Recent Posts

The First Annual Michael Lewis Memorial Teleforum on “Defining the Law of War”

by Julian Ku

As many of our readers may recall, the late Professor Michael Lewis was a great friend of this blog and an important voice in U.S. international law and national security scholarship.  To honor his memory, the Federalist Society has recently launched the first annual Michael Lewis Memorial Teleforum in his honor.  The podcast features Maj. Gen. Charles Dunlap (Professor of the Practice of Law Executive Director, Center on Law, Ethics and National Security, Duke University School of Law) and Prof. Michael A. Newton (Professor of the Practice of Law, Vanderbilt University Law School).

The law of war is of fundamental importance to the Armed Forces of the United States. The law of war is part of who we are.” So begins the new U.S. Department of Defense Law of War Manual, published last June, which had not been updated for nearly 60 years. At 1180 single-spaced pages and with 6,916 footnotes, the manual would seem to be thorough and exhaustive. Our experts will critique the Department of Defense Manual. Does it provide the guidance necessary to troops on the ground, commanders, and all actors in between? How does it address modern warfare, terrorism, and asymmetrical war? How does it define lawful and unlawful belligerents? What does it say about interrogation and detention? These and other questions were addressed by our experts.

It’s a wonderful way to remember a great guy, but continuing to discuss and debate those issues about which he cared the most.

The ICC and Mainstream TV: A Recent Episode of The Blacklist

by Kristen Boon

I was watching a recent episode of the TV show The Blacklist the other day, when much to my surprise there was a segment on the International Criminal Court.

As the summary recounts:  “The Director wakes up on the Venezuelan president’s jet, where Foreign Minister Diaz arrests him. Red calls Hitchin to say they’re on their way to the Hague, where The Director will be tried for crimes against humanity…”

On the one hand, there is an accurate back and forth about whether the ICC has jurisdiction over The Director, because the US is not a party to the ICC. (Venezeula, of course, is).

On the other hand, the writers glossed over the fact that “delivering” a high level US government official to the ICC’s front door does not equal a referral – the ICC has the power to determine whether its jurisdictional requirements are met under Arts. 12 & 13 of the Rome Statute.

The other creative fiction of the show is that the ICC has an ongoing investigation into US activities (drones, torture, and rendition).    In reality, the ICC has opened an investigation into the situation in Afghanistan, which implicates the US.   It was first reported in the press two years ago.   The 2015 Report on OTP activities (at p. 31) indicates this investigation is still ongoing.  (Hat tip to Kevin Heller for confirming the current status of this probe).  Nonetheless, any ongoing ICC investigations are far narrower  than what the TV show suggests.

I confess to great satisfaction in watching the ICC enter popular culture, even if some creative liberties are being taken as to its jurisdiction and potential reach over American officials.

Spoiler alert: here is the relevant part of the script!

Red: Oh, your God can’t help you now, Peter. You’re traveling over the Atlantic, on the Venezuelan President’s Airbus, – on your way to The Hague.
The Director: You’re insane.
Red: I wouldn’t know. But you’re going to have the distinguished honor of becoming the first American official ever to be charged with even a single war crime, let alone the slew of them you will undoubtedly be accused of – before the week is out.
The Director: This won’t happen. United States isn’t party to the Rome Treaty. We don’t recognize its authority.
Diaz: But Venezuela does. And cases can be referred to the court by any country that is a signatory. You know as well as I do, even better given your position, the international court has been investigating the US government and the CIA for any number of alleged crimes. The drone program, the rendition of foreign citizens, torture as a means of interrogation.
Mr Diaz: The Chief Prosecutor has made it clear. He does not need American permission to move forward.
Red: He needs an American in the flesh. The court will not try anyone in absentia. So far, no country has had the courage to deliver one of your countrymen to the court until now. You’re a trendsetter, Peter. Who knew?
Director: I am the CIA Director of Clandestine Services. Do you have any idea what’s gonna happen to you? This is an act of war. My government will never let it stand.
Red: Precisely what I’m counting on.  …..

Red: Laurel, Raymond here. Here’s where we stand. In a handful of hours, this jet will land in Rotterdam, it will be met by the Dutch federal police, who will escort the Director to ‘S-Gravenhage, where the global spectacle of a high-ranking American official charged with war crimes will begin.

