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US Diplomacy and National Security

That “Broad Consensus” for Unwilling/Unable Just Got Less Broad

by Kevin Jon Heller

A few days ago, I pointed out that Kate Martin’s “broad consensus that there is a right to use military force in self-defense when the host country is unable or unwilling to stop the attack” actually includes no more than four of the world’s 194 states. That consensus is not exactly broad — and it looks even shakier now that Russia has apparently rejected the “unwilling or unable” test in the context of Syria:

On Saturday, France launched a campaign of airstrikes against the Islamic State in Syria. Commenting on the effort, Russian Foreign Ministry spokeswoman Maria Zakharova pondered what kind of conception of ‘self-defense’ would drive one country to carry out an operation to bomb another without that country’s explicit permission.

Earlier, Prime Minister Manuel Valls was cited by French media as saying that Paris’s bombing campaign constitutes self-defense. “We are acting in self-defense,” Valls noted, according to Reuters.

In a post on her Facebook page, Zakharova pondered that “it would be nice to know more about this concept of self-defense, in the form of air strikes [on the territory of Syria,] a state which did not attack anyone, and without its consent, and about this concept’s compliance with international law.”

The spokeswoman referred to the fact that in its air campaign against ISIL, the Western coalition never once found the need to consult with Syria’s legitimate government, and on the contrary, has repeatedly declared that the elected government of Bashar Assad cannot be part of Syria’s future.Zakharova noted that she found it entertaining that “the referendum in Crimea is called an annexation, but air strikes conducted without the approval of the Security Council or of the receiving side is self-defense.”

The spokeswoman emphasized that while “it’s clear that the Islamic State is a threat to the entire world,” first two questions must be answered: “First, who was it that created ISIL? And second, on what basis are you acting on the territory of a sovereign state, bypassing a legitimate government which not only does not support, but is selflessly fighting against ISIL?”

Zakharova concluded that “this is not international law; this is its abolition in front of a shocked international community.”

If I was being picky, I would acknowledge that Zakharova did not specifically reject “unwilling or unable.” Her emphasis on the requirement of Syria’s consent nevertheless implicitly rejects “unwilling or unable” far more clearly than the statements by various governments that supposedly — according to Ashley Deeks — support the test. So it is more than fair to count Russia in the anti-“unwilling or unable” camp.

If you’re keeping score at home, that makes it: at most four states that support “unwilling or unable”; at least one state that rejects it.

And yet scholars claim that there is a “broad consensus” in favour of the test. Thus does method die not with a bang, but a whimper.

Why It’s Counterproductive to Discuss an MH17 Tribunal

by Kevin Jon Heller

States whose nationals died in the attack on MH17 were understandably upset when Russia vetoed a Security Council resolution that would have created an ad hoc tribunal to prosecute those responsible for the attack. Their idea to create a treaty-based court, however, is simply not helpful:

Australia’s foreign minister, Julie Bishop, will meet with her counterparts from Belgium, Malaysia, the Netherlands and Ukraine on Tuesday during the annual United Nations general assembly meeting.

One of the proposals is for a tribunal similar to that established to prosecute Libyan suspects over the 1988 bombing of a Pan Am flight over Scotland.

Nations that lost some of the 298 passengers and crew in the MalaysiaAirlines disaster over eastern Ukraine in July 2014 are also looking at launching separate prosecutions.

A report by the Dutch led-investigation team, set to be published on 13 October, is understood to include evidence the plane was brought down by a Russian-made Buk missile fired from separatist territory in eastern Ukraine.

Russia has denied any involvement but in July used its veto power at the UN to block a resolution that would have formed a tribunal to bring the perpetrators to justice.

There is no question the victim states could create a tribunal via treaty — they would simply be delegating their passive-personality jurisdiction to the tribunal. The ICC is based on similar pooling of jurisdiction.

But what would creating such a tribunal accomplish? A treaty-based tribunal might have some ability to investigate the attack, given that MH17 was flying over non-Crimea Ukraine when it was shot down. But how would it get its hands on potential defendants? Pro-Russian separatists are almost certainly responsible for the attack, which means that the suspects are likely to be either in Russia-annexed Crimea or in Russia proper. Either way, the tribunal would have to convince Russia to surrender potential defendants to it — and Russia would have no legal obligation to do so as a non-signatory to the treaty creating the tribunal. That’s the primary difference between a treaty-based tribunal and a tribunal created by the Security Council: the latter could at least impose a cooperation obligation on Russia and sanction it for non-compliance. The tribunal being contemplated by the victim states could do no more than say “pretty please.” And we know how that request would turn out.

