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Some Reflections on the Bemba Appeals Chamber Judgment

by Alexander Heinze

[Alexander Heinze is an Assistant Professor at the Department of Foreign and International Criminal Law, Institute for Criminal Law and Justice, Georg-August-Universität Göttingen. He is the author of the book “International Criminal Procedure and Disclosure” (Duncker & Humblot, 2014).]

In less than a month’s time, the International Criminal Court (ICC) will celebrate its 20th anniversary. Distinguished speakers will be calling into mind that the ICC was first and foremost a Court for victims – and then they will be expressing their condemnation of the recent acquittal of Jean-Pierre Bemba from the charges of war crimes and crimes against humanity, as did the recent blog posts here, here and here. It goes without saying that every aspect of the Majority Judgment, the Separate Opinions and the Dissenting Opinion deserves its own publication. However, since the ICC Prosecutor already issued a press statement strongly criticizing the Majority Judgment, and the above mentioned blogposts – written by authors who are or were affiliated with the ICC’s Office of the Prosecutor – bemoan, without waiting for the publication of Judge Eboe-Osuji’s Separate Opinion, a “lack of clarity, retroactive application of new law, and negative consequences in this and future cases”, “extremely negative consequences for the institution”, or fuel resentments by stressing that “the Court ruled that he could join his family in Belgium while he awaits sentencing in that case” (citing BBC News and adopting the report’s almost exact wording instead of referring to the actual Court decision, where Bemba’s family ties in Belgium are provided merely as a side information in a half sentence), the purpose of this blog entry is to bring the discussion back on the legal track.

With regard to the standard of review, the minority employs an approach that is well known before International Criminal Tribunals, i.e. an Appeals Chamber would only interfere where the Trial Chamber’s appreciation of the facts was wholly unreasonable, that is, where it “cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it” (Dissenting Opinion, para 9). While this approach carries the idea of a margin of deference to the factual findings of the Trial Chamber, the majority views this idea “with extreme caution” (Majority Judgment, para. 38). Even though the majority does support the standard of reasonableness, it clarifies that this standard “is not without qualification” (para. 41; more critically Separate Opinion Eboe-Osuji, para. 72). Thus, the majority opines it may interfere with the factual findings whenever the failure to interfere may occasion a miscarriage of justice. It had the right to deviate from the conventional approach, due to the fact that the ICC “may” but does not have to “apply principles and rules of law as interpreted in its previous decisions” (Art. 21(2) ICC-Statute – Judge Eboe-Osuji justifies the deviation also through a contextual interpretation of Art. 83(1) ICC-Statute, which seems to stretch the ratio of that provision a little too far). The application of the concrete standard of review is then a policy decision (in the same vein Separate Opinion Eboe-Osuji, para. 46) and there are good arguments for both sides (consistency of Appeals Chamber decisions and not turning appeals proceedings into a second trial vs. protection of the rights of the accused and avoiding to “consign the fate of a convicted person to the undoubted good faith of the Trial Chamber whose verdict of conviction has been appealed” (Separate Opinion Eboe-Osuji, para. 11)). There is another argument in favour of the broad approach of the majority: the ICC Appeals Chamber is not a national appeals court. There is no external review mechanism with regard to the rights of the Defendant as we know it in national jurisdictions, where a convicted person can still make an application to a regional human rights body for an infringement of his or her fair trial rights. There is also no Constitutional Court Chamber, as we know it from the Kosovo Specialist Chambers (see my blogpost here). The Appeals Chamber is very much the end of the road. It is therefore illogical when the Prosecutor in her press statement uses this fact as an argument for a “cautious approach to appellate review”. Shouldn’t it be the opposite? When there is no further appellate or revisionary body, the standard of review of the Appeals Chamber needs to be designed in a way that protects the rights of the accused most effectively. Judge Eboe-Osuji’s reasons why he thought following the conventional standard of appellate was especially inappropriate are illuminating. Everyone who evaluates the Majority Judgment as a particularly grave form of arbitrary decision making should read them in total. It is telling that even Judge Eboe-Osuji’s he leaned towards referring the case back to the Trial Chamber, he evaluated the evidential analysis by the Trial Chamber as so flawed that he preferred an acquittal over an inconclusive judgment.

The controversy around the standard of review continues in the question of how the charges must be framed and confirmed so that a conviction does not exceed the charges (Article 74(2) ICC-Statute). Bemba was convicted partly based on individual acts of murder, rape and pillaging committed against particular victims at specific times and places that had not been confirmed in the Confirmation Decision. The Trial Chamber argued that the Pre-Trial Chamber’s Confirmation Decision was broad enough so that new allegations could be included without a new Confirmation Decision. The question therefore was: How concrete must the charges be and how much evidence must the Prosecutor provide? Is it acceptable to formulate them in such a broad fashion that – exaggerated – the Prosecutor can add criminal acts whenever she wishes to do so, with leave of the Trial Chamber after the trial has begun? The minority answers this in the affirmative, which is nothing unusual from a domestic law point of view. The prosecutor enjoys discretion in formulating the charges and that rightly so. The burden of proof in the confirmation proceedings is “substantial grounds to believe that the person committed the crime” (Article 61(5) ICC-Statute) – a standard that is lower than the burden required for a conviction (“beyond reasonable doubt”). Nevertheless, even in national proceedings the opening of an investigation against a suspect and the subsequent charging creates a considerable stigma. This is all the more true in an international context where everything, especially worldwide media attention, is potentiated. The least that can be expected in that situation is a clear and fairly strict formulation (and confirmation) of the charges. The majority therefore rightly states: “Simply listing the categories of crimes with which a person is to be charged or stating, in broad general terms, the temporal and geographical parameters of the charge is not sufficient” (para. 110). Judge Eboe-Osuji concurs with this opinion, even though he disagrees with Bemba that a Trial Chamber was in principle precluded from amending the indictment after the commencement of trial, employing a teleological and contextual interpretation of Art. 74(2) ICC-Statute (in conjunction with Article 69(9)) (Separate Opinion Eboe-Osuji, paras. 118-134).

Taking both procedural questions together, it is certainly fair to say that they address the interpretation of procedural rules that can work both ways with the better arguments for the majority. This also applies to the main substantial question, the requirements of command responsibility. To make this crystal clear: No one affiliated with the implementation of International Criminal Law has an interest that leadership-level- or mid-level perpetrators go free despite their criminal responsibility while their subordinates commit unimaginable atrocities. However, the concept of individual criminal responsibility for violations of humanitarian and human rights norms is universally recognized. There should be no situation in international criminal adjudication today where this self-evident principle needs special emphasis. And yet, the catchphrase “crimes did not commit themselves” is carried like a torch through social media and even the blogosphere (see here) to light fires of outrage and open resentment to the Appeals Chamber and its majority Judges. Again, even the Prosecutor could not resist the temptation of an emotional rejection of the Appeals Chamber’s majority view, instead of entering a self-critical analysis of its work.

In contrast to the minority opinion, it found that Bemba took all necessary and reasonable measures to prevent or repress the commission of crimes by applying a rather realistic set of criteria: Bemba was a “remote commander” with “non-linear command” in a foreign country (Majority Judgment, para. 171) and therefore faced limitations in controlling his troops. The minority disagrees: Even though Bemba as a remote commander faced “logistical difficulties” (Dissenting Opinion, para. 57), the evidence showed that it was possible to overcome these difficulties. The majority generally was of the view that a commander cannot be expected to do the impossible, taking any preventive measure, no matter how unrealistic they would be. Instead, the formula of the majority is rather clear, echoing the principle of individual criminal responsibility:

“The trial chamber must specifically identify what a commander should have done in concreto. Abstract findings about what a commander might theoretically have done are unhelpful and problematic, not least because they are very difficult to disprove” (Majority Judgment, para. 170).

Moreover, what a commander should have done in concreto is not for the accused to show, but for the Trial Chamber. When determining whether the measures the commander had taken were necessary and reasonable, the motive to counter public allegations and rehabilitate the public image of the subordinates does not intrinsically render the measures “any less necessary or reasonable” (Majority Judgment, para. 177; Separate Opinion Eboe-Osuji, para. 16) – even though the commander is required to act in good faith in adopting such measures and must show that he “genuinely” tried to prevent or repress the crimes in question or submit the matter to the competent authorities. Again, these legal aspects require much closer analysis than this, as has been done with the latter aspect (Bemba’s motivation) here.

Considering the remarks of the majority and reading the separate opinion, it becomes clear that the Defense’s call for a more realistic approach to command responsibility that takes into account the specific operative situation of the commander has been heard, at least by the majority of the chamber. Judge Eboe-Osuji’s very detailed and thorough engagement with the arguments brought forward by Defense Counsel show how much of an impact the actual hearing had on the majority’s opinion (read, for instance, para. 247: “It was wise, indeed, of Ms Gibson to have readily accepted the endangerment rationale on behalf of the Defence during the oral hearings. Notably, however, co-counsel Mr Newton, was not as forthcoming. […]). The separate opinion touches upon further controversial criteria of command responsibility that are certainly noteworthy from an academic point of view, even though they are not part of the majority judgment but rather an obiter, since there was apparently no consensus between the judges in that regard. For instance, the separate opinion of Judges van den Wyngaert and Morrison provides an excellent analysis of the subjective element in Article 28, explaining why it matters whether the accused is charged with/convicted of “knowing” the crimes of his/her subordinates or “should have known” the crimes – both standards trigger different obligations for the commander and must therefore be proven differently, what made the Trial Chamber’s notice under Regulation 55 of the Regulations of the Court to characterize the charges from “knowledge” to “should have known” defective (Separate Opinion, para. 39). The minority, by contrast, saw no harm in that, based on a “unitary standard for the mental element” (Dissenting Opinion, para. 266).