Events and Announcements: January 24, 2016

by Jessica Dorsey

Announcements

  • The Association of Defence Counsel practicing before the International Criminal Tribunal for the former Yugoslavia (ADC-ICTY) based in The Hague, is currently seeking applications for legal interns to start as soon as possible in assisting Defence Counsel with ongoing cases. Interns will be involved in a range of tasks including, but not limited to; conducting legal research, preparing witness summaries, witness preparation, factual research, writing legal memoranda, case management tasks and supporting Defence Counsel in their daily work. Additionally to the internship, the ADC regularly organises field trips and social activities for its interns. Interns also have the possibility of joining the ADC Newsletter Team and the ICTY Intern Career Development Committee. Internships are available starting now, for a period of three to six months, full-time or part-time. Please note: The ADC-ICTY internships are unpaid. For more information on the internship opportunity and for application submissions, please visit the website here.

Calls for Papers

  • The UCL Journal of Law and Jurisprudence is a law journal run by postgraduate students of the UCL Faculty of Laws. The Journal appears twice a year and is available open access. All submissions are assessed through double-blind peer review. The Editorial Board is pleased to call for submissions for the second issue of 2016. This will be our ‘City Issue’ and the Editorial Board welcomes submissions that engage with this general theme. The topic is broadly conceived and leaves scope for any area of law or jurisprudence domestic, regional or international) that is deemed to be ‘City’ related. More information on potential topics and submission can be found here.
  • The Nappert Prize in International Arbitration is now accepting submissions.The Nappert Competition is open to all students, junior scholars and junior practitioners from around the world. To be eligible for the prize, authors must be either currently enrolled in a B.C.L, LL.B., J.D., LL.M., D.C.L., or Ph.D. program (or their local equivalents). Those who are no longer in school must have taken their most recent degree within the last three years, or have been admitted to the bar (or the local equivalent) for no more than three years (whichever is later). The essay must relate to commercial or investment arbitration; must be unpublished (not yet submitted for publication) as of April 30; must be a maximum of 15, 000 words (including footnotes); can be written in English or in French; should use OSCOLA or some other well-established legal citation guide (e.g. McGill Red Book; Bluebook); must be in MS Word format. More information can be found here.

Events

  • On February 3rd, the TMC Asser Institute in the Hague will host: “The Tallinn Manual 2.0 and The Hague Process: From Cyber Warfare to Peacetime Regime.” How do existing international legal norms apply to cyber operations? Not just in times of war, but also to cyber operations that take place outside the context of an armed conflict? The upcoming ‘Tallinn Manual 2.0: The International Law Applicable to Cyber Operations’ represents an effort by the International Group of Experts to discuss these issues in depth. After a brief overview of the role of the Dutch government in supporting this process by Dr. Marten Zwanenburg, Legal Advisor at the Netherlands Ministry of Foreign Affairs, Prof. Michael N. Schmitt, Project Director of the Tallinn Manual, will provide an update on the Tallinn Manual 2.0 process and its treatment of such topics as the law of State responsibility, the prohibition of intervention and the peaceful settlement of disputes as applied in cyberspace.Participation is free of charge and registration is not needed. Seats are available on a first-come, first-served basis. More information can be found here.

  • On 22-23 April 2016 a conference on ‘Representations of the (Extra)territorial: Theoretical and Visual Perspectives’ will take place at the Faculty of Law of Utrecht University. The conference will consist of four panels, addressing respectively virtual reality, the environment, human rights, and general conceptual shifts in understandings of territoriality. The speakers will include Prof. Wouter Werner & Dr. Geoff Gordon (VU Amsterdam),  Prof. Peer Zumbansen (King’s College London), Prof. Mireille Hildebrandt (Radboud University Nijmegen), Prof. Philip Steinberg (Durham University), Prof. Chris Armstrong (University of Southampton), Prof. Juscelino Colares (Case Western University), Dr. Kerry Woods (Leeds University), Prof. Marcus Düwell (Utrecht University) and Dr. Daniel Augenstein (Tilburg University). Participation is free but participants are kindly required to register before the 18th of April 2016 at the following email address: Secretariaat [dot] IER [at] uu [dot] nl

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

Navy SEAL Who Supposedly Killed Bin Laden Under Investigation

by Kevin Jon Heller

The SEAL in question is Matthew Bissonnette, who published the bestselling No Easy Day under the pseudonym Mark Owen. According to the Intercept, the federal government is investigating Bissonnette for revealing classified information and using his position to make money while still on active duty:

A former Navy SEAL who shot Osama bin Laden and wrote a bestselling book about the raid is now the subject of a widening federal criminal investigation into whether he used his position as an elite commando for personal profit while on active duty, according to two people familiar with the case.