There is also, of course, that little issue of the ICC. Earlier this month, Ukraine filed a second Art. 12(3) declaration with the Court, this one giving the Court jurisdiction over all crimes committed on Ukrainian territory since 20 February 2014 — which includes the attack on MH17. So why create an ad hoc tribunal that would simply compete with the ICC? To be sure, the Court would also have a difficult time obtaining potential defendants, given that Russia has not ratified the Rome Statute. But it seems reasonable to assume, ceteris paribus, that an international court with 124 members is more likely to achieve results than a multinational court with five members. Moreover, there would be something more than a little unseemly about Australia, Belgium, and the Netherlands creating a treaty-based tribunal to investigate the MH17 attack. After all, unlike Russia, those states have ratified the Rome Statute.

The problem, in short, is not that the international community lacks an institution capable of prosecuting those responsible for the attack on MH17. The problem is that the international community has almost no chance of getting its hands on potential defendants. So until they can figure out how to get Russia to voluntarily assist with an investigation, victim states such as Australia and the Netherlands would be better off remaining silent about the possibility of a treaty-based tribunal. Discussing one will simply raise the hopes of those who lost loved ones in the attack — hopes that will almost certainly never be realised.

A “Broad Consensus” — of Between Two and Four States

by Kevin Jon Heller

Yes, the “unwilling or unable” test marches on. The latest step forward is a Just Security blog post by Kate Martin, the Director of the Center for National Security Studies, that cites absolutely nothing in defense of the test other than another scholar who cites almost nothing in defense of the test. Here is what Martin says in the context of the UK’s recent drone strikes in Syria (emphasis mine):

Some issues raised by the UK Article 51 legal theory are less controversial than others. The US and other states understand customary international law to include the right to use military force in self-defense against armed attacks, and claim the right to use military force under Article 51 outside of an armed conflict. As Lubell has noted, there is support for reading Article 51 as justifying the use of military force against non-state actors. There is broad consensus that there is a right to use military force in self-defense when the host country is unable or unwilling to stop the attack.

And what does Martin offer in support of this “broad consensus”? A link to a blog post at Lawfare by Ashley Deeks, in which Deeks (1) correctly points out that the US and UK both support “unwilling or unable,” (2) claims that “France appears to be prepared to invoke the ‘unwilling or unable’ concept in the Syria context,” and (3) states that Australia is “apparently relying on a collective self-defense of Iraq/unwilling and unable theory.”

So at most there is a “broad consensus” of four states in support of “unwilling or unable.” And perhaps there are only two. That’s quite a consensus.

This isn’t even instant custom. This is custom by scholarly fiat.

Why Professors Ackerman and Golove Are Still Wrong About the Iran Deal

by Julian Ku

I thank Professors Ackerman and Golove for taking the time to respond to my earlier post on whether a future President could unilaterally withdraw from the Iran Nuclear Deal.  But I remain unconvinced by the claims they made in their original Atlantic essay that a future President’s unilateral withdrawal from the Iran Deal would be “lawless”. Here’s why I still think they are wrong:

1)  Ackerman and Golove argue that the Iran Nuclear Agreement Review Act “authorizes” President Obama to enter into binding congressional-executive agreement with Iran.  In their sur-reply, Professors Ackerman and Golove cite two pieces of statutory text from the Iran Nuclear Agreement Act which they say is congressional authorization for the President to conclude the Iran Deal (the JCPOA).  They point out that the act “specifically defines ‘agreement’ to include any accord with Iran ‘regardless of whether it is legally binding or not.’ § 2610e(h)(1).” They then point out that the Act “authorizes the President to implement sanctions relief unless Congress enacts ‘a joint resolution stating in substance that the Congress does not favor the agreement.’ 42 U.S.C. § 2610e(c)(2)(B).”

For the purpose of this argument, it doesn’t really matter whether the agreement is legally binding or not.  The real problem is that Professors Ackerman and Golove do not (and cannot) cite statutory text “authorizing” the President to enter into an agreement with Iran.  They can’t cite this text because that language does not exist in the Act.  The Act defines an “agreement” broadly because Congress wants the President transmit everything, including supporting materials and annexes, to Congress.  The Act suspends the President’s pre-existing power to suspend or terminate sanctions on Iran while Congress “reviews” the agreement.  Congress may vote a resolution of disapproval, which would prevent the President from lifting or waiving sanctions, but it doesn’t say he can’t enter into the Agreement.  But Congress may also simply do nothing (which is what it has done), which would also allow the President to lift the sanctions after 90 days.  Nothing in the Act says the President can’t enter into the Agreement. It just says, once he does so, he has to disclose that agreement to Congress and hold off on implementation.*

Professors Ackerman and Golove somehow read this framework as an authorization of the President’s power to conclude an agreement, but a more plausible reading of the Act as a whole sees it as a suspension of the President’s pre-existing power to implement an agreement.  If you think (as I do) that the President has broad powers to conclude international agreements (especially nonbinding ones) without Congress, then this law makes a lot of sense since it requires the President to suspend implementation of the agreement for 60 or 90 days and disclose all information about the agreement.