The fundamental differences about a possible causation element mirror the unclear legal nature of Art. 28. This unclear legal nature is best captured by Judge Eboe-Osuji, whose journey through the familiar classifications of Art. 28 as dereliction of duty on the one hand and accomplice liability on the other hand leads him to the rather surprising destination of command responsibility as “endangerment liability”: Since armed conflicts are “notoriously dangerous”, Art. 28 seeks to “protect innocent victims from the risk of the excesses that is so notoriously a feature of armed conflicts” (para. 243). Thus, it was not necessary that the defendant’s conduct caused the actual; proof of the creation of danger was sufficient “in the sense that the commander’s complicity in the subordinates’ crimes originated when (s)he created or fostered the danger of the subordinates’ criminality (by training them, arming them and/or deploying them, so as to be able to commit those crimes), and that complicity was consummated when (s)he failed to exert authority (that was effectively available to be exerted) properly to prevent or repress the crime (including through punishment), when s(he) knew (or should have known) that the subordinates were committing or about to commit such crimes.” (para. 251). This is indeed a novel approach, reminiscent of the theory that complicity was a crime of endangerment (as proposed in Germany by Herzberg, Goltdammer’s Archiv für Strafrecht 1971, pp. 1 et seq.). It is for another publication to enquire whether this theory can and should be transferred to command responsibility. The Dissention Opinion and Judges van den Wyngaert and Morrison in their Separate Opinion follow the conventional path of this debate: While the former justifies the causation element in convincing fashion, the latter rejects it based on the argument that it was “not possible that an omission after a fact has occurred (that is, failure to refer criminal behavior to the competent authorities) causes this fact”. This might be true but is a too easy escape route. In case the crimes have already occurred, it is indeed hard to construct an omission. However, viewing the omission with regard to future crimes that might be committed as a result of it, a “hypothetical” or “quasi”-causation can indeed be construed. Unsurprisingly, the separate opinion rejects the view that the commander’s omission can increase the risk of the commission of crimes, as it was held by the Judge Steiner in her Separate Opinion to the conviction decision (Separate Opinion Steiner, para. 19). This rejection seems to be based on a misunderstanding of that view when Judges van den Wyngaert and Morrison opine that the failure of the commander to act does not increase the risk but “[t]he responsibility of the commander is precisely to decrease the risk that his/her subordinates will commit crimes. Failing to reduce a risk can hardly be seen as causing the manifestation of said risk.” However, the theory of increasing risk (see esp. Ambos, in: Stahn (ed.), The Law and Practice of the ICC, 2015, pp. 603 et seq.) is exactly about the question, whether the ex ante formulated norm, even when viewed ex post, still appears to contain a prohibition that reduces the actual harm. Thus, of course the norm in itself is about harm reduction, while the act might increase it. The minority view – by contrast – takes this into account and justifies the causation element in convincing fashion.

In sum, in a very narrow decision, the majority of the Chamber did what it is supposed to do – review a Trial Chamber decision on the basis of the law. It goes without saying that it would be inappropriate to applaud this decision as a victory of criminal doctrine and procedural sophistication. There are no winners. Thousands of victims will have been left in shock by the Appeals Chamber judgment. However, it would also be inappropriate to bemoan the decay of everything the ICC stands for. Not sacrificing the rights of the accused on an altar of grand gestures by the world community (such as the “need to send a clear signal globally that such abhorrent crimes must not go unpunished” [ICC Prosecutor] or a “promise of accountability” [Amann]) is certainly a decision that should find – despite its controversy – support.

Jams v. IFC on IO Immunities

by Kristen Boon

On Thursday, May 10, the US Supreme Court will decide whether to grant cert in Budha Ismail Jam v.  International Financial Corporation(IFC), a case involving environmental damage arising from a coal fired power plant in India.    Two excellent blogs on the case written by Rishi Gulati in 2017 can be found here.

The case turns on the interpretation of a US Statute entitled The International Organizations Immunities Act which provides that international organizations designated by the President enjoy “the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” 22 U.S.C. § 288a(b).

The plaintiffs argue that state immunity today clearly exempts commercial activities, and when an IO acts as a commercial lender in the marketplace, it should not be protected by immunities.  Their position is supported by the decision in OSS Nokalva v. ESA, and the concurring opinion of Pillard, J, at the District Court of Columbia Court of Appeals, who wrote:

Reading the IOIA to dynamically link organizations’ immunity to that of their member states makes sense.  The contrary view we adopted in Atkinson appears to allow states, subject to suit under the commercial activity exception of the FSIA, to carry on commercial activities with immunity through international organizations….  Neither the IOIA nor our cases interpreting it explain why nations that collectively breach contracts or otherwise act unlawfully through organizations should enjoy immunity in our courts when the same conduct would not be immunized if directly committed by a nation acting on its own.

The IFC argues that this phrase must be interpreted at the time in was enacted, in 1945, when foreign states enjoyed broad immunity.  Moreover, it argues the IOIA does not incorporate subsequent developments in the law of foreign-state immunity, including those enacted in the Foreign Sovereign Immunities Act (“FSIA”).   The briefs are available here.

There are a number of issues which the Supreme Court could usefully clarify if it takes the case, but I will mention three in particular.

First, it would be extremely helpful for the Court to unpack the analogies drawn between state and IO immunity in the IOIA.   Every other field of immunity (such as state, diplomatic, and charitable) has narrowed, and the presumption today of absolute IO immunity today stands as an outlier.  Any narrowing of IO immunity should be justified on its own grounds, and not simply in relation to the developments as regards to states.   As noted in Rishi Gulati’s post, the problem is the IOIA statute itself, which makes reference to state immunity.  As a result, the Supreme Court has to deal with problematic wording to get to this end.

Second, the concept of waiver has emerged as an extremely important issue in litigation over immunity. Specifically, what constitutes a waiver? Can it be express or implied?  Can it be given in advance?  And what does waiver practice in IOs tell us about the utility of this device?  The issue is particularly important with regards to the World Bank Group because these IOs have “charter-based waivers” built into their constituent instruments, which limit immunity in certain circumsntaces. Plaintiffs in suit against these organizations often argue that charter-based waivers exact a broad waiver of immunity. However, there have been occasions where courts have read down explicit provisions requiring waiver. In Mendaro, applying the ‘correspondent benefit’ test, the court analyzed the World Bank’s intent in including the waiver provision, and concluded it only waived immunity with regard to situations which  further its chartered activities.  A re-examination of Mendaro would be very timely, as it has had the effect of denying plaintiffs access to remedies despite an explicit provision for waiver in the charters of the WB group.

Third, given the increasing interest in and pressure on IOs to grant access to justice to individuals  affected by IO activities, these cases are part of a larger effort by classes of plaintiffs to get their day in court and clarify the relationship between immunity and responsibility for IOs today.  The Haiti Cholera Case, which I have written about here, for example, raises some similar issues (although it did not involve the IOIA).

This is an important case which raises significant legal issues.  It bears some similarities to another case, Honduras v. IFC,  making its way through the US courts.   I very much hope the US Supreme Court takes up the opportunity to weigh in.  If the Supreme Court were to lift or narrow the IFC’s immunities, it would then be necessary to assess the scope of the IFC’s liability (lender liability) and determine which substantive tort law applies, given that the acts took place outside of the US.

Something is Not Always Better Than Nothing: Against a Narrow Threshold Justification for Humanitarian Intervention

by David Hughes and Yahli Shereshevsky

[David Hughes and Yahli Shereshevsky are Grotius Research Scholars at Michigan Law School.]

Western forces have again attacked Syria following the suspected use of chemical weapons by the al-Assad regime. As in 2013 and 2017, international lawyers largely agree that the recent US, French, and British-led operation is illegal. Yet the recent strikes against chemical weapons facilities in Damascus and Homs are part of an enduring narrative concerning the legality and efficacy of unilateral (or unauthorized) humanitarian intervention (UHI). Within this discourse, a majority of legal scholars assert that humanitarian intervention – devoid of Security Council authorization – is legally invalid. However, as a recent post in Just Security demonstrates, though many states share this view, an increasing group now employ justificatory rhetoric in defense of the recent attacks. This rhetoric signals a potential shift. Following the NATO-led intervention in Kosovo, states and scholars vindicated the military response through universal appeals to human rights and justice. This language often remained non-specific. More recently, however, the language assumes precision. It abandons general assessments of an atrocity’s gravity and favors identification of particular incidents – like the use of chemical weapons – as a trigger to legitimize or legalize humanitarian intervention.

The response of international lawyers has been divided. Harold Koh identifies three camps, helpfully categorizing the broad positions that international lawyers assume within this debate. The first (and most sizable) holds that UHI is both illegal and illegitimate. The second offers that the practice remains illegal but certain manifestations may be legitimate. Finally, the third group are reformist (though some within this group already regard humanitarian intervention as lawful). They wish to create a more effective legal system to evaluate, and when necessary, facilitate humanitarian intervention as both a viable and legal response to atrocity crimes.

We address the second and third camps. Following recent events in Syria, some approaches offered by those who wish to preserve the necessity of humanitarian intervention exhibit a similar tendency to those states that seek to vindicate the recent strikes in narrow, incident-specific terms. Narrow exception tests that fail to appeal to the general gravity of atrocities risk further eroding the legal regime governing the use of force. Relegating broad appeals to gravity facilitates (often inadvertently) disingenuous attempts by states to harness humanitarian intervention’s moral force in furtherance of specific interests. The past week evidences how appeals to a chemical weapons justification contribute toward a narrative suggesting that the desire of certain states to reduce the threat of non-conventional weapons is motivated by strategic geopolitical objectives and not the harm these weapons cause. Further, such justification stands in contrast to the call for “common-sense” legitimacy – the appeal to the overarching gravity and universality of an atrocity – that constitutes the most persuasive case for deviating from black-letter adherence to the relevant norms. Those proponents of humanitarian intervention that offer justification premised upon a narrow threshold exception inadvertently diminish the normative force of the call for humanitarian intervention.

A move from the moral origins of humanitarian intervention towards incident-specific justifications:

The moral appeal of humanitarian intervention is grounded in the notion of gravity. Proponents of UHI traditionally suggested that the prevention of atrocity is compelled by the seriousness of the triggering event. Justification relied upon a broad humanitarian rationale. It discounted competing considerations that may otherwise prompt, or serve as a guise for, state interests. Traditionally, discussions concerning the appropriate standard for UHI identified the gravity of the atrocities before subsequent considerations regarding the necessity or effectiveness of the intervention. The case of Kosovo provides example. Here, the United Kingdom, did not appeal to a specific threshold. Instead, they justified their actions as a response to a “humanitarian catastrophe.” Other governments and NATO provided similar rationales.

Justifications of, and responses to, the recent events in Syria exhibit an increasing tendency amongst states to abandon gravity-based appeals. Instead, we are offered narrow exceptions in justification of UHI. These increasingly preference specific incidents, like the use of chemical weapons, above general assessments of the seriousness of the humanitarian crisis.

The United Kingdom was the first of the three states that recently intervened in Syria to provide legal reasoning. The UK appears to have maintained its gravity-based justification of UHI. Its defense of the Syrian attack began in conformity with its 2013 rationale which based legality on: (i) evidence of large-scale humanitarian distress; (ii) absence of alternatives to the use of force; and (iii) the necessary, proportionate, and limited application of force. Now, departing from their Kosovo approach, the British referenced the more limited use of chemical weapons to satisfy the test’s criteria. They concluded that, “military intervention…in order effectively to alleviate humanitarian distress by degrading the Syrian regime’s chemical weapons capability and deterring further chemical weapons attacks was necessary and proportionate and therefore legally justifiable [emphasis added].”