Matthew Bissonnette, the former SEAL and author of No Easy Day, a firsthand account of the 2011 bin Laden operation, had already been under investigation by both the Justice Department and the Navy for revealing classified information. The two people familiar with the probe said the current investigation, led by the Naval Criminal Investigative Service, expanded after Bissonnette agreed to hand over a hard drive containing an unauthorized photo of the al Qaeda leader’s corpse. The government has fought to keep pictures of bin Laden’s body from being made public for what it claims are national security reasons.

The investigation is a perfect example of the US government’s bipartisan unwillingness to address crimes committed by the military as part of the war on terror. As I noted more than three years ago, Bissonnette openly admits to committing the war crime of willful killing — a grave breach of the Geneva Conventions — in No Easy Day. Here is his description of how he and a fellow SEAL killed bin Laden (p. 315):

“The point man reached the landing first and slowly moved toward the door. Unlike in the movies, we didn’t bound up the final few steps and rush into the room with guns blazing. We took our time.

The point man kept his rifle trained into the room as we slowly crept toward the open door. Again, we didn’t rush. Instead, we waited at the threshold and peered inside. We could see two women standing over a man lying at the foot of a bed. Both women were dressed in long gowns and their hair was a tangled mess like they had been sleeping. The women were hysterically crying and wailing in Arabic. The younger one looked up and saw us at the door.

She yelled out in Arabic and rushed the point man. We were less than five feet apart. Swinging his gun to the side, the point man grabbed both women and drove them toward the corner of the room. If either woman had on a suicide vest, he probably saved our lives, but it would have cost him his own. It was a selfless decision made in a split second.”

With the women out of the way, I entered the room with a third SEAL. We saw the man lying on the floor at the foot of his bed. He was wearing a white sleeveless T-shirt, loose tan pants, and a tan tunic. The point man’s shots had entered the right side of his head. Blood and brains spilled out of the side of his skull. In his death throes, he was still twitching and convulsing. Another assaulter and I trained our lasers on his chest and fired several rounds. The bullets tore into him, slamming his body into the floor until he was motionless.

This is about as clear-cut as IHL and ICL get in a combat situation. Bissonnette did not make a split-second decision to shoot bin Laden; his account makes clear that he had plenty of time to assess the situation. And there is no question bin Laden was hors de combat when Bissonnette pointed his weapon at him and finished him off. Bissonnette wasn’t even the SEAL who first shot bin Laden in the head, so he can’t argue that this was some kind of continuous action designed to eliminate any possibility that bin Laden remained a threat. Ergo: a war crime.

But it’s bin Laden, of course. Inter malum enim silent leges. So instead of prosecuting Bissonnette for murder under the UCMJ, the US government investigates him for hanging onto a trophy of his kill and profiting from his notoriety.

Behold impunity.

PS: In case anyone is wondering, “death throes” refers to the agonal phase of dying, when the body is shutting down. The agonal phase precedes clinical death (when the heart stops and respiration ceases), brain death, and biological death.

Guest Post: 2015 at the African Court on Human and Peoples’ Rights–A Year in Review

by Oliver Windridge

[Oliver Windridge is a British lawyer specializing in international human rights and international criminal law. Oliver is founder of The ACtHPR Monitor, an independent blog and website dedicated to the African Court on Human and Peoples’ Rights, on twitter @acthpr_monitor. In June 2014 he was one of five non-African lawyers to be appointed to the Court’s inaugural list of Legal Aid Counsel (pro bono). The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organization affiliated to the author.]

Following some positive feedback from last year’s post rounding up the activities of the African Court on Human and Peoples’ Rights in 2014, I thought a review of some of the Court’s key 2015 events may be of interest.

For those who are not familiar with the Court, it was established by the African Union (AU) to hear cases relating to alleged violations of the African Charter on Human and Peoples’ Rights (African Charter) and other international human rights instruments. The Court is based in Arusha, Tanzania and is separate to its cousin the African Commission on Human and Peoples Rights. Two key instruments to keep in mind are the Court’s Protocol, ratification of which gives the Court jurisdiction to hear cases referred to it by the African Commission, from the country itself, from other AU members states and from African Intergovernmental Organizations. The other instrument is the “Special Declaration”, found in Article 5 (3) and Article 34 (6) of the Protocol, which must be signed by the member state in addition to the Protocol to allow individuals and NGOs from that member state to petition the Court directly.

