Recent Posts

The ICC and Israel: Prosecuting the Punitive Demolition of Palestinian Homes – Part 2

by Elvina Pothelet

[Elvina Pothelet is a Visiting Researcher at the Harvard Law School and a Ph.D. candidate at the University of Geneva. This is the second part of a two-part post. Part one can be found here.]

Part 1 of this post argued that Israel’s policy of punitive demolitions of Palestinian homes may amount to a grave breach under Art. 8(2)(a)(iv) of the Rome Statute. Part 2 explores alternative qualifications under the Statute and argues that a case on punitive demolitions before the ICC would likely pass the admissibility tests of complementarity and gravity.

Alternative qualifications

In addition to the grave breach qualification under Art. 8(2)(a)(iv), the punitive demolitions could also amount to the war crime of “[d]estroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war”, under Art. 8(2)(b)(xiii). Curiously, none of the legal analyses of Israel’s punitive demolitions that I have encountered discuss this alternative qualification. If the reason is that “the enemy’s property” is understood as covering only the public property owned or controlled by the enemy party (the State of Palestine), such a restrictive reading is unwarranted.

It is true that the ICC Elements of Crimes for Art. 8(2)(b)(xiii) only indicate that the property must be “property of a hostile party”. However, the travaux of the PrepCom (which drafted the Elements of Crimes) suggest that this includes private property. Indeed, the Proceedings of the PrepCom issued at the end of its 3rd session specify: “Such property was private or public property of the hostile party” (see PCNICC/1999/L.5/Rev.1/Add.2). Since this interpretation was not disputed, the clarification was eventually deleted (Dörmann, p. 251). ICC case law relating to the destruction of property in NIAC confirms this (while Art. 8(2)(e)(xii) applicable in NIAC uses the slightly different formula “property of an adversary” instead of “enemy’s property” under Art. 8(2)(b)(xiii), the two are considered synonymous, see Dörmann, p. 485). The Katanga trial judgement confirms that enemy property includes private property (para. 892).

Furthermore, the meaning of “enemy” should be understood lato sensu, as including civilians perceived as being affiliated with the enemy. Katanga was indeed convicted for the war crime of destruction of property based on the finding that “the predominantly Hema population of Bogoro were considered adversaries” by the attackers because of their allegiance to the UPC” (para. 943, emphasis mine). Multiple declarations by Israeli officials could constitute evidence that victims of punitive demolitions are perceived as “the enemy” in the context of the occupation: in fact, they are targeted precisely because of their alleged ties with “terrorists”, a qualifier which cannot be understood in isolation from the situation of occupation.

As to the possible justification of “necessities of war”, the reasoning on military necessity developed in Part 1, applies equally (for an analysis in relation to Art. 8(2)(b)(xiii) specifically see Schabas, pp. 293-294).

Alternatively, the Prosecutor could prosecute punitive demolitions as “inhuman treatment”, a grave breach and war crime under Art. 8(2)(a)(ii) and Art. 8(2)(b)(xxi) respectively, due to its nature as collective punishment (see Al-Haq report, p. 15 and Expert Opinion p. 37). Finally, some have argued that the practice may amount to the crime against humanity of persecution (Al-Haq report, p. 53) – but considering the strong connection with the situation of occupation, the war crime qualification appears more straightforward.

Admissibility concerns

Art. 8(1) of the Rome Statute encourages the Court to focus on war crimes “committed as part of a plan or policy or as part of a large-scale commission of such crimes”. Punitive house demolitions are not only a practice but also a clear policy of the Israeli government, sanctioned by Israeli law. As such, it falls within the scope of this statutory guidance.

Turning to issues of admissibility, a potential case focused on (or including) charges for punitive demolitions would likely pass the tests of complementarity and gravity under Art. 17 of the Rome Statute. It is clear that Israel is not prosecuting any State officials for this conduct (‘the same case’ test in ICC case law), and it is probable Israel would be found “unwilling” to prosecute its officials for designing and implementing what is after all an official State policy of the Israeli government (the same goes for settlements activities, illegal under international law but sanctioned by domestic law). Complementarity should therefore not pose any major issue.

As for gravity, a potential case would seem to meet the criteria the Court has identified in an attempt to “objectivize” this inherently discretionary notion. According to PTC case law and OTP policy papers and practice, the OTP should assess gravity in relation to the crimes as well as in relation to the potential accused. The latter consists of determining if the accused are “those who may bear the greatest responsibility for the alleged crimes committed” (see e.g. Article 53(1) Report related to the Flotilla incident, paras. 133, 135). Given the State policy nature of the crime, those most responsible for the crime would likely be Israeli civilian and/or military leaders (even though the leadership position of the accused should not be a factor of gravity, see here p. 23).

The gravity of crimes is assessed based on quantitative and qualitative considerations, along four non-exhaustive indicative factors: the scale, nature, manner of commission of the crimes and their impact (see a useful review of case law here). Regarding the scale, according to data collected by B’Tselem (and used by the Special Rapporteur on the situation of human rights in the Palestinian territories), 272 people have lost their homes since mid-2014 (the date from which the ICC can exercise jurisdiction). As to the nature of the crime as being one of destruction of property, the al-Mahdi conviction demonstrated that gravity does not necessarily imply crimes against persons. And as highlighted below, the loss of one’s home has very real consequences on one’s life and dignity. The fact that the crime amounts to collective punishment, a violation of IHL, is also relevant. In addition, the destruction of one’s private home is connected to two human rights, namely the right to housing and the right to property, which could also account for the grave nature of the crime. As to the manner of commission, it is relevant that punitive home demolitions are part of a policy (a criterion mentioned in the OTP report on the Flotilla incident, para. 140).

Finally, the impact of the crimes must be assessed from the perspective of the direct victims and also the local communities more generally (see OTP Kenya Request, paras. 56-59). The economic, social and psychological impact for direct victims of punitive demolitions is well documented. Furthermore, punitive demolitions arbitrarily attribute collective responsibility for individual acts, thus perpetuating the stigmatization of Palestinians as “terrorists”. The consequences of such stigmatization on the peace process cannot be overstated.

In conclusion, there are strong arguments in favor of including the punitive demolitions of Palestinian homes in the OTP’s next preliminary examination report. This would send a clear signal that the Israeli state’s leadership must cease its illegal activity if it wishes to avoid ICC proceedings.

The Pardon of Fujimori: Amnesties and Remedies Before the Inter-American Court of Human Rights

by Carlos Lopez

[Carlos Lopez is a Senior Legal Adviser at the International Commission of Jurists.]

The “humanitarian pardon and grace” granted by Peruvian President Kuczynski to former President Fujimori on the eve of Christmas 2017 has spurred significant political and legal controversy in Peru and abroad. Predictably, the Presidential pardon and grace –a discretionary measure for the President under Peruvian Constitution of 1993- are being challenged before national courts and the Inter-American Court of Human Rights.

Alberto Fujimori presided over one of the most corrupt and abusive civil dictatorships of recent history in Latin America. Between 1992 and 2000 during a time of economic liberal reform in the country, Peru’s government forces defeated the armed insurgents of Shining Path using harsh anti-terrorism laws, faceless tribunals and curtailing due process and fair trial. (The Shining Path insurgents were themselves responsible for widespread atrocities.) The conflict caused more than 60,000 victims among cases of enforced disappearance, torture and extra-judicial execution by death squads. One such death squad, the Colina Group, was part of the intelligence apparatus that carried out executions for which Fujimori was found indirectly responsible and convicted in 2007. He was sentenced to a total of 25 years in prison (on counts of corruption and grave human rights violations). The pardon now granted to Fujimori releases him from prison, effectively limiting the sentence to 11 years.  But the most significant consequence is that the “grace” grants him immunity from prosecution in the future for other crimes for which he may be charged.

Legal challenges to pardon to Fujimori

The pardon and grace to Fujimori are challenged at two levels: before Peru’s National Criminal Chamber (a specialized High Court that deal with cases of serious human rights violations) and before the Inter-American Court of Human Rights (IACourt). But the proceedings before each tribunal are of distinct nature.  The National Criminal Chamber was asked to decide whether or not to apply the “humanitarian pardon and grace” to Fujimori in the context of ongoing proceedings against members of paramilitary Colina group accused of committing the massacre of several peasants in the locality of Pativilca, north of Lima, an incident for which Fujimori is also alleged to have an indirect responsibility. Under Peruvian law, the effects of the grace granted to Fujimori would extend to ongoing and future investigations and prosecutions, virtually granting Fujimori a personal amnesty and immunity from prosecution. If the National Chamber applies the presidential grace to the case, Fujimori would be excluded from the proceedings. But if the Chamber follows the existing IACourt jurisprudence, it would consider the grace measure without legal effect and not applicable to the case at issue. As expected, on 9 February 2018, the Criminal Chamber decided to set aside the controversial grace, making the measure inapplicable to the case at issue, and continue criminal proceedings against Fujimori and several others. The case is now under appeal to Peru’s Supreme Court.

The domestic legal battle has international ramifications reaching to the IACourt. The IACourt has recently convened a public hearing to monitor compliance with its previous judgments in the well-known cases of Barrios Altos and La Cantuta, both against Peru. At the hearing (2 February 2018), relatives of the victims and human rights organizations called on the IACourt to declare the pardon without legal effect and null and void. The Government of Peru claims the IACourt cannot do so without infringing national sovereignty. According to Kuczynski’s government, the Peruvian Constitution that allows presidential discretionary pardons should prevail. If anything the Court has to request the State to take corrective measures. Some governmental voices are already saying a decision by the IACourt declaring the pardon invalid will not be accepted by Peru.

Human rights organizations (Peruvian and international) have rushed to present their views in what is seen a crucial battle before the IACourt. The International Commission of Jurists together with other groups has argued in an Amicus Curiae brief that the use of pardons and grace as amnesty laws are incompatible with the international law obligations incumbent upon Peru, in particular its obligations to investigate and, when appropriate, prosecute and sanction those responsible for grave human rights violations.

Organizations have also argued that Peru failed in its obligation to ensure conformity of its national laws and regulations (such as the pardon and grace) with the American Convention of Human Rights. The resolution granting the pardon and grace to Fujimori was not taken on the basis of objective information and overlooked due process. Under the IACourt’s jurisprudence all national authorities (including the judiciary) have the obligation to conform their conduct to the requirements of the American Convention and to ensure they do a preliminary test to that effect (so called “control de convencionalidad”).

The prospects: what will the IACourt decide?

Part of the current controversy on the legality of the pardon to Fujimori relates to the kind of decision the IACourt might take.  The positions of the parties to the dispute differ sharply on this point. It should not be forgotten that the current proceedings before the IACourt correspond to phase of monitoring of the implementation of its previous judgments in the Barrios Altos and La Cantuta cases. Here, the IACourt is not exercising primary jurisdiction to decide whether a violation of the American Convention has occurred or not. But even at the stage of monitoring implementation, the IACourt may find that certain measures or conduct by the government are inconsistent with the obligation to implement the IACourt judgments in good faith and in accordance with international law.