Though Britain’s reasoning has been criticized on various grounds, it is our present concern that deriving legal permissibility from an incident-specific threshold facilitates, as Marko Milanovic recognized, “a limited intervention focused specifically on chemical weapons, but that does almost nothing for the wider humanitarian catastrophe.”

While the British justification began by appealing to the gravity of the Syrian crisis, its turn to the specific use of chemical weapons was accentuated by other states. In its statement to the Security Council, France noted Syria’s disregard for basic humanitarian principles. After citing the scope of the catastrophe, France shifted emphasis. Their Permanent Representative to the UN stated that, “the Syrian regime has been using the most terrifying weapons of mass destruction – chemical weapons – to massacre and terrorize its civilian population.” This focus, on the use of chemical weapons, prioritized strategic interests above gravity-based humanitarian considerations. France declared that the use of such weapons constituted a threshold of which violation could not be tolerated. In response to their deployment, the Syrian operation was described as compliant with the UN Charter. France noted that the Syrian operation, “was developed within a proportionate framework, restricted to specific objectives… Syria’s capacity to develop, refine and manufacture chemical weapons has been rendered inoperative. That was the only goal and it was achieved [emphasis added].”

The United States has not yet offered a formal legal justification. Initial political pronouncements accentuated humanitarian considerations. More recently, however, Secretary of Defense Mattis linked enforcement of a prohibition on the use of chemical weapons with the operation’s legality. The Secretary told a press briefing that, “… we worked together to maintain the prohibition on the use of chemical weapons… We did what we believe was right under international law, under our nation’s law.”

Several states have expressed support for the attack. The vast majority have based their (often limited) reasoning on the use of chemical weapons. Prime Minister Trudeau noted that, “Canada condemns in the strongest possible terms the use of chemical weapons in last week’s attack…Canada supports the decision by the United States, the United Kingdom, and France to take action to degrade the Assad regime’s ability to launch chemical weapons attacks against its own people.” Similarly, Prime Minister Abe stated that, “the Japanese government supports the resolve of the United States, Britain and France not to allow the proliferation or use of chemical weapons.” Chancellor Merkel informed that the acting states had taken, “responsibility in this way as permanent members of the UN Security Council…to maintain the effectiveness of the international rejection of chemical weapons use and to warn the Syrian regime against further violations.” Israel issued a statement noting that, “last year, President Trump made clear that the use of chemical weapons crosses a red line. Tonight, under American leadership, the United States, France and the United Kingdom enforced that line.” Finally, the NATO Secretary General stated that, “the use of chemical weapons is unacceptable, and those responsible must be held accountable.”

Resisting a limited threshold exception for humanitarian intervention:

These legal and extra-legal arguments have caused some commentators to ponder the emergence of a narrow threshold. This has led to suggestions that UHI may be justified if this threshold – increasingly identified as the use of chemical weapons – is breached. Endorsements of this view appeal to the belief that “something is better than nothing.” They accept the achievable rather than the ideal. And they perceive, while pursuing alignment with, an emerging state practice that exhibits tolerance of a particular form of narrow intervention.

Following the US, British, and French operation, Harold Koh reiterated his call for legal reform. Koh proposes a six-stage test. Though this begins with a traditional appeal to the general gravity of the event – humanitarian intervention is framed as a need “to prevent or mitigate extreme human rights disasters” – the proposed test diverges from its justificatory origins. The test’s first stage is described as mandatory and requires:

“a humanitarian crisis [that] creates consequences significantly disruptive of international order – including proliferation of chemical weapons, massive refugee flows, and events destabilizing to regional peace and security – that would likely soon create an imminent threat to the acting nations (which would give rise to an urgent need to act in individual and collective self-defense under U.N. Charter Article 51) [emphasis added].”

The test’s second stage – described as a criterion that may strengthen justificatory appeals – refers to an intervention that, “would help to avoid a per se illegal end, e.g., genocide war crimes, crimes against humanity, or an avertable humanitarian disaster, such as the widespread slaughter of innocent civilians…” Koh’s approach demands that the intervening state(s) exhibits a vested interest while relegating justifications grounded in gravity and universality to a secondary (non-mandatory) consideration.

Koh’s proposal has become the focal point for reformist efforts. These have increased as the recent attacks and the desire to respond to the ongoing Syrian crisis have prompted the adoption of a narrow threshold. Andrew Bell advocates for a qualitative approach. The use of chemical or biological weapons provides an identifiable standard. Bell proposes that a violation of this standard would justify humanitarian intervention. Anders Henriksen considers whether a specific norm has emerged that permits an intervention in response to the use of chemical weapons. This would maintain the assumption of illegality toward instances that do not cross this threshold. Charles Dunlap, also responding to the events in Syria, conducts a similar inquiry while employing a different legal argument.

These proponents, alongside those who view UHI as invariably illegal, participate in a broader debate regarding the use of force. Variants of this debate are present within considerations regarding the use of force against non-state actors, the employment of anticipatory self-defense in reply to an imminent attack, and, of current relevance, the appropriate use of humanitarian intervention. On one side of this debate is the belief that strict doctrinal adherence to the UN Charter’s prohibition on the use of force is necessary to ensure legitimacy and prevent abuse. Alternatively, others hold that this regime is threatened by a schism between what states do or moral necessity and a formalist interpretation of the law limiting the use of force.

This becomes a conversation about the legitimacy and efficacy of international law. It is a debate about how to best preserve international law’s relevancy and insulate against its misuse. Responding to the dictates of realpolitik, instances of Security Council paralysis, and a lineage of cynical legal arguments favoring misguided “humanitarian” forays, this broader discourse proposes “appropriate” responses to this reality. Those supporting the necessity of humanitarian intervention believe that the legitimacy of international law, the demands of morality, and an accurate accounting of state actions are best served by a reading of the UN Charter and international law that permits a qualified form of UHI.

These proponents of humanitarian intervention traditionally employ the language of sensibleness. Common-sense appeals to the legitimacy of intervention will begin with the paradigmatic case of genocide and there is room to debate where they will end. These arguments derive normative force from the atrocity’s gravity. They constitute the strongest argument in favor of developing a legal exception to Article 2(4) of the UN Charter, of revising a traditional conception of sovereignty, of expending military force and resources, and of promoting a cosmopolitan ideal. It is unlikely that common-sense appeals to an atrocity’s gravity will persuade that intervention is legitimate to prevent the use of chemical weapons (or other narrow exceptions) while it is not legitimate in response to the equally grave, and often much worse, atrocities caused by conventional weapons. Reasoning that favors a limited threshold exception does not adhere to the internal logic expressed by proponents of humanitarian intervention who believe that the law must better fit the dictates of reality, the demands of morality, and the needs of the international community.

Efforts to ensure against the abuse of a humanitarian exception to the prohibition on the use of force are ever-present. This concern is, of course, very real. The desire to protect against such abuse through a clearly identifiable threshold is understandable. Yet, the appeal to a chemical weapons exception must be understood in light of the various statements of the involved and supportive actors whose motivations appear to depart from the underlying humanitarian justifications that traditionally accompany the call for UHI.

Endorsement of this approach by proponents of humanitarian intervention poses another, subtler, danger. This danger remains relevant even in cases where there is a genuine belief that the actors operated in good-faith and no fear of abuse exists. Divergence from black-letter adherence to the use of force regime entails significant cost. It may only be justified by reasoning that these costs are less than the alternative costs incurred by failing to address the dictates of reality. The normative case for humanitarian intervention is contingent on a common-sense legitimacy argument rather than only upon the provision of a workable test or standard. The case for humanitarian intervention must subscribe to a general notion of gravity to persuasively offer an attractive alternative to a formal reading of the Charter.

Prioritizations of gravity appear to be missing from this current trend. For example, Andrew Bell does not sufficiently address the gravity argument when he proposes adoption of a limited exception. Similarly, and as Kimberly Trapp suggests, Koh discounts many potential atrocities that do not threaten the intervening state. Such endorsements of UHI shift the discourse away from universalist and gravity-based considerations that have supplied proponents of humanitarian intervention with normative purchase.

Clearly, workability and relevant safeguards demand consideration by those proposing a UHI framework. Yet proponents, those who favor a limited approach or narrow threshold, would be well-served to resist a shift away from gravity-based justifications. A narrow exemption test that fails to prioritize assessments of gravity is problematic. Similar arguments, favoring a limited exception, are increasingly employed by states in justification of and in response to the recent use of chemical weapons in Syria. By abandoning or deemphasizing the common-sense legitimacy and gravity-based approach, the language of humanitarian intervention conflates with the strategic political calculations of certain states. Proponents of humanitarian intervention must adhere to their internal logic to strengthen the genuine humanitarian interests, moral coherence, and legal viability of their respective positions.

On the Legality of the Russian Vetoes in the UN Security Council and the Harsh Reality of International Law: A Rejoinder to Professor Jennifer Trahan

by Mohamed Helal

[Dr. Mohamed Helal is an Assistant Professor of Law at the Moritz College of Law & Affiliated Faculty at the Mershon Center for International Security Studies, The Ohio State University.]

On April 10, 2018, Russia vetoed a UN Security Council resolution drafted by the United States that would have created a mechanism to investigate the use of chemical weapons against civilians in Syria. This Russian veto was neither unexpected nor unprecedented. This was Russia’s twelfth veto to protect its Syrian allies against UN intervention since the outbreak of the Syrian civil war over seven years ago. In 2017 alone Russia exercised its veto five times to prevent the adoption of resolutions on the conflict in Syria (on one occasion, China joined Russia in vetoing a proposed resolution). The only other veto used in 2017 was cast by the US when it prevented the adoption of a draft resolution that challenged America’s recognition of Jerusalem as the capital of Israel.

In a thoughtful piece recently posted on Opinio Juris, Professor Jennifer Trahan argued that the Russian veto was “illegal” and “illegitimate.” She also suggested that the repeated use of the veto by Russia could make it “complicit in facilitating the commission of atrocity crimes.” In this post, I will be focusing on the former claim regarding the legality of the Russian vetoes. Before proceeding, however, I should note that I seriously doubt that a vote or veto on the Security Council could constitute complicity in the commission of an atrocity crime as the concept is understood in the law of state responsibility or in international criminal law. (See generally: Miles Jackson, Complicity in International Law)

Turning now to the question of the legality of Russia’s vetoes, let me put it succinctly: Russia’s veto on April 10, and its previous eleven vetoes on draft resolutions relating to Syria, were lawful. In fact, each of the 203 vetoes (for the full list: see here) cast by the five Permanent Members of the UN Security Council since the veto was first exercised by the Soviet Union on February 16, 1946, were lawful.

To explain my position I’m going to identify and engage with the arguments that Professor Trahan put forth to support her claim that the Russian veto was unlawful:

First: Professor Trahan writes: “When the veto was drafted into the UN Charter, it was to guarantee unanimity of action by the permanent members as to the use of force.”

