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US Diplomacy and National Security

Final Thoughts on the Bar Human Rights Committee’s Letter

by Kevin Jon Heller

Kirsty Brimelow QC, the chair of the Bar Human Rights Committee (BHRC) — and a colleague of mine at Doughty Street Chambers — has responded to my position on the 2009 Declaration, as recounted by Joshua Rozenberg in this Guardian article. Here is the relevant paragraph:

Neither Rozenberg’s opinion piece nor academic he relies upon, Kevin Heller, cite the text of the 2012 decision in support of their positions. This is hardly surprising given that the decision does not in fact “formally reject” the 2009 declaration.

Although I stand behind my claim that the OTP “formally rejected” the 2009 Declaration in its 2012 decision, Kirsty correctly points out that I did not cite the text of the decision. So I think it’s useful to summarise the text and quote it where appropriate:

[1] The 2009 Declaration purported to accept the Court’s jurisdiction over the situation in Palestine on an ad hoc basis, retroactive to 1 July 2002 (para. 1).

[2] Per Art. 15 of the Rome Statute, the OTP initiated a preliminary examination “in order to determine whether there was a reasonable basis to proceed with an investigation” (para. 2).

[3] The OTP stated that the first step in that inquiry was to determine whether it had jurisdiction over the events in Palestine. In that regard, it noted that “only when such criteria are established will the Office proceed to analyse information on alleged crimes as well as other conditions for the exercise of jurisdiction” (para. 3)

[4] The OTP pointed out that only a “State” can accept the Court’s jurisdiction on an ad hoc basis under Art. 12(1) of the Rome Statute (para. 4), which meant that the key issue with regard to the Declaration was whether Palestine qualified as a State (para. 5).

[5] The OTP concluded that it did not have the authority to decide whether, as a matter of law, Palestine was a State; that responsibility was “for the relevant bodies at the United Nations or the Assembly of States Parties” (para. 6).

[6] The OTP acknowledged that numerous states had acknowledged Palestine’s statehood and that Palestine had applied for membership as a State in the UN, but insisted that although the UN application was relevant, “this process has no direct link with the declaration lodged by Palestine” (para. 7).

[7] The OTP said it “could in the future consider allegations of crimes committed in Palestine” if the statehood issue was “eventually” resolved by the UN or ASP (para. 8).

Although the decision is not the picture of clarity, I still think it qualifies as a “formal rejection” of the 2009 Declaration. The Declaration formally requested the OTP accept jurisdiction and investigate the situation in Palestine. The OTP opened a preliminary examination, as required by the Rome Statute, but then ended that examination at the first step, concluding that it did not have jurisdiction over the events in question because Palestine could not establish that it was a State. That’s a rejection, even if the OTP — to use a common-law phrase — dismissed the Declaration without prejudice.

My guess is that paragraph 8 is the crux of the disagreement between the BHRC experts and me. They are reading it as a statement that the OTP would essentially hold onto the Declaration until the UN or ASP clarified Palestine’s status as a state, at which point it could then advance the preliminary examination. It’s possible — but I think the OTP would have said as much if that’s what paragraph 8 meant. I read the paragraph as making clear the OTP was rejecting the Declaration without prejudice to a later ad hoc declaration — a reading, not incidentally, that seems to square with Fatou Bensouda’s recent statement that the OTP won’t act without a new Declaration or Palestine’s ratification of the Rome Statute.

I also want to make clear that I disagree with Rozenberg’s statement that the BHRC “is at best naive, and at worst misleading, for suggesting [the] legal situation is beyond doubt.” I don’t think there is anything naive or misleading about the letter, even though I disagree with it. These are very difficult issues, over which reasonable people can disagree. And there is, of course, nothing wrong with advocates advocating.

Finally, I want to sincerely apologise to the BHRC for revealing that I had been asked to sign the letter. Although I waited for the letter to appear publicly before commenting on it, I should not have mentioned that I had been approached.

The Article II “Humanitarian Intervention” War Power

by Julian Ku

Assuming there really was authorization from the Iraqi government, I don’t have any doubt that the U.S. has the right under the international law to launch new airstrikes in Iraq.  But the domestic authority for the U.S. airstrikes is much more murky, and, as Ilya Somin argues here, Congress might need to authorize continuing military action.