Should the Court take a decision on the legality of Peru’s measure granting pardon and grace to Fujimori, it may have two alternatives: it may consider the Fujimori pardon/grace incompatible with international law and order Peru to take corrective measures and abrogate the pardon, or the Court itself may declare the pardon is a breach of international law and as such null and void? In this regard, commentators such as Gurmendi and Tafur have pointed out to the existence of two parallel trends in the jurisprudence of the IACourt which would support either line of action and be the source of certain confusion that needs clarification. But such view might be too hasty.

In its well-known judgment in Barrios Altos v. Peru, the IACourt held that “amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible” because they prevent the investigation and punishment of those responsible for serious human rights violations” (at 41). In a holding that was to become famous, the IACourt declared:

“44. Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible, nor can they have the same or a similar impact with regard to other cases that have occurred in Peru, where the rights established in the American Convention have been violated.” (emphasis added)

This decision declaring a domestic law without legal validity has been repeated in other judgments, such as Almonacid Arellano v Chile, where the IACourt held that Chilean Decree Law No. 2.191 [granting amnesty for crimes against humanity] does not have any legal effects” (at 119). This jurisprudence constitutes a trend that is expected to be followed in the case of the pardon to Fujimori. An alternative line of jurisprudence finds the IACourt not directly declaring the measures at issue without legal effect, but instead resorting to the more traditional formula of ordering the State to repeal the relevant legislation or measures that are incompatible with international obligations. Such a line was taken in Olmedo Bustos v Chile and the recent Fontevecchia v Argentina, in relation to freedom of expression.

Although both trends in the IACourt jurisprudence are manifest, there is no confusion or, even less, contradiction between the two. The Court has been consistent over time in declaring without legal effect, null and void, measures such as amnesties in cases of grave human rights violations “such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.” (Barrios Altos judgment, at 41).

For the IACourt, the gravity of the violations of the rights at issue (accepted as non derogable) is a determinant factor in tailoring its decision. Laws and other measures that breach international public policy are considered null and void, and without legal effect ab initio. But in all cases, the IACourt orders the State to adopt measures so as to wipe out the practical effects of the void legal measure in its internal order: these include reopening of court proceedings, conducting investigations. It will not be surprising if the IACourt declares the pardon to Fujimori similarly null and void and order Peru to implement the Court sentences in good faith by proceedings with ongoing investigations and prosecutions against Fujimori.

The Customary International Law of Jurisdiction in the Restatement (Fourth) of Foreign Relations Law

by William S. Dodge

[William S. Dodge is Martin Luther King, Jr. Professor of Law at the UC Davis School of Law. He currently serves as a co-reporter for the Restatement (Fourth) of Foreign Relations Law.]

In a recent post, Dean Austen Parrish took issue with some statements about the customary international law governing jurisdiction in the Restatement (Fourth) of Foreign Relations Law. The occasion for his comments was United States v. Microsoft, a case currently pending before the U.S. Supreme Court in which Dean Parrish has filed an amicus brief. I have given my thoughts on the case and on the amicus brief elsewhere and will not repeat them here. In this post, I seek to correct a few misimpressions about the Restatement (Fourth) and the customary international law governing jurisdiction.

First, it may be helpful to sketch briefly the process for producing the Restatement (Fourth). In 2012, the Council of the American Law Institute (ALI) authorized three projects—on treaties, jurisdiction, and state immunity—under the umbrella of the Restatement (Fourth). A team of reporters was assigned to each project. I was made a co-reporter for the jurisdiction project, along with Anthea Roberts and Paul Stephan.

The ALI process begins with a Preliminary Draft prepared by the reporters, which is discussed at a meeting with the project’s counselors, advisers, and members consultative group. Based on this feedback, the reporters prepare a Council Draft, which is discussed at a meeting of the ALI Council. Based on this further feedback, the reporters prepare a Tentative Draft for discussion with the ALI membership at its annual meeting. For the jurisdiction project, three tentative drafts, covering different topics, were approved by the membership and now represent the ALI’s official position. The reporters are currently in the process of combining all the tentative drafts for the three projects together into one volume, which (as indicated below) has resulted in renumbering many of the provisions. Final publication of the Restatement (Fourth) is expected later this year.

On questions of customary international law, the Restatement (Fourth) was blessed with a great deal of expertise from U.S. and foreign lawyers and scholars. Our counselors included three former Legal Advisers of the U.S. State Department, one former Legal Adviser to the U.K. Foreign and Commonwealth Office, and one Judge of the International Court of Justice. Our advisers included designated representatives from the State Department Legal Adviser’s Office. We also had the benefit of a separate international advisory panel of academics and lawyers from outside the United States. A full list of the counselors, advisers, foreign advisers, and members consultative group for the Restatement (Fourth) is here. Not all of these people will agree with every statement in the Restatement (Fourth). The point is that every question of customary international law addressed in the Restatement (Fourth) was vetted with a broad group of U.S. and foreign experts, and the statements about the customary international law of jurisdiction in the Restatement (Fourth) represent the best judgment of the ALI as to what that law is today.

The first misimpression to correct is Dean Parrish’s statement that “the Fourth Restatement does not purport to set out international law.” Quite the opposite is true. Sections 407-413 of the Restatement (Fourth) (Section 211-217 in Jurisdiction Tentative Draft No. 2) restate the customary international law governing jurisdiction to prescribe. Section 432 of the Restatement (Fourth) (Section 402 in Jurisdiction Tentative Draft No. 3) restates the customary international law governing jurisdiction to enforce. The Restatement (Fourth) does not have a corresponding section restating the customary international law on jurisdiction to adjudicate because, as the Introductory Note to Chapter 2 (Introductory Note, Part III, in Jurisdiction Tentative Draft No. 2) observes, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” (The Restatement (Fourth) does have a chapter on state immunity, although its focus is U.S. domestic law under the Foreign Sovereign Immunities Act rather than customary international law.)

With respect to jurisdiction to prescribe, Section 407 states the basic rule: “Customary international law permits exercises of prescriptive jurisdiction if there is a genuine connection between the subject of the regulation and the state seeking to regulate.” Sections 408-413 set forth the most common bases establishing a genuine connection: territory, effects, active personality, passive personality, protection, and universal jurisdiction. These sections discuss foreign practice at length, citing the practice of more than 50 other countries. The specific bases for prescriptive jurisdiction set forth in the Restatement (Fourth) are largely the same as those found in Sections 402 and 404 of the Restatement (Third).

The Restatement (Fourth) does not continue the position of Restatement (Third) Section 403, which stated that customary international law requires an assessment of the reasonableness of exercising prescriptive jurisdiction in each case. As the reporters’ notes to Section 407 of the Restatement (Fourth) explain, “state practice does not support a requirement of case-by-case balancing to establish reasonableness as a matter of international law.” The Restatement (Fourth) does contain a provision on “Reasonableness in Interpretation”—Section 405 in the Restatement (Fourth) (Section 204 in Jurisdiction Tentative Draft No. 3). This is a domestic principle of statutory interpretation, like the presumption against extraterritoriality and the Charming Betsy canon, under which U.S. courts may “interpret[] a statute to include other comity limitations if doing so is consistent with the text, history, and purpose of the provision.”

With respect to jurisdiction to enforce, Section 432 states the traditional rule that enforcement jurisdiction is strictly territorial: “Under customary international law . . . a state may not exercise jurisdiction to enforce in the territory of another state without the consent of the other state.” To apply this rule, of course, one must determine where enforcement occurs in various situations. When a U.S. court requires a person in the United States to produce information located abroad, as in the Microsoft case for example, does the enforcement occur in the United States or abroad? As the reporters’ notes to Section 431 (dealing with U.S. practice with respect to jurisdiction to enforce) explains, U.S. court orders to produce information located abroad “have not provoked the protests from other states that might be expected if such orders constituted extraterritorial exercises of jurisdiction to enforce.” In the Microsoft case, the fact that none of the foreign governments filing amicus briefs—including Ireland—has characterized the warrant in question as an extraterritorial exercise of jurisdiction to enforce seems conclusive.

Dean Parrish directs most of his criticism at the Restatement (Fourth)’s statement that, “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” Dean Parrish’s says this is inconsistent with the Restatement (Third), but in fact the Restatement (Third)’s position was more ambiguous than is commonly appreciated. Its Introductory Note for the chapter on jurisdiction to adjudicate, the Restatement (Third) admitted “it is not always clear whether the principles governing jurisdiction to adjudicate are applied as requirements of public international law or as principles of national law.” It characterized the provisions that followed as “international rules and guidelines.” The substance of Section 421 strongly resembled the U.S. domestic law of personal jurisdiction as of 1986, and the reporters’ notes relied heavily on U.S. practice with some reference to U.K. law and the Brussels Regulation. There was no analysis of opinio juris—whether any of the practice was followed out of a sense of international legal obligation.

An honest look at state practice and opinio juris today reveals no limitations on jurisdiction to adjudicate outside the area of immunity. Some bases for adjudicative jurisdiction are certainly considered exorbitant—tag jurisdiction in the United States or jurisdiction based on the nationality of the plaintiff in France, for examples—but these bases are not considered to violate customary international law. The clearest evidence of this is the Brussels I Regulation (Recast) in the European Union, which prohibits the use of exorbitant bases against defendants from other EU member states, but expressly permits the use of exorbitant bases against defendants from non-EU member states and requires EU member states to enforce judgments against such defendants resting on such bases. If states do not refrain from exercising jurisdiction on exorbitant bases of jurisdiction out of a sense of legal obligation, there can be no rule of customary international law prohibiting their use.

The Restatement (Fourth) of Foreign Relations Law also discusses many rules of U.S. domestic law addressing different aspects of jurisdiction, including the presumption against extraterritoriality, personal jurisdiction, forum non conveniens, the act of state doctrine, the doctrine of foreign state compulsion, and the recognition of foreign judgments. (For an overview written for a private international law audience, see here.) The Restatement (Fourth) also tries to distinguish clearly between rules of domestic law and rules of customary international law, and to state rules of customary international law only when they are supported by state practice and opinio juris. But Restatement (Fourth) does address the customary international law of jurisdiction, and it draws on a deep well of expertise in doing so.

Please Take Our Reader Survey!

by Kevin Jon Heller

Dear readers,

As part of some exciting changes coming to Opinio Juris in the next month or so, we are completely redesigning our website. To that end, we would greatly appreciate your taking some time — about 10 minutes — to fill out our Readers Survey. You can find the survey by clicking here.

We will leave the survey open for two weeks — until March 20, 23:59 CET. All responses will be anonymous, so please don’t hesitate to tell us what you really think! If you would like to provide an email at the end of the survey, we will put it into a random draw for a € 75 Amazon gift card. We will collect your answers and your email address separately, so entering the draw will not affect the anonymity of your answers. And we promise not to use your email to send you unwanted messages.

Without our readers, there is no Opinio Juris. So thank you in advance for your participation.

Once again, the link.

International Law vs. Donald Trump: A Reply

by Harold Hongju Koh

[Harold Hongju Koh is Sterling Professor of International Law at Yale Law School. This post is a response to the recent Trump Administration and International Law Symposium hosted on Opinio Juris.]