That is not exactly true. The purpose of the veto was not to “guarantee unanimity of action by the permanent members.” Rather, the veto was intended as a guarantee to the Permanent Members that the United Nations, acting through the Security Council, would not threaten their security or vital interests.

The experience of the League of Nations and its failure to prevent World War II were probably the single most influential factors in shaping the thinking of the founders of the UN as they designed the structure of the new organization and determined its functions, powers, and prerogatives. The creators of the UN assumed that the principal reason for the demise of the League of Nations was the fact that the Great Powers of that era either never joined the League, as in the case of the US, or were expelled from it, as in the case of the Soviet Union. Therefore, it was agreed early on among the UN’s founders, namely: Franklin Roosevelt, Joseph Stalin, and Winston Churchill, that the success of the future international organization that was to be called the United Nations (which was the name of the military alliance led by the US, the USSR, and Britain that defeated the Axis in World War II) hinged on ensuring that the most powerful states in the international system joined and remained part of the UN. The price to be paid to ensure that these powerful states consented to joining the UN and staying within its ranks was to provide assurances to these countries that the UN would never threaten their national security or their vital interests.

The assurances that were agreed and written into the UN Charter were the permanent membership of those states on the Security Council and their right to veto any resolution that they considered detrimental to their interests. These assurances, especially the veto, were non-negotiable prerequisites for the future Permanent Members, especially the US and the USSR, to join the UN. Indeed, at the San Francisco conference during which the UN Charter was negotiated, Tom Connally, a US Senator from Texas who was a member of the US delegation, told the delegates opposed to the veto in characteristically Texan bluntness that if they “killed the veto” they would also “kill the Charter.”

In addition to seeking to avoid the fate of the League of Nations, the structure and powers of the Security Council and the veto that was granted to its Permanent Members reflect a particular vision that was held by the creators of the UN regarding the nature of the international system and the prerequisites of maintaining world order. Having endured two world wars in their lifetimes, the UN’s founders assumed that the primary threat to international peace and security was conflict between the Great Powers. Other conflicts or crises may cause serious tensions and even lead to armed confrontations. Nonetheless, given their military prowess and their global political influence, it was assumed that preventing Great Power war should be the principal objective of the UN. Accordingly, the Security Council was designed as a forum to facilitate regular communications and consultations between the Great Powers. This, it was hoped, would contribute to maintaining the peaceful coexistence of those states.

That was, and remains, the logic underlying the veto and the architecture of the Security Council. That is why, as I’ve argued in a recent essay, it is a mistake to call the Security Council a collective security body. If anything, the Security Council was, and remains, a Great Power Concert akin to the Concert of Europe. It is a directorate composed of Great Powers that was intended to provide an institutional mechanism for those states to jointly oversee the operation of the international system.

Second: Professor Trahan suggests that the Russian veto represents an abuse of power. She writes: “It is time to recognize that the veto power is being abused in a way never anticipated when the Charter was drafted.” She also claims that the veto “had absolutely nothing to do with blocking investigations and/or prosecution of atrocity crimes.”

Again, I respectfully disagree. Russia, and the other Permanent Members, have exercised the veto exactly as anticipated when the UN Charter was negotiated. This is patently apparent from a careful perusal of the Charter’s travaux préparatoires. Unsurprisingly, the veto was the most controversial aspect of the UN Charter when it was being negotiated in San Francisco. Many delegations expressed misgivings about extending such a prerogative to the Permanent Members and worried about the potential for its abuse. Therefore, led by Australia’s Foreign Minister Herbert Evatt, the future UN Member States submitted a questionnaire to the future Permanent Members to invite them to clarify the limitations on the veto and the situations in which it would and would not be exercised.

In response, the future Permanent Members submitted a joint statement that revealed that the veto was designed to be a virtually limitless power to prevent the Security Council from taking any action that a Permanent Member considered threatening to its vital interests. The only notable restrictions on the veto were: (1) a Permanent Member may not prevent another UN Member State from bringing a matter to the Security Council’s attention, and (2) a Permanent Member that is a party to a dispute that is being considered by the Security Council is required to abstain from the vote on resolutions adopted under Chapter VI of the UN Charter. The rationale for these minimal limitations on the veto is encapsulated in what is probably the most important paragraph of the joint statement the future Permanent Members prepared in response to the questionnaire submitted by the other negotiating parties at the San Francisco conference. They said:

decisions and actions by the Security Council may well have major political consequences and may even initiate a chain of events which might, in the end, require the Council under its responsibilities to invoke measures of enforcement . . . This chain of events begins when the Council decides to make an investigation, or determines that the time has come to call upon states to settle their differences, or makes recommendations to the parties. It is to such decisions and actions that unanimity of the permanent members [i.e. the veto] applies

In other words, even non-forcible measures such as calling on belligerents to agree to a cease fire or condemning the use of force by a state, or even the simplest diplomatic censure, or, as in the case of Syria, calling for an investigation of allegations of mass crimes were all considered measures that could be vetoed by a Permanent Member. The theory was that, while individually those measures may seem minimally invasive or politically benign, they could “initiate a chain of events” that might ultimately threaten the security or interests of the Permanent Members.

The delegates in San Francisco immediately realized the implications of the veto. As one delegate stated: the veto made it “impossible for the Security Council to determine the existence of a threat to the peace or act of aggression by one of the Permanent Members.” Moreover, because the Great Powers could define the scope and nature of their vital interests as they pleased, it was recognized that they could freely extend their immunity from Security Council action to their allies. Indeed, the tragic irony of history is that while the UN Charter was being negotiated in 1945, Syria provided a preview of how the future Security Council would operate. Seeking to reestablish itself as a colonial power after its liberation from Nazi occupation, France was executing a brutal intervention in Syria to quell an uprising that was demanding independence from France. This intervention included aerial bombardment of Syrian cities, including Damascus, and which caused mass civilian casualties. Referring to this French aggression, the Egyptian delegate warned that “France would have been able to exercise her right of veto, had the Security Council been in existence and had France occupied a permanent seat. France could have prevented the application of any enforcement measures to stop this action.” In short, the impact of the veto and the way in which it would operate were clearly recognized and fully anticipated even before the text of the UN Charter was finalized and adopted.

Applied to the Syrian context and viewed from Moscow’s perspective, it is not politically unreasonable for Russia to expect that an investigation that could potentially attribute a chemical attack to the Syrian regime might lead to calls to create mechanisms to hold the leaders of the Syrian regime accountable for mass atrocities. These are developments that could result in a “chain of events” that could ultimately undermine Russian strategic interests in Syria and the region.

This, of course, is a tragic and inhumane outcome. I agree with Professor Trahan that it is “cold comfort to the victims.” But the harsh reality is that, viewed from an historical perspective, the Security Council’s inaction on Syria is utterly unremarkable. The Security Council is behaving according to the terms of the deal that was made in 1945. Pursuant to this deal, the Great Powers agreed to join the UN in return for an assurance that their vital interests would be protected. The price, of course, is that since the creation of the UN millions of human beings have been victimized, murderous dictators and warmongers, such as Bashar Al-Assad, have escaped accountability, and numerous countries and entire societies have suffered egregious violations of international law in places such as Hungary (1956), Egypt (1956), Czechoslovakia (1968), Afghanistan (1978-1989), Iran (1980-1988), Iraq (2003), Palestine (since 1948), etc.

That is why I believe that in dealing with the Syrian civil war, the Security Council operated exactly as it was intended to function. It prioritized the strategic interests of a Great Power – Russia – over the human costs of war. This is because the Security Council is not a global law enforcer. It is not an international 911 dispatcher. Nor is it a collective security mechanism that guarantees its members protection against aggression. The Security Council cannot, as Professor Trahan suggests, “reign in its own permanent members.” If anything, the Council is beholden to the wills and whims of its Permanent Members. This is because the Council is a Great Power Concert designed to facilitate Great Power relations and preserve Great Power peace. That is the Faustian pact at the heart of the UN Charter; a pact that has not been revised since 1945. (For more on this, see my Article titled: Am I My Brother’s Keeper? The Reality, Tragedy, and Future of Collective Security)

Third: Professor Trahan argues that the Russian veto is “at odds with other bodies of international law (such as the highest level jus cogens norms).”

Regretfully, I disagree. The prohibitions on genocide, war crimes, and crimes against humanity have undoubtedly attainted the status of jus cogens rules. These rules, however, are peremptory substantive prohibitions. That means that all states are under a jus cogens obligation not to commit genocide, war crimes, or crimes against humanity, whether on their own territory or on the territory of another state. Moreover, pursuant to this obligation, all states are required to ensure that those crimes are not committed either by non-state actors on their own territory or by non-state actors acting under their direction and control on the territory of another state.

However, there are no procedural jus cogens rules relating to the enforcement of these substantive prohibitions. In other words, while all states are under an obligation not to commit those crimes, either directly through their own agents or indirectly through non-state actors, states are not under a jus cogens obligation to prevent the perpetration of these atrocities when committed by another state on its own territory or on the territory of a third state.

This distinction between substantive and procedural obligations was at the core of the reasoning of the International Court of Justice in the Arrest Warrant Case and in the Case Concerning the Jurisdictional Immunities of the State. While both these cases related to the question of immunities, the logic underlying the distinction between substantive and procedural rules can be extended and applied to this discussion of the legality of the Russian veto. The fact that the prohibitions on atrocity crimes, such as war crimes and crimes against humanity, have attained the status of jus cogens, has not led to the development of a corollary jus cogens obligation to prevent the perpetration of those crimes when committed elsewhere. Therefore, while Russia, the other Permanent Members of the Security Council, and indeed the entire UN membership, are bound by the substantive jus cogens prohibitions on crimes such as genocide, war crimes, and crimes against humanity, these states are not under a jus cogens obligation to actively prevent the perpetration of those crimes. Moreover, it would stretch the instruments of treaty interpretation to read anything in the UN Charter as generating any such an obligation, especially given the track record of the Security Council and the practice of its Permanent Members.

As a normative matter or as de lege ferenda, one definitely hopes that international law would develop a jus cogens rule requiring states to prevent the perpetration of mass atrocities. However, such a rule definitely does not exist as lex lata. It is important to note, however, that a Russian veto in the Security Council does not affect the existing treaty-based grounds for asserting jurisdiction to prosecute or extradite alleged perpetrators of international crimes, in Syria or elsewhere. Regardless of whether the Security Council chooses to investigate the atrocities committed by the state and non-state belligerents in Syria, states parties to treaties such as the Convention Against Torture have an obligation to prosecute or extradite perpetrators of the crimes prohibited pursuant to those treaties.