Jack Goldsmith goes through the domestic legal bases for action here: the 2001 AUMF against Al Qaeda, the 2002 AUMF to conduct hostilities in Iraq, and the President’s inherent power under Article II of the U.S. Constitution. I agree with Jack that, for political reasons, the Administration seems to be relying on the President’s inherent powers under Article II of the Constitution rather than on either of the statutory authorizations passed by Congress.  But even under Article II, Presidents have usually cited rationales such as the need to act quickly to protect U.S. citizens and their property or to prevent an imminent attack on the U.S or a treaty ally, or a threat to U.S. national security.

But President Obama does not cite any of these reasons in his explanation of why he is authorizing airstrikes to prevent the deaths of the Iraqi civilians trapped in a mountain region.  Instead, he cited the need to “prevent a potential act of genocide” in his remarks yesterday. So it turns out that Article II also can be invoked for a purely humanitarian intervention where no U.S. citizens or property are threatened, and the national security interest is not cited.  While I do think there is a very plausible national security rationale for these airstrikes, it is worth noting that President Obama does not cite national security directly in his remarks.  When one looks back at his similar rationale for Article II-based airstrikes in Libya, I think one of President Obama’s legacies will be a new reading of Article II that will allow future presidents to use military force for humanitarian reasons without the authorization of Congress.

My Podcast on Palestine and the ICC — and an Additional Thought

by Kevin Jon Heller

I had the pleasure of doing a podcast yesterday with Mark Leon Goldberg, purveyor of the essential UN Dispatch website, on the possibility of Palestine ratifying the Rome Statute or accepting the Court’s jurisdiction on an ad hoc basis. It’s about 20 minutes long, and you can find it here (or on iTunes).

I do want to mention another aspect of Palestine’s decision — one I hadn’t thought about until I read this excellent article in the Guardian by Joshua Rozenberg. (And it’s not just excellent because he quotes me.) As I discuss in the podcast, Palestine has two roads to a potential ICC investigation of Operation Protective Edge: (1) accept the Court’s jurisdiction on an ad hoc basis retroactive to 29 November 2012, the date of UNGA Res. 69/17; or (2) ratify the Rome Statute and then file an ad hoc declaration retroactive to 29 November 2012. Although both roads would give the ICC jurisdiction over the situation in Gaza, there is actually a critical procedural difference between them — assuming that the OTP wanted to investigate (which I still think is extremely unlikely). If Palestine simply accepts the Court’s jurisdiction on an ad hoc basis, the OTP’s decision to investigate would be considered proprio motu — and that decision would be subject to review by the Pre-Trial Chamber. (See, in that regard, the Cote d’Ivoire situation.) By contrast, if Palestine ratified the Rome Statute and then filed an ad hoc declaration, the OTP’s decision to investigate would be based on the referral of a State Party — and would not be subject to Pre-Trial Chamber review.

We’ll see what happens…

Three Thoughts on the OTP’s Rejection of Jurisdiction over the Situation in Palestine

by Kevin Jon Heller

The ICC Office of the Prosecutor has just released the following statement:

Palestine is not a State Party to the Rome Statute, the founding treaty of the ICC; neither has the Court received any official document from Palestine indicating acceptance of ICC jurisdiction or requesting the Prosecutor to open an investigation into any alleged crimes following the November 2012 United Nations General Assembly Resolution (67/19), which accorded non-member observer State status to Palestine.

The ICC has no jurisdiction over alleged crimes committed on the territory of Palestine.

I have three thoughts on the statement. First, the OTP clearly believes that the 2009 Declaration by the Palestinian Authority is void. If Palestine wants the OTP to investigate, it will have to either ratify the Rome Statute or file a new declaration accepting the Court’s jurisdiction on an ad hoc basis.

Second, it seems equally clear that the OTP will not accept a Palestinian declaration accepting jurisdiction over events prior to before 29 November 2012, when the UNGA adopted Res. 67/19. The statement strongly implies — if it doesn’t quite say it explicitly — that Palestine’s statehood, at least for the ICC’s purposes, began on that date. Any other conclusion is difficult to reconcile with the statement’s emphasis on Res. 67/19; the fatal flaw of the 2009 Declaration seems to be that it was made before the UNGA upgraded Palestine’s status.

Third, the statement’s reference to “the territory of Palestine” raises the possibility that the OTP will not accept an ad hoc declaration that is limited to Gaza — even one that properly focuses, as the 2009 Declaration did, on crimes committed by both parties to the conflict. To be sure, the reference may just reflect casual or sloppy drafting; indeed, I see no reason why Palestine could not self-refer only the Gaza situation, given previous situations the OTP has accepted (Northern Uganda, Ituri, Darfur, etc.) But it’s a point to ponder going forward.