Can international law save itself from Donald Trump?

Since Election Night 2016, that question has haunted me across many issue areas. Professor Craig Martin and the Washburn Law Journal editors generously invited me to offer an initial answer in their recently published symposium issue in an article entitled “The Trump Administration and International Law.” As I prepare my book-length answer for publication this fall by Oxford University Press, I am deeply grateful to my friends who took the time to make incisive contributions both to the initial symposium—Margaret McGuinness, Clare Frances Moran, and David Sloss—and this virtual one—Laura Dickinson, Bill Dodge, Kevin Jon Heller, and Frederic Sourgens. I especially thank Craig Martin for moderating both symposia and for his astute opening and closing essays, and to the editors of Opinio Juris for hosting this important on-line discussion.

A full-fledged response to these various thoughtful comments will have to await my book. But broadly speaking, I am gratified that all five commentators see the lens of transnational legal process as a useful way to unpack how international law responded to the new Trump Administration in 2017. The commentators seem to agree that transnational actors outside the U.S. government have responded to various Trump initiatives by employing the “outside strategy” of provoking interactions—e.g., the lawsuits in the Travel Ban case–to generate legal interpretations (often by courts), that government actors have been forced to internalize, thereby promoting the “stickiness: of international law. They also acknowledge that, even in the face of intense political pressure, governmental actors have furthered that stickiness by using an “inside strategy” of bureaucratic resistance to adhere to previously embedded, internalized norms of international law. At a strategic level, the commentators seem to agree that a strategy of “international law as smart power”–connecting with like-minded countries through engagement around values, translating new norms of international behavior from extant norms of international law to address novel situations and technologies (e.g., drones, cyberconflict), and leveraging that law-based cooperation into enduring diplomatic solutions will far more likely strengthen international law in the long run than the Trump Administration’s repeated resigning from global leadership through disengagement, focus on national interests, and going it alone.

At the same time, each commentator registers a thoughtful caution against painting too rosy a picture going forward for transnational legal process. Professor Dodge wisely notes that litigation against the United States Government is always a double-edged sword. Litigation may harden the executive’s resolve to defend and continue negative behavior and can trigger normatively undesirable litigation positions, an argument that Rebecca Ingber persuasively laid out in her important explanation of how “interpretation catalysts” can entrench defensive anti-international law executive branch decisions. But Dodge’s argument does not so much cut against invoking transnational legal process during the Trump Administration, as it calls for smart litigators to be thoughtful about their litigation strategy. On some issues—for example, when the new Administration issues a thinly disguised Muslim Ban one week in—Trump’s subordinates threw down the gauntlet by publicly declaring that the President’s authority “may not be questioned.” Under such circumstances, thoughtful resistance through litigation becomes both a challenge and the best available option. Rule of law litigators have little choice but to generate interactions and interpretations in the smartest possible way: to choose the right cases and the most advantageous fora, making arguments sensitive to the range of positions the U.S. Government has taken in the past in an effort to advance better interpretations of international law. Whatever the ultimate outcome, such litigation serves an important signaling and public education function. The Travel Ban case, for example, has signaled government litigators that there are limits to the arguments they can make and reminded beleaguered public servants that the legal interpretations they were fighting for within the bureaucracy resonate with the courts and the public at large. Especially when combined with street demonstrations, injunctions remind policymakers that they cannot unilaterally change the status quo while the whole world—including courts –is watching. Perhaps most important, prudent persistent litigation reminds Muslim-American communities that they are not alone and teaches the public that resistance is not futile.

Professors Dickinson and Sourgens usefully ask how law and policy differ as tools to promote the stickiness of internalized international norms. Professor Dickinson uses the 2013 Presidential Policy Guidance on Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities to enumerate the advantages and disadvantages of adopting certain norms as voluntary government policy, as opposed to conceding that they are legally required. She correctly notes that there “may be certain path dependencies that cause policies to be ‘sticky’ once adopted, [but] there is little doubt that Executive Branch policies usually do not bind future administrations in the same way as Executive Branch determinations about the applicability of international legal rules.” Yet elsewhere in her post, she offers what may be the best response to her own concern: that one reason not to focus overly “on the law/policy distinction [is] because … norms articulated as a policy matter impact legal rulings and over time may ‘harden’ into law. Indeed, such seepage seems to be at the core of transnational legal process.”

This is precisely what has happened, for example, with a little-noticed March 2011 Obama Administration announcement of

support for two important components of the international legal framework that covers armed conflicts: Additional Protocol II and Article 75 of Additional Protocol I to the 1949 Geneva Conventions. Additional Protocol II, which contains detailed humane treatment standards and fair trial guarantees that apply in the context of non-international armed conflicts, was originally submitted to the Senate for approval by President Reagan in 1987. The Administration urges the Senate to act as soon as practicable on this Protocol, to which 165 States are a party. An extensive interagency review concluded that United States military practice is already consistent with the Protocol’s provisions. Joining the treaty would not only assist us in continuing to exercise leadership in the international community in developing the law of armed conflict, but would also allow us to reaffirm our commitment to humane treatment in, and compliance with legal standards for, the conduct of armed conflict. Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in the hands of opposing forces in an international armed conflict, is similarly important to the international legal framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article 75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United States has historically supported. Our adherence to these principles is also an important safeguard against the mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict, and expects all other nations to adhere to these principles as well (emphasis added). 

While in 2011, the Obama Administration could not bring itself to say outright that these provisions were customary international law, as time has passed, these convictions have hardened from policy into law, advancing the U.S. government’s lengthy struggle to decide whether and to what extent it is bound –not just as a matter of policy, but of law–to comply with the two additional protocols to the 1949 Geneva Conventions.

One of my core claims is that it is both unrealistic and counterproductive artificially to split off legal from policy and political constraints when discussing the impact of transnational legal process on government behavior. In real life, these three kinds of constraints are usually intertwined and are often used in combination to check action destructive of legal stability. Although international lawyers often say, “let’s carefully distinguish between law and policy,” in real life, it is rarely so clear-cut. Law, policy, and politics pose interconnected constraints in foreign affairs decisionmaking. Some policy options may not be available as a matter of law. Some lawful options may not be wise as a matter of policy (what we used to call “lawful, but awful.”) Some options might be desirable as a matter of both law and policy, but when tried, just prove not to be politically available (as they famously say in Hamilton, “you don’t have the votes”).

My lecture’s detailed discussion of Trump’s difficulties in extricating the United States from the Paris Climate Accord and the Iran Nuclear Deal vividly illustrates the unexpected ways in which these legal, policy and political constraints have interacted together to create a web of guardrails obstructing Trump’s threatened disengagements. For example, in the Paris Accords, Trump is for now legally sticking to the 4-year term of withdrawal set forth in the treaty, while also facing a set of policy and political constraints that have blunted his goal of exit. This bundle of constraints has led to a broader phenomenon that my book calls “resigning without leaving:” the de facto outcome of all of Trump’s blustering has not been exit from existing international regimes, but the United States’ staying in as an announced lame duck, with predictably reduced influence. The wide-ranging counter-strategy of damage control across many issue areas has created a de facto path of least resistance: a default whereby the United States under Trump rarely leaves, but rather, stays in and underperforms within existing international regimes. While that is a suboptimal state of affairs, at least it has the virtue of being curable, at a future time when Trump and his party no longer control both the White House and both houses of Congress.

Professor Sourgens usefully points to two broader dangers of Trump. The first is that his relentless disdain for international law may outlast “stickiness,” by “ungluing” the elements of the administrative state that maintain obedience to international rules. Second, viewed in the broader light of Brexit and the global resurgence of Orwellian authoritarianism, Trump is plainly not so much a one-off as a symptom of a much broader counter-assault on the postwar Kantian global order that can flow through the same channels of transnational legal process that foster compliance: enabling a “transnational transference of lawlessness, or photonegative of …transnational legal process” My article tried to capture Sourgens’ insights in adopting the analogy of Muhammad Ali’s “rope-a-dope” as a counter-strategy to George Foreman’s offensive pummeling. In the game of “rope-a-dope,” both sides pay a fearful cost, and even while the nominal winner, Ali, may win the fight, in the process he may endure the kind of battering that weakens his fabric and leaves him unglued in the long run.

While these concerns are real and serious, as yet, I hope they are premature. The “tally so far,” chronicled in my article, suggest that transnational process is working so far, although harder times clearly lie ahead. Sourgens correctly notes that “the great ungluing precisely seeks to impeach the reflex to coordinate domestic and international legal processes.” But that is precisely why our counterstrategy should be to strengthen that connection: other American climate actors—states and localities, private companies and NGOs, the bureaucracy—should make clear to the international actors seeking to preserve the Paris accords that Donald Trump does not own the process or speak entirely for America. Norm-internalization goes all the way down. Street-level demonstrators in San Francisco or farmers in Vermont well understand the negative impact that global climate change is having on the level of their local coastline or the local temperature in the winter-time. Trump’s anti-globalist rhetoric may seek to sever the link between the domestic and the international, but in a modern age of globalization, the interactive link between domestic and global law is just as deeply intertwined as the link between local cause and global effect. The United States can no more resign from today’s global system than an individual can resign from the human race. Because transnational legal process is much bigger than Trump, he does not and cannot own it; we all do.

My good friend Kevin Heller makes two basic objections, which are part of a broader left critique of my approach. The first is that I am too praising of Obama. Like all administrations, the Obama Administration was far from perfect, and my goal has never been to whitewash its blemishes. My point is not that Obama always succeeded –and I agree with Kevin that the lack of accountability for torture was a glaring, continuing failure–but that Obama articulated a better general strategy of “international law as smart power:” when in doubt, engage-translate-leverage, rather than follow Trump’s destructive approach of “disengage-cite national interests only-and go it alone.”

Professor Heller secondly objects at length to what he calls my support for the legality of “unilateral humanitarian intervention;” when in fact I have argued that humanitarian intervention is not always unlawful under all circumstances under both domestic and international law, particularly when UN Security Council resolution has been persistently blocked by twelve Russian vetoes (the “never/never rule”). We need not recapitulate this lengthy debate, as I have already fully laid out my position here and here. Suffice it to say that I have not broadly endorsed unilateral humanitarian intervention as a matter of either law or policy. To the contrary, my claim has been that, twenty years after Kosovo, it is long past time for the United States government lawyers and legal academics to engage with their foreign counterparts—particularly in United Nations and nations like the United Kingdom, France, Belgium and Denmark– to determine whether and under what narrow circumstances limited intervention for humanitarian purposes may be lawful. After Kosovo, the international legal community went some distance to define a legal standard to govern the lawfulness of Responsibility to Protect or R2P. I simply argue that it is time to finish the job.