Conclusion:

Let me make one thing clear. The Syrian civil war and the human suffering it has wrought is a blight on the conscience of humanity. It is a tragic and heartbreaking situation. An impartial investigation into the crimes committed by all belligerents, both local and foreign, must be undertaken. The role of foreign states in funding and fueling the conflict in Syria also deserves to be fully examined, documented, and revealed. Moreover, the crimes committed by the Assad dynasty over decades of dictatorial rule must be investigated. Nothing short of a comprehensive commission of inquiry followed by the appropriate accountability measures will suffice to begin the process of post-conflict justice and reconciliation and to achieve a sustainable peace in Syria.

Furthermore, my objective is not to defend Russia or to engage in an apology for power politics. Rather, my purpose is to clarify that criticism directed at institutions such as the Security Council or practices such as the veto are misplaced and reflect a misunderstanding of the nature of that institution. The causes of humanity and the vindication of human rights will gain little by ignoring or misunderstanding the realities of power. In fact, any realistic solution to the Syrian crisis and any chance for holding those responsible for the atrocities committed in that conflict will depend on taking the strategic interests of all Great Powers and regional players into consideration. Any other approach risks becoming a futile exercise of utopian thinking that is unmoored from the harsh political reality in which international law operates.

Roundtable on the Siege of Eastern Ghouta

by Kevin Jon Heller

I had the pleasure of participating yesterday in a superb — and long! — panel on the 2013 siege of Eastern Ghouta. The panel discussed the facts, the law, and the politics of the siege. I was joined by Hussam Alkatlaby, the Executive Director of the Syrian Violations Documentation CentreJoost Hiltermann, programme director for Middle East & North Africa at the International Crisis Group; and Robin Peeters, the Syria Policy Officer in the Dutch Ministry of Foreign Affairs.

You can watch a recording of the event on the University of Amsterdam website here.

The panel was sponsored by the War Reparations Centre at the Amsterdam Centre for International Law (ACIL); the Amsterdam Students Association of International Law; and the Syria Legal Network.

70 Years of the International Law Commission: Drawing a Balance for the Future

by Christiane Ahlborn and Bart Smit Duijzentkunst

[Christiane Ahlborn and Bart Smit Duijzentkunst are Associate Legal Officers at the Codification Division of the United Nations Office of Legal Affairs in New YorkThis post, and its sister post on EJIL:Talk!, mark the start of the seventieth session of the International Law Commission. Under the theme “70 years of the International Law Commission: Drawing a Balance for the Future”, commemorative events will be held on 21 May in New York and on 5-6 July in Geneva. In these two posts, Christiane Ahlborn and Bart Smit Duijzentkunst of the Codification Division of the United Nations Office of Legal Affairs, which serves as the secretariat of the Commission, place the role of the Commission in a historical context and discuss its promises and challenges moving forward.

This week the International Law Commission has started its seventieth session in New York. As we discussed on EJIL:Talk!, the Commission stands in the long tradition of a broader codification movement, which has pushed the development of international throughout the 19th and 20th centuries. But what is the role of the Commission today, and what will its future look like? These questions will be discussed during different commemorative events in New York and Geneva this year. Here are the five main themes that will be the focus of the debate.

  1. The Commission and its impact

The Commission has had a considerable impact on the development of international law, and on peaceful international relations more generally. From the 1961 and 1963 Vienna Conventions on Diplomatic and Consular Relations, to the 1969 Vienna Convention on the Law of Treaties and the 1998 Rome Statute of the International Criminal Court, many treaties that form the foundation of the contemporary international legal order have their origins in the work of the Commission.

Seventy years of practice has demonstrated that the Commission’s authority extends beyond the conventions it has instigated. For example, the 2001 articles on State responsibility for internationally wrongful acts remain uncodified, yet they are regularly cited and discussed in the decisions of and submissions to international courts, tribunals and other bodies, as well as in scholarship. “What is the status of the articles on State responsibility?” remains a popular query at Jessup competitions, one that has been answered in a variety of ways. Some argue that, in light of Article 38, paragraph 3(d) of the ICJ Statute, the references to the Commission’s work in judicial decisions constitute a subsidiary means for the determination of international law. Others maintain that the Commission could be considered as a “highly qualified publicist”. In addition, the outcomes of the Commission’s work often reflect customary international law.

Nonetheless, in recent years no outcome of the Commission’s work has been taken up for codification in a multilateral conference. This begs the question whether the Commission should rethink its role in the progressive development and codification of international law in the future. In fact, the Commission has already enlarged its portfolio of different work outcomes. While some projects still proceed on the basis of ‘draft articles’ (e.g. the draft articles on crimes against humanity), others are formulated in terms to guidelines (e.g. the draft guidelines on provisional application of treaties) or conclusions (e.g. the draft conclusions on subsequent agreements and subsequent practice).

  1. The working methods of the Commission

The Commission functions like a legislative drafting body. The topics on its agenda are typically assigned to a Special Rapporteur, who leads the Commission’s research, proposes texts for adoption and drafts related commentaries. The Commission debates the reports of its Special Rapporteurs in plenary and refines texts in the Drafting Committee, until they are ready for adoption. It sends all draft instruments for comments and observations to governments and possibly other institutions (“first reading”). After considering the replies, the Commission submits to the General Assembly a final text with commentaries (“second reading”), together with a recommendation for further action.

This process can produce swift results, but it may also take decades. For example, in 1972 the Commission needed only one session to adopt the articles on the prevention and punishment of crimes against diplomatic agents and other internationally protected persons. On the other hand, it took the Commission about fifty years and five Special Rapporteurs to complete, in 2001, the final set of the articles on State responsibility for internationally wrongful acts.

There are several reasons why the Commission may be less agile than a domestic legislator: it only meets part-time and typically adopts outcomes by consensus, rather than by vote. Still, given the more diversified nature of the outcomes of the Commission’s work, and changing practical needs of States, international organizations and other stakeholders interested in the Commission’s work, should the Commission revise its working methods? The Commission has continuously adapted its methods of work to face new challenges, and its 70th anniversary might offer another opportunity to suggest revisions.

  1. The function of the Commission: How much identifying existing law, how much proposing new law?

The Commission is mandated to promote the “progressive development of international law and its codification”. Article 15 of the Commission’s Statute defines progressive development as “the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States” and codification as “the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine.” In practice, most of the projects of the Commission have involved both aspects of its mandate and the Commission is often hesitant to indicate on which process it relies in specific cases.

Despite the Commission’s reluctance to draw the distinction, the tension between progressive development and codification continues to be the subject of debate in both scholarship and practice. This raises the question whether the distinction between progressive development and codification of international law should be drawn more explicitly, if feasible at all. Is it easier to make the distinction for some topics than for others? And should the Commission emphasize the consolidation of existing law, or should it emphasize the development of new law?

  1. The changing landscape of international law

At its first session, in 1949, the Commission reviewed, on the basis of the survey of international law prepared by the Secretariat, 25 topics for possible inclusion in a list of topics for study. Following its consideration of the matter, the Commission drew up a provisional list of 14 topics selected for codification. With the exception of “Recognition of States and Governments” and “Jurisdiction with regard to crimes committed outside national territory”, the Commission has directly or indirectly considered all of these topics (see the analytical guide to the work of the Commission for an overview of all topics).

The world of international law today is quite different than that of 1949, in part thanks to the Commission’s codification efforts. During the past 70 years, the Commission – with the help of its Secretariat – has kept abreast of on-going developments in international law. Yet like all of us, the Commission faces rapid changes in international relations and in technological capabilities, often requiring novel approaches and scientific expertise. New domains – cyberspace, the polar regions, maritime areas beyond national jurisdiction – and new actors – international organizations, individuals, or corporations – challenge the Commission to constantly rethink its priorities. The Commission has demonstrated its awareness of contemporary challenges, for example by drafting articles on the law of transboundary aquifers, by taking up the topic “Protection of the atmosphere”, and by adding the topic of “Protection of personal data in transborder flow of information” to its long-term programme of work. Participants to the commemorative events for the Commission’s 70th anniversary will further consider how the changing landscape of international law affects the Commission’s substantive work going forward.

  1. The authority and the membership of the Commission in the future

The authority of the Commission depends on various factors, including its membership and its status as a subsidiary organ of the General Assembly. Since its establishment, the membership of the Commission has been enlarged from 15 in 1949 to 34 members at present. The members are elected, in their personal capacity, by the General Assembly for a five-year term, with due consideration to equitable representation of the five regional groups at the United Nations. The equitable regional representation distinguishes the Commission from other codification bodies and ensures that the Commission incorporates different legal traditions and perspectives. Candidates for membership are drawn from the various segments of the international legal community, such as academia, the diplomatic corps, government ministries and international organizations. As the members typically serve in other international law-related professions, the Commission remains in close touch with the realities of international life.

Nonetheless, the Commission faces some challenges with regard to its composition. Perhaps most prominent is the severe underrepresentation of women in its membership. The number of women on the current Commission is four – twice as many as in the previous quinquennium, but still less than 12 per cent of its total membership. In 70 years, the Commission has had only seven female members and one woman as its Chair (Ms. (now Judge) Hanqin Xue in 2010). As the nomination of candidates lies with United Nations Member States, it is for the nominating States, the General Assembly and the Commission together to improve the gender balance among its ranks. Other issues that might be considered during the commemorative events are how the Commission could enhance its relationship with the General Assembly, in particular its Sixth (Legal) Committee; and how the different legal traditions, regional origins, and professions of its members influence its work.

Indigenous Justice Systems: Canadian Legislation for Implementing the UN Declaration

by Matt Pollard

[Matt Pollard is a Senior Legal Adviser for the International Commission of Jurists (ICJ) in Geneva, Switzerland.]

The Canadian Parliament is currently considering Bill C-262, “An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples”. The draft legislation is a “private member’s bill” introduced by an individual Member of Parliament from the opposition New Democratic Party (NDP), but the governing Liberal Party announced it supports the legislation and it is currently being reviewed by the relevant Parliamentary Committee.

The legislation, as currently drafted, does not itself specify the changes that would be necessary for Canadian law to be brought in line with the Declaration. In its three main operative provisions it:

  • “affirms” the UN Declaration “as a universal international human rights instrument with application in Canadian law” (article 3);
  • requires the Government of Canada, “in consultation and cooperation with indigenous peoples in Canada” to “take all measures necessary to ensure that the laws of Canada are consistent with” the Declaration (article 4);
  • requires the Government of Canada to “in consultation and cooperation with indigenous peoples, develop and implement a national action plan to achieve the objectives of” the Declaration (article 5).