May: the Court’s 37th Ordinary Session

At its 37th Ordinary Session the Court held public hearings in two cases concerning Tanzania. In Onyango et al v Tanzania the Applicants, all citizens of Kenya, allege they were kidnapped in Mozambique and taken to Tanzania where they were charged with murder and three charges of armed robbery. In Abubakari v Tanzania, the Applicant challenges a conviction and 30 year sentence for two counts of armed robbery. Judgement in both cases is pending.

June: Zongo and others v Burkina Faso reparations judgement

Having handed down judgment on the merits in March 2014 in Zongo and others v Burkina Faso, in which the Court found that with regards to the alleged assassination of investigative journalist Norbert Zongo and colleagues in December 1998, Burkina Faso violated several articles of the African Charter and Article 66 of the ECOWAS Treaty by failing to take measures to ensure the families of the deceased the right to be heard by a competent national court, the Court handed down its judgement on reparations. This judgement is the first in which the Court has awarded reparations to successful applicants. The judgement solidified the Court’s initial findings in June 2014 in the Mtikila v Tanzania reparations judgement that the Court has the power to award reparations to the victims of human rights violations. Zongo builds on this by actually doing so. In fact, the Court awarded the entire amount claimed in reparations by the applicants who consisted of the spouses, children and parents of the deceased. The Court also awarded a symbolic payment to the NGO who assisted in bringing the case and ordered costs for lawyer’s fees, travel and accommodation. As I have written elsewhere, the award of reparation should cement Zongo and others v Burkina Faso as another landmark case for the Court.

July: sensitization visit to Lesotho

In July, the Court conducted a one-day sensitization visit to Lesotho. The main objective of sensitization visits being to enhance the protection of human rights in Africa and promote the Court and its activities. As the Court’s press release explained, Court officials met with various government officials, lawyers and NGOs. The visit saw further promises from both government and the NGO sector to work toward signing the Court’s Special Declaration that would individuals and NGOs in Lesotho direct access to the Court.

July: the EACJ ruled on the Court’s Special Declaration

In Democratic Party v Secretary General of the East African Community and others the Appellate Division of the East African Court of Justice (EACJ) ruled on whether signing the Court’s Protocol also creates an obligation on the member state to sign the Special Declaration. The EACJ Appellate Division found that whilst it was able to consider potential violations of the African Charter and the Court’s Protocol under the premise of the East African Community Treaty, the wording of Article 5 (3) and Article 34 (6) of the Protocol contained no requirement that a member state who signs the Protocol must also sign the Special Declaration. This important decision seems to preclude, at least for now, reading any obligations into signing the Protocol that are not clearly spelled out, and keeps the process for granting individuals and NGOs access to the Court a definite two stage process.

August: Cameroon ratifies the Court’s Protocol

In August, Cameroon ratified the Court’s Protocol, taking the number of AU member states who have ratified to 29. Still, only seven AU member states have signed the additional Special Declaration. The AU has a total of 54 members.

September: (Then) President Kikwete visits the Court

Tanzanian President Kikwete, as he was prior to Tanzania’s elections, visited the Court in September. During this visit Kikwete announced that Tanzania was pledging $100,000 towards the Court’s legal aid scheme, which was set up in July 2014. Sadly, some 14 months after the fund’s creation, Tanzania’s pledge appears to be the first and only such donation to the legal aid scheme to date.

October: sensitization visit to South Africa

The Court held a one-day sensitization event in South Africa, including an address by the Court’s President Justice Ramadhani encouraging South Africa, which ratified the Court’s protocol some 13 years ago, to make the Special Declaration. More information on the visit can be seen here and here.

November: 39th Ordinary Session

The Court rendered its judgement on the merits in Thomas v Tanzania at its 39th Ordinary Session, marking another success for an applicant before the Court, this time relating to fair trial rights.

The Applicant was convicted in Tanzania of armed robbery and sentenced to thirty years imprisonment, a sentence he was serving at the time of the application. The Court found that the trial process leading to the Applicant’s conviction and his subsequent attempts to appeal said conviction were riddled with violations of his right to a fair trial. In particular, the Court found Tanzania in violation of Articles 1, 7(1) (a) (The right to an appeal to competent national organs) , (c) (the right to a defence and counsel of choice), and (d) (The right to be tried within a reasonable time by an impartial court or tribunal) of the African Charter as well as Article 14(3)(d) of the ICCPR. However, despite finding these violations, the Court rejected his request for immediate release from prison, since he had not set out “specific or compelling circumstances”. Instead, it called on Tanzania to remedy the violations within six months, specifically precluding retrial or the reopening of the defence case as remedies, given that the Applicant had served 20 out of 30 years in prison; surely an indirect call by the Court for the Applicant to be released. Issues of costs and reparations have been postponed to a later date.