Because Kevin offers no alternative to the notion that humanitarian intervention is always illegal or to the status quo that I have called the “never-never rule,” he offers no suggestion as for how we should stop the continuing horrible slaughter in Syria, which is only intensifying as ISIL retreats. Moving away from his original absolutist reading, Kevin notes that “[a]lthough as a lawyer I would feel better about humanitarian intervention in Syria if it was authorised by the General Assembly, I am skeptical that such intervention would actually work.” On both scores, I feel the opposite. As recent UNGA votes on various electoral matters have shown, as a practical matter, the Chinese and the Russians have shown far more capacity to influence a General Assembly resolution with non-humanitarian based threats and financial inducements than do NATO countries that over the years have shown far more respect for the use of force provisions of the U.N. Charter.  So a reliance on the UNGA or the Uniting for Peace Resolution would make more Russian and Chinese-led “humanitarian interventions” far more likely than ones measured by the carefully defined rule that I set forth in my earlier writings on this subject.  And while Kevin questions whether “such intervention would actually work,” he does not fully address the likelihood that the threat of humanitarian intervention could “work” as a critical element finally to galvanize an enduring diplomatic solution.

As someone who lived through the Balkans, I learned long ago that a Richard Holbrooke-ian smart power exercise of diplomacy backed by force can sometimes get warring factions to the table, as it did at Dayton even to stop the most intractable conflict. To be clear: I have not advocated use of force in Syria for its own sake, or to engage in broader regime change; I have simply argued that international lawyers should not take the smart power policy option of diplomacy backed by force off the table by artificially claiming that a collective exercise of the Responsibility to Protect is always legally unavailable. It is a fiction to assert an absolutist norm against intervention as a prevailing governing norm, at a time when all the world seems to have intervened in Syria. It is even worse when sticking with that anti-interventionist legal fiction becomes a de facto pro-slaughter position as a matter of policy. In the end, my debate with the admirable Professor Heller shows once again why it is a mistake to try to think (and teach) international law analysis solely within its own bubble, entirely distinct from policy.  In the international realm, law and policy are inevitably and inextricably intertwined. Most transnational players use policy arguments to try to change international law, or make international law claims to force governments to change their policies.   Academics will miss half the picture if they constantly insist on artificially separating the two.

Finally, Craig Martin’s closing piece correctly notes the limits of transnational legal process: “interpretation and internalization will only result in compliance with international law if the interpretation itself is at least within a range of reasonable interpretations consistent with established principles of international law.” Professor Martin expresses some surprise at what he calls “the move from the descriptive to the normative;” he had always thought of transnational legal process as a descriptive theory, not a call to arms or a prescriptive counter-strategy. But in fact, the normative component has been a key part of transnational legal process theory from the beginning. My original lecture sketching the theory 22 years ago closed by saying:

“It is sometimes said that someone who, by acquiring medical training, comes to understand the human body acquires as well a moral duty not just to observe disease, but to try to cure it. In the same way, I would argue, a lawyer who acquires knowledge of the body politic acquires a duty not simply to observe transnational legal process, but to try to influence it. (emphasis in original) (207)”

Some might chide me for proposing an “elite project” of transnational lawyering in response to a populist rejection of just such elite policymaking.  To be clear, I do not mean to be offering a complete account of the forms of political response required to deal with Trump and the new authoritarian populists.  Nothing I say should be read to suggest that concerned citizens around the world should not be in the streets demonstrating or that grassroots efforts should not be trying to win back the state houses and institutions of formal government power.  Lawyers are never going to relieve us of the burdens of politics, but they certainly can—and I believe should—constantly create acts of political pressure through law that promote the rule of law through training and techniques that simply are not available to others.

If believing this, as Professor Sourgens charges, makes me “a perennial optimist,” I humbly plead guilty. But I don’t simply bet “that the stickiness of transnational legal process is stronger than the force seeking to unglue it,” as Sourgens says. Instead, I believe that our job as lawyers is to make sure that it is stronger. To be clear, as a predictive matter, I am not claiming that Trump will inevitably be checked by some kind of self-correcting synopticon of distributed checks and balances. Rather, as a normative matter, I think that committed international lawyers have to fight to preserve the imperfect world we have inherited. As Dr. King memorably put it, “the arc of the moral universe is long, but it bends toward justice.” But it certainly does not bend by itself. If Trump and those of his ilk are pushing hard to bend that arc in one direction, isn’t it the job of all of us who care about international law to push it even harder in the other?

Did the Trump Administration’s Jerusalem Declaration Violate International Law?

by David Hughes

[David Hughes is a Grotius Research Scholar at the University of Michigan, Law School and a PhD Candidate at Osgoode Hall Law School in Toronto.]

On 6 December, President Trump signed a Proclamation recognizing Jerusalem as Israel’s capital and ordering the relocation of the American Embassy from Tel Aviv. The announcement reflects the long-standing will of Congress. It is consistent with past electoral promises. It is, perhaps, the Trump Administration’s first major policy statement to gain the Democratic leadership’s approval.

Despite constant assurances, past executive branches have withheld formal recognition and deferred the Embassy’s relocation. The Trump Administration’s Jerusalem pronouncement disrupts this orthodoxy. It contradicts the longstanding position of the international community, who since the termination of the British Mandate of Palestine, have proposed internationalization, provided de facto recognition, and prioritized negotiations to settle – but never confer – Jerusalem’s status.

The Administration’s declaration was denounced by an array of actors. A consistent refrain emerged. The actions of the United States violated international law. Palestinian Authority President Mahmoud Abbas stated that the decision was a “flagrant violation.” The Arab League noted the danger of such legal disregard. France’s Ambassador to the UN called upon the Americans to “clarify the compatibility of [the Jerusalem declaration] with [the] common legal base on which all peace efforts are built.”

The Presidential Proclamation, however, ensured legal latitude. The edict claimed that “the United States continues to take no position on any final status issues… [and that] the specific boundaries of Israeli sovereignty in Jerusalem are subject to final status negotiations between the parties.”

In late January 2018, President Trump met with Israeli Prime Minister Benjamin Netanyahu in Davos. The President declared, “they never got past Jerusalem. We took it off the table. We don’t have to talk about it anymore.” The Administration’s assertions that the Proclamation was consistent with support for a negotiated agreement appeared doubtful. The legal inoculation weakened. Again, the Palestinian leadership reiterated calls of legal disregard. The General Assembly opposed the Trump Administration’s policy shift. Assertions that the Jerusalem declaration violates international law, however, failed to provide legal reasoning. This post briefly explores the legal questions raised by the Administration’s Jerusalem declaration from the perspective of non-recognition obligations.

The duty of non-recognition

The duty not to recognize situations created by certain unlawful acts is an established tenet of international law. It is the necessary corollary of the principle ex injuria non oritur. Article 41(2) of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) requires that, “no State shall recognize as lawful a situation created by a serious breach [of a peremptory norm of general international law].” The duty of non-recognition is thus qualified. It is understood to apply in response to a serious breach of a jus cogens norm and is only applicable when the serious breach facilitates a legal claim of status or entitlement by the violating State. As Martin Dawidowicz explains, this creates a situation that “all States are obligated not to recognize as lawful.” Most often, Dawidowicz recognizes, the ILC Commentaries and state practice link the triggering breach to “territorial acquisitions brought about or maintained by the threat or use of force (p.678).”

Article 41(2)’s broad formulation has caused scholars to question whether “customary international law knows of a general duty of non-recognition of all situations created by a serious breach of jus cogens (p.102).” Though several query the scope and content of the obligation when applied to certain jus cogens breaches, both the ICJ in its Wall Opinion (para.87) and the ILC contend (p.114) that the duty not to recognize forceful territorial acquisitions reflects customary international law. Stefan Talman notes, beginning with the 1949 Draft Declaration on the Rights and Duties of States, the obligation to deny recognition of territory acquired through force possesses a long lineage (p.102-103). This has developed through consistent state practice and is reiterated within many international legal instruments.

Prominently, the 1970 Friendly Relations Declaration (FRD) stated that, “no territorial acquisition resulting from the threat or use of force shall be recognized as legal.” The ICL Commentaries on the Draft Articles on State Responsibility note the unequivocal nature of this obligation that derived from U.S. Secretary of State Henry Stimson’s response to the 1932 Manchurian crisis and has been recognized by the ICJ in its Nicaragua decision as possessing unanimous state approval (para.188).

What is the applicable legal standard?

The Jerusalem declaration raises several questions concerning the non-recognition obligation. James Crawford explains that “when the illegality invoked is substantial, and in particular when it involves a peremptory norm of international law, States have a duty under customary international law not to recognize the act as legal. The norm in question must either be one of the limited number of peremptory norms or…a substantive rule of general international law, so that the illegality is one that involves the international community as a whole and not just particular States (p.160).”

This presents three questions that bear upon the legal consequences of the Trump Proclamation: (i) Is the Israeli claim to Jerusalem facilitated by an unlawful act? (ii) If so, was this situation created by a serious jus cogens breach? (iii) And did the Trump Administration’s declaration constitute recognition?

Is the Israeli claim to Jerusalem facilitated by an unlawful act?

Determining whether a non-recognition obligation has arisen is interwoven with the contestations of Jerusalem’s legal status that began during the Mandate-era and continue to this day. In 1947, Palestine’s proposed partition (Part III) sought to establish Jerusalem as a corpus separatum under UN administration. The plan was accepted by Palestine’s Jewish community but dismissed by the Arab delegations. Upon the establishment of Israeli statehood and the immediate declaration of war by five neighbouring states, Jerusalem was divided – East and West – between Jordan and the nascent State of Israel. A new map was drawn along the 1949 Armistice border. This increased Israel’s territorial allotment and became the starting point for efforts to secure a negotiated agreement with the Palestinian population. Though the international community formally favoured internationalization, Israel began relocating governmental institutions to the City. In December 1949, Israel declared Jerusalem as its capital.

A fragile status quo was disrupted in 1967 when, following the Six Day war, Israel gained control of Jerusalem’s eastern sector (along with the rest of the West Bank, the Gaza Strip, the Golan Heights, and the Sinai Peninsula). Immediately, Israel expanded Jerusalem’s municipal boundaries and applied its jurisdiction throughout the newly defined City. The General Assembly declared these initiatives invalid and called upon Israel to rescind measures intended to alter Jerusalem’s status. Despite proclaiming Jerusalem’s liberation and reunification, Israeli diplomats insisted that the imposed measures did not constitute annexation.

In 1980, the Knesset passed a Basic Law declaring “Jerusalem, complete and united, the capital of Israel.” Though the legislation did not impose any practical changes, it formally acknowledged a reality that began upon Israel’s de facto annexation of East Jerusalem in 1967. Firm rebukes followed. The General Assembly called upon Israel “to withdraw completely and unconditionally from all the Palestinian and other Arab territories occupied since June 1967, including Jerusalem.” Security Council Resolution 478 declared that Israel’s claim violated international law. This prompted a process of collective non-recognition. Continuing, the Security Council called upon Member States “not to recognize the ‘basic law’ and other such actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem.” It required that “those States that have established diplomatic missions at Jerusalem to withdraw such missions…” Existing embassies left the City. Despite de facto acceptance of Israel’s claim to West Jerusalem and the separate legal treatment of the City’s two sectors, the Security Council’s call to withhold recognition received – even amongst Israel’s staunchest allies – near universal adherence.

Does this act constitute a situation created by a serious jus cogens breach?