The adoption of the law would mark a significant reversal from Canada’s position a decade ago at the time of adoption of the Declaration by the UN General Assembly (resolution 61/295), when Canada was one of only four States to vote against (with Australia, New Zealand and the United States). If and when enacted, the Bill would launch a far-reaching and complex process of consultation, review and legislative amendment, which would undoubtedly include further controversies and take some years. But it is a process that is equally undoubtedly long overdue.

These developments are of particular interest to me as a (Canadian) lawyer working at the International Commission of Jurists (ICJ), an international non-governmental organization of judges and lawyers based in Geneva, where I represent the ICJ at the United Nations and lead the ICJ’s global legal and policy work on the independence and accountability of judges, lawyers and prosecutors. The ICJ is itself in the midst of a global project to research and develop legal and policy guidance about the role of traditional and customary justice systems, including indigenous justice systems.

The ICJ project is considering how traditional and customary justice systems can contribute to improving access to justice and fulfilling cultural and other rights, including for members of indigenous peoples. At the same time, the project aims to identify and help address potential conflicts between traditional and customary justice systems and international human rights and rule of law standards.

The link between the ICJ’s ongoing work and the draft legislation in Canada comes through several articles of the UN Declaration, which provide as follows (emphasis added):

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 34

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

Article 40

Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.

It should also be noted that in addition to the references to international human rights in these specific provisions, the Declaration as a whole is subject to the following provision:

Article 46

  1. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.

  2. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.

A number of UN human rights mechanisms and other international instruments have highlighted both the potential – or even the necessity – for States to enable and respect indigenous and other traditional and customary justice systems in order to fulfill access to justice (including under UN Sustainable Development Goal 16) and other civil, political, economic, social and cultural rights. These same sources also highlight that States must ensure that such systems do not adversely impact the enjoyment of human rights, including particularly the human rights of women and children. (The ICJ has recently published an extensive compilation of these international sources on traditional and customary justice, as well as a report based on an initial set of consultations, with additional background available here.)

Development agencies, inter-governmental organizations, NGOs, academics, and local judiciaries, legal professionals, and prosecutors in many countries are providing resources, engagement and efforts to achieve these aims, as well as to better coordinate between indigenous justice systems and the justice systems operated by State institutions. (In Canada, several projects are already underway to document, recover and re-establish indigenous legal systems: see for instance the Indigenous Law Research Unit at the University of Victoria, British Columbia. Indeed, later this year the University plans to offer, for the first time, a joint degree program in Canadian Common Law (JD) and Indigenous Legal Orders (JID).)

Constructive engagement by the full range of actors described above with decision-makers in traditional and customary justice systems, has been highlighted as an essential element of any approach that seeks to see such systems fulfill their positive potential, while ensuring their consistency with international human rights standards. Bill C-262 holds considerable potential to push such processes forward in Canada.

Yet, as the ICJ’s initial report notes, experience from other countries demonstrates that constructive engagement does not always immediately yield clear answers to some difficult problems, and presumably some of these may require particularly careful and creative deliberation, by indigenous and non-indigenous decision-makers alike and together, in the Canadian context as well. While recognizing the diversity between different traditional and customary justice systems around the world, and indeed the diversity that can exist within a particular country, the kinds of challenges encountered in other contexts include:

  • How far should such justice systems be expected to meet international (or national) fair trial standards in terms of the selection of decision-makers, access to legal assistance, and procedural safeguards? As one example, hereditary decision-making roles are difficult to reconcile with article 10 of the UN Basic Principles on the Independence of the Judiciary (“In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status…”).
  • Should such justice systems be “limited to minor civil and criminal matters”, as the Human Rights Committee has suggested is necessary to ensure conformity with the International Covenant on Civil and Political Rights? Often such systems are seen as particularly culturally relevant for matters typically covered by family law, and at the same time it is precisely such family law matters that may have particularly major impacts – positive or negative – on the rights and lives of women and children.
  • Should every party to a conflict before such justice systems have the right to “opt out” in favour of the State justice system for any reason they wish, or does respect for the role and integrity of such systems mean that the laws of the State should empower such systems to enforce participation? How should State institutions react when an individual claims that he or she requires protection from a traditional system that allegedly threatens or violates his or her human rights or constitutional rights, but the traditional system and community it serves takes the position that intervention by State institutions will be inconsistent with the role and integrity of the traditional system?
  • Should the jurisdiction of such systems be restricted to persons belonging to the relevant community, group, or nation, or should they have jurisdiction as well over other persons for actions in or affecting the territory?

It remains to be seen whether and to what degree similar questions will arise in the Canadian context. Experience from other countries, positive and negative, may be something decision-makers in Canada would find useful to add to their considerations. Several United Nations expert mandates (the Special Rapporteur and the Expert Mechanism on the rights of Indigenous Peoples, for example) could be important sources to consult for global and comparative perspectives. The process of adoption and implementation of Bill C-262, and the ongoing work of the Indigenous Law Research Unit and similar initiatives, will undoubtedly provide important insights and experience and solutions that may be of interest in other national contexts around the world, and will certainly help inform the ICJ’s own ongoing development of global legal and policy guidance. We will be watching developments in Ottawa, and across the country, with considerable interest from Geneva.

CJEU Confirms That EU Law on Family Reunification Should Be Accessible and Effective for Unaccompanied Children

by Karolina Babicka

[Karolína Babická is a Legal Adviser of the International Commission of Jurist’s Europe Programme.]

European Union (EU) law has in the last two decades shaped and to some extent also harmonized national legislation governing asylum and migration in EU member states. This month, the Court of Justice of the European Union (CJEU) has once again set out the very strict limits on the “margin of appreciation” when it comes to the right to family life and family reunification stemming from the EU Family Reunification Directive (Directive 2003/86). In the recent case C-550/16 A. and S. v Staatssecretaris van Veiligheid en Justitie it confirmed that the aim of the directive is to promote family reunification and highlighted the importance of the principles of equal treatment and legal certainty.

The CJEU had previously clarified that the Directive requires Member States, in specific cases, to authorize family reunification of certain members of the sponsor’s family, without being left any margin of appreciation (Case C‑540/03 Parliament v Council, para 60). The Court has clarified that the provisions of the Directive on Family Reunification require that States ensure that family reunification is the general rule (C-578/08, Chakroun case, para 43) and that the Directive is “interpreted strictly”. The interpretation of the provisions of the Directive should not deprive them of their effectiveness and the CJEU also highlighted that States must “examine applications in the interest of children and with a view to promoting family life” (O., S. & L., Joint Cases C-356/11 and C-357/11).

The Family Reunification Directive was adopted in 2003, when the three pillars of the EU were still in place and the co-decision procedure did not apply to the migration and asylum area. It was therefore adopted by the Council (EU Member States) only, without a decision-making power of the European Parliament. It has been criticized for granting a vast margin of appreciation to states and reveling in “may clauses,” but as the CJEU step-by-step clarifies, there are limitations to the States’ margin of appreciation.

  1. A. and S.

On 12 April 2018, in the decision in the A. and S. case, the Court clearly stated that unaccompanied minors who attain the age of majority during the asylum procedure retains their right to family unification (C-550/16, A. and S.). States do not have a margin of appreciation to limit their right to family reunification of children with their parents, if they entered the State as children and got a confirmation of their status by the State once they were already adults.

In this case, a 17-year-old Eritrean girl, who had arrived unaccompanied in the Netherlands, lodged an application for asylum. She turned 18 about four months later, during the procedure, and in another four months the State Secretary for Security and Justice in the Netherlands, granted her a residence permit for persons granted asylum, valid for five years, with retroactive effect from the date on which her application for asylum was submitted. Two months later she asked for family reunification with her parents and three minor brothers, which was refused to her by the Dutch administration on the grounds that she was already an adult, who according to the Directive does not have the right to family reunification with parents.

The District Court of The Hague, where she appealed, decided to stop the proceedings and to refer a question to the Court of Justice for a preliminary ruling, asking whether a child entering and asking for international protection in an EU Member State attaining majority during the proceedings, shall be still seen as a child for the purpose of family reunification, once (s)he applies for it.

In its decision, the CJEU recalled the primary objectives and principles of the Directive, as it had already done previously in judgments Chakroun and O., S. & L. In particular, it reiterated that the primary objective of the Directive is to promote family reunification, to provide special protection to refugees and unaccompanied minors in particular and to observe the principles of equal treatment and legal certainty.

The Court recalls that for a uniform application of EU law and the principle of equality, a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union. That interpretation must take into account, inter alia, the context of the provision and the objective pursued by the legislation in question (Ouhrami, C‑225/16, para 38).

In a number of EU countries, the laws and administrative rules do not allow children who turn 18 during the asylum procedure to then apply for family reunification with their parents, as in that moment they are already adults. Such policies have been continuously criticized by civil society, and UN agencies, a suspicion of prolongation of asylum proceedings beyond the age of 18 of the applicant has been there, and this practice of State administrations has been seen as a measure to limit the right to family reunification of children.

The CJEU rightly points out that “the duration of an asylum procedure may be significant and that, in particular (…) the time limits laid down in that regard by EU law are often exceeded, to make the right to family reunification depend upon the moment when that procedure is closed would be likely to deny a substantial proportion of refugees who have submitted their application for international protection as an unaccompanied minor from the benefit of that right and the protection that Article 10(3)(a) of Directive 2003/86 is intended to confer on them.“ (para 57)

The Court recalls the principle of legal certainty as it would be “entirely unforeseeable for an unaccompanied minor who submitted an application for international protection to know whether he or she will be entitled to the right to family reunification with his or her parents“ (para 59) if the decisive moment would be the date when she or he submit their application for family reunification (which can only be the case after the refugee determination procedure has been completed).