November: 2nd Judicial Dialogue

The Court jointly organized with the AU the second “Continental Judicial Dialogue” which took place in Arusha. The event included delegates from AU member states, including Chief Justices, Presidents of Supreme Courts and Constitutional Courts, members of academia, national judiciaries and media. The theme of the three day event was “Connecting National and International Justice”. Interestingly, amongst the attendees were a number of judge from the Inter-American Court of Human Rights who shared their experiences of sitting on human rights cases.

December: sensitization visit to Chad and the results of the Court’s inaugural moot court competition

The Court undertook its third sensitization visit of the year to Chad. From this visit, we received the encouraging promise that Chad will sign the Court’s Protocol and, crucially for access issues, the Special Declaration. Although at the time of writing this has not yet happened, the public declaration will hopefully serve to see Chad go on to fulfil its promise sooner rather than later.

Finally, the Court announced the winners of its inaugural moot court competition, with Moi University in first place, the University of Zambia a close second and Makerere University third.

Conclusion

The Court continued to promote itself with sensizitation visits AU to Leshoto, South Africa and Chad, with this last visit resulting in the promise that Chad will sign the Court’s Protocol and Special Declaration imminently. Whilst there were also rumblings in Uganda about signing the Special Declaration, it is worth noting that no AU member state actually signed the Special Declaration in 2015, meaning further engagement with member states is clearly needed. On actual cases before the Court, applicants continue have a 100% success rate, having now gone a perfect 4-for-4 before the Court, showing that when jurisdictional issues are overcome the Court is not afraid to make findings against member states.

Above all, 2015 felt like a year in which the Court continued to mature and begin to seriously promote itself across Africa. The President of Court himself has been vocal in urging AU members states to sign the Protocol and Special Declaration allowing individuals and NGOs direct access to the Court as can be seen here, here, here, and here. Of course, what continues to hamper the Court is the number of individuals and NGOs who can actually access the Court. To make the Court a truly continental one, AU member states must sign up and embrace the Court in 2016 and beyond.

Parsing the Syrian-Russian Agreement Concerning Russia’s Deployment

by Chris Borgen

The Washington Post asks (and answers) the following:

When you are a major nuclear power and you want to make a secretive deployment to a faraway ally, what is the first thing you do? Draw up the terms, apparently, and sign a contract.

That’s what the Kremlin did with Syria in August, according to an unusual document posted this week on a Russian government website that details the terms of its aerial support for Syrian President Bashar al-Assad.

Among other revelations in the seven-page contract dated Aug. 26, 2015, the Kremlin has made an open-ended time commitment to its military deployment in Syria, and either side can terminate it with a year’s notice.

The “Agreement between the Russian Federation and the Syrian Arab Republic on deployment of an aviation group of the Russian Armed Forces on the territory of the Syrian Arab Republic” is similar in purpose to status of forces agreements (SOFAs) that the U.S. signs with countries in which it has military bases. (For an overview of US SOFA practice, see this State Department document (.pdf). ) The agreement sets out issues concerning immunities, transit rights, the movement of property, and so forth.

However, every international agreement is a product of the political and strategic concerns in a particular bilateral relationship. Consequently, there can be a variety of SOFA practice even among the agreements drafted by a single country.  Concerning US practice, GlobalSecurity.org explains:

Status-of-forces agreements generally come in three forms. These include administrative and technical staff status under the Vienna Convention on Diplomatic Privileges, commonly referred to as A and T status; a “mini” status-of-forces agreement, often used for a short-term presence, such as an exercise; and a full-blown, permanent status-of-forces agreement. The appropriate arrangement is dependent upon the nature and duration of U.S. military activity within the host country, the maturity of our relationship with that country, and the prevailing political situation in the host nation.

To take one example from US practice, the 2008 Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq (the “2008 Iraq SOFA” (.pdf))  was made after the US was already in Iraq for five years; it was in part about responding to tensions between the Iraqi government and the US as well as the mechanics of withdrawal. By contrast, the Russian/Syrian agreement was made early in an intervention of undefined length and scope. responding to issues that already existed, the 2008 Iraq SOFA is twenty-four pages long, covering more topics and also with more provisions within each article. (The 2008 Iraqi SOFA is no longer in force, but I will use it as a comparator.)