Security Council Resolution 478 is premised upon the norm that “the acquisition of territory by force is inadmissible.” This, John Dugard recognizes, provides the principal reason justifying the non-recognition of Israel’s claim to East Jerusalem (p.113). As noted, the non-recognition obligation is contingent upon the commission of a serious breach of a peremptory norm. While the prohibition of aggression constitutes (p.85) a jus cogens norm, Israel maintains that Jerusalem’s reunification resulted from an “unprovoked Arab attack.” Despite the merits of Israel’s defensive claims, the FRD clarifies that the inadmissibility of territory acquired by force is absolute and not contingent upon assessments of jus ad bellum.

Further, Israel’s annexation of East Jerusalem may be construed separately from the underlying use of force that led Israel to assume control of the City’s eastern sector. Israel has refrained from asserting sovereign claim over the West Bank and Gaza which have instead been subject to prolonged occupation. The subsequent control of East Jerusalem – realized through annexation and governed in accordance with Israeli law – may be understood as an independent act of aggression.

Annexation is defined as “the forcible acquisition of territory by one state at the expense of another State.” The ICRC notes that “annexation amounts to an act of aggression, forbidden by international law.” This is confirmed by the General Assembly’s Resolution on the Definition of Aggression which qualifies an act of aggression as, inter alia, “any annexation by the use of force of the territory of another State or part thereof (Art. 3).”

This evokes questions regarding Palestinian statehood and whether Israeli actions – either in 1967 or in 1980 – constitute the forceful annexation of “another State or part thereof.” It is worth noting, however, that the ILC Commentaries hold that the non-recognition obligation “applies to situations created by…[the] attempted acquisition of sovereignty over territory through the denial of the right of self-determination of peoples.” This builds upon the FRD which holds that “every state has the duty to refrain from any forcible action which deprives peoples…of their right to self-determination and freedom and independence.” This principle, coupled with the longstanding prohibition on the forceful acquisition of territory, motivated the ICJ to hold in its Wall Opinion that “that all States are under an obligation not to recognize the illegal situation [arising from the construction of the separation barrier] in the Occupied Palestinian Territory, including in and around East Jerusalem (paras. 87-88, 146).”

Did the Trump Administration’s declaration constitute recognition?

The Trump Administration’s Proclamation did not reference East Jerusalem directly (either in recognition of Israel’s sovereign claim or in support of Palestinian aspirations). Though the announcement is prejudicial towards Israeli interests, initially there appeared sufficient ambiguity to fall short of formally recognizing Israel’s claim to East Jerusalem.

The ARSIWA Commentaries, however, state that Article 41(2) not only extends to formal recognition but prohibits acts that would imply recognition (p.114). In its Namibia Opinion, the ICJ held that non-recognition compels states to abstain from establishing diplomatic missions in the unlawfully acquired territory. States, the Court continued, have a positive duty to make clear [to the South African authorities] that “the maintenance of diplomatic or consular relations…does not imply any recognition of its authority [with regard to Namibia] (para. 123).”

Such implied recognition appears throughout the Proclamation and in the President’s subsequent statements. The Presidential order to relocate the Embassy appealed to the Jerusalem Embassy Act of 1995. The Act did not omit the declarative language that the Trump Administration purportedly sought to avoid. It noted that the Six Day war marked Jerusalem’s reunification and stated that the City served as Israel’s undivided capital. The Trump Administration Proclamation begins by referencing this Congressional acknowledgement and the Senate’s unanimous reaffirmation on the occasion of “the 50th anniversary of the reunification of Jerusalem.” Addressing the General Assembly, U.S. Ambassador Nikki Haley, justified the Administration’s Jerusalem declaration as in accordance with the Embassy Act.

The Proclamation notes that U.S. policy decisions are grounded in “principled realism.” The recognition of Jerusalem as Israel’s capital is presented as plain fact. Jerusalem, the President noted, “is the seat of the modern Israeli government.  It is the home of the Israeli parliament, the Knesset, as well as the Israeli Supreme Court.  It is the location of the official residence of the Prime Minister and the President.  It is the headquarters of many government ministries.” While this is of course accurate, several governmental institutions are located in the City’s eastern sector including the Ministry of Justice and the National Headquarters of the Israel Police.

Rationalizations that cite the location of national institutions and that are grounded in the Embassy Act allude to a conception of Jerusalem that aligns with Israel’s post-1967 claim to a united City. The President’s comments in Davos – that his Proclamation took Jerusalem off the table – moves from the contention that the City’s status remains subject to negotiation and toward recognition of a situation created through the forceful acquisition of territory.

Finally, the Administration’s determination that “the United States will relocate our Embassy…from Tel Aviv to Jerusalem” further implies recognition of Israel’s claim to the united City. Associating the embassy’s location with recognition of Jerusalem’s status had initially motivated the United States to post its Ambassador away from the contested City. A 1958 despatch from the U.S. Counsel General in Jerusalem noted, “many other countries mark their respect for the internationalization resolutions by establishing embassies in Tel Aviv thus avoiding recognition of Jerusalem as the capital of Israel and, by implication, as Israel’s de facto sovereign territory.”

Though the international legal treatment of Jerusalem has moved from proposed internationalization and towards a vision determined through negotiation and shared amongst two states, the City’s status remains fiercely contested. The Trump Administration’s pronouncement raises important questions regarding non-recognition requirements and appears incompatible with the policy objectives that the obligation conveys and which the international community has pursued with near unanimity.

The European Convention on Human Rights: the Draft Copenhagen Declaration and the Threat to the European Court

by Roisin Pillay

[Róisín Pillay is Director of the International Commission of Jurists (ICJ) Europe Programme.] 

The European Court of Human Rights is once more facing a political challenge to its role, in proposals for a new political declaration put forward by the Danish Presidency of the Council of Europe. 
That the Court’s extraordinary success in advancing human rights protection in Europe provokes the dissent of certain governments is nothing new. Neither is this the first time that the eight year long reform process – instigated by the Interlaken Declaration of 2010  in order to deal with the overwhelming caseload of the Court – has been the forum for political resistance to the Court’s perceived intrusion into national affairs.  The reform process has constantly navigated delicate questions of the respective powers of the Court and the Council of Europe Member States.   
Notably, the UK government’s initial proposals for the 2012 Brighton Declaration posed serious threats to the independence and role of the Court, and to the right of individuals to petition it. Ultimately, under pressure from some States as well as civil society, the most damaging of these proposals were not pursued. However they did result in, amongst other things, the enshrining of a reference to the principles of subsidiarity and the “margin of appreciation” that states are considered to enjoy in protecting certain of the Convention rights, in the preamble to Protocol 15  to the Convention. Since then, the Brussels Declaration of 2015 commendably re-directed attention to the problem that is the real root of the Convention system’s struggles: failings in effective national implementation of the Convention rights, which leave victims of human rights violations with no other recourse but to take their case to Strasbourg.
The Danish Government, which took on the rotating Presidency of the Council of Europe in 2017, has now proposed a new political declaration  on the Convention system, to be agreed at a high-level conference of Council of Europe Member States in Copenhagen in April. A draft of the Copenhagen Declaration was published in February. The text, while including some welcome re-affirmations of the need for enhanced national implementation measures and better execution of Court judgments, as well as strengthened selection processes for judges of the Court, also contains proposals that carry significant risks for the independence and role of the Court, and for the consistent protection of Convention rights across the Council of Europe region.  To assure the continued credibility and health of the Convention system, it needs to be significantly amended.
The draft Declaration has already faced sharp criticism, including from a coalition of  international NGOs (including the ICJ) which made detailed proposals for amendments; from Danish NGOs and from academic commentators.  The Court itself has responded cautiously refraining from strong criticism, but drawing attention to the governing framework for the role of the Court under the ECHR and to principles of judicial independence which it notes must be respected by the Declaration.

Three main elements in the Declaration are of particular concern.

First, the draft Declaration emphasises the need for “better balance” between the respective roles of the Court and Member States, based on “shared responsibility” for the protection of the Convention rights (para.11).  The Convention certainly envisages complementary roles and responsibilities for national authorities and the Court within the Convention system: it is the obligation of Member States to respect and protect the Convention rights (Article 1 ECHR) and the role of the Court to supervise this obligation. The Court’s role is clearly set out in Article 19 of the Convention, as “to ensure the observance of the engagements undertaken” by States under the Convention.  Article 32 establishes that the Court’s jurisdiction in doing so extends to “all matters concerning the interpretation and application” of the Convention rights.  The much contested doctrine of the “margin of appreciation” developed in the Court’s jurisprudence applied by the Court in respect of certain rights or aspects of rights only, does not in any way displace or diminish this jurisdiction.

The draft Declaration however, seems to allow for more qualified role, based on an unduly wide interpretation of principles of subsidiarity and the margin of appreciation. The draft emphasises that the Convention rights should not only be secured at national level, but also “determined” there (para.10) and that rights should be protected “predominantly at national level by State authorities in accordance with their constitutional traditions and in light of national circumstances,”  a proposition that appears to leave room for varying standards in the protection of the Convention rights, contrary to the principle of universality. Startlingly, given the only too evident, continuing occurrence of sometimes grave and systematic human rights violations within the Council of Europe region, the draft Declaration confidently asserts that this new emphasis on national adjudication is a “natural step in the evolution of the Convention system” given that the Convention is now well embedded in national legal systems (para.10).

The second aspect of the draft Declaration worthy of particular scrutiny is proposals addressing the “subsidiary rule of the Court”. The principle of the subsidiary nature of the Convention system is long established in the jurisprudence of the Court. It recognises that national authorities are best placed to evaluate local needs and conditions in the implementation of human rights, but also that such implementation must always be subject to the Court’s review. The draft Declaration posits a notion of subsidiarity that appears to restrict the Court’s role, however, stating (without qualification as to the nature of the rights or aspects of rights concerned) that: “the Court … should not take on the role of States Parties whose responsibility it is to ensure that Convention rights and freedoms are respected and protected at national level.” (para.22) Singling out asylum and migration cases, it asserts that where national procedures in these cases operate fairly and in respect for human rights, the court should only intervene “in the most exceptional circumstances”. (para.26) In the context of a political declaration, such language appears to question the scope of the Court’s role under Article 19 of the Convention.  It is all the more concerning because it is followed by direct calls on the Court to apply more “robustly” the principles of subsidiarity and the margin of appreciation.  These are principles of judicial interpretation, whose application should be a matter for the Court alone; in seeking to direct the Court as to their nature and scope, the draft Declaration fundamentally misconstrues the role of the judiciary under the rule of law.

Finally, the most disturbing passages of the draft Declaration are those that promote the idea of a “dialogue” between Member States and the Court. The draft declaration proposes “an ongoing constructive dialogue between States Parties and the Court on their respective roles in applying and developing the Convention” (para.31) and “an ongoing dialogue in which states and their populations are actively involved” (para.32).  Such dialogue would “give a clearer picture of the general views and positions of governments and other stakeholders, thereby solving some of the challenges of developing the Convention over time [and…] anchor the development of human rights more solidly in European democracies.” Although the draft also stipulates that such dialogue should take place “with respect for the independence of the Court and the binding character of its judgments”, this qualification rings hollow against the background of the proposals made; the risk that that they could facilitate inappropriate political pressure on the Court regarding specific cases, principles or standards, is clear, and is difficult to avoid.  

