Shifter, the OAS Secretary General Luis Almagro is pushing hard to get the OAS membership to invoke Article 20 of the OAS Democratic Charter at the upcoming June 23 special session.  Under Article 20, the Secretary General may ask the Permanent Council of the OAS to “collectively assess” as situation where there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state.”   The Permanent Council can then undertake “necessary diplomatic initiatives, including good offices, to foster the restoration of democracy.”

The OAS Secretary-General has already issued a long 114 page report explaining why he believes (starting on p. 35) that there has been an “unconstitutional alteration of the constitutional regime that seriously impairs the democratic order” of Venezuela.  I haven’t been following the Venezuela situation closely, but this report certainly lays out a strong case.  Even more importantly in my view, it offers a good explanation of why members of the OAS have (via the Democratic Charter) a strong international legal obligation to democratic governance.

The penalties for breaching this obligation aren’t all that onerous.  Under Article 21, the OAS, via a special session, can suspend Venezuela from the OAS. I am not sure how likely this is to happen, given that Article 21 has a 2/3 majority requirement.

Still, I find this whole episode a fascinating example of how an international organization can become the key vehicle for influencing the domestic governance of one of its member states.  Key states are concerned about the crisis in Venezuela, and it looks like the OAS will be the chosen vehicle of (very soft diplomatic) intervention.