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Events and Announcements, May 22, 2016

by Jessica Dorsey

Event

  • The Institute of International Shipping and Trade Law of Swansea University will organise a joint one-day seminar on the subject of Lex Petrolea with the Center for Energy, Law, and Business of University of Texas Law School on 21 June 2016 in London. For the flyer see hereFor further information click here.

Calls for Papers

  • The Editors of the Melbourne Journal of International Law (‘MJIL’), Australia’s premier generalist international law journal, are now inviting submissions for volume 17(2) by July 1, 2016. This issue will have a special focus on the legal implications of the Trans-Pacific Partnership, and space will also be available for articles on other issues of international law. Submissions and inquiries should be directed to law-mjil [at] unimelb [dot] edu [dot] au. For more information, please visit the website here.
  • ASIL’s International Economic Law Interest Group has announced a call for papers ahead of its biennial conference September 30, 2016-October 1, 2016 taking place at Georgetown University Law Center. The overall theme is: “Making International Economic Law Work: Integrating Disciplines and Broadening Policy Choices,” and the deadline for paper proposal submissions is June 24, 2016. Please submit an abstract of no more than 500 words and please indicate when you anticipate completion of the paper and whether the paper has been accepted for publication or has been published. If applicable, please indicate place of (anticipated) publication and date. Please also provide a CV or resume, your current affiliation and whether you are a member of the IEcLIG. Abstracts will be peer-reviewed and decisions will be issued on August 1, 2016. More information can be found here.

Announcement

  • The second annual “International and comparative disaster law essay contest” is now launched. This contest is co-sponsored by the International Federation of Red Cross and Red Crescent Societies (IFRC), the American Society of International Law Disaster Law Interest Group (ASIL DLIG), the International Disaster Law Project (IDL) of the Universities of Bologna, Scuola Superiore Sant’Anna, Roma Tre and Uninettuno.The contest is open only to students enrolled in an undergraduate or graduate degree program at any university (anywhere in the world) at the time of submission. Essays may examine any issue related to law and disasters due to natural hazards, but must do so either from a comparative or an international law perspective, or both. Comparative essays should examine laws or legal issues from no less than three countries. The winner of the contest will receive: A monetary prize in the amount of CHF 500. A free annual membership in the American Society of International Law and waiver of fees for attendance of the ASIL annual meeting in April 2017. The winner will also have his or her paper published as a “Working Paper” of the IFRC’s Disaster Law Programme. They will retain copyright of their papers and may subsequently publish them elsewhere, according to the terms of the Working Papers series. A message announcing the name of the winner and runners up of the contest will be sent to all members of the ASIL DLIG, as well as to the co-sponsors and made public on the ASIL website. The deadline for submissions is 31 August 2016.

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

Symposium: Defining the Rule of Law

by Robert McCorquodale

[Robert McCorquodale is the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. This is the introductory post in the Defining the Rule of Law Symposium, based on this article (free access for six months).]

References to the ‘rule of law’ in international law books, articles and blogs are everywhere. Yet very few of these authors set out what they mean by an international rule of law. Most of those who engage with the idea of an international rule of law dismiss it – almost with a shrug – as being impossible in a system without a clear binding governance process and without a court with uniform jurisdiction over all matters.

In my article – Defining the International Rule of Law: Defying Gravity? – which is published in the International and Comparative Law Quarterly, I offer a definition of the international rule of law. I also seek to show that an international rule of law can exist in the international system. My starting point is that, in order to understand the rule of law, and whether it can apply to the international system, it is necessary to clarify what are its key objectives. In my view, based on the writing of jurists such as Tom Bingham and by the Venice Commission, it is evident that the rule of law has four key objectives: to uphold legal order and stability; to provide equality of application of law; to enable access to justice for human rights; and to settle disputes before an independent legal body.