By contrast, the Russian/Syrian agreement is a very brief seven pages. But, besides being quite short, the main characteristic of the agreement is that it maximizes Russian prerogatives and flexibility. Article 2 has the transfer “without charge” from Syria to Russia of  “Hmeimim airbase in Latakia province, with its infrastructure, as well as the required territory agreed upon between the parties” for the use of the Russian aviation group to be deployed in Syria.  Article 5 entitles Russia: (more…)

Weekly News Wrap: Monday, January 18, 2016

by Jessica Dorsey

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

Africa

  • Burkina Faso and Mali have agreed to work together to counter the growing threat of Islamic militants in West Africa by sharing intelligence and conducting joint security patrols following two deadly and well-coordinated attacks in the region.
  • The UN says the worst drought in 30 years in Ethiopia means 400,000 children are suffering from severe acute malnutrition and more than 10 million people need food aid.
  • Somalia received a pledge of aid for $50 million from Saudi Arabia this month on the same day it announced it was cutting ties with Saudi rival Iran, a document seen by Reuters showed.

Middle East and Northern Africa

  • At least 42 people have been killed, including civilians, in suspected Russian air strikes in Syria’s Raqqa province, activists and a monitoring group say.
  • Iran’s President Hassan Rouhani has described as “historic” and a “great victory” the lifting of sanctions against Iran, declaring that the country is now reopening its doors to the international economy.
  • Islamic State militants kidnapped at least 400 civilians when they attacked government-held areas in the eastern Syrian city of Deir al-Zor on Saturday, a monitoring group said.

Asia

Europe

Americas

  • US president Barack Obama is expected to release a new plan in a bid to convince Congress to close Guantanamo Bay prison.
  • Two Swedish citizens whom U.S. prosecutors said fought alongside the Islamist militant group al Shabaab in Somalia in battles to take control of the country’s capital of Mogadishu were sentenced to 11 years in prison on Friday.

Oceania

UN/World

Doe v. Nestle: Corporate ATS Cases Just Keep Lingering

by Julian Ku

The Supreme Court this week let stand a U.S.Court of Appeals for the Ninth Circuit decision reinstating an Alien Tort Statute lawsuit alleging corporate complicity in the use of child slave labor in various African countries from which they purchased cocoa products.

The high court left in place a December 2014 ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals that refused to dismiss a lawsuit against Nestle, Archer-Daniels-Midland Co and Cargill Inc filed by former victims of child slavery.

The plaintiffs, who were originally from Mali, contend the companies aided and abetted human rights violations through their active involvement in purchasing cocoa from Ivory Coast. While aware of the child slavery problem, the companies offered financial and technical assistance to local farmers in a bid to guarantee the cheapest source of cocoa, the plaintiffs said.

The arguments in favor of, and against, Supreme Court review are amply discussed by John Bellinger here.  In essence, the corporate defendants argued that the Ninth Circuit had misapplied the Supreme Court’s 2013 landmark ATS decision in Kiobel v. Royal Dutch Shell.  That decision had imposed a “touch and concern” extraterritoriality case before permitting such an ATS lawsuit in U.S. courts.  The defendants also argued that the Supreme Court should clarify the intent standards required for determining corporate aiding and abetting liability, and that there is a split between circuits over whether corporations can be held liable for violations under the ATS.

I am not sure about whether this case was “cert-worthy”.  The Kiobel issue seems mostly about whether the plaintiffs should be allowed to amend their complaint. There is a question of how Morrison interacts with the Kiobel standard, but the split with other circuits isn’t quite as developed as it could be.  I think the corporate liability issue is a circuit split, but where the Second Circuit stands on that issue is still a little up in the air.  I do think the Ninth Circuit is mistaken on the intent standard, but again, I am not sure how broad that standard is yet.

But it is certainly true that by letting this Ninth Circuit decision stand, the Supreme Court is passing up an opportunity to shut down corporate ATS litigation in a more definitive way than it did in Kiobel.  So corporate ATS cases are mostly dead, but not quite.

New Article on SSRN: “Radical Complementarity” (Updated)

by Kevin Jon Heller

The article is forthcoming in the Journal of International Criminal Justice. Here is the abstract:

In March 2015, Simone Gbagbo, the former First Lady of Côte d’Ivoire, was convicted of various crimes in an Ivorian court and sentenced to 20 years in prison. Despite her conviction and sentence, however, the Appeals Chamber has held that her case is admissible before the ICC. The reason: the national proceeding was not based on “substantially the same conduct” as the international one. Whereas the OTP intended to prosecute Gbagbo for the crimes against humanity of murder, rape, other inhumane acts, and persecution, the Ivorian court convicted her for the ordinary domestic crimes of disturbing the peace, organising armed gangs, and undermining state security.