Under the Ackerman/Golove reading of this language, Congress has authorized the President to enter into whatever agreement with Iran he wants, and the only condition it places on it is that Congress gets 90 days to review it before it automatically goes into effect. Why would  Congress bother to give the President the power to enter into an agreement without reserving for itself the power to approve it?

It is worth noting that Congress knows how to specifically authorize an executive agreement, and require its approval before going into effect.  In Section 103(b) of the Trade Promotion Authority Act (enacted about the same time as the Review Act), Congress states that:

“[w]henever the President determines that one or more existing duties or other import restrictions of any foreign country or the United States are unduly burdening and restricting the foreign trade of the United States and that the purposes, policies, priorities, and objectives of this title will be promoted thereby, the President

(A) may enter into trade agreements with foreign countries before— (i) July 1, 2018…

[Emphasis added].

Moreover, the trade agreements require approval by a separate Act of Congress.  As the TPA bill makes clear in Section 106, no agreement “entered into under section 103(b) shall enter into force with respect to the United States if (and only if)—” among other requirements — “(F) the implementing bill is enacted into law.” [Emphasis added).  Again, Congress is making clear that it ( and not the President) is the one who has authorized the agreement and that the agreement cannot have any force until Congress acts to approve and implement it.

It bears repeating: there is no language even remotely like this in Iran Nuclear Agreement Review Act. There is no language saying the President can enter into an agreement, nor is there language explaining when that agreement has “entered into force.”  Congress knows how to authorize an international agreement, and the most natural reading of the Iran Nuclear Agreement Review Act is that it didn’t do so there.

2) Professors Ackerman and Golove also argue that a future President cannot legally (under U.S. law) terminate this agreement without either approval from Congress or without undermining U.S. credibility in trade agreements like NAFTA or the WTO.

I find this argument lacking for at least two reasons.

First, as I stated above, the Iran Nuclear Agreement Review Act doesn’t follow the pattern of trade promotion authority laws  in any way so it is highly unlikely that any trading partners will worry about a President Rubio pulling out of the WTO because he pulled out of the JCPOA. (Simon Lester makes that point here)

Moreover, the Review Act does not in any way prohibit a future President from withdrawing from the JCPOA, nor does it prohibit the President from reimposing sanctions on Iran. He is perfectly free to put them back on without violating the Review Act or any other U.S. statutory law.

The contrast with trade agreements is again instructive because Congress knows how to reserve to itself the power to terminate an agreement.  Under Section 125 of the Uruguay Agreements Implementation Act, Congress can vote every five years on whether to pull out of the WTO. This suggests that Congress has reserved for itself some power to terminate the WTO agreement. And because the laws implementing the WTO agreement change all sorts of other U.S. laws, it makes sense for Congress to supervise how and when the U.S. gets out. (It bear repeating: terminating the JCPOA does NOT violate or change any U.S. domestic law).

Second, as I noted in my original post, even if the Iran Deal was a treaty approved by the Senate, there is good reason to think the President could withdraw from the Iran deal-treaty without going back to the Senate for approval.  President Bush withdrew from the Anti-Ballistic Missile treaty without going to the Senate, President Carter withdrew from the U.S.-Taiwan defense treaty without going to the Senate, etc.  For this reason, a future President could withdraw from the JCPOA (even if the JCPOA is legally binding) without going back to Congress, especially where the Review Act does not reserve to Congress any termination rights.  Thus, even if Professors Ackerman and Golove are right that the Review Act authorizes the President to enter into an agreement, it doesn’t REQUIRE him to do so or REQUIRE him to stay in the JCPOA. (And he can withdraw via the JCPOA’s provisions if he chooses).

In conclusion, I am back where I started.  Professors Ackerman and Golove use the thinnest of statutory language to claim that Congress “authorized” the President to make an agreement, and further, that Congress has also prohibited the President from withdrawing from it.  That’s a lot of work for a mere definition of the word “agreement” to carry. It’s far too much, especially when one considers the way Congress goes about its business in the trade agreement context.  The next President can unilaterally withdraw from the JCPOA. And, with all due respect to Professors Ackerman and Golove, such a withdrawal will be the opposite of “lawless.”

 

*As a side note, the fact that the definition of an agreement includes non-binding political commitments suggests that Congress is really after review and disclosure, not authorization and approval.  Could Congress authorize the President to enter into a non-binding political commitment? And then require him and future presidents to stick to such a commitment?