Bar Human Rights Committee of England and Wales Asks OTP to Investigate Gaza (Updated)

by Kevin Jon Heller

The request is supported by a number of leading QCs and professors in Britain. (Full disclosure: three of the signatories are barrister members and one is an academic member of Doughty Street Chambers, with which I’m associated.) Here is the Bar Human Rights Committee’s summary:

Public international law and criminal law Q.C.s and Professors based in Britain join with the Bar Human Rights Committee of England and Wales to urge the Prosecutor of the International Criminal Court (ICC) to initiate a preliminary investigation into crimes being committed in the Gaza Strip.

In response to the extreme gravity of the situation in the Gaza Strip, including spiralling civilian deaths and large scale destruction of homes, hospitals and schools, the Bar Human Rights Committee of England and Wales, supported by leading Q.Cs and Professors, has submitted a formal request, calling upon the Prosecutor of the International Criminal Court to initiate an investigation, pursuant to Article 15 of the Rome Statute.

The letter of request was submitted to the ICC on 3rd August 2014. It asserts that the 2009 Declaration, submitted by the Government of Palestine pursuant to Article 12(3) of the Rome Statute, provides the prosecutor with the necessary jurisdictional basis on which to act.

Kirsty Brimelow Q.C., Chair of the Bar Human Rights Committee, stated: “The initiation of an investigation would send a clear and unequivocal message to those involved in the commission of these crimes that the accountability and justice called for by the United Nations on the part of victims are not hollow watchwords. It would bring about an end to the impunity which has prevailed in the region to date, fuelling ever increasingly brutal cycles of violence. The international community cannot continue to act simply as witness to such bloodshed and extreme civilian suffering.”

I declined to sign the request, despite my profound respect and admiration for the signatories. Although I have no doubt that serious international crimes have been committed by both Israel and Hamas in Gaza, I find the request problematic. Moreno-Ocampo formally rejected the Palestinian Authority’s 2009 Declaration on behalf of the OTP, and the UNGA did not give Res. 67/19 — which upgraded Palestine to non-member-state status — retroactive effect. In my view, therefore, the 2009 declaration is effectively (and perhaps even legally) void. That conclusion is supported by Fatou Bensouda’s public statement that “the ball is now in the court of Palestine”, “Palestine has to come back,” and “we are waiting for them.”

The bottom line for me is that Palestine needs to submit a new declaration accepting the ICC’s jurisdiction on an ad hoc basis. (Assuming the Palestinian Authority has the authority to do so — about which see my previous post.) That declaration should refer the situation in Gaza, not simply Israel’s crimes, as the 2009 Declaration properly did. (The primary reason I do not believe the complaint filed by the Palestinian Authority’s Justice Minister can be considered an ad hoc declaration is that it singles out Israel for investigation.) The declaration should also clearly specify the temporal parameters of the jurisdiction Palestine is giving to the ICC. Any attempt to accept the Court’s jurisdiction retroactive to 1 July 2002, when the Rome Statute entered into force, is likely to fail, because I seriously doubt that the OTP wants to determine when Palestine became a state. The most plausible date for retroactive jurisdiction would be 29 November 2012, when the UNGA adopted Res. 67/19. (Like many others, I believe Palestine qualified as a state long before that. But I wouldn’t be the one deciding whether to investigate.)

In short, and again with the greatest respect to the signatories of the present request, I do not think it is wise to pursue what seems to me to be a procedural shortcut to ICC jurisdiction over the situation in Gaza. If the ICC is to become involved in the most heavily politicised conflict in recent history — and I think the likelihood the OTP would act on even a proper request is essentially zero — there should be no doubt whatsoever about either Palestine’s desire for an investigation or the ICC’s jurisdictional competence. If we’ve learned anything about the conflict in Gaza, it’s the importance of always crossing the legal “t’s” and dotting the legal “i’s.”

UPDATE: Multiple sources are reporting on Twitter that the ICC has announced it has no jurisdiction over the situation in Gaza. (See here, for example.) That would seem to put beyond doubt that any attempt to rely on the 2009 Declaration will fail.