Of course, the Convention system already allows space for the views of Member States on regional human rights standards to be expressed – a “dialogue” of sorts – within the bounds of constitutionalism. First, Member States can continuously shape and develop Council of Europe human rights standards through standard setting in the Committee of Ministers.  In individual cases before the Court, they also have wide powers to put forward their views through third party interventions. “Dialogue” between governments and an independent court outside of these spheres is however no more appropriate than it would be within a national system.   The court’s proper interlocutors in any exchange of views between the national and regional levels are national courts, with which it has already established fruitful dialogues.

It is disappointing to see basic principles of the rule of law such as the independence of the judiciary being called into question within a regional human rights system designed precisely to defend such standards – and which has been so effective in upholding these standards in the region.  It is a cause for continuing concern that regional human rights systems – not only the European Convention system but also notably the Inter-American Court and Commission – increasingly face such challenges arising from the hyper-nationalist politics of their Member States.  

The draft of the Declaration is of course still in its early stages and it is to be hoped that the Member States will heed the warning voices and substantially amend the Declaration.  How should they transform it? The European Convention system undoubtedly needs the political support that a high level political declaration could bring.  First and foremost, it needs a Declaration that would contain clear, specific and practical commitments from the Member States on national implementation and on execution of judgements (drawing on the language in the Brussels declaration). This, combined with better national processes for the often complex exercises involved in executing European Court judgments, would considerably lessen the caseload of the Court.

Second, the Declaration should provide the elements the court needs to be effective in exercising its supervisory role: strong political re-affirmation of support for its role and independence; commitments for sufficient additional resources to deal with its caseload effectively, and improved judicial selection procedures that will ensure that the best candidates can be appointed to the Court and can carry forward its vital work.  It is this last point, as ICJ and OSJI have argued in a recent report on selection of judges for regional human rights courts, can truly ensure that future of the system is strengthened from within. 

These issues are already addressed by the Copenhagen Declaration – they should be placed at its heart, and the text that threatens the independence and role of the Court should be discarded.  As negotiations on the Declaration continue, there is still time for it to make a positive contribution to the future of the Convention system.

The Impact of Unpaid Internships at the ICC on the Development and Legitimacy of the ICC

by Karl Kemp

[Karl Kemp is a freelance South African journalist whose work has appeared, inter alia, in VICE and Rolling Stone magazine.]

The controversy and angst engendered by the subject of unpaid internships is nothing new to my generation. In 2015, an UN intern in Geneva was found sleeping in a tent next to the city’s eponymous lake, unable to afford housing, having lied on his application form regarding the fact that he had sufficient means to support him during the program. The world’s paid-internship advocacy groups have come into ever-sharper focus since, as UN interns around the globe staged protests and walkouts. International organizations, and the UN in particular, have become notorious for their lack of paid internship and entry-level positions.

As I write, myself and dozens of my fellow LL.M public international law graduates from the University of Amsterdam class of 2017 are embroiled in a seemingly futile struggle to break into a subsection of this world – that of international criminal justice. This problem is patent and pressing in the UN system generally, and yet it has particular bearing upon the institutions of international criminal law, and especially the under-fire ICC.

Though the Hague-based court and standard-bearer for international criminal justice has been facing an onslaught of think-pieces and media glamorizing regarding its alleged ‘racial bias’ since time immemorial, there are other, more tangible and less clickbait-worthy issues that needs be solved. Many of my former classmates have attempted to survive on a shoestring budget working internships before relenting and turning to the lucrative corporate private international law world in Amsterdam. Others take low-paid positions at academic research institutions or manage social media accounts for legal think-tanks in order to ‘get a foot in the door’. Whilst admirable, and of course serving a vital part of legal development, this imbalanced state of affairs serves to keep potentially brilliant lawyers from the judiciary and further adds to a field of professional commentators rather than practitioners.

The question of unpaid internships is not a purely moral or ethical one. Quite clearly, there are budget constraints and other factors that the general public are not privy to which influence the ICC’s spending priorities. Rather, the problem is that unpaid internships have a real and tangible impact on the work of the ICC and the development of international criminal law generally. The institution should prioritise a sustainable policy of centralized training in order to avoid a crisis of legitimacy. Should a crisis of legitimacy arise, the moral aspect of the debate will come into play regardless of the court’s best intentions.

Of course, it would be absurd to suggest that a lack of a salaried staff of interns is the root cause of the ICC’s woes, but it does represent a useful symbolic representation of a more abstract issue that touches at the roots of the ICC’s legal culture – that of a lack of a sustainable, future-orientated approach to the persons that will eventually people its halls and be tasked with delivering the aforementioned international criminal justice, and the effect this has on the court’s overall trajectory.

The link between inefficiency and unpaid internships may be extrapolated as follows: The ICC’s work, and that of its forebears, is often accused of being hampered by a clashing of legal cultures and an unsettled legal practice engendered by the attempted fusion of continental and common law procedures. It has been argued by scholars that this approach leads to inefficiency and a lowering of fair-trial standards.

Specifically, Jackson and Brunger note that

“the process of harmonization has developed in a pragmatic manner on the basis of those procedures that seemed most accessible to hand and has resulted in a procedural convergence of largely ‘adversarial’ structures. Yet such a convergence…was achieved without a shared consensus as to how these structures were to be utilized for the purposes of doing international justice. This absence of consensus created a vacuum for an inevitable fragmentation of practice.”

As a standard-bearing court, these kinds of issues leave the ICC more vulnerable to external criticism, and rightly so. Any globalized institution that acts outside national sovereignty should be held to the utmost standards of fairness and legitimacy. This means that efficient, fair and transparent procedures at the ICC are of paramount importance. The work of the ICC must be the benchmark standard for international criminal justice and as such any missteps are detrimental to perceptions of legitimacy – and hence key to the project of international justice

Currently, the ICC more resembles an ad hoc body of lawyers with already settled ideas of what legal practice entail, which then necessitates an overly flexible and inefficient system to compensate. For example, the abstract system of free proof evidence, in which evidence is freely admitted and weighed in totality at the end of proceedings, has come under fire by scholars like Peter Murphy, who accuse it of placing the accused in a precarious position regarding their trial rights by creating ‘evidential debris’. He notes that “in addition to making trials much longer and more complex than they need be, such evidential debris poisons the record and ultimately makes it more difficult for judges to assess the weight of the evidence and arrive at the truth”. Scholars have further questioned issues such as the role of the judge in proceedings, whether rules of evidence should be applied, and what role witness statements should play. These are all sharply distinguished in the various legal traditions, and it is unsurprising that lawyers trained in one or the other have difficulty accepting and putting into practice that with which they are not familiar.

These ingrained approaches, continental and common and all the various substrata of them, are baggage brought with lawyers from domestic jurisdictions, and that this has carried on happening despite the ICC now being operative for a generation, may be partly ascribed to the policy of unpaid internships and related matters pertaining to a failure to invest in young lawyers. The combined practice of unpaid internships and a lack of centralized, specialized legal training forces aspirant lawyers and advocates like myself and many of those in my former classes to train at domestic levels (if we have not given up on ICL entirely) in hopes of coming back to the ICC with sufficient experience to gain a paid position – and hence reinforces the paradigm of clashing legal cultures, and hence contributes to the aforementioned unsettled legal practice and inefficiency of procedure. And of course, it is those from developing countries who labour most under the living costs of The Hague, (consistently ranked among the most expensive cities in Europe) – those that the work of international courts most affect, and who have most of a stake in the success of the court.

Given the uniquely limited range of entry-level positions and the internships that take their place in such a system, these few opportunities simply must be made as accessible as possible to as many aspiring criminal lawyers as possible. Paying interns and centralizing and prioritizing training and practical education from the ground up should thus be a core component of a new strategy to address inefficiencies. It would go some ways to ensure that international criminal lawyers are exactly that – not criminal lawyers who are forced to adapt to a system which does not have a jury, or rules of evidence admission, or does have a complete dossier approach, or does allow hearsay, or any other example from the wide range of clashes at the ICC.

Obviously, paying interns will not resolve the issue entirely. There is no international bar exam, and domestic qualifications will remain necessary for the foreseeable future should young lawyers wish to eventually appear in court. But attracting young persons to a secure financial working environment will allow for a focusing of effort and ideas; interns that will learn the workings of the ICC and international criminal law before they are influenced by domestic systems – lawyers whose foundations are laid in the field, upon which to build, rather than the other way around. The distinction is fundamentally important, and should serve to guide the ICC in developing a workable strategy.

It would appear that few career paths are more difficult to navigate, more frustrating to tread, more confusing to reach the top of, than international criminal law. Young aspirant international criminal lawyers need a measure of reassurance that the field is developing and welcoming to those who wish to practice, as opposed to comment or proselytize. We cannot all be academics and scholars; a horde of know-better’s pressganging a small body of litigators, prosecutors and defence counsels. The ICC simply has to broaden its approach or we will wallow in the politics we so desperately need to be divorced from, risking being known as a profession of chatter rather than action.

Case selection controversy may eventually be resolved as it is not a constitutive element of the ICC in that it does not affect its structure or function. The same cannot be said of the bare-bones composition of the court from the ground- up – and by prioritising legal training and reforming a vision for the future of ICL, the court would do better in ensuring long-term sustainability. Paying its interns would be a huge step in that direction.

Submit to the Harvard International Law Journal!

by Kevin Jon Heller

The Harvard International Law Journal has just posted a call for their 60th anniversary volume. Here is the relevant text:

The Harvard International Law Journal is now accepting article submissions for Volume 60. We seek to publish innovative, original scholarship that makes a significant contribution to the field of international law. We welcome submissions from legal scholars, practitioners, and doctoral degree candidates on topics of private or public international law and related fields, including interdisciplinary work.

For our 60th Anniversary volume, as we reflect on our past and look forward, the Journal is particularly interested in publishing articles about the frontiers of international law. Frontiers represent new horizons and new perspectives; but, they can also reveal limits, gaps, and boundaries. We intend the broad line of inquiry for this issue to include emerging issues in international law, interactions between existing bodies of international law, limits of international law, the influence of new technologies or scientific understandings on international law, and interdisciplinary perspectives on international law and governance.

I’ve been fortunate enough to publish two articles with HILJ, including one — my “What Is an International Crime? (A Revisionist History)” article — that will be in print very soon. I have nothing but good things to say about working with the journal. Not surprisingly given the caliber of the students, the journal provides excellent feedback that will make your article better. And if you’re particularly fortunate, HILJ will organise an online symposium about your article. They solicited responses to my “A Sentence-Based Theory of Complementarity” article from Carsten Stahn and Darryl Robinson. And Mia Swart, Astrid Reisinger Coracini, and Alejandro Chehtman will be responding to my new one. (I’ve also been given an opportunity to reply.) Being able to carry on a virtual conversation about your work is a rare treat.

As I said, submit to HILJ! (Yes, double entendre intended.)