President Rubio/Walker/Trump/Whomever Can Indeed Terminate the Iran Deal on “Day One”

by Julian Ku

Professors Bruce Ackerman and David Golove argue in this Atlantic essay that the next President cannot withdraw from the Iran agreement because it is a “congressionally authorized executive agreement.” They argue that Senator Marco Rubio’s pledge to terminate the Iran Deal on day one “would destroy the binding character of America’s commitments to the IMF, the World Bank, NAFTA, and the World Trade Organization….The President can no more walk away from them than he can from any other law or treaty.”

I am sorry to say that this article, which comes from two super-respected legal scholars, is deeply and badly mistaken.

This argument is based on the premise that the “legislation that Congress adopted last May, …explicitly grants the Administration authority to negotiate and implement binding legal commitments with Iran.” In their view, the Iran Deal is a simply a congressional-executive agreement exactly akin to U.S. trade agreements like NAFTA.

But this premise is wrong.  The U.S. government has repeatedly stated (see here)  that the “Joint Coordinated Plan of Action” between Iran and the P-6 powers is a “nonbinding” political commitment. And the JCPOA itself talks only of “voluntary measures.” (see Dan Joyner’s discussion of this here).   Even the United Nations Security Council Resolution that implements the JCPOA does not legally bind the U.S. to stick to the JCPOA (as John Bellinger argues here).

Nor does the Iran Nuclear Agreement Review Act explicitly (or implicitly) authorize the President to make an agreement with Iran that would go beyond the President’s existing constitutional powers to make sole-executive agreements or nonbinding political commitments. The Review Act simply sets up a disclosure and timetable regime for the President’s disclosure of his foreign affairs activities that he wouldn’t otherwise have to disclose to Congress.

It is nothing like the Trade Promotion Authority that the President has received to conclude trade agreements like NAFTA or the WTO. While the Review Act discusses agreements that were already made and sets out disclosure and timing requirements, Trade Promotion Authority laws (like the most recent one) say things like: “the President— (A) may enter into trade agreements with foreign countries before” certain dates and then cannot afterwards.”  This is explicit authority, and no similar language can be found in the Iran Nuclear Agreement Review Act.

In any event, Ackerman and Golove are also mistaken on a more mundane point. Even if the Iran Deal is a binding congressionally authorized international agreement, a future President could withdraw from such an agreement unilaterally.  This is true because: 1) the JCPOA itself has an “exit ramp” under Paragraph 36 which allows the U.S. to terminate its participation after 35 days if its concerns about Iran’s compliance are not satisfied; and 2) the President appears to have broad constitutional powers to unilaterally terminate treaties without Congress or the Senate’s approval.  Surely, the President could terminate a nonbinding voluntary “plan of action” without going back to a Congress that didn’t really authorize him to make an agreement in the first place.

Even though I am increasingly convinced that the Iran Nuclear Deal is a bad deal for the U.S. and Europe (not to mention Israel), I have publicly defended the legality of President Obama’s decision to conclude a nuclear “agreement” with Iran without going to Congress to get approval. But the decision to bypass Congress has got to have a price for the President.  And that price is that the Iran Deal does not bind his predecessor either as a matter of constitutional or international law.

British Government Says “Oops, Our Bad” in Terrorism Case

by Kevin Jon Heller

Well, this is a tad embarrassing for the British government. A prosecution of a Swedish national for providing support to Syrian rebels fell apart when… it became clear the British government had been providing support to the same Syrian rebels:

His lawyers argued that British intelligence agencies were supporting the same Syrian opposition groups as he was, and were party to a secret operation providing weapons and non-lethal help to the groups, including the Free Syrian Army.

Bherlin Gildo, 37, who was arrested last October on his way from Copenhagen to Manila, was accused of attending a terrorist training camp and receiving weapons training between 31 August 2012 and 1 March 2013 as well as possessing information likely to be useful to a terrorist.

Riel Karmy-Jones, for the crown, told the court on Monday that after reviewing the evidence it was decided there was no longer a reasonable prospect of a prosecution. “Many matters were raised we did not know at the outset,” she told the recorder of London, Nicholas Hilliard QC, who lifted all reporting restrictions and entered not guilty verdicts.

In earlier court hearings, Gildo’s defence lawyers argued he was helping the same rebel groups the British government was aiding before the emergence of the extreme Islamist group, Isis. His trial would have been an “affront to justice”, his lawyers said.

Henry Blaxland QC, the defence counsel, said: “If it is the case that HM government was actively involved in supporting armed resistance to the Assad regime at a time when the defendant was present in Syria and himself participating in such resistance it would be unconscionable to allow the prosecution to continue.”

I think the only surprising thing about the case is that the British government dismissed the charges. A similar US prosecution would likely have continued, with the government somehow convincing the judge to prevent the defendant from introducing evidence of its hypocrisy.