Can the PA Ratify the Rome Statute? (A Response to Eugene)

by Kevin Jon Heller

As Eugene notes in today’s guest post, the Palestinian Authority (PA) appears to have decided to ratify the Rome Statute. I’ll believe it when I see it: the PA has threatened to ratify before, only to back down at the last moment. But could it? Most observers have assumed it could, but Eugene disagrees. I think his bottom line may well be right, as I will explain at the end of this post. But I have problems with other aspects of it.

To begin with, let’s dispense with Eugene’s claim that Abbas’s lack of control has an upside for him, because it “prevents him from being held responsible for the war crimes there. If he does control the territory, and has allowed it to be a rocket launching base for years, he would be in trouble.” Abbas has neither de jure nor de facto effective control over the members of the groups (especially Hamas) that are responsible for the rocket attacks on Israel. Nor does it seem likely that he would be part of the military chain of command in a Fatah-Hamas unity government. So whatever the state of Palestine’s responsibility for the rocket attacks might be, it is extraordinarily unlikely that Abbas would ever be held individually criminally responsible for them — now or in the future.

I also think that Eugene is overreading the OTP’s rejection of Mohammed Morsi’s attempt to accept the ICC’s jurisdiction. In particular, I think he is eliding the difference between two different concepts of “effective control”: for purposes of determining the government of a state, and for purposes of determining whether part or all of a state’s territory is belligerently occupied. Here is the relevant paragraph of the ICC press release concerning the decision:

In accordance with the legal test of “effective control,” the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law. Application of that test, on both the date that the purported declaration was signed and the date it was submitted, lead to the conclusion that Dr Morsi was no longer the governmental authority with the legal capacity to incur new international legal obligations on behalf of the State of Egypt. The information available indicates that, at all material times, the applicants did not exercise effective control over any part of Egyptian territory, including on the date the declaration was signed. Nor would it be consistent with the “effective control” test to have one putative authority exercising effective control over the territory of a State, and the other competing authority retaining international treaty-making capacity.

As the paragraph indicates, the OTP relied on effective control to determine which of two rival domestic Egyptian entities represented the government of Egypt. In that context, the OTP quite rightly decided that “the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law.” Morsi lost under that test, because his claimed failed all three conditions.

That concept of effective control has little to do with the concept of effective control in the law of occupation. Effective control in the latter context determines whether the law of occupation applies; it does not determine who the sovereign is in the occupied state. On the contrary, one state’s effective control over the territory of another state does not transfer sovereignty from the government of the occupied state to the occupying state; the government in the occupied state remains the occupied state’s government, even if it loses some of its powers of governance for the duration of the (ostensibly temporary) occupation.

I see no reason, therefore, why Israel’s occupation of the West Bank and possible occupation of Gaza would have any impact on the OTP’s decision to accept or reject the Palestinian Authority’s ratification of the Rome Statute. Even if the state of Palestine is completely occupied by Israel — which Israel obviously rejects — the government of Palestine is still the government of Palestine. Indeed, the only way that wouldn’t be true is if the state of Palestine suffered debellatio, understood as the complete destruction of a state’s sovereignty through conquest. If that were the case, then Israel would be the government of Palestine and would be entitled (exclusively) to make decisions on its behalf. That was the situation after World War II: because of the debellatio of the German state, the Allies, via the Control Council, exercised supreme legislative authority in Germany as a condominium. But that is hardly the case in Palestine, as both sides agree. (And in any case, the concept of debellatio may well have fallen into desuetude.)

All that said, I agree with Eugene’s claim that the Palestinian Authority may not qualify as the government of Palestine — at least without the inclusion of Hamas. According to Eugene, “Hamas came to power in a coup against Abbas’s government, and since the ‘statehood’ of Palestine, the latter has never exercise ‘effective control’ over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president.” That’s an inaccurate description of the situation: Hamas was democratically elected by Palestinians in 2006, but was prevented from governing by Fatah until it seized control of Gaza in the 2007 civil war. Hamas’s election, however, only strengthens Eugene’s point, because it indicates that the Palestinian Authority may well have a Morsi problem if it attempts to ratify the Rome Statute without Hamas’s consent. The Palestinian Authority fails all of the elements of the OTP’s “effective control” test in the context of rival governments: it does not control all of the state of Palestine, it does not enjoy the “habitual obedience of the bulk of the population,” and it does not have “a reasonable expectancy of permanence.”

Nor, for that matter, does Hamas — for similar reasons. So it may well be that only a unity government between Fatah and Hamas, such as the one that Israel desperately tried to undermine prior to its invasion of Gaza, is competent to ratify the Rome Statute. Whether the Palestinians will still be able to form such a unity government remains to be seen.