Kenyan Appeals Court Strongly Affirms That al-Bashir Cannot Claim Immunity As a Defense Against the ICC’s Arrest Warrants

by Tim Fish Hodgson

[Tim Fish Hodgson is a Legal Adviser for the International Commission of Jurists in Johannesburg, South Africa.]

A Kenyan Court of Appeal decision handed down last week has, once again, reaffirmed the Kenyan government’s international obligation to arrest Sudanese President Omar al-Bashir should he ever return to Kenya. The Court concluded “the Government of Kenya by inviting al Bashir to Kenya and failing to arrest him acted not only with complete impunity but also in violation of its international obligations.”

The African Union and some individual States such as South Africa, Uganda and Kenya appear to have serious concerns relating to what they perceive the conflicts between their obligations to arrest al-Bashir under the Rome Statue of the ICC and their obligation to respect his diplomatic immunity as a Head of State. This apparent conflict is clearly expressed by both the African Union’s ‘Withdrawal Strategy Document’ and the draft International Crimes Bill introduced by the Minister of Justice to South African Parliament. But the greatest testament to this discomfort is these and other states repeated failures to arrest al-Bashir despite their international legal obligations and pressure from local, regional and international human rights defenders.

The Kenyan Appeal Court recognized the “rare geopolitical predicament” faced by the Kenyan government in balancing its “focal role” in Sudan and “remaining true the African Union resolution not to cooperate with the [ICC]” with its obligations in terms of the international criminal law which is has domesticated in its own International Crimes Act.

Nevertheless, grounding its judgment in the historical foundations of international criminal law, the Court quotes with approval the Nuremberg Tribunal’s observation that “perpetrators cannot shelter themselves behind their official positions in order to be freed from punishment in appropriate proceedings”. The Court notes that when a state commits acts which violate ius cogens norms it “waives any rights to immunity” and concludes that, similarly, “we have no doubt that an exception to immunity exists in cases where the individual is responsible for crimes against humanity”. This, it reasons is because “acts amounting to international crimes of individuals cannot be considered legitimate performance of official functions of State” capable of attracting immunity in the first place.

In taking this approach the Kenyan Court of Appeal deftly acknowledges that despite the potential political conflicts that there is no real legal conflict between provisions on the Rome Statute with respect to immunity. This same approach was supported by the International Commission of Jurist’s submission to South African Parliament signed by six former Constitutional Court Justices and Navi Pillay the former United Nations High Commissioner for Human Rights. In a judgment that has received praise from international law experts John Dugard and Guénaël Mettraux no less, the Supreme Court of Appeal of South Africa too concurred with this approach, noting that allowing immunity to prevent arrest in such situations “would create an intolerable anomaly”.

Highlighting the irony that Kenya’s government disregard of its international obligations in inviting al-Bashir to the inauguration of Kenya’s progressive Constitution, the Court also notes that the government’s actions violate a specific provision of the Kenyan Constitution itself. Article 143(4) of the Constitution reads “[t]he immunity of the President under this Article shall not extend to a crime for which the President may be prosecuted under any treaty to which Kenya is party and which prohibits such immunity”.

Despite these categorical statements of Kenya’s legal obligations to arrest al-Bashir pursuant to the Kenyan Constitution, the International Crimes Act and the Rome Statute of the ICC, the Court overturned the provisional arrest warrant for al-Bashir issued by the High Court on the ground the requisite urgency no longer existed at the time the order was issued.

This, it reasoned, is because section 131(1)(c) of Kenya’s International Crimes Act explicitly permits the issuing of a provisional warrant only if “it is necessary or desirable for an arrest warrant to be issued urgently”.

This aspect of the Court’s judgment, which is inconsistent with the Rome Statute, strongly implies that future applications relating to al-Bashir’s arrest would need to be heard and determined urgently before or during a visit to the country. This despite the Court’s own observations that the Kenyan government remains bound by its international obligation to cooperate with the International Criminal Court by executing warrants the ICC had issued when al-Bashir’s visit in 2010.

Bolstering the possibility of the urgent issue of a provisional arrest warrant in a Kenyan High Court, however, the Court’s decision affirms that human rights organizations such as the Kenyan Section of the International Commission of Jurists have legal standing to approach the High Court requesting the issue of a provisional arrest warrant. This will mean that, as with litigation initiated by the Southern Africa Litigation Centre in South Africa, the Kenyan government’s own continued indifference or deliberate resistance to its international obligations, would not prevent al-Bashir’s arrest should he return to the country.

The judgment of the Kenyan Court of Appeal is of regional and international significance in the face of increasing threats of collective withdrawal of African countries from the ICC. Most particularly, after failing to arrest al-Bashir on a visit to South Africa in 2015, the South African government appears to be charging ahead with its intention to withdraw from the ICC by proposing the enactment of woefully inadequate domestic legislation.

As a decisive statement by an African court this judgment will be useful for human rights defenders, lawyers and judges in South Africa who are consistently accused of lacking regional legitimacy by the government in their attempts to ensure that al-Bashir is arrested and prevent South Africa’s withdrawal from the ICC. In the South African context, it remains to be seen whether newly appointed President Cyril Ramaphosa may change the South African government’s headstrong tune in the face of considerable, consistent and widespread criticism.

Finally, to some the Kenyan Appeal Court’s decision to invalidate the provisional arrest warrant for al-Bashir may appear to provide legitimacy to the Kenyan governments action. Properly read, this is perhaps merely politically astute exercise of its powers and is clearly overshadowed by the Court’s decisive condemnations of the government’s intransigence and strong findings which make absolutely clear that the Kenyan government is obliged to cooperate in al-Bashir’s arrest should he ever return to Kenya.

In terms of 163(4) of the Kenyan Constitution decisions of the Appeal Court may be appealed to the Supreme Court of Kenya if it can be shown that the matter involves the interpretation or application the Constitution or if it is decided that it is a matter of “general public importance”.

Note to Col. Spath: Don’t Worry, Be Happy

by Gabor Rona

[Gabor Rona is a Visiting Professor of Law at Cardozo Law School.]

Just when we thought the Guantanamo Military Commissions could not get any more dysfunctional, this happened: defense lawyers quit the proceedings in the U.S.S. Cole bombing case. Their boss, Marine Brigadier General John Baker supported the move, and for his trouble, was held in contempt, ordered to pay a fine, and was confined to quarters. The Military Commissions’ “Convening Authority,” Harvey Rishikoff, overturned the sentence, but not the contempt ruling. For his trouble, Rishikoff was then fired by Secretary of Defense Mattis, albeit for other possible reasons that have not been made public.

The brick that broke the kangaroo’s back seems to defense counsels’ belief that their private and privileged communications with clients were in fact being monitored by the government.

Air Force Colonel Vance Spath, the man in robes* sitting behind the bench at the Guantanamo military commission’s U.S.S. Cole bombing case is at wit’s end:

“I’m not ordering the Third Reich to engage in genocide. This isn’t My Lai.’ All he was doing was telling the lawyers to listen to him and get back in court, he said. ‘Those are the extent of my orders. Not war crimes, people.”

So reports Amy Davidson Sorkin in the New Yorker.

Col. Spath is wrong, of course. While defense counsel have not directly alleged so in connection with their withdrawal, the military commissions ARE a war crime, just not in the U.S.A.

Note that Common Article 3 of the Geneva Conventions, to which every country including the U.S. is a party, prohibits trials that fail, in the somewhat archaic language of 1949, to provide “judicial guarantees recognized as indispensable by civilized peoples.” Those judicial guarantees are reflected in both human rights law binding on the U.S. (articles 9 and 14 of the International Covenant on Civil and Political Rights) and the law of armed conflict (Article 75 of the Geneva Conventions’ Additional Protocol I. The U.S. is not a party to the Additional Protocol, but has acknowledged that Article 75 is binding customary law in international armed conflict. The U.S. does not acknowledge the same for non-international armed conflict, but the similarity of the judicial guarantee provisions of human rights law, applicable in non-international armed conflict, and Article 75, applicable in international armed conflict, make that stance untenable. See more on the customary status of Article 75 in all armed conflicts here and here.)

The ways in which the Guantanamo military commissions, as part of the Guantanamo detention regime, fail to respect requisite judicial guarantees are well known:

  • Government eavesdropping on attorney-client communications.
  • Denial of speedy trial. The Cole bombing occurred in October 2000. The defendant, Abd al Rahim al-Nashiri, was captured in November, 2002.
  • Denial of right to “confront” (cross-examine) witnesses. This is due to the general admissibility of hearsay, something only exceptionally permitted in U.S. courts.
  • Possible admission of evidence gained through torture. While the military commissions claim to prohibit the use of torture-based evidence, the admission of hearsay and the failure to exclude all statements of the accused resulting from interrogation after torture (e.g., by so-called “clean teams” of interrogators) contradicts the prohibition.
  • Denial of public trial. The public cannot access Guantanamo. Video and audio feeds of the proceedings are on tape delay, permitting government censors to prohibit dissemination of embarrassing evidence, such as that of the defendant’s torture.
  • A corrupt plea-bargaining process. In a normal criminal court, if the accused rejects a plea-bargain offer, he or she goes to trial. If found not-guilty, he or she is free. In Guantanamo, plea-bargains are inherently coercive, since a not-guilty verdict at trial does not guarantee release. It has been said that the only way for military commission defendants to leave Guantanamo is to plead guilty.

Interestingly, all violations of Common Article 3 used to be war crimes under U.S. law. But the War Crimes Act of 1996 was re-written in 2006 to criminalize only certain parts of Common Article 3, rather than all of it. What was left out of the new law? You guessed it, conducting trials that fail to provide “judicial guarantees recognized as indispensable by civilized peoples.” And when did this happen? You guessed it, as part of legislation for the Guantanamo military commissions. The drafters of the new War Crimes Act knew exactly what they were doing, even if most members of Congress didn’t. Why, if they believed that the military commissions were on solid international law and constitutional ground, did they weaken the War Crimes Act this very specific way?

More generally, Col. Spath complained of defense counsel that:

“They don’t follow orders; they don’t follow direction; they don’t obey commission regulations, or rules, or subpoenas, as we saw’ . . . They had exhibited ‘lawlessness’ and ‘contemptuous behavior’; they had ‘scoffed at my authority.”

I have some sympathy for Col. Spath. If he doesn’t know that his military commissions are illegitimate it’s understandable that he’s offended by the behavior of defense counsel.

Another of his complaints recounted in the New Yorker is that defense lawyers wear informal attire in military commission sessions. I’m reminded of the Chicago 7 trial of Vietnam War protesters following the police riots during the 1968 Democratic Convention. A grumpy Judge Julius Hoffman tried in vain to maintain courtroom decorum. But the Hippie, Yippee and Black Panther defendants understood that the only effective way to approach the highly politicized trial was to contest its legitimacy through acts of civil disobedience in the courtroom. One day, one of the defendants, Abbie Hoffman, showed up in black robes!

