Recent Posts

Congratulations to Anna Dolidze!

by Kevin Jon Heller

Anna, who has guest-blogged for us in an academic capacity on a number of occasions (see here, here, and here), has just started a new job as Georgia’s Deputy Minister for Defence. See if you can spot her in this photo:

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Heartfelt congratulations to Anna. Academia’s loss is Georgia’s gain. I have no doubt that she will do exemplary work on behalf of her country.

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….

The Latest American Digest on International Law is now Available

by Duncan Hollis

Just a quick note to flag that the Digest of United States Practice in International Law 2014 is now available. You can access it here.  And here’s the accompanying press release from the U.S. State Department:

The Department of State is pleased to announce the release of the 2014 Digest of United States Practice in International Law, covering developments during calendar year 2014. The Digest provides the public with a record of the views and practice of the Government of the United States in public and private international law. The official edition of the 2014 Digest is available exclusively on the State Department’s website at: www.state.gov/s/l/c8183.htm. Past Digests covering 1989 through 2013 are also available on the State Department’s website. The Digest is edited by the Office of the Legal Adviser.

The Digest traces its history back to an 1877 treatise by John Cadwalader, which was followed by multi-volume encyclopedias covering selected areas of international law. The Digest later came to be known to many as “Whiteman’s” after Marjorie Whiteman, the editor from 1963-1971. Beginning in 1973, the Office of the Legal Adviser published the Digest on an annual basis, changing its focus to documentation current to the year. Although publication was temporarily suspended after 1988, the office resumed publication in 2000 and has since produced volumes covering 1989 through 2013.

Guest Post: The Joint Comprehensive Plan of Action Regarding Iran’s Nuclear Program

by Dan Joyner

[Dan Joyner is Professor of Law at the University of Alabama School of Law.  He is the author of the forthcoming book Iran’s Nuclear Program and International Law, which is under contract with Oxford University Press, and is expected in print in 2016.]

The Joint Comprehensive Plan of Action (JCPOA) agreed to by the P5+1 (Germany, France, the U.K., the U.S., China, Russia) and Iran on July 14 is a major success of international diplomacy, possibly to be credited with the avoidance of war.  It is the culmination of twenty months of negotiations between the P5+1 and Iran since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013.  See my analysis here of the JPOA when it was concluded.

The JCPOA is comprised of 159 total pages of text, consisting of 18 pages of the JCPOA itself, with a further 141 pages divided among five annexes.  All of the documents can be found at this link.  It is a carefully drafted, well organized document, and compliments are due its drafters.

That being said, it is an extremely complex document, which attempts to address all of the issues in dispute between the parties concerning Iran’s nuclear program, from how many and what type of uranium enrichment centrifuges Iran can maintain in operation, to the technical specifications of transforming the Arak heavy water reactor into an alternate less-proliferation-sensitive design, to excruciatingly detailed provisions on the precise sequencing of sanctions lifting by the U.N. Security Council, the U.S. and the E.U.

The general gist of the JCPOA is easy enough to summarize.  It is a quid pro quo agreement under which Iran agrees to significant limits on its civilian nuclear program, and to an enhanced inspection regime by the International Atomic Energy Agency (IAEA) to verify the continued peaceful nature of its program.  In return, the P5+l agree to a coordinated lifting of the economic and financial sanctions that have been applied against Iran over the past six years by both the Security Council acting multilaterally, and the U.S. and E.U. in particular acting unilaterally.  The end goal of the JCPOA is stated to be that Iran will ultimately be treated as a normal nuclear energy producing state, on par with Japan, Germany and many other Non-Nuclear Weapon States party to the 1968 Nuclear Non-Proliferation Treaty.

The precise sequencing of the implementation of the JCPOA’s commitments was one of the most difficult issues in the negotiations, and the JCPOA has one full annex, Annex V, devoted to the issue.  The implementation plan provides for approximately a 10 year timeline over which the main commitments are to be implemented by the parties.  Technically “UNSCR Termination Day,” on which all Security Council resolutions on Iran will terminate, and on which the Council will no longer be seized of the Iran nuclear issue, is set to occur 10 years from “Adoption Day,” which is scheduled for 90 days after the endorsement of the JCPOA by the Security Council.