New Essay on Perfidy and Permissible Ruses of War

by Kevin Jon Heller

Regular readers might remember a debate here and at Just Security (links here) in which I and a number of others debated whether it was perfidious for Mossad to use a booby-trapped civilian SUV to kill Imad Mughniyah, Hezbollah’s intelligence chief, in a Damascus suburb. I am pleased to announce that International Law Studies, the official journal of the US Naval War College, has just published an essay in which I explore the underlying legal issue at much greater length. Here is the brief abstract:

A number of scholars have claimed that it is inherently perfidious to kill an enemy soldier by disguising a military object as a civilian object. This essay disagrees, noting that conventional and customary IHL deem at least five military practices that involve making a military object appear to be a civilian object permissible ruses of war, not prohibited acts of perfidy: camouflage, ambush, cover, booby-traps, and landmines. The essay thus argues that attackers are free to disguise a military object as a civilian object as long as the civilian object in question does not receive special protection under IHL.

You can download the essay for free here. As you will see, although I disagreed with Rogier Bartels during the blog debate, I have since changed my mind — because of spatial limits conventional and customary IHL imposes on the use of booby-traps in particular, I now agree with Rogier that Mughniyah’s killing was, in fact, perfidious.

As always, comments more than welcome. My thanks to ILS for such an enjoyable publication experience!

New Opportunities to Research Civil War at Melbourne Law School

by Kevin Jon Heller

My colleague Anne Orford has just received — and deservedly so — a very significant Australian Laureate Fellowship for a program entitled Civil War, Intervention, and International Law. The program is funded by the Australian Research Council from 2015 to 2020 and will establish an interdisciplinary research team based at Melbourne Law School. Here is a snippet from the description of the program:

Professor Orford’s ARC Laureate Fellowship Program will undertake a comprehensive analysis of one of the most pressing questions in contemporary international law and politics: whether, and if so under what conditions, foreign actors can lawfully intervene in civil wars. The lawfulness of external intervention in the domestic affairs of states is one of the most enduring and contested topics of debate within the disciplines of international law and international relations. The intensity of debates about the legality of intervention by the US and its allies in Iraq and Syria on the one hand, and by Russia in the Ukraine on the other, illustrates both the urgency of this issue and the difficulty of finding general principles to address it. The project will combine archival research, legal analysis, and critical theorising to develop a conceptual framework that can better grasp the changing patterns and practices of intervention.

The program is now inviting applications for two Postdoctoral Fellowships, which are full-time, fixed term research positions that can last up to five years. Here is the description:

The Postdoctoral Fellows will be appointed to undertake projects that explore the historical and contemporary practice of interventions in a specific region, chosen from Africa, Asia, Europe, Latin America, or the Middle East. The specific regional studies, as well as the cases to be explored as part of those regional studies, will be chosen by the Postdoctoral Fellows in conjunction with Professor Orford. The Postdoctoral Fellows will take responsibility under the supervision of Professor Orford for developing the regional studies and for drawing out cross-cutting themes between them. The aim will be to map and evaluate the specific legal, political, and economic issues that have influenced and shaped interventions in civil wars in particular regions, the legal justifications that have accompanied those interventions, and the normative innovations that have resulted. It is well accepted, for example, that the principle of non-intervention has a particular meaning and importance in the inter-American context, as many early formulations of the principle emerged out of attempts to renegotiate the relation between the US and its near neighbours in Central and South America. Similarly, the responsibility to protect concept has a close association with African states and attempts to manage civil wars on that continent. The cases within each regional study may include pre- and immediately post-World War 2 situations (such as those in Spain and China), early post-colonial conflicts (such as those in Korea, Vietnam, and Cambodia), proxy wars of the 1980s (such as those in Afghanistan and Nicaragua), and post-Cold War situations (such as those involving the former Yugoslavia, Rwanda, the Democratic Republic of the Congo, Libya, Iraq, Ukraine, and Syria). The focus of the program is on developments over the twentieth and twenty-first centuries, but proposals focusing on nineteenth century practice will also be considered. It is anticipated that the studies undertaken by the Postdoctoral Fellows will be published as monographs.

The program is also seeking two PhD students:

The doctoral projects will each study an emerging area of conceptual innovation that has played a role in reshaping the broader normative framework governing intervention in civil war over the past decades. One project will analyse the impact of the related concepts of humanitarian intervention and the responsibility to protect, and the second will analyse the impact of the concepts of collective self-defence and intervention by invitation that have been invoked in the context of the war on terror. The projects will study particular cases of intervention in civil war that were justified either in terms of protecting civilians (using concepts such as humanitarian intervention or the responsibility to protect) or of responding to terrorism (using concepts such as collective self-defence or intervention by invitation). The projects will involve detailed analyses of how legal arguments have been used in practice – for example, the ways in which legal concepts have been invoked by parties to civil wars (including foreign interveners), the extent to which the use of legal arguments has been innovative and directed to transforming existing norms, the patterns of diplomatic and military practice that those legal arguments have sought to justify, how other states have responded to such justifications, what positions states have taken publicly in debates on relevant issues in the General Assembly and the Security Council, and how decisions by external actors to support or recognise particular groups have been publicly justified. It is anticipated that the resulting doctoral theses will be published.