The CJEU adds that this right would not be there indefinitely, but in principle the application for family reunification should be submitted within a period of three months of the date on which the ‘minor’ concerned was declared to have refugee status.“ (para 61)

Paragraph 55 of the current case A. and S. makes it clear that if the right to family reunification would depend on the person’s age upon the moment at which the State recognizes the refugee status of the person, it would leave the outcome dependent on how quickly or slowly the application for international protection is processed. That “would call into question the effectiveness of that provision and would go against not only the aim of that directive, which is to promote family reunification and to grant in that regard a specific protection to refugees, in particular unaccompanied minors, but also the principles of equal treatment and legal certainty.“

Conclusions and impact in other jurisdictions

This decision is in line with the obligation to take the best interests of the child as a primary consideration in all acts involving the child. States have positive obligations to ensure children’s effective enjoyment of their right to respect for family life. Under both EU and international law, the child’s best interests must be the primary consideration by all judicial and administrative authorities in any decision related to the child’s right to respect for his/her family life. The UN Committee on the Rights of the Child and the UN Committee on the Rights of Migrant Workiers in their Joint General Comment on children in the context of international migration (No. 4 and 23, para 32) stress that countries should facilitate family reunification procedures in order to complete them in an expeditious manner, in line with the best interests of the child. In line with the EU Charter, the best interests of the child have to be taken into account and respected (Article 24) as well as the right to private and family life (Article 7) and prohibition of discrimination (Article 21.1).
The European Commission (whose opinion in this case was different from the Court´s decision, asserting that the decisive moment is the time when the person applies for reunification (A. and S., para 30)) issued in 2014 Interpretative Guidelines for the Family reunification directive. There it specified that criteria for the conditions for family reunification adopted may not be discriminatory and that criteria used by Member States must be transparent and clearly specified in national legislation. The current judgment should carry significant implications for national legislators in this sense.
There are a number of further obstacles that Member States put forward in order to limit family reunification of migrants. These include a requirement that spouses must be more than 18 to reunite, various financial and material conditions that sponsors have to fulfill, and pre- and post- integration measures. As the International Commission of Jurists has found through its work to advance access to justice for migrant children in the EU through the Fostering Access to Immigrant children’s Rights (FAIR) project, limitations on family reunification have a particularly adverse impact on migrant children.
For instance in Germany, the access to family reunification for beneficiaries of subsidiary protection has been seriously hampered by a temporary measure disallowing family reunification to all such beneficiaries. A two-year suspension on family reunifications was introduced in 2016 for persons entitled to subsidiary protection. Refugees who were officially granted this protection after March 17, 2016, now have to wait until July 31, 2018, before they can even apply for family reunification.
Consequently, even children with subsidiary protection status currently have no option to demand lawful immigration of their parents for the purpose of family reunification. The recast Qualification Directive (covering both refugee and subsidiary protection status) provides that Member States shall ensure that family unity can be maintained. The Family Reunification Directive governs the family reunification practice and procedure for refugees and the CJEU has found in the Chakroun case that it established a right to family reunification. In Alo and Osso (Joined Cases C-443/14 and C-444/14) the CJEU declared that the Geneva Refugee Convention is also to be used as interpretative guidance in cases involving subsidiary protection beneficiaries. The CJEU found that the applicable provision in the Qualification Directive (freedom of movement, Article 33) does not specifically allow for differences in treatment between refugees and subsidiary protection beneficiaries, and as such should be treated in a similar manner (unless it could prove that they are not in a comparable situation). By analogy, the relevant provision in the recast Qualification Directive relating to family unity, Article 23, does not provide for a difference of treatment, and as such should be treated in a similar manner.
Germany also seems to claim that the case A. and S. against the Netherlands is not applicable in all EU member states, as the Dutch authorities grant refugee status retroactively. This only calls for a reiteration that the recognition of refugee status by a State party to the Geneva Refugee Convention (to which all EU Member States are parties) is always of a declaratory character.

It would be interesting to see a CJEU preliminary ruling in this case.

Why Art. 4(h) of the AU’s Constitutive Act Does Not Support UHI

by Kevin Jon Heller

I like much of what Jennifer Trahan says in her recent post about the permanent veto. But I would take issue — unsurprisingly — with her claim that “there is in fact more past precedent for reliance on the doctrine of humanitarian intervention than is often recognized, including not only NATO’s 1999 intervention in Kosovo, but also African and Arab practice.” There is no need to belabour the Kosovo argument, which I have already criticised in my response to Harold Koh. Instead, I want to focus in this post on the idea that African practice provides support for a customary right to unilateral humanitarian intervention (UHI). That idea seems to be popping up with more regularity these days, as those who believe UHI should be legal cast about for a plausible argument to that effect. Marc Weller, for example, recently made a similar claim in his intemperate response to Marko Milanovic’s recent post at EJIL: Talk! on the illegality of the Syria attack:

Moreover, the African Union has in fact formally committed itself to the doctrine in its own constitutive treaties–an act that destroys the presumption that the use of force for humanitarian purposes would necessarily violate the prohibition of the use of force.

Weller is referring to Art. 4(h) of the Constitutive Act of the African Union, which has been ratified by all 53 African states have signed the Act. Art. 4(h) permits the AU’s Assembly of Heads of State and Government of the Union to authorise the use of force against a Member State that is responsible for the commission of international crimes:

The Union shall function in accordance with the following principles… (h) the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity.

Properly understood, however, Art. 4(h) of the Constitutive Act provides no support whatsoever for the legality of UHI. To see why, it is useful to begin by explaining why the case for a customary rule permitting UHI is not supported by humanitarian uses of force authorised by the Security Council under Chapter VII of the UN Charter. The reason is straightforward: the essence of UHI is that the state being attacked does not consent to force being used on its territory, and all states consent to the possibility of the Security Council authorising the use of force on their territory when they ratify the Charter. The relevant provisions are Art. 24(1) and Art. 25:

Article 24

  1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

Article 25

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Because of Art. 24(1) and Art. 25, humanitarian intervention authorised by the Security Council under Chapter VII is by definition legally consensual — even if the state being attacked is politically opposed to the use of force on its territory.

For similar reasons, humanitarian intervention authorised by the AU’s Assembly of Heads of State and Government of the Union pursuant to Art. 4(h) of the Constitutive Act cannot be non-consensual. By ratifying the Constitutive Act, all AU members have empowered the Assembly to authorise the use force on their territory to stop the commission of international crimes. They may not like that use of force, but they have consented to it.

Humanitarian intervention authorised by the AU, therefore, no more supports the customary legality of UHI than humanitarian intervention authorised by the Security Council. In each case, the use of force in question is authorised by a supranational organisation acting on the basis of the consent of the parties that have ratified its founding treaty. That is the antithesis of the nonconsensual use of force — the constitutive feature of UHI.

The Narrow Case for the Legality of Strikes in Syria and Russia’s Illegitimate Veto

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

On April 13, the US, UK and France launched a barrage of missiles at three chemical weapons-related sites in Syria, in response to the most recent attack in Douma, part of a long series of chemical weapons attacks, attributed to the regime.

The UK has set forth its legal position on the strikes, justifying them as “humanitarian intervention,” while France and the US asserted the legality of their action without articulating a legal theory (nor did the US articulate any legal theory for its similar 2017 strike). There is of course no justification for three permanent members of the Security Council to use force at will, so there needs to be a basis under international law. The UN Charter only clearly permits use of force under two exceptions: (1) UN Security Council Chapter VII authorization, and (2) the right to self-defense under UN Charter article 51. A third scenario where force is also permissible is consent of the host country. None of these three scenarios appears applicable in the current instance.

While some have already blogged that there was no legal basis for the recent military strike in response to the Assad regime’s latest use of chemical weapons (including Kevin Jon Heller on Opinio Juris), there is in fact more past precedent for reliance on the doctrine of humanitarian intervention than is often recognized, including not only NATO’s 1999 intervention in Kosovo, but also African and Arab practice. And the recent use of force has received support, again not only by the “West,” but by the Gulf Cooperation Council, to name an example. Though this support was not based on a legal theory, it is nonetheless significant.

On the question of legality, there appears a split between those states and scholars who take the view that humanitarian intervention is (1) under a strict reading of the Charter, never legal, (2) fully legal, or (3) in line with practice and an updated reading of the Charter sufficient that it falls into at least a “grey area” of legality. (See my article substantiating this third position.)

Why do we have this split in views on humanitarian intervention? It goes back (at least) to Kofi Annan in 1999 asking the very important question: “if in those dark days and hours leading up to the [1994] genocide [in Rwanda], a coalition of states had been prepared to act, in defense of the Tutsi population but did not receive prompt Council authorization, should such a coalition have stood aside and allowed the horror to unfold?” While early formulations of the doctrine of the “responsibility to protect” (R2P) were quite encouraging, later formulations appear to answer the question by emphasizing both the duty to act in the face of atrocity crimes, but the need for Security Council approval for forceful intervention. To this author, R2P then gives a disappointing answer to Kofi Annan’s question of what to do in the event of Security Council paralysis, by responding that one waits for the Security Council to act. In the face of mass atrocity crimes, this is cold comfort to the victims.

A large number of states have now come forward over the last decade and a half to ask the permanent members to pledge themselves to veto restraint in the face of atrocity crimes (genocide, crimes against humanity and war crimes). Important initiatives in this respect include the ACT Code of Conduct, and the French/Mexican initiative. It is however concerning that only two permanent members of the Council, the UK and France, have taken this pledge. One might well ask: if the US cared enough about the Syrian victims and Assad regime’s chemical weapons use to engage in a military strike, then perhaps it could also take this simple pledge not to use its veto in the face of atrocity crimes?

Aside from legal questions as to the strike and whether or not it met appropriate criteria of legitimacy (as well as why the US is not doing more to solve the Syrian crisis or admit Syrian refugees as Harold H. Koh well asks), let us recognize that we are in a place we should never have reached. First, the Assad regime should never have been using chemical weapons against its own people in violation of multiple treaties banning them (nor committing countless other atrocity crimes that don’t always draw an equal share of the headlines). Second, Russia, sometimes joined by China, should never have been using its veto to block investigations as to chemical weapons use, to condemn their use (and other indiscriminate weapons use) or referral of the situation for prosecution, in the face of widely acknowledged crimes against humanity and war crimes. (Allowing investigations or prosecution, or issuing condemnation, does not directly halt the commission of atrocity crimes, but at least it communicates: “the world is watching and accountability is coming,” when the veto in such circumstances conveys exactly the opposite.)

When the veto was drafted into the UN Charter, it was to guarantee unanimity of action by the permanent members as to the use of force. It had absolutely nothing to do with blocking investigations and/or prosecution of atrocity crimes. It is time to recognize that the veto power is being abused in a way never anticipated when the Charter was drafted, and in a way that is at odds with other bodies of international law (such as the highest level jus cogens norms) and the “purposes and principles” of the UN Charter, with which the Security Council (including its permanent members), are bound, under article 24.2 of the Charter, to act in accordance.

Whether the Security Council is to be seen in the future as an effective and credible institution will depend in part on whether it can reign in its own permanent members’ behavior when they utilize the veto, or threat of veto, in the face of mass atrocity crimes. Those permanent members engaging in such actions appear to fail to recognize that, in addition to being complicit in facilitating the commission of atrocity crimes, they are undermining the Council itself. This behavior then force the US, UK and France into taking action that is worrying to many other states for its potential of pretextual or abusive invocations. The argument of abuse is not ultimately, however, fully convincing: does anybody argue we should do away with the right of self-defence because it is sometimes abused, for instance, by Turkey in Syria? But of course unilateral humanitarian intervention should, ideally, never prove necessary. And if would not if we didn’t have illegal vetoes.

Escalation of Violence in Bangui: Has MINUSCA Become Party to a Conflict in CAR, and What Would That Mean?

by Bianca Maganza

[Bianca Maganza is a PhD candidate in International Law and a Teaching Assistant at the Graduate Institute of International and Development Studies in Geneva.]