Sanctions relief will be staggered, but will begin in earnest on “Implementation Day,” on which date the IAEA will certify that Iran has implemented its primary commitments limiting its nuclear program.  This could occur within approximately six months from “Adoption Day.”  The final, full lifting of all multilateral and unilateral sanctions is set to occur on “Transition Day,” which is defined as 8 years from “Adoption Day,” or when the IAEA reports that all nuclear material in Iran is in peaceful use, whichever is earlier.  So the JCPOA envisions a full lifting of all nuclear-related sanctions on Iran within the next eight years at a maximum, with significant sanctions lifting to occur hopefully within the coming year.

There are a number of important legal observations to make about the JCPOA text.  (more…)

Guest Post: Two-thirds of 45–Does Life Mean Life at the ICTY?

by Oliver Windridge

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.]

Should “life mean life” for those convicted of genocide, crimes against humanity and war crimes and sentenced to life imprisonment? Until now there was no clear answer. However, in Prosecutor v. Stanislav Galić rendered by the Mechanism for International Criminal Tribunals (MICT) on 23 June 2015 (the Decision), MICT President Meron sets out clearly for the first time that a person convicted by the ICTR, ICTY or MICT (the Tribunals) and sentenced to a term of life imprisonment may be considered eligible for early release, in other words life does not necessarily mean life.

In this landmark decision, prompted by an early release application by Stanislav Galić, currently serving a sentence of life imprisonment in Germany where its law allows for release of prisoners serving life terms after 15 years, the decision aligns the Tribunal’s sentencing practices with current international human rights jurisprudence that prisoners serving life sentences should be afforded both the possibility of review of their sentences and a prospect of release. Referring in particular to the recent Vinter and others v. United Kingdom European Court of Human Rights Judgement, as well as guidance from the United Nations Standard Minimum Rules for the Treatment of Prisoners and the International Covenant on Civil and Political Rights that emphasize the rehabilitation of prisoners, President Meron makes clear that a sentence of life imprisonment at the Tribunals does not mean locking-em-up-and-throwing-away-the-key but instead comes with at least the possibility of early release.

The Decision also addressed when the eligibility for early release occurs. (more…)

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?

Guest Post: Protecting Schools 80 Years After Roerich

by Bede Sheppard

[Bede Sheppard is deputy children’s rights director at Human Rights Watch.]
Eighty-years ago today, the United States became the first country to ratify the international treaty commonly known as the Roerich Pact. Actually, “commonly” is a bit of a stretch—the 80-year-old agreement doesn’t get a lot of attention these days—yet one of its key objectives has recently been in the spotlight.
The pact’s full name, the “Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments,” gives a clearer overview of its intentions. The treaty’s first article notes that “educational…institutions shall be considered as neutral and as such respected and protected by belligerents… The same respect and protection shall be accorded to…educational…institutions in time of peace as well as in war.”
Only 10 countries joined the treaty—all of them from the Americas. The Americas is also the region with the highest number of countries in which laws explicitly limit the authority of government security forces to enter higher education institutions. Most recently, many countries in the Americas have been early and enthusiastic supporters of the Safe Schools Declaration that was opened for states to join at an international summit in Oslo, Norway, on May 28-29.
The Safe Schools Declaration was drafted under the leadership of Argentina and Norway. The 47 countries that have joined so far include Argentina, Brazil, Chile, Costa Rica, Ecuador, Honduras, Jamaica, Panama, and Uruguay. The Declaration is a political commitment to do more to protect students, teachers, schools, and universities from attack during times of armed conflict. It also allows countries to endorse and commit to use a set of Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict, which call upon armed forces to refrain from converting schools or universities into military bases, barracks, defensive positions, detention centers, and weapons caches.
The need to continue working for the protection of education institutions 80 years after the Roerich Pact remains clear. In the past decade, schools have been used for military purposes in at least 26 countries with armed conflict—the majority of countries with armed conflict during that time. The practice exposes students and teachers to the danger of incoming attacks if they remain in the school while they are being used, as well as the risk of harassment, rape, and forced recruitment by the soldiers inside the school. When schools are taken over completely, those buildings may still be damaged or destroyed, with long-term consequences for students’ education. The practice has also been shown to cause students to drop out of school as well as harming school attendance, new enrollment, and advancement to higher levels of education.
But 80 years after being the first to join the Roerich Pact, the United States has shown no interest in joining the Safe Schools Declaration. At the United Nations Human Rights Council in Geneva this month, the United States joined countries such as China, Cuba, Pakistan, and Saudi Arabia to snub efforts to highlight the Oslo Safe Schools Summit in an annual resolution on the right to education. (Bolivia and Venezuela sat out the vote as well.)
Another sign of the waning US interest in the goals of the Roerich Pact can be found in the new Defense Department Law of War Manual. The manual’s forerunner—the army’s 1956 field manual on the law of land warfare, noted that the Roerich Pact “accords a neutralized and protected status” to educational institutions. Disappointingly, that recognition of educational institutions’ neutrality has been dropped in the new manual, which instead describes the pact as providing only for the “respect and protection” of education institutions.
The United States should be moving forward, not backward, when it comes to improving the protection of schools during armed conflict.  UN Security Council Resolution 2225, passed in June, expresses “deep concern that the military use of schools in contravention of applicable international law may render schools legitimate targets of attack, thus endangering the safety of children and in this regard encourages Member States to take concrete measures to deter such use of schools by armed forces and armed groups.” Many states will see endorsement and use of the new Guidelines as just such “concrete measures,” and the United States should too.
On overseeing the signing of the Roerich Pact, US President Franklin Roosevelt said: “In opening this Pact to the adherence of the nations of the world, we are endeavoring to make of universal application one of the principles vital to the preservation of modern civilization.” Respecting schools and universities as neutral and protected sites is indeed vital to the preservation of modern civilization. Let’s work to achieve it before another 80 years pass.