International organisations have taken up the idea of the importance of the rule of law with considerable alacrity. For example, the Declaration on Principles of International Law refers to the ‘paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations’. Reference to the rule of law is found in Security Council resolutions on peacekeeping, good governance and post-conflict, as well as in statements by the World Bank and as a target in the Sustainable Development Goals. The Declaration on the Rule of Law was made in 2012 by a UN High-Level Meeting on the Rule of Law at the National and International Levels. The UN has provided a definition of the term, which it sets out on its rule of law website:

“The Secretary-General has described the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency”.

My difficulty is that almost all these statements and other attempts to consider the rule of law at the international level are really transpositions of the rule of law from national systems and national institutions to the international system. Given the considerable structural and institutional differences between national legal systems and the international legal system, this transposition is misconceived. Indeed, many of those who reject the possibility of an international rule of law also tend to confuse the compliance with international law with having a rule of law, or they expect that the rule of law is absolute: it exists or it does not exist in a legal system. This fails to understand the there are varying degrees of adherence to the rule of law. The Rule of Law Index shows this through its indexing of the relative compliance of states with the rule of law, where some states comply with most elements, some comply with very few and there are many in the middle. This must be equally applicable at the international level, where complete actualization of all the elements of the rule of law is unlikely and failure to attain them all does not mean there is no international rule of law at all.

So a definition of an international rule of law is possible if it is examined in terms of the four objectives of a rule of law: to uphold legal order and stability; to provide equality of application of law; to enable access to justice for human rights; and to settle disputes before an independent legal body. I explain in the article that these objectives can be found in the international system. I include access to justice for human rights deliberately, because a rule of law without this justice element is a rule by laws and not a rule of law. The protection of human rights should also not be confused with the rule of law as, while the latter includes access to justice (such by a fair trial) within it, the rule of law does not include all human rights.

I explore some ways in which this definition of the international rule of law can be applied in the current international legal system. This includes the importance of pacta sunt servanda, which is part of customary international law (and probably part of jus cogens), as applying to all states (and non-state actors) and as part of the international legal order. It also includes the amazing array of international dispute settlement procedures. While there is no compulsory procedure before one court, there are certainly many areas of international law for which there is a means to settle disputes before an independent legal body. Of course, it remains difficult to ensure compliance by the UN and other international bodies with their human rights obligations, yet the notion of access to justice is present, especially in UN administered territories and has been applied to corporations, so there is a lack of adherence to the international rule of law and not the lack of its existence.

A new approach to defining the international rule of law will, hopefully, make it easier to see how it is applied internationally to international organisations, to states and to non-state actors acting transnationally. This could lead to increasing adherence to the international rule of law.

Symposium: Defining the International Rule of Law–Defying Gravity?

by Jessica Dorsey

This week, we are hosting a symposium on Defining the International Rule of Law: Defying Gravity?, (free access for six months) the latest article from Robert McCorquodale, the Director of the British Institute of International and Comparative Law, Professor of International Law and Human Rights, University of Nottingham, and Barrister, Brick Court Chambers, London. The article was recently published in the International and Comparative Law Quarterly.

The article’s abstract:

This article aims to offer a definition of the international rule of law. It does this through clarifying the core objectives of a rule of law and examining whether the international system could include them. It demonstrates that there can be a definition of the international rule of law that can be applied to the international system. This definition of the international rule of law is not dependent on a simplistic application of a national rule of law, as it takes into account the significant differences between national and international legal systems. It seeks to show that the international rule of law is relative, rather than absolute, in its application, is not tied to the operation of the substance of international law itself, and it can apply to states, international organizations and non-state actors. It goes further to show that the international rule of law does exist and can be applied internationally, even if it is not yet fully actualized.

In addition to Professor McCorquodale’s introductory and concluding remarks, there will be posts from Heike Kreiger, Janelle Diller, John Tasioulas, Joost Pauwelyn and Simon Chesterman. We look forward to the discussion from our contributors and the ensuing commentary from our readers.