Is Violating “Serious Obligations” of the INF Treaty the same as its “Material Breach”?

by Duncan Hollis

A few hours ago, the NY Times broke a story that the United States views Russian tests of a ground-launched missile as violating the 1987 INF treaty, formally (and lengthily) titled, “The Treaty Between The United States Of America And The Union Of Soviet Socialist Republics On The Elimination Of Their Intermediate-Range And Shorter-Range Missiles”.  According to the story, the State Department will publicly issue a report that says, among other things:

The United States has determined that the Russian Federation is in violation of its obligations under the I.N.F. treaty not to possess, produce or flight test a ground launched cruise missile (GLCM) with a range capability of 500 kilometers to 5,500 kilometers or to possess or produce launchers of such missiles,”

In addition, President Obama has notified Russian President Putin of the U.S. charges in a letter delivered today.

The U.S. move adds a new brick to the wall of tensions building in the U.S.-Russian relationship (others include Crimea, Russian support for Eastern Ukrainian separatists, the MH17 tragedy, not to mention Edward Snowden’s continuing presence in Moscow).  I assume the timing of the U.S. accusations is no accident.  Moreover, I find it interesting that in so many of these recent crises with Russia, the United States has consistently relied on law and legal argumentation to push against Russia’s actions (or inaction).  This case may be the most extreme example of such an approach since the issue here is entirely one of international law and treaty interpretation.  As such, it’s very much in the wheelhouse of Opinio Juris and its readers. I thought I’d start the conversation with a few preliminary thoughts (emphasis on the “preliminary” since we don’t have too many details to go on as yet).

For starters, the precise language used to describe Russia’s tests — a violation of its obligations under the I.N.F. Treaty” — appears quite significant (especially where it comes after reportedly extensive deliberation). Certainly, the concept of a violation is easy to grasp and has important political implications. For treaty lawyers, however, the term “violation” is not the language we’d expect to see where there’s non-compliance with a treaty’s terms. The Vienna Convention on the Law of Treaties (VCLT), which sets the customary international law rules in these cases, describes violations in terms of a treaty’s “breach”  More specifically, it articulates a set of remedies where breaches are “material” (see VCLT Article 60 here).  In this case, however, that key adjective — “material” — is nowhere to be found, suggesting the United States is not looking to invoke this VCLT provision.  But even if it were, in a move that has stumped generations of international law students, the VCLT’s remedies for a treaty’s material breach are quite limited — they entitle the non-breaching party to suspend or terminate its own obligations under the treaty in whole or in part (the VCLT also adds some procedural hurdles but these are largely ignored in State practice). Of course, there’s no evidence suggesting that the U.S. has any intention of suspending or terminating the INF Treaty; on the contrary, U.S. interests seem to lie squarely on keeping Russia obligated by the treaty as long as possible and forestalling any Russian move to withdraw from the INF Treaty (which Article XV allows it to do).  Simply put, the United States does not appear to consider Russia’s behavior as a material breach of the INF treaty nor want the remedies that label conveys; such a path would actually undercut the stability of the INF treaty’s continued performance for which the United States is pushing.

Second, just because the VCLT remedies are undesirable does not foreclose the United States from all legal leverage in this case. By using the term “violation . . . of obligations” the United States may be invoking a different set of international law rules … those of State responsibility.  Although the United States has been ambivalent to the UN’s Draft Articles on State Responsibility, those articles elaborate a detailed sets of obligations, rights and remedies where a State commits an internationally wrongful act (defined to include a breach of treaty obligations).  The offending State is required to cease (and not repeat) non-compliant behavior and the injured State(s) may engage in “counter-measures” to induce such a return to compliance. These counter-measures may include behavior previously categorized as a retorsion (lawful behavior such as canceling foreign assistance done in response to a prior breach) and a reprisal (behavior that would be unlawful but for the existence of the prior breach).  At present, the types of U.S. responses on offer described in Michael Gordon’s story are likely retorsions, but I assume other measures, including reprisals, could follow if Russia does not respond appropriately.

Taken together, these moves lend support to Bruno Simma and Christian Tams argument in my book that the law of state responsibility has proven more attractive to States than the VCLT’s remedies for treaty breach. That said, I do not mean to suggest that the VCLT is entirely irrelevant to this case.  On the contrary, its provisions on interpretation (Articles 31-33) are likely central to the U.S. claim of a Russian violation.  What’s more, I’d expect Russia to offer its own interpretation to the contrary employing the same interpretative framework (not to mention counter-claims of U.S. violations as described in tonight’s story).