Weekly News Wrap: Monday, July 13, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

Events and Announcements: July 12, 2015

by Jessica Dorsey

Announcements

  • T.M.C. Asser Press and Springer are delighted to announce the publication of the first issue of the Netherlands International Law Review (NILR) of 2015 (Vol. 62). The NILR is available both online on SpringerLink and in hardcopy. The NILR’s first issue of this year features articles on ‘Armed Opposition Groups and the Right to Exercise Control over Public Natural Resources’ (Dam-de Jong) and ‘Preventing Genocide by Holding the Territorial State Responsible for Not Taking Preventive Action’ (Ruvebana and Brus) as well as five contributions from d’Aspremont, Nollkaemper, Plakokefalos, Ryngaert; Bilková; Karavias; MacLeod; and Trapp on shared responsibility between non-state actors and states in international law. The NILR’s second issue of this year will be a Special Issue on the impact of the fall of Srebrenica on public international law.
  • The Journal of Transnational Dispute Management has published Volume 12, issue 4 recently. Editors Louise Barrington (Independent Arbitrator and Director Aculex Transnational Inc) and Rashda Rana (39 Essex Street Chambers, President ArbitralWomen) prepared this ArbitralWomen/TDM special on “Dealing with Diversity in International Arbitration“. In this special authors from around the globe place the arbitration community under a microscope, analyze critically what they find, ask whether we can do it better with diversity, how diversity will improve the process and how to bring diversity into the mainstream of the arbitration world.

Calls for Papers

  • As a reminder, PluriCourts, Centre of Excellence at the University of Oslo, is organizing an international symposium entitled ‘The Present and Future Role of Investment Treaty Arbitration in Adjudicating Environmental Disputes’. The symposium will be hosted at the faculty of law of the University of Oslo on November 5 and 6, 2015. The symposium will focus on investment treaty arbitration from a forward-looking perspective on how future practice might be shaped or reformed in a way that can both promote environmental sustainability and protect responsible and legitimate foreign investments.The organizers invite scholars, practitioners and doctoral students to submit paper proposals for presentations on topics related to the symposium’s theme. The deadline for submission is July 15, 2015. For more information, please visit the website of the symposium.

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.