Planning for Detention

by Deborah Pearlstein

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

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

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

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

No Detention Plan for ISIS

by Jens David Ohlin

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

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

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

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

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

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

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

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

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

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

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

by Ekaterina Kopylova

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

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

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

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

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

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

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

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

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

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

Weekly News Wrap: Monday, May 9, 2016

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: May 8, 2016

by Jessica Dorsey

Sponsored Announcements

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

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

Call for Papers

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

Announcements

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

Foreign Volunteers or Foreign Fighters? The Emerging Legal Framework Governing Foreign Fighters

by Daphne Richemond-Barak and Victoria Barber

[Dr. Daphné Richemond-Barak is an Assistant Professor at the Lauder School of Government, Diplomacy and Strategy at IDC Herzliya, and a Senior Researcher at the International Institute for Counter-Terrorism (ICT). Victoria Barber is a Master’s candidate at the Fletcher School of Law and Diplomacy, where she focuses on International Security Studies.]

The emerging legal framework governing foreign fighters, whose importance is set to grow, epitomizes assumptions we’ve made about the good, the bad, and the ugly in Syria. While the international community condemns the recruitment of “foreign fighters” by ISIS, it condones the recruitment of “foreign volunteers” by the Kurds.

That the international community has come together to condemn the recruitment of foreign “fighters” joining the Islamic State in Iraq and Syria (ISIS) is unsurprising: Since the late 1960’s, it has repeatedly opposed the involvement of foreign individuals in conflicts to which their state of nationality is not a party. After decades of condemnation by the United Nations General Assembly and Security Council, an entire (albeit-ineffective) regime outlawing mercenaries emerged, primarily to stop Westerners from fighting in African conflicts. It sent a clear signal as to the illegitimacy of participating in someone else’s war.

Though it could have built on this well-established framework, which is grounded in state sovereignty, the UN chose a more restrictive and case-specific approach. It addressed exclusively the case of foreign fighters travelling to aid ISIS and other designated foreign terrorist organizations (FTOs) operating in Syria, such as Jabhat al-Nusra. It purposefully did not mention mercenaries, which are covered by the broader anti-mercenary regime. Nor did it address the case of individuals who leave their home countries to join other groups fighting in Syria – or, for that matter, to fight alongside the Syrian government and its allies.

Quite the contrary: Western states have generally taken a permissive stance vis-à-vis individuals who join the ranks of the People’s Defense Units (YPG), the Kurdish militia in Syria. For more than two years, foreigners from Australia, Canada, the United States, the UK, and other countries have joined the ranks of the YPG as “volunteers” who are, more often than not, warmly and publicly received upon their return home. The UK maintains that there is a distinction between joining ISIS and joining the Kurds, pointing out that British law is designed to allow for different interpretations based on the nature of the conflict. Similarly, the Dutch government states that, while joining the YPG is not a crime in and of itself, foreign fighters can still be charged for crimes they committed in service of that membership, such as murder. Israel, too, declined to prosecute, or even reprimand, a Canadian-Israeli woman who traveled to Syria to fight as a volunteer with the YPG. This tacit acceptance of “foreign volunteers” also benefits a smaller number of Westerners travelling to Syria and Iraq to fight alongside Christian militias like the Dwekh Nawsha in Iraq.

The discrepancy between the treatment of the “good” auxiliaries combating ISIS and that of the “bad” ones ISIS recruits sets a dangerous precedent: Why classify the YPG as an acceptable group to join, but ISIS, Hezbollah or al-Nusra as an unacceptable one?

The nature of the group plays a role. The Kurds are viewed as defending their ethnic heartland in Syria against a barbaric movement known for wanton murder and enslavement. They are longstanding inhabitants of the region, and have a vaguely defined moral claim to the Syrian northeast, though not, if we go by most of the international community, a claim to sovereignty. The Kurdish Regional Government is slightly further along the continuum, with an effectively autonomous region and its own quasi-army, the Peshmerga, fighting to defend its homeland, ethnic kin, and other minorities.