Some days ago, the United Nations Multidimensional Integrated Stabilisation Mission in the CAR (hereinafter, MINUSCA) got involved in heavy fire exchange with an armed group known as KM5 in Bangui, the capital of the Central African Republic (hereinafter, CAR). Security in CAR is rapidly deteriorating since some weeks, and accidents such as the one just mentioned are becoming, if not the norm, for sure no longer the exception. Indeed, it is not the first time that a situation of direct confrontation between the UN mission and the rebels arises. Although facts are not fully confirmed and the situation is still unfolding at the time of writing, it seems worth considering the consequences that the episode may entail under international humanitarian law (hereinafter, IHL).

The issue of the role played by IHL in the context of so-called peace operations is a much-debated and complex one (see, for example, the recently published Leuven Manual on the International Law Applicable to Peace Operations). Crucial aspects such as those related to the consequences of the application of IHL on issues of targeting and on the international prosecution of crimes committed in relation to the situation have been brilliantly covered elsewhere, and I will not discuss them here. The same is true for jus ad bellum considerations vis-à-vis the mandate and the evolution of traditional peacekeeping into “stabilisation” missions. While the main case study in this respect has so far been that of MONUSCO in the DRC, in particular as regards its Intervention Brigade, it has been rightly claimed that MINUSCA is the new frontier for such discussion.

In this post, I want to focus on a specific aspect of the situation, namely the possibility that – provided that some factual circumstances are reached – a multinational mission spearheaded by the UN becomes as such party to a conflict with the armed group against which it is fighting. This case is different from the one following the so-called support-based approach developed by Ferraro, which I am not discussing here. Although the fact that IHL may apply to situations in which a multinational operation is involved is nowadays accepted, states and international organisations are generally reluctant to admit that a peace operation has become party to an armed conflict. Such possibility has been often discussed but frequently let sink through the lines and rarely tackled head on. If, on the one hand, the capacity of a multinational operation to become party to the conflict is often taken for granted, the concretisation of such a possibility is on the other hand never explicitly acknowledged in terms of its consequences.

The facts that recently took place in Bangui provide the occasion to discuss the legal significance of such a case.

The facts

After the failure of a first attempt undertaken some days before, in the night between 7 and 8 April 2018, what was announced as joint law enforcement operation of MINUSCA, the Central African Armed Defense Forces (FACA) and the Internal Security Forces (ISF) aimed at disarming and arresting some criminal groups in the PK5 area of Bangui turned into violent fire confrontation between the armed groups and the mission.

According to the press statement released by MINUSCA, at a given moment, “heavily armed elements of criminal groups in the area deliberately fired on international forces, prompting a return of fire to push these elements back”. According to other sources, it is the MINUSCA contingent that entered the area shooting in the first place. As a result, eight peacekeepers were wounded, and one died. Some civilian casualties are also reported. In any case, it is quite clear that the operation was not a success for MINUSCA: for the second time in a matter of few days, the contingent had to leave the area and had been the object of subsequent attacks.

A conflict between MINUSCA and the armed group?

Regardless of who started the fire exchange, it is more than legitimate to ask whether the threshold for IHL applicability has been reached with the incident of 8 April – if not even before. In fact, despite the careful employment of the language of law enforcement in MINUSCA’s press releases – referring to “criminal groups”, “gangs” and “disarmament operations” – the reality on the ground seems to point to another direction.

Working on the hypothesis that a conflict, if any, ought to be a NIAC due to the involvement of non-state armed groups against the contingent spearheaded by the UN, the situation has to be analysed under the two criteria of intensity of hostilities and organisation of the parties as developed by the ICTY in the Boškoski case.

Intensity

Applying the first prong of the test to the single incident under analysis, video footage clearly shows MINUSCA troops engaging the area through the use of heavy weaponry. The presence of civilian casualties and fleeing civilians, if confirmed, is a further factor to consider when assessing the intensity of the armed confrontation. The episode must be assessed against the broader background of the situation in CAR. The general secrecy regarding the number, details and nature of MINUSCA operations cannot hide the fact that incidents like the one discussed here are not isolated but had already happened and keep happening in the country. The recent security deterioration in the area and the repeated, unsuccessful attempts by MINUSCA to seize the neighbourhood testify to the seriousness of the situation. The situation remains unchanged after the incident of 8 April, and following the main incident the mission has been the object of subsequent attacks in another area of the city. It is highly probable that the mission will attempt yet another operation to gain control of the neighbourhood – possibly, deploying more force to be able to finally overcome the enemy.

In light of the above, it seems at least plausible to argue that the intensity level has been reached either regarding the single attack under analysis – in fact, a NIAC can be a matter of hours or days (see, in addition to the case law of the ICTY, Abella v. Argentina, known as “La Tablada” case, before the Inter-American Commission of Human Rights) – or as a result of the series of episodes involving MINUSCA and the armed group since some time. Assuming that this is the case, for the sake of argument, the next step is an assessment of the organisation of the parties involved.

Organisation of the parties

That of organisation of the parties contains in itself the two other interdependent criteria of control over the troops and capacity to comply with the rules of war – both in abstract, through a disciplinary system and chain of command, and through the concrete possibility of respecting the most basic principles such as those of distinction and precaution. These seem, to me, the features that differentiate a collective entity having the capacity to become party to a conflict from a random group of individuals involved in armed violence.

Most of the analyses of situations of multinational operations potentially involved in an armed conflict stop at the assessment of the organisation of the armed group for the sake of establishing the existence of a NIAC. However, it seems to me that the only way to fully satisfy the test is to apply the analysis to both sides. As evident as the result may be, to be able to claim that MINUSCA has become party to a conflict with KM5, one shouldn’t stop at whether the armed group is sufficiently organised to reach the threshold of a NIAC but also ought to address the features of the mission itself.

In the case at stake, it seems undeniable that KM5 shows and deploys a considerable amount of organisation. To a certain extent, it can be argued that it even controls the neighbourhood known as PK5: it was indeed following continuous requests by the residents of the area that MINUSCA decided to act to disarm the armed group and try to “liberate” PK5. As we have seen, MINUSCA attempted to take the neighbourhood back more than once, without success. As for elements of control, KM5 is organised in auto-defence patrols, therefore showing capacity to coordinate action and logistics, and acts in execution of the orders given by its leader, Nimery Matar (known as “Force”), who even recently released a video declaring to be ready to fight in case MINUSCA would have dared entering the area he controls. While we would need more facts to weigh the group’s potential compliance with IHL, the existence of a command structure can arguably point to such abstract capacity.

When it comes to the UN mission, all three accounts seem equally warranted. The mission has by definition a clear organisational structure and a chain of command. Moreover, respect for IHL is part of its mandate and generally warranted by the 1999 UN Secretary General’s Bulletin. Even though the Status of Forces Agreement (hereinafter, SOFA) between MINUSCA and CAR is not publicly available, respect for IHL is included in the model UN SOFA and usually reflected in single SOFAs concluded with host countries.

MINUSCA as party to a conflict

The purpose of this post is not directly that of taking a position on whether or not the situation in CAR amounts to an armed conflict between MINUSCA and the armed group against which it is fighting. Even though the facts reported above seems to point to a considerable level of intensity, full confirmation of what happened is still awaited and sources are scattered and not always reliable. My point is rather that, in case the required intensity threshold is reached, both sides have the capacity to become parties to a conflict.

The main consequence of considering MINUSCA as party to an armed conflict – a NIAC, in this case – would be that the mission as a whole is bound to respect at least the provisions of CA3 plus any other customary international law rule deemed applicable to the situation. More specifically, MINUSCA would have to respect and ensure respect for IHL by its armed forces and other persons or groups de facto acting on its instructions, or under its direction or control (Rule 139) and train its armed forces in IHL (Rule 142). These obligations seem particularly relevant in light of the problems often posed by issues of legal interoperability in the context of multinational operations. Seeing the mission as one single entity for the sake of IHL would allow deeming it responsible for the training and subsequent conduct of its peacekeepers independently of – but not in contradiction with – the repartition of command and control between the international organisation and troop contributing countries. Concretely, this would mean that, in addition to the obligations of each troop contributing country, the UN should take the responsibility of substantively training the contingent and making sure it respects and applies the same rules of IHL as whole, instead of a patchwork of obligations deriving from the law applicable to single member states. Arguably, such a scenario does not differ too much from what already happens in practice through the joint training of peacekeeping missions before deployment, and the respect of a basic, uniform set of IHL rules is the aim of the Secretary General’s Bulletin. However, the idea that those obligations might directly derive from the status of party to the conflict under IHL sounds very unlikely to be accepted for the consequences it might entail when it comes to issues of attribution and allocation of responsibility for wrongdoings between the member states and the international organisation. For all that, it seems undeniable that acting under a unified legal framework has the potential for being a game changer at least in terms of prevention of violations of IHL.

No less important consequences derive from the potential role of MINUSCA as a party to the conflict under international criminal law. As aptly noted by Labuda, although the UN keeps denying the existence of an armed conflict between the mission and the armed groups in CAR, it at the same time reiterates that any attack against peacekeepers may amount to a war crime. Leaving aside the contradictory nature of statements of this kind, what is interesting is that incidents such as the one of 8 April are likely to fall under the jurisdiction of the recently established Special Criminal Court for CAR. Further judicial pronouncement is needed to shed some light on the features of the crime of attacking peacekeepers in a situation of armed conflict. The premise that because of the status of a peacekeeping mission as party to the conflict members of its military branch could be targeted as forming part of the armed forces thereof has never, so far, been accepted in the case law of international criminal tribunals. Will the Special Court choose to do so, indirectly saying the unsaid? We will need to wait and see if the whispered possibility of considering a UN mission as a party to the conflict will be finally made explicit in such a way.

A Letter to Israel About Its Plans to Forcibly Deport Africans

by Kevin Jon Heller

Opinio Juris readers might be interested in this letter from GLAN Legal — the Global Legal Action Network — to the Presidents and Attorneys General of Israel and Uganda. It was written by Itamar Mann, Yannis Kalpouzos, and Omer Shatz, with input from me. Here is the introduction:

The Global Legal Action Network (GLAN) is an organization of lawyers initiating transnational human rights litigation around the world. Our focus is on cases in which “developed” countries are responsible for violations occurring in “developing” countries. We write to respectfully warn both Israel and Uganda that the forcible deportation plan currently being discussed for Eritrean and Sudanese asylum seekers living in Israel may amount to a crime within the jurisdiction of the International Criminal Court (ICC).

The letter then proceeds to lay out the basics of the argument — which seems pretty unimpeachable to me. Note the reliance on the OPT’s recent argument concerning deportation from Myanmar to Bangladesh!