Make ASIL 2016 Great! Submit a Proposal

by Duncan Hollis

I am a huge fan of ASIL’s Annual Meeting for a whole host of reasons.  I like to see old friends, make new acquaintances, and spend inordinate amounts of time talking in the hallways.  The book sales on Saturday morning is a highlight of my year (no comment on what that may say about my life).  But what really holds the event together is it’s programming.  And while some of that programming comes from the Programming Committee leadership, many (if not most) of the panels have their origins in good ideas from members like you and me.  So, with that in mind, I thought I’d pass along the following item that I just received from Tillar House:

The Annual Meeting Committee of the American Society for International Law (ASIL) is currently accepting proposal submissions for its 110th Annual Meeting, held March 30 – April 2, 2016, in Washington, DC. This year’s meeting will be held under the theme “Charting New Frontiers in International Law.”
The Committee will prioritize session proposals that involve non-traditional formats, such as interviews, Q&A roundtables, lectures, poster sessions, or the use of multimedia or interactive audience participation features. In addition, the Committee is committed to expanding diversity in the issues and voices represented at the Annual Meeting, and is excited to present a track specifically focused on professional and academic development.

Submissions are due Monday, July 20th, 2015, and the Committee will notify proposers regarding the status of their submission via email in the fall of 2015. For instructions, more information on the Annual Meeting, and to submit a proposal, please visit http://asil.org/annualmeeting

I’m excited to see the call for new presentation formats and new voices.  So, please, if you have an interesting idea, please send it along to ASIL!  The Annual Meeting will be all the better for it.

A Legitimate Need for Disqualification in the Lubanga Case

by Kevin Jon Heller

Thomas Lubanga’s lawyer, Catherine Mabille, has moved to disqualify Judge Silvia Fernández de Gurmendi from Lubanga’s upcoming sentence review on the ground that the judge was involved in the case while working in the Office of the Prosecutor. Here are the relevant paragraphs from the motion:

11… [O]fficial Court documents show that Judge Silvia Fernández de Gurmendi acted as Chef de Cabinet for the Prosecutor, Mr Moreno Ocampo.

12. In particular, Judge Silvia Fernández de Gurmendi was engaged in that capacity during the period between the application for a warrant of arrest against Mr Tomas Lubanga and the confirmation of charges hearing in that case.

13. It follows that a reasonable observer, properly informed, must necessarily conclude that she participated in person in the investigations concerning Mr Thomas Lubanga, participated in the drafting of the application for his arrest, participated in the drafting of the detailed list of charges submitted to the Pre-Trial Chamber for examination and, in general, that she participated at the highest level of the organisation in the proceedings against Mr Thomas Lubanga until December 2006.

14. Witnesses Bernard Lavigne (P-0582) and Nicolas Sebire (P-0583) were called in this case by Trial Chamber I to “testify as to the approach and the procedures applied to intermediaries” to assist the Chamber in ruling on the Defence’s abuse of process application. They confirm that the executive committee established within the Office of the Prosecutor, of which Judge Silvia Fernández de Gurmendi was a member, was regularly consulted on the conduct of investigations and that it directed the course of those investigations.

15. Mr Sebire stated that he had himself attended two meetings of the executive committee, the purpose of which was “[TRANSLATION] to report on the investigation, the progress of the investigation and the evidence gathered by … by the time of appearing before the committee.”

The OTP does not deny that Judge Fernandez was previously involved in the Lubanga case. On the contrary, it simply insists that the test for recusal is whether “a reasonable and properly informed observer would apprehend bias by Judge Fernández in deciding on the early release of Mr Lubanga” — and that the Judge’s “sporadic and general” involvement in the case does not satisfy the test:

13. Finally, the Presidency should consider Judge Fernández’s non-operational and relatively circumscribed role in the Lubanga case resulting from her position as head of JCCD and as a member of ExCom from June 2003 to December 2006. Judge Fernandez was never directly responsible for the investigation and prosecution of the Lubanga case. JCCD is a division of the Office of the Prosecutor entrusted with conducting preliminary examinations; evaluating information pursuant to articles 15 and 53(1); providing advice on whether a reasonable basis to proceed with an investigation exists, and providing advice on issues related to jurisdiction and admissibility, and on cooperation matters. Thus, Judge Fernández would have been involved in the early stages of the proceedings in the Democratic Republic of the Congo (including the Lubanga case), in particular, in the decision to commence an investigation, and in transmitting requests for cooperation, including arrest warrants and investigative missions in the field.