But as beleaguered as the Kurdish community in Syria and Iraq is, the logic of extending blanket legitimacy to Kurdish militia, while categorically denying it to others, is difficult to sustain at the level of international policy. Hamas and Hezbollah, like the Kurdish PKK, effectively govern territory and have evolved into organized and recognized bodies. Yet foreign participation in one of these groups is unlikely to be regarded as acceptable.

Assuming we draw the line along the state/non-state divide, which is the simplest, we should feel comfortable with the involvement of foreigners on either side of the Russia/Ukraine conflict. Both can be regarded as joining forces with a sovereign government, whether Ukrainian nationalists from outside the country or Russian separatists and ethnic kin backed by the Russian government. Yet international condemnation came down against both sides as diaspora populations volunteered to fight. This suggests that the state/nonstate divide is not, in and of itself, sufficient to distinguish between legitimate and illegitimate forms of intervention.

The distinction could instead come from the conduct of the organizations, allowing volunteers to join groups that act within the bounds of international law and respect human rights. This distinction is appealing, particularly given ISIS’ ruthless violence, but it is a poor barometer. Most groups involved in the Syrian civil war have been shown to commit war crimes, even if ISIS is in a category of its own. The YPG has itself been accused of using child soldiers and carrying out ethnic cleansing in the areas it controls. Khorasan, al-Nusra, and the Sunni Islamic militias are generally viewed as non-compliant with the laws of war, as are Syrian government-allied auxiliaries such as Hezbollah and Iraqi Shia militia. But “volunteering” for these latter groups has not drawn similar condemnation.

Alternatively, we might be tempted to regard volunteering as acceptable when the volunteer shares some kind of ethnic, religious or ideological roots with the group. This, however, could justify virtually any foreign participation in any conflict – particularly in Syria, where neither foreign fighters nor foreign volunteers are thought to receive any meaningful monetary compensation. Clearly, they must be joining the fight because they share some kind of ethnic, religious, or ideological affinity with a party to the conflict. This rationale, moreover, could apply to ISIS as much as the YPG. Taking the Ukrainian conflict again as an example, the same considerations would apply: ethnic Russians and Ukrainians travelling to Ukraine identify with the separatists and nationalists, respectively. A criterion relating to shared ethnic, religious, or ideological roots is thus unhelpful in delineating the contours of legitimate foreign intervention.

The upshot of this is that none of the suggested criteria provide a satisfactory justification for why states – and, for that matter, international law – view joining the YPG as acceptable, but joining ISIS (or al-Nusra) as reprehensible. This lack of regularity undermines existing policies, as it gives the impression that the distinction is based on ideology, which is a dangerous precedent to set. This development is especially alarming given that the Western-backed coalition (including Russia’s) objectives may not align with those of the YPG’s in the long-run. Kurdish territorial ambitions in a fragmented Iraq and Syria are likely to increase – not diminish – with battlefield success, pitting them against the US, Turkey, Russia, and Iran once the guns fall silent.

Should such a change of affinity occur in the fight against ISIS, it could undermine the legitimacy of the emerging regulatory framework governing foreign fighters and make for awkward moments. The UK government experienced some embarrassment when the prosecution of a Swedish national collapsed after it emerged that the group he had joined in Syria was receiving covert support from the British government itself.

Ultimately, the treatment of Western foreign fighters joining the YPG (while it may appeal to our present sympathies) is not as straightforward as many states have made it seem. In the absence of objective criteria, the Security Council’s strong and welcome measures against foreign fighters could be undermined. In the years to come, as Syria re-constitutes itself or further fragments into rump ethnic states, we may look back at today’s auxiliaries and ask ourselves with some confusion who were the “foreign volunteers” and who were the “foreign fighters” in Syria’s horrific civil war.