All in all, there’s quite a bit here that should be of interest not just to those who care about arms control and nonproliferation, but international law and international relations more generally.  I’d be interested to hear what others think the U.S. claim suggests and how you see things playing out? Comments welcome.

Can Israel Cut Off Water and Power to Gaza?

by Kevin Jon Heller

That’s the question at the heart of a complicated debate between a variety of IHL scholars. The debate began with a legal opinion that Avi Bell submitted to the Knesset, in which he argued that nothing in international law prohibits Israel from cutting off the water and power it provides to Gaza. Although the opinion is dense — and has been updated in response to a document criticising an earlier published version — the bottom line is that Bell rejects the idea that Gaza is still occupied and believes it is thus impossible to find a positive obligation on Israel to continue to provide water and power (p. 5):

Some have argued that Israel is required to supply the Gaza Strip because Israel allegedly maintains control over Gaza. There are two versions of this claim: one version claims that Israel belligerently occupies the Gaza Strip; the other claims that Israel “controls” the Gaza Strip for purposes of human rights treaties or “post-occupation” duties even though it neither occupies nor exercises sovereignty over the Gaza Strip. When it controls territory through belligerent occupation, a state may have the duty supply certain goods to a civilian population if there is no other way to ensure access to the goods. Similarly, when it controls territory over which it has lawful sovereignty, a state may have the duty to supply certain goods when human rights treaties demand their provision to the civilian population. However, Israel does not control the Gaza Strip for purposes of the law of belligerent occupation or human rights  duties. Thus, Israel cannot be held to a duty to supply.

Bell’s legal opinion led a group of leading Israeli international-law scholars, including Eyal Benvenisti, Aeyal Gross (also at SOAS), David Kretzmer, and Yuval Shany, to submit a response to the Knesset. The essence of the response is that even if Israel is no longer occupying Gaza (on which the experts do not take an opinion), its ongoing control over basic features of Gazan life means that it is not free to completely ignore basic Palestinian humanitarian needs. Here is the key paragraph (pp. 10-11):

Israel and Gaza are not equal sovereign entities. Israel has controlled Gaza for decades, which resulted in significant dependence on Israeli infrastructure. Even after the disengagement, it still holds certain powers over the population in Gaza – including by its control over essential infrastructure. Since Israel does not allow, de facto, the development of independent infrastructure in Gaza, it cannot completely deny the responsibility to provide these essential supplies. Therefore, the interpretation suggested in the Opinion does not reflect a proper balance between the different objectives of IHL – even when considering the special challenges of asymmetric warfare. Chiefly, this is because it results in a legal “black hole” which deprives the civilian population of the effective protection of international law.

The debate between Bell and the other experts led Diakonia, a Swedish NGO, to commission a third report from Michael Bothe, one of the world’s foremost IHL experts. Bothe concludes, like the group of experts, that cutting off water and power to Gaza could (in certain circumstances) violate IHL. But he offers two independent bases for that conclusion…

Let Me Be Clear: Taiwan Should Be Defended, Even Though the Defense is Illegal

by Julian Ku

So I managed to anger lots of folks (mostly on twitter) with my post Friday (republished in the Diplomat and RealClearWorld yesterday) on the international legal problems created by any Japanese intervention to defend Taiwan from an attack by China.  I don’t mind angering people (especially on twitter), but I do want to make sure they are angry with me for the right reasons. Many readers seem to think I want China to invade Taiwan, which is in fact the complete opposite of my policy goal.   So let me offer some clarifications of my position on policy, and a few rebuttals of legal responses to my arguments.

1) Policy: I am squarely in favor of U.S. military intervention to defend Taiwan against any PRC military attack. I am even in favor of intervention in the case of a declaration of independence by Taiwan as long as Taiwan acts in a responsible way so as not to threaten China’s national security.(My only hesitation on this is the cost to the US, but not on the merits of Taiwan’s case). Given how strong China is these days, I am pretty sure Taiwan could not be a real military threat to China (nor would it want to be).  Whether the US would actually protect Taiwan is the zillion dollar policy question that I don’t have the answer to.  I hope it does, but I don’t know if it will.