14. As a member of ExCom, Judge Fernández would have participated in the general discussion and approval of the main legal and strategic documents and major investigative and prosecution activities developed by the Investigation and Prosecution Divisions with respect to all the cases from June 2003 to December 2006, including that against Mr Lubanga. However, her intervention would have necessarily been sporadic and general in nature. She was not one of the lawyers involved in investigating or prosecuting the case against Mr Lubanga; although she would have been kept apprised of and approved of various steps as the case proceeded against him during the period of her tenure at the Office of the Prosecutor, her situation is not comparable to that of a prosecution lawyer deeply involved in the case and knowledgeable of its details.

I have great respect for Judge Fernandez. I’m thrilled that she was recently elected President of the Court. And I have no doubt whatsoever that she would not be biased against Lubanga in the sentence review. But that’s irrelevant — because Art. 41(2)(a) of the Rome Statute still requires her disqualification. Here is the text of the provision (emphasis mine):

A judge shall not participate in any case in which his or her impartiality might reasonably be doubted on any ground. A judge shall be disqualified from a case in accordance with this paragraph if, inter alia, that judge has previously been involved in any capacity in that case before the Court or in a related criminal case at the national level involving the person being investigated or prosecuted.

The OTP admits that Judge Fernandez has previously been involved in the Lubanga case. Art. 41(2)(a) thus prohibits her from participating in the sentence review as a member of the Appeals Chamber — a judge “shall” be disqualified (not “may” be disqualified) if she has previously been involved “in any capacity” (not in a significant capacity) in the case. End of story.

The OTP, of course, disagrees. Most obviously, it insists that previous involvement in a case requires disqualification only if that involvement would lead a reasonable observer to doubt the judge’s impartiality. But that is not what Art. 41(2)(a) says. There are only two ways to read the provision: (1) as providing two different grounds requiring disqualification — appearance of bias or previous participation in the case; or (2) as establishing an irrebuttable presumption that previous participation gives rise to a reasonable doubt of a judge’s impartiality. The second interpretation is likely correct, given that the provision mentions previous participation “inter alia” as a situation in which a judge “shall” (not “may”) be disqualified from a case. Either way, though, Judge Fernandez must be disqualified from Lubanga’s sentence review.

The OTP seems to recognise that, despite its argument, nothing in the wording of Art. 41(2)(a) actually suggests that previous participation requires disqualification only if a reasonable observer would doubt a judge’s impartiality. It thus insists (para. 7) that “[t]he relevant provisions must be contextually and purposively interpreted according to the rules on interpretation of treaties in the Vienna Convention, and must be applied on a case-by-case basis.” This is typical ICC double-speak, a nudge-nudge, wink-wink to the judges asking them to ignore a clear provision of the Rome Statute simply because the OTP finds it inconvenient. The judges need to say no — although, given their history (Regulation 55, anyone?), there is reason to suspect they’ll simply do what the OTP wants.

Stay tuned…

UPDATE: I made similar points a few years ago. See here.

Ryan Goodman to Work at DoD for One Year

by Kevin Jon Heller

Ryan — friend of Opinio Juris and friend of Kevin — has been appointed Special Counsel to the General Counsel of the Department of Defense. Here is a snippet from NYU’s press release:

In his new role at the Department of Defense Goodman will focus primarily on national security law and law of armed conflict. “I am very humbled to have this opportunity to work with the General Counsel and the outstanding people of the Defense Department,” said Goodman. “I look forward to the hard work and challenges ahead in this arena of public service.”

One of the nation’s leading scholars in national security and human rights law, Goodman co-founded Just Security, a blog for the rigorous analysis of law, rights, and national security, in 2013. With Goodman serving as co-editor-in-chief, Just Security quickly achieved international prominence for providing balanced and broad analysis of major legislation and executive action, information about the impact of US national security policies around the world, and scrutiny of international legal developments in the national security area.  During his time with the Defense Department, Goodman will discontinue his work with Just Security.

I’m sad that we will not have the benefit of Ryan’s blogging for a year, but the blogosphere’s loss is the DoD’s gain. Readers know that I have reservations about academics going into government service, but I have no doubt whatsoever that Ryan — like his mentor Harold Koh before him — will be a principled, conscientious, and even courageous voice in government. Indeed, Ryan has never shied away from criticising the USG when he thinks its approach to international law has been misguided. I just regret that we will probably never get to know how he spent his year with the DoD!

Please join me in congratulating Ryan — though I think the DoD is really the one that deserves congratulations.