When defense counsel in the military commissions show up in informal dress, they are, it seems to me, exhibiting the tame military version of Abbie Hoffman and Bobby Seale’s protests in 1968 Chicago. From their sartorial choices to their decision to withdraw from the case, their behavior is not only within an honorable American tradition of challenge to structural injustice, but is also rational, consistent, and indeed, necessary, to the vindication of constitutional and international human rights and law of war rules applicable to the United States.

What’s more important than what binds the Chicago 7 defendants and the Guantanamo defense lawyers is what separates them: the Chicago 7 were being tried in a real court and were under no legal obligation to protest their trial.

The “new and improved” War Crimes Act of 2006 ends with the observation that the crimes listed in the law do not define the full scope of U.S. obligations under Common Article 3 of the Geneva Conventions. In other words, the U.S., and therefore, its military personnel, are still prohibited by international law from operating unfair trials, even though the failure to do so is no longer a war crime. Rather than dissing Colonel Spath, the defense lawyers are doing him a favor by bringing these proceedings to a halt.

*No personal disrespect meant, but I can’t call him “judge.” Military commissions are not courts. The “courtroom” is not a courtroom. The “judge” is not a judge. This is clear to those who understand the pedigree of military commissions. The Supreme Court has recognized that military commissions are procedures “born of military necessity.” Historically, they have been established in war zones and situations of occupation, where normal judicial mechanisms and procedures are not operable. (See also, Ex Parte Milligan.) That cannot be said of the Guantanamo military commissions, which were set up in full view of our well-oiled federal court system, precisely to avoid application of judicial guarantees required in our constitutional courts. The Guantanamo military commissions have nothing to do with military necessity. For that reason alone, they are illegitimate.

U.S. v. Microsoft (Microsoft-Ireland): Implications for International Lawmaking

by Austen Parrish

[Austen Parrish is the Dean and James H. Rudy Professor at Indiana University Maurer School of Law. He is a co-author, with appellate lawyer Carl Cecere and Prof. Anthony Colangelo (SMU Dedman School of Law), of an amicus brief filed in U.S. v. Microsoft.]

Next Tuesday, the U.S. Supreme Court will hear U.S. v. Microsoft. A fascinating and potentially landmark case, it is one in a growing line of transnational cases where the Court has grappled with how new technology affects older laws. Indicative of its potential significance, thirty amicus briefs were filed in the case, including one that I was pleased to help write.

The case began when the federal government obtained a warrant requiring Microsoft to turn over records related to a customer’s email account in a drug trafficking investigation. Microsoft agreed to provide records stored in the United States. It refused, however, to provide communications stored in Ireland. Instead of seeking Ireland’s cooperation or using a Mutual Legal Assistance Treaty designed to address cross-border criminal investigations, the Government took a different tack. Congress, according to the Government, had already granted it—and local and state law enforcement—the power to force Microsoft to seize private emails of foreign citizens, stored on data servers in foreign countries, and import them into the United States. The Government asserts this power exists even when foreign privacy laws prohibit disclosure, and without the need to notify the email’s owner or the country where the emails are stored.

The case has potentially wide-ranging implications. But, on a basic level, at stake is how courts should interpret a statute when technology enables the government to obtain information previously unobtainable. Did Congress, when it enacted the Stored Communications Act in 1986, intend to give local law enforcement the power to seize communications stored overseas? Because it served the warrant at Microsoft’s Washington state headquarters seeking documents under Microsoft’s control, the Government asserts it doesn’t matter that technology now enables what previously would have been prohibited. Microsoft argues, in contrast, that the presumption against extraterritoriality prevents guessing what Congress would have wanted. When Congress enacted the Stored Communications Act thirty years ago, it could not have anticipated seizing emails stored abroad from computers within the U.S. because the internet was in its nascent form, email was just beginning, and no one had conceived of cloud computing. Accordingly, the Court should not assume Congress granted law enforcement this power. This is particularly true, Microsoft urges, because the Act was designed to provide greater privacy protections in light of changing technology, not less.

Worth emphasizing is what this case is not about. The case is not about whether law enforcement should, in certain circumstances, be able to effectuate a cross-border search. It’s not a question of whether the Government needs more tools to investigate transnational crime. And it’s not about whether criminals can evade law enforcement efforts by storing incriminating materials abroad. What the Government seeks could be achieved through the existing MLAT process, through collaboration with Ireland, through new legislation (such as that currently proposed by a bipartisan group of Senators), or through the negotiation of bilateral and multilateral treaties. It’s also not a policy question of what might be a sensible approach if Congress rewrote the statute today. The question is what Congress authorized when it passed the Stored Communications Act. While international comity may ultimately come into play—allowing a court to balance competing sovereign interests when deciding whether to enforce the warrant—that only happens if the Court finds the Act granted the government authority to seize communications stored abroad in the first place.

As set forth in our amicus brief, if the Court is faithful to its past precedent Microsoft should win the statutory argument. To be sure, there’s a number of complicated doctrinal considerations, and I won’t repeat the arguments set out in our amicus brief. In this post, however, I thought I’d highlight how a decision in the Government’s favor could potentially undermine international lawmaking.

Most commentators believe a harmonized, international solution is essential. That’s true for privacy and data law scholars who argue that the “way forward on data extraterritoriality must be an international one.” It’s also true for those writing about coordinated approaches to transnational crime. The question is whether a ruling that enables the Government to unilaterally seize private information of foreign citizens stored abroad helps or hurts in that effort. At the very least, the Government’s interpretation of the Act bypasses and makes bilateral mutual legal assistance treaties less relevant. But putting that aside, does one result or the other lead to a more likely international solution?

Viewed through this lens, for those committed to effective international lawmaking, there should be a clear preference in outcomes. A ruling that the Government has the power to unilaterally seize foreign communications undermines incentives to push for an international solution or to fix the shortcomings of mutual legal assistance treaties. As Professor Tonya Putnam’s recent book and research show, in the past when courts have rejected government arguments for extending domestic statutes extraterritorially, those refusals have helped fuel U.S. multilateral or bilateral engagement. In contrast, rulings that permits unilateral extraterritorial action create environments where there’s little urgency for the U.S. to find coordinated solutions. The most common result is free-for-alls, where each nation relies on its own piece-meal approach. Not surprisingly then, the reciprocity problem—that other nations would unilaterally try to seize private communications of U.S. citizens—figures prominently in the Second Circuit opinion. As one lawyer provocatively, but accurately, explains: “Why is the U.S. government trying to help Vladimir Putin access information stored in the United States?

For international lawyers, the Government’s position should be particularly troubling because the Government asks the Court to assume that Congress authorized activity that in 1986 would violate prohibitions on extraterritorial enforcement jurisdiction. All agree that the Government could not send FBI agents to Ireland to retrieve documents without Ireland’s consent. The Government also could not surreptitiously hack into data servers in Ireland. That too would violate Irish sovereignty. The issue then is whether the Government can do indirectly what it is prohibited from doing directly, by compelling Microsoft to do its work for it. But the U.S. can’t sidestep international law’s limitations merely by conscripting a private company to act in its stead. Ireland’s sovereignty and its citizen’s privacy rights aren’t offended less because the Government forced Microsoft to electronically seize records for it.

The response by some is to reimagine international law. Professor William S. Dodge takes this approach somewhat in a recent post on the Just Security blog. Citing to his own work with the Fourth Restatement, he says that the amicus brief “is simply wrong” on the international law by pointing to U.S. domestic court decisions related to production orders. Because I think highly of Professor Dodge and his other work, and because he directly responds to our amicus brief, I felt a short reply appropriate.

As an initial matter, the Fourth Restatement does not purport to set out international law. It’s an important publication, written by distinguished scholars, but it’s a survey of how U.S. courts have ruled. Some comments in the Fourth Restatement are contentious. For example, Professor Dodge cites to it for the proposition that customary international law “does not limit adjudicatory jurisdiction at all, except for certain rules of immunity.” That suggestion is inconsistent with the Third Restatement, which indicates a reasonableness restriction exists, and canonical treatises on international law. While it may be true that some domestic courts have not allowed international jurisdictional principles to constrain them and that international law limits are rarely in play given often stricter domestic limitations, the assertion that international law imposes no limits whatsoever is a minority position. As Professor Alex Mills explains: “Although some international lawyers have questioned the need for a separate category of ‘adjudicative jurisdiction,’ few if any would maintain that adjudicative jurisdiction is unregulated in international law.” The point is not to argue whether the Fourth Restatement is normatively right, but to suggest that the Fourth Restatement does not reflect settled international law, and not international law as it existed in 1986.

On the substance there’s also problems with arguing, as the Government does, that because some lower courts have permitted subpoenas to produce information from abroad that international law permits unilateral, extraterritorial warrants. Lower court cases focused on civil discovery generally do not interpret international law. They also don’t involve warrants, let alone warrants under the Stored Communications Act—an issue discussed extensively in the briefing. The cases also aren’t comparable because extraterritorial discovery is only permitted if the court has personal jurisdiction over the person subject to the production order, something that does not necessarily exist over foreign email owners (it might be different if the Government were only seeking foreign stored documents of Americans).

Even if these problems were overcome, it’s not clear that unilateral extraterritorial discovery orders are themselves always consistent with international norms. Certainly other countries object strongly to the practice. The background assumptions of the Brussels Convention, the Mutual Legal Assistance Treaties, the European Union’s General Data Protection Regulation, and the U.S. Department of Justice’s own manuals are that international law requires coordination, not unilateral action, to effectuate a cross-border production. Even if one could argue that state practice is changing, in 1986—the critical time for determining what Congress authorized in the Stored Communications Act—international law did not permit law enforcement to seize communications stored abroad and therefore is not something the Court lightly should assume Congress authorized.

Also contrary to what the Fourth Restatement implies, unilateral extraterritorial discovery orders have provoked pronounced friction. Published in 1987 around the same time of the Stored Communications Act, the Third Restatement was clear: “[n]o aspect of the extension of the American legal system beyond the territorial frontier of the United States has given rise to so much friction as the request for documents in investigation and litigation in the United States.” And as Gary Born and Bo Rutledge note in their well-regarded treatise: “Unilateral U.S. discovery of materials located abroad has frequently provoked vigorous foreign resistance” including diplomatic protests and blocking statutes. Writing earlier in a related context, the International Law Association noted that “[i]t is difficult to find any authority under international law for the issuance of orders compelling the production of documents from abroad.” Or as Professor Cedric Rygaert has recently explained: “Foreign states, European ones in particular, have. . . not surprisingly often argued that the U.S. execution of discovery orders for the production of documents located within their territory is not in keeping with the territoriality principle, violates international law, and violates their judicial sovereignty if their consent was not previously obtained.”

And for those interested in international law, perhaps this is where U.S. v. Microsoft is most interesting. For me, it’s an example of how unilateral action in the name of expediency threatens to undermine longer-term interests. U.S. companies aren’t the only ones that can access data abroad, and the U.S. should have an interest in protecting its own citizen’s privacy interests from foreign intrusion. This is exactly the kind of problem where coordinated, international solutions are needed. Unilateral, extraterritorial enforcement—in which nations compel the production of data located anywhere around the globe—is not a sustainable approach. More importantly for this case, there’s no indication that in 1986 Congress intended this odd result.