2) Law: However, my favored US policy is in deep tension with, or even direct conflict with, traditional understandings of the international law governing the use of force.  For those of us who love and cherish Taiwan, it is no use pretending as if the law supports a US or Japanese military intervention to defend Taiwan. It doesn’t. It would be better for all concerned if we faced this legal problem head-on rather than try to come up with complicated not-very-persuasive workarounds.  Here are the two most obvious workarounds, raised in this very angry and excited post by Taiwan-expert J. Michael Cole:

a) Responsibility to Protect and Humanitarian Intervention
Here is a simple response: R2P are non-binding principles that, even if they were binding, seems to require Security Council consent.  Humanitarian intervention remains deeply contested and doubtful in international law, and would not apply to Taiwan in any case until it was probably too late. Kosovo is a great example of how contested this doctrine is. Syria is another.

b) The ROC is a separate legal entity.
I get that this is a complicated issue, but I don’t think I am “misreading” historical documents when I write that i) the US recognizes the PRC as the government of China and that the US accepts that Taiwan is part of China; 2) Japan recognizes the PRC as the government of China, and Japan accepts that Taiwan is a part of China.  Sure, neither country recognizes that Taiwan is a part of the PRC, but both the US and Japan have made clear that China is a single legal entity that includes Taiwan, and that the PRC is the sole government in charge of this entity. We can futz around the details, but there is a reason why neither the US nor Japan (nor almost anyone else) have diplomatic relations with Taiwan.

Here is one interesting and unexpected policy consequence of Taiwan’s current legal position: it would be safer from a legal perspective for Taiwan to declare independence, since that would protect it from this legal problem I’ve identified. Of course, that legal position would probably be the least safe from a policy perspective, since it is the mostly likely to spark a Chinese attack.

Which brings me to my real point: the increasing irrelevance of Article 51 of the UN Charter to decisions by major powers on whether to use military force. The decision on whether to defend Taiwan should not depend on workarounds for Article 51. It should depend on the combination of moral values and national interests the US and Japan consider worth protecting here in Taiwan. I think Taiwan is worth protecting, but it is important to recognize that the law is not on Taiwan’s side.

Why “Lawfare” Won’t Deter China in the South China Sea

by Julian Ku

Harry J. Kazianis, the managing editor of The National Interest, has a smart post discussing the risk that the U.S. is taking if it tries to take more aggressive action to counter China in the South China Sea.  Essentially, he argues the U.S. has no effective strategy to counter China’s “non-kinetic” strategy to subtly alter the status quo by using non-military assets to expand control and influence in the region.  I agreed with Kazianis all the way until he offered his own solution:

There only seems one solution to the various territorial disputes in the region—specifically, what some are calling “lawfare.” All of the various claimants that have disputes with China in the South China Sea should appeal collectively to any and all international bodies that could possibly hear their claims. Only together can they hope to get Beijing to halt its aggressive actions.

He goes on to cite the Philippines claim against China in the UN Law of the Sea arbitration system as a possible model for other nations.

“Lawfare” or international law litigation is not going to be an effective counter to China here for at least two reasons (one legal, one policy-based):

  • 1) China has opted out of any “compulsory” system of international dispute resolution that would rule on its territorial claims in the South China Sea (or anywhere, for that matter).  This “opt-out” is perfectly legal and may very well prevent the Philippines from even making their full case to the UNCLOS arbitration tribunal.  There are no other legal institutions that have jurisdiction.  So the only way “lawfare” can work here is if China consents to arbitration. But if Kazianis is right that this is a strategy by China’s neighbors to block its expansion, then why would China ever agree to arbitration?
  • 2) Even if compulsory jurisdiction were somehow found in one of these international bodies, there is very little chance that China would feel compelled to comply with any negative ruling.  This is not a China-specific problem, but rather a problem almost every country faces when considering arbitration over territorial disputes.  The effectiveness of tribunals in these contexts is highly limited since they depend for enforcement on the individual state-parties.  This is why voluntary arbitration tends to work better than compulsory arbitration in these kinds of territorial disputes.  The U.S. and Canada, for example, have managed to settle (most of) their often contentious land and maritime borders through a combination of non-arbitral commissions, and then special bilateral arbitrations.  In the famous “Gulf of Maine” case, the U.S. Senate actually approved a special treaty with Canada to send a maritime dispute to a special chamber of the ICJ.  Although clunky, this model is far more likely to succeed in getting state compliance.