This Article argues that the Appeals Chamber’s decision in Simone Gbagbo undermines the principle of complementarity – and that, in general, the ICC has used complementarity to impose structural limits on national proceedings that are inconsistent with the Rome Statute and counterproductive in practice. The Article thus defends ‘radical complementarity’: the idea that as long as a state is making a genuine effort to bring a suspect to justice, the ICC should find his or her case inadmissible regardless of the prosecutorial strategy the state pursues, regardless of the conduct the state investigates, and regardless of the crimes the state charges.

The Article is divided into three sections. Section 1 defends the Appeals Chamber’s recent conclusion in Al-Senussi that the principle of complementarity does not require states to charge international crimes as international crimes, because charging ‘ordinary’ domestic crimes is enough. Section 2 then criticises the Court’s jurisprudence concerning Art. 17’s ‘same perpetrator’ requirement, arguing that the test the judges use to determine whether a state is investigating a particular suspect is both inconsistent with the Rome Statute and far too restrictive in practice. Finally, using Simone Gbagbo as its touchstone, Section 3 explains why the ‘same conduct’ requirement, though textually defensible, is antithetical to the goals underlying complementarity and should be eliminated.

The article brings together thoughts I’ve developed both here at Opinio Juris and in my academic writing. In terms of the latter, it’s something of a sequel to my article “A Sentence-Based Theory of Complementarity.” (Double self-promotion!)

As always, thoughts are most welcome!

NOTE: I have uploaded a revised version of the article to SSRN. Chris’s comment below made me realise I should note my sentence-based theory of complementarity. It’s not a radical change, but — at the risk of seeming like I’m trolling for downloads — you should get the new version if you want to read the article but haven’t already.

Gaza Flotilla Activists’ Lawsuit Against Israel Will Probably Fail for Lack of U.S. Jurisdiction (Updated)

by Julian Ku

[Please see the update below] Three U.S. citizens, and one Belgian national, have filed a civil lawsuit in U.S. District Court in Washington D.C. against the State of Israel alleging various injuries and damages suffered during an Israeli commando raid on their U.S.-registered ship.  The plaintiffs were activists who were sailing their vessel in support of the Palestinians on the Gaza Strip suffering under what the plaintiffs allege is an Israeli blockade. I don’t have a copy of the complaint, but according to this Washington Post report, there are a couple of pretty big legal obstacles for the plaintiffs to overcome.

“The attack on the high seas was unjustified and illegal under international law,” lawyer Steven M. Schneebaum of Washington wrote in a 21-page complaint, which alleged that the military operations injured more than 150 protesters and included torture, cruel or degrading treatment, arbitrary arrest and assault.

The first problem for the plaintiffs will be overcoming the Foreign Sovereign Immunities Act, which bars U.S. courts from hearing cases against foreign sovereigns like Israel unless certain exceptions apply.  I can’t tell exactly from the report which exception the plaintiffs are trying to invoke, but the allegations of “torture, cruel and degrading treatment” etc. suggests the complaint is trying to allege such an egregious violation of international law that any defense of immunity will be deemed to have been “waived” by Israel.   I am highly doubtful that this argument will succeed, and indeed, I am fairly sure it is foreclosed by precedents in the D.C. Circuit (and elsewhere).

It is possible that the plaintiffs will seek to get jurisdiction under the “state-sponsored terrorism” exception in 28 U.S.C. § 1605A(a)(1).  This might seem to apply, if we accept the plaintiffs’ claims as true, except that Israel would also have be designated by the U.S. government as a “state sponsor” of terrorism in order for the exception to apply.   Israel, needless to say, has not been so designated by the U.S. government, so this exception doesn’t work for the plaintiffs either.

It also appears the plaintiffs may have a statute of limitations problem as well, but I am not sure.  Also, was that ship U.S.-registered? If so, which tort law would apply? Or is it a claim under international law?

So I am pretty doubtful that this lawsuit will survive a motion by Israel to dismiss the case for lack of jurisdiction.   Indeed, I wonder at its even being filed, given the jurisdictional problems it faces.  But perhaps I am missing something, and if so, feel free to let me know in the comments.