Anne is a fantastic scholar, the law school has a superb academic culture, and there are very few places in the world more pleasant to live than Melbourne. I hope interested readers will apply. You can find more information here.

U.S. Prepared to Launch Possibly Illegal Airstrikes Against Assad (But That’s OK)

by Julian Ku

Yesterday, the Wall Street Journal reported that President Obama has authorized U.S. military forces to use air power to defend  U.S.-trained Syrian rebels if those rebels are attacked by the Syrian government forces.

President Barack Obama has authorized using air power to defend a new U.S.-backed fighting force in Syria if it is attacked by Syrian government forces or other groups, raising the risk of the American military coming into direct conflict with the regime of President Bashar al-Assad.

“For offensive operations, it’s ISIS only. But if attacked, we’ll defend them against anyone who’s attacking them,” said a senior military official. “We’re not looking to engage the regime, but we’ve made a commitment to help defend these people.”

I totally understand the reason for this policy. If the U.S. is going to train and support Syrian forces, and give them air support, it makes sense to provide air cover against all attacks.  But the legality of this policy under U.S. law requires reliance on the kind of pure presidentialism President Obama is supposedly against.  And its legality under international law is pretty tenuous as well.

Under U.S. law, the President is sort-of-authorized to attack ISIS under a very sketchy interpretation of the 2001 Authorization for the Use of Military Force. It is a very sketchy interpretation, but even that sketchy interpretation can’t justify air strikes on the Syrian government in Syrian territory and in defense of rebels involved in the Syrian civil war.  So the only legal theory that would support the U.S. position here is reliance on the President’s inherent powers under Article II of the Constitution without any claim of congressional authorization.  That’s all well and good, but it is another nail in the coffin for the congressionalist legal theory embraced by Candidate Obama in 2007.  Remember that? When Obama said the Constitution required the President to go to Congress unless the President needed to act against an imminent attack?  It seems so long ago.

Under international law, the Russians are already pointing out that using military force in a foreign country against that country’s recognized government is a violation of the U.N. Charter since there is no Security Council authorization here.  There isn’t even a clear “humanitarian intervention” theory here, at least not if the air strikes are only defensive.

And yet, I have little doubt that the U.S. will carry out the strikes if needed and that there will be almost no fuss in the U.S. about its constitutionality.  Article II is alive and well in the Obama era.  There may be little bit more fuss overseas about its legality under international law, since that seems a tough case to make. But it is hard to imagine that international law will act as much of constraint here either.

Podcast Special! Why the Iran Deal is Constitutional, But Could Still End Up in U.S. Court

by Julian Ku

Due to my typical mid-summer lassitude (and a family vacation among the redwoods in California), I have not participated in the excellent legal blogosphere debate over the constitutionality of the Iran Nuclear Agreement which has included contributions from Jack Goldsmith, John Yoo, Michael Ramsey, John Bellinger, David Rivkin and many others.  Luckily for me, Prof. Jeffrey Rosen and the good folks at the National Constitution Center allowed me to share my thoughts in a podcast discussion with David Rivkin, who with his co-author Lee Casey, has argued in the WSJ that the Iran Deal is unconstitutional unless submitted as a treaty under Article II of the U.S. Constitution.  The 45-minute or so podcast can be found below, and I think it is worth listening in full.
But because I may not have made myself fully clear in the podcast, I try to summarize my thoughts here on why:  1) the Iran Deal does not have to be submitted as an Article II treaty; 2) the Iran Deal may allow individual U.S. states to impose sanctions on Iran which would likely lead to U.S. litigation.  David Rivkin does a great job explaining his views on the podcast, which are worth listening to in full as well.

A) In my view, the Iran Deal (or JCPOA) does not have to be submitted as an Article II treaty for at least two reasons.

First, the terms of the agreement, which describe its obligations as “voluntary”, indicate that it is a nonbinding “political commitment”.  Even the UN Security Council Resolution which supposedly enshrined the JCPOA into international law leaves some wiggle room for the U.S. allowing it to refuse to lift sanctions on Iran without violating the SC Resolution (or at least that is how John Bellinger reads it).

To be sure, there are indications that Iran itself doesn’t think the agreement is nonbinding and it does seem odd for the U.S. administration to make all this fuss over a 10 year agreement that is not binding, but (as Duncan has explained here and elsewhere), nonbinding political commitments are not unknown in diplomatic practice.