 

A Quick Bleg

by Kevin Jon Heller

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

Thoughts on Jens’s Post about the Kunduz Attack

by Kevin Jon Heller

I read with great interest Jens’s excellent post about whether the US attack on the MSF hospital in Kunduz was a war crime. I agree with much of what he says, particularly about the complexity of that seemingly innocuous word “intent.” But I am not completely convinced by his argument that reading intent in the Rome Statute to include mental states other than purpose or dolus directus would necessarily collapse the distinction between the war crime of intentionally directing attacks against a civilian population and the war crime of launching a disproportionate attack. Here is the crux of Jens’s argument:

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

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

I don’t want to focus on recklessness, because it isn’t criminalised by the Rome Statute. The lowest default mental element in Art. 30 is knowledge, which applies to consequence and circumstance elements — “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” So Jens’s real worry, it seems to me, is that reading the “intentionally” in “intentionally directing attacks against a civilian population” to include knowledge would mean a proportionate attack could be prosecuted as an intentional attack on a civilian population as long as the attacker was aware that civilians would be harmed “in the ordinary course of events” — a state of affairs that will almost always be the case, given that an attacker will engage in a proportionality assessment only when he knows that civilians will be incidentally affected by the planned attack on a military objective.

I’m not sure I agree. As I read it, the war crime of “intentionally directing attacks against a civilian population” consists of two material elements: a conduct element and a circumstance element. (There is no consequence element, because the civilians do not need to be harmed.) The conduct element is directing an attack against a specific group of people. The circumstance element is the particular group of people qualifying as a civilian population. So that means, if we apply the default mental element provisions in Art. 30, that the war crime is complete when (1) a defendant “means to engage” in an attack against a specific group of people; (2) that specific group of people objectively qualifies as a civilian population; and (3) the defendant “is aware” that the specific group of people qualifies as a civilian population. Thus understood, the war crime requires not one but two mental elements: (1) intent for the prohibited conduct (understood as purpose, direct intent, or dolus directus); (2) knowledge for the necessary circumstance (understood as oblique intent or dolus indirectus).

Does this mean that an attacker who knows his attack on a military objective will incidentally but proportionately harm a group of civilians commits the war crime of “intentionally directing attacks against a civilian population” if he launches the attack? I don’t think so. The problematic element, it seems to me, is not the circumstance element but the conduct element: although the attacker who launches a proportionate attack on a legitimate military objective knows that his attack will harm a civilian population, he is not intentionally attacking that civilian population. The attacker means to attack only the military objective; he does not mean to attack the group of civilians. They are simply incidentally — accidentally — harmed. So although the attacker has the mental element necessary for the circumstance element of the war crime (knowledge that a specific group of people qualifies as a civilian population) he does not have the mental element necessary for its conduct element (intent to attack that specific group of people). He is thus not criminally responsible for either launching a disproportionate attack or intentionally directing attacks against a civilian population.

To be sure, this analysis is probably not watertight. But I think it’s based on the best interpretation of the war crime of “intentionally directing attacks against a civilian population.” The key, in my view, is that the crime does not contain a consequence element — no harm to civilians is necessary. If the war crime was “intentionally directing attacks that cause harm to a civilian population,” the analysis would be very different: the crime would then consist of three material elements: a conduct element (intentionally directing an attack), a consequence element (harming a group of people), and a circumstance element (the harmed group of people qualifying as a civilian population).The applicable mental elements would then be quite different: the defendant would commit the war crime if he (1) intentionally launched an attack that harmed a civilian population, (2) knowing that the attack would harm a specific group of people, and (3) knowing that the harmed group of people qualified as a civilian population. And in that case, a proportionate attack on a legitimate military objective would qualify as “intentionally directing attacks that harm a civilian population” — a nonsensical outcome, for all the reason Jens mentions.

In the absence of the consequence element, however, this situation does not exist. As long as the defendant whose attack harms a civilian population meant to attack only a legitimate military objective, his knowledge that the attack would incidentally harm a civilian population would not qualify as the war crime of intentionally directing attacks against a civilian population. He would be guilty of that crime only if he meant to attack the civilian population itself.

Your thoughts, Jens?

NOTE: This post generally takes the same position Adil Haque took in a series of comments on Jens’s post.

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

by Patrick Wall

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

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

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

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

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

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

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

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

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

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

This is so, so appalling.

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

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

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

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

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

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

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