So while I agree with Kanianis and other commentators that China needs to be deterred from its current strategy in the South China Sea, I am fairly confident the use of “lawfare” will not be a way to accomplish this goal.

Why Japan Would Violate International Law If It Militarily Intervened to Defend Taiwan (But Why Japan Should Do So Anyway)

by Julian Ku

I’ve been swamped with various projects and distractions here in Taiwan (mostly food-related), so I didn’t notice until today this very interesting Zachary Keck post about how Japan’s recent decision to re-interpret its constitutional provision to allow expanded overseas military activities would enable Japan to help defend Taiwan against an attack from China.  It’s a fascinating post, but it also made me think of an interesting wrinkle that cuts against his argument.  It is almost certainly true that international law prohibits any military action by Japan (or the US) to defend Taiwan from a Chinese attack.

In his post, Keck notes that Japan’s decision to reinterpret its constitution does NOT allow Japan to fully exercise its rights to collective self-defense under international law, but it does allow Japan to provide military support to allies where Japan itself is threatened.  But he then argues that even under this more narrow “collective self-defense” right, Japan could  (and probably would) intervene to assist Taiwan in a military defense against a Chinese invasion.

I think this could be right as a matter of Japanese constitutional law if an invasion of Taiwan could be plausibly construed as a threat to Japan, but there is a strange international law flaw to this argument.  Under black-letter international law, Japan cannot use military force in Taiwan absent China’s consent, even if the Taiwan government requests its assistance.  Why? Because the UN Charter’s Article 51 only authorizes an act of “collective self-defense if an armed attack occurs against a Member of the United Nations.” Taiwan is not a member of the United Nations, and to make matters worse from Taiwan’s perspective, Japan recognizes the government in Beijing as the rightful government of China, and Japan further recognizes that Taiwan is part of China. 

So unless Japan is able to plausibly claim that an attack on Taiwan triggers Japan’s own inherent self-defense right (and I think this is a non-starter as a legal argument), and unless a Chinese invasion could be said to justify humanitarian intervention (another very difficult argument), Japan would violate the U.N. Charter if it used military force in a way that violated the territorial integrity of another UN member (China).  Japan could not invoke its collective self-defense rights unless it recognized Taiwan as an independent nation.  And even that would probably not be enough to satisfy international law requirements, since Japan’s unilateral recognition of Taiwan as an independent state would necessarily satisfy international law either.  And good luck, Taiwan, getting U.N. membership.

By the way, this analysis applies equally (or even with greater force) to the United States.  The U.S. quasi-defense guarantee to Taiwan has it completely backwards (from a legal point of view):

  • If Taiwan declares independence, the U.S. has signaled it would not consider itself bound to defend Taiwan against a Chinese invasion. Yet that would be (at least in theory) one state (China) committing aggression against another state (Taiwan), and almost certainly illegal.
  • If Taiwan keeps the status quo and does not declare independence, and China still invades, the U.S. has signaled that it would come to Taiwan’s defense. But that would be one state (China) using force within its own territory to put down secessionists (a la Ukraine) and almost certainly legal.

So the U.S (and maybe Japan) are now committed to defend Taiwan only in a situation that would require the US and Japan to violate the U.N. Charter.  It’s international-law-bizarro world!

Of course, this bizarro-from-a-legal-point-of-view policy suits U.S. purposes, since it is the policy most likely to avoid military conflict with China.  But it also reveals how use of force rules in the U.N. Charter have little relevance to shaping the behavior of the U.S., Japan (and probably China) in any conflict over Taiwan.  Japan and the US should (and probably are) ready to ignore these legal rules when making their determinations about whether to defend Taiwan.  And all in all, that’s a good thing (especially while I am still here in Taipei!).

Meanwhile, over at ABC News…

by Kevin Jon Heller

BsJXdWkCYAEhdi_Diane Sawyer had a hard-hitting report tonight at ABC News on the recent hostilities between Israel and Palestine. The segment opens with her saying, “We take you overseas now to the rockets raining down on Israel today as Israel tried to shoot them out of the sky.” As she speaks, a video box next to her shows explosions on an urban landscape. Sawyer then shows a still photo of two haggard men carrying clothes in front of a destroyed building and says, “here is an Israeli family trying to salvage what they can.”

There’s only one problem with Sawyer’s report: the explosions are in Gaza, the result of IDF airstrikes, and the men are Palestinian, not Israeli.

Welcome to the mainstream media’s even-handed coverage of the Israeli/Palestinian conflict.