One example that I have been studying recently is the 1972 Shanghai Communique between the U.S. and China.   This seems a classic nonbinding diplomatic agreement which nonetheless had enormous consequences for US-China and global politics.  This and two later communiques remain crucial issues with respect to U.S. “promises” about the status of Taiwan and US promises to reduce arms sales to Taiwan.  It is not exactly the same as the Iran Deal, which purports to require its parties to take certain specific actions on certain dates, but it has some of the same flavor.

For this reason, I don’t think a promise by the President to commit the U.S. to do something beyond his term of office changes this analysis much (contra Mike Ramsey).  Presidents often promise on behalf of the U.S. to do things beyond his term, but as long as they are clear that these are political commitments, not legal ones, I don’t think a treaty is required.

Second, the JCPOA does not have to be submitted as a treaty because it doesn’t require the U.S. to change its domestic laws or even to change any domestic policy that is not already within the President’s constitutional or delegated statutory powers.  Crucially, the President has delegated authority under the various sanctions statutes to waive or lift those sanctions without getting further congressional approval.  That is by far the most important U.S. obligation under the JCPOA.  The idea of giving the president these powers to lift sanctions implies that he will seek out certain changes in behavior by the sanctioned governments and then use those promised changes (by say Iran, or in the recent past Burma) as a basis to lift the sanctions.

There is a cost for the U.S. government in going the nonbinding route.  It means that Iran should not feel itself “legally” bound to abide by the agreement, or at least those parts that are not enshrined in the UN Security Council Resolution.  For U.S. constitutional purposes, it also means that any future president can withdraw from these political commitments without any requirement of legal consultation with Congress or any concerns about violating international law.  A U.S. President is also empowered to withdraw from its UN Security Council commitments as well.  (Actually, the JCPOA itself makes it pretty easy for the U.S. president to terminate the agreement according to its own terms).  This seems only fair, however, and the administration clearly seems that this is a price worth paying to avoid the Article II treaty process.

B) State-level Sanctions on Iran Are Most Likely to End Up in Court

The individual states (e.g. New York or California) could impose certain sanctions on Iran after the deal goes into effect.  Such sanctions will probably face litigation from the U.S federal government which will claim that any state-level sanctions are preempted by the JCPOA.  But because the JCPOA is a nonbinding agreement, the preemptive effect of the JCPOA is weaker than of a full-scale treaty or executive agreement.  The outcome of such a case against state-level sanctions is far from clear and may require the federal court to consider the nature of the JCPOA more carefully. My guess is that they would find it constitutional, but might be inclined to uphold the state-level sanctions. That last finding is a close call and I would love to see that case, which could very well happen in the near future.

In short, although I don’t think the Iran Deal is a very good deal for the U.S. and I hope Congress blocks it, I don’t think the JCPOA is unconstitutional.  We will hopefully get some litigation on this point in the near future when some state rolls out its anti-Iran sanctions.  But opponents of the deal should focus on the politics (getting to 67 votes in the Senate and/or a Republican President) rather than the law.

The Pre-Trial Chamber’s Dangerous Comoros Review Decision

by Kevin Jon Heller

In late 2014, the Office of the Prosecutor rejected a request by Comoros to open a formal investigation into Israel’s attack on the Mavi Marmara. To my great surprise, the Pre-Trial Chamber (Judge Kovacs dissenting) has now ordered the OTP to reconsider its decision. The order does not require the OTP to open a formal investigation, because the declination was based on gravity, not on the interests of justice — a critical distinction under Art. 53 of the Rome Statute, as I explain here. But the PTC’s decision leaves little doubt that it expects the OTP to open one. Moreover, the PTC’s decision appears designed to push the OTP to decline to formally investigate a second time (assuming it doesn’t change its mind about the Comoros situation) on the basis of the interests of justice, which would then give the PTC the right to demand the OTP investigate.

To put it simply, this is a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP’s prosecutorial discretion, despite the PTC’s claims to the contrary. I will explain why in this (very long) post.

At the outset, it is important to emphasise that we are dealing here with situational gravity, not case gravity. In other words, the question is not whether the OTP should have opened a case against specific members of the IDF who were responsible for crimes on the Mavi Marmara, but whether the OTP should have opened a situation into the Comoros situation as a whole. The Rome Statute is notoriously vague about the difference between situational gravity and case gravity, even though it formally adopts the distinction in Art. 53. But it is a critical distinction, because the OTP obviously cannot assess the gravity of an entire situation in the same way that it assesses the gravity of a specific crime within a situation.

The PTC disagrees with nearly every aspect of the OTP’s gravity analysis. It begins by rejecting the OTP’s insistence (in ¶ 62 of its response to Comoro’s request for review) that the gravity of the Comoros situation is limited by the fact that there is no “reasonable basis to believe that ‘senior IDF commanders and Israeli leaders’ were responsible as perpetrators or planners of the apparent war crimes’.” Here is how the PTC responds to that claim:

23. The Chamber is of the view that the Prosecutor erred in the Decision Not to Investigate by failing to consider whether the persons likely to be the object of the investigation into the situation would include those who bear the greatest responsibility for the identified crimes. Contrary to the Prosecutor’s argument at paragraph 62 of her Response, the conclusion in the Decision Not to Investigate that there was not a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes does not answer the question at issue, which relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes.

These are fundamentally irreconcilable conceptions of “potential perpetrator” gravity. The OTP is taking the traditional ICTY/ICTR approach, asking whether the Israeli perpetrators of the crimes on the Mavi Marmara are militarily or politically important enough to justify the time and expense of a formal investigation. The PTC, by contrast, does not care about the relative importance of the perpetrators; it simply wants to know whether the OTP can prosecute the individuals who are most responsible for committing the crimes in question.

To see the difference between the two approaches — and to see why the OTP’s approach is far better — consider a hypothetical situation involving only one crime: a group of the lowest-ranking soldiers from State X executes, against the stated wishes of their commanders, 10 civilians from State Y. The OTP would conclude that the “potential perpetrator” gravity factor militates against opening a formal investigation in State Y, because the crime in question, though terrible, did not involve militarily important perpetrators. The PTC, by contrast, would reach precisely the opposite conclusion concerning gravity, deeming the soldiers “most responsible” for the crime by virtue of the fact that they acted against orders. After all, no one else was responsible for the decision to execute the civilians.

The PTC’s approach to “potential perpetrator” gravity is simply bizarre….

Those “Snap-Back” Sanctions in the Iran Deal Have a Pretty Big Loophole

by Julian Ku

I don’t have a profound take on the Iran Deal (full text here) announced today between Iran and the P-5+1 leading world powers. From my understanding of this agreement, I am doubtful it will work out to benefit the U.S. and the E.U., but I don’t feel particularly strongly on this point. There are more than enough commentators out there who have strong opinions on the merits, a few of whom are even worth reading!

Here at Opinio Juris, we have concentrated on the key legal aspects of the Iran Deal in previous posts.  As Duncan has explained, the Iran Deal is not a binding international agreement.  As I have noted, the Iran Review Act does not actually require Congress to vote in order to approve the deal, and it allows the President to veto any congressional vote of disapproval.  Additionally, I think a future president could withdraw from the Iran Deal without violating either international law or the Constitution. (It’s nonbinding under international law and it’s not a treaty nor an congressional-executive agreement for U.S. constitutional purposes).

In this post, I would like to focus on another interesting legal quirk. In order to sell the bill to Congress and the U.S. public, the Obama Administration has insisted on some provisions to re-impose sanctions if Iran is caught cheating.  In earlier discussions, the President has called for “snapback” provisions in the Iran Deal.  In other words, if Iran is caught cheating, the prior UN Security Council Resolutions would be “automatically” re-imposed without going back for a new vote of the Security Council.

I have been skeptical about how this would work, as a legal matter. But the Iran Deal does indeed contain language calling for something like a “snapback” sanction.

37. Upon receipt of the notification from the complaining participant, as described above, including a description of the good-faith efforts the participant made to exhaust the dispute resolution process specified in this JCPOA, the UN Security Council, in accordance with its procedures, shall vote on a resolution to continue the sanctions lifting. If the resolution described above has not been adopted within 30 days of the notification, then the provisions of the old UN Security Council resolutions would be re-imposed, unless the UN Security Council decides otherwise….

I suppose it is theoretically possible for this mechanism to work, as long as the UN Security Council resolution lifting sanctions on Iran contains language incorporating this “snapback” process.  The Iran Deal, we should recall, is not a binding agreement and cannot bind the Security Council. I am not aware of similar instances where terminated UN Security Councils could be automatically revived upon a finding of non-compliance, but I am hardly an expert on this subject so I would welcome any readers who can offer some examples.

In any event, there is one more rather large loophole. Paragraph 37 goes on to insulate contracts with Iran that have already been made from whatever “snapback” sanctions that are imposed:

…In such event, these provisions would not apply with retroactive effect to contracts signed between any party and Iran or Iranian individuals and entities prior to the date of application, provided that the activities contemplated under and execution of such contracts are consistent with this JCPOA and the previous and current UN Security Council resolutions.

Since there is likely to be a “gold rush” of business rushing to sign deals with Iran upon lifting of sanctions, this exception might prove a pretty big hole in the “snapped-back” sanctions.   The expected Chinese and Russian deals with Iran for arms sales and oil purchases could survive any snapback, even if Iran was caught cheating.

So even if “snapback” works legally, it would have pretty limited impact practically.Or am I missing something?