[Update: Jordan Paust and Ted Folkman point out in the comments that the plaintiffs are probably invoking either the “international agreements” exception in the FSIA or the “noncommercial tort” exception in 28 USC § 1605(a)(5), which allows an exception to immunity for claims “in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state…”

These are a much more plausible claims, and they depends (as Ted points out) on the idea that the raid on the US-flagged vessel means that the alleged tort occurred “in the United States.”   The leading decision is Argentine Republic v. Amerada Hess, which involved an Argentine missile strike on a Liberian-flagged ship owned by U.S. interests. That case held though that the “high seas” is not “in the United States” for purposes of the FSIA.  The only variation on this point I can see is that that the attack occurred on a U.S.-flagged vessel, as opposed to the “high seas.” I doubt this will fly, but I suppose it is worth a shot if I were the plaintiffs.]  

Autonomous Legal Reasoning: Legal and Ethical Issues in the Technologies of Conflict

by Duncan Hollis

One of the highlights of my Fall semester was the opportunity to host a one-day workshop at Temple Law on how autonomous technology may impact the future of international humanitarian law (IHL) and the lawyers who practice it.  With co-sponsorship from the International Committee of the Red Cross (specifically, Rob Ramey and Tracey Begley) as well as Gary Brown of Marine Corps University, we wanted to have an inter-disciplinary conversation on the way autonomy may implicate the practice of law across a range of new technologies, including cyberwar, drones, and the potential for fully autonomous lethal weapons.  Although these technologies share common characteristics — most notably their ability (and sometimes their need) to operate in the absence of direct human control — discursive silos have emerged where these technologies tend to be discussed in isolation.

Our workshop sought to bridge this divide by including experts on all three technologies from an array of disciplinary backgrounds, including IHL, political science, and ethics (see here for a list of participants).  Fortunately, the day itself lived up to the hype, with a detailed agenda that prompted a wide-ranging set of conversations on the nature of the technology, the ethical issues, as well as IHL’s current regulations and its likely future evolution.  Subject to the Chatham House Rule, the ICRC has published summaries of these conversations on their blog, Intercross.

In addition to those blog posts, the Temple International and Comparative Law Journal will publish a series of short (and often provocative) think-pieces written for the workshop.  My own contribution, Setting the Stage: Autonomous Legal Reasoning in International Humanitarian Law is now available on SSRN.  Here’s the abstract:

This short essay seeks to reorient — and broaden — the existing discourse on international humanitarian law (IHL) and autonomous weapons. Written for a conference co-sponsored by the International Committee of the Red Cross, it employs a contextual analysis to pose new questions (and reformulate others) regarding the relationship between IHL and autonomous weapon systems. It asks six questions: (1) Who should IHL regulate in this context? Does IHL only regulate States and individuals, or can it provide rules for autonomous weapon systems themselves? (2) What types of autonomous technology should IHL regulate? Should the current focus on kinetic weapons expand to encompass cyber operations? (3) Where should this discourse occur? How do the trade-offs involved in locating legal discourse in a particular forum impact the elaboration of IHL vis-à-vis autonomous systems? (4) When should IHL regulate autonomous weapons? Should IHL ban autonomous weapons now or allow its regulation to emerge incrementally over time? Can IHL only apply when an autonomous system’s operations constitute an attack, or should IHL’s application reach more broadly? (5) How should IHL regulate autonomous weapon systems? Are prohibitions better or worse than prescriptive authorities? Should IHL regulate via rules, standards, or principles? Finally, (6) why should IHL regulate autonomous weapons? How can IHL best prioritize among its foundations in military necessity, humanitarian values, and the practical reality that the development of such systems now appears inevitable. In asking these questions, my essay offers a critical lens for gauging the current scope (and state) of international legal discourse on this topic. In doing so, it sets the stage for new lines of inquiry that States and other stakeholders will need to address to fully understand the perils — and potential — of increasing autonomy in technology for IHL and the international lawyers who practice it.

Fans of Thomas Aquinas may be particularly interested in this piece since I ask these questions using the same analytical frame Aquinas deployed to delineate those circumstances that define human acts.  Otherwise, interested readers should keep an eye out for the Symposium volume itself, which should be out sometime later this Spring or early this coming Summer.

 

Is Russia’s Boycott of an Arbitration Brought Under Ukraine-Russia Bilateral Investment Treaty a Sign of a Trend?

by Julian Ku

When a country is brought to arbitration under a treaty, it often challenges the jurisdiction of that arbitral tribunal in arguments before that tribunal. But in recent years, we’ve seen several examples of countries that have simply chosen to “boycott” or not participate in the arbitral hearings whatsoever.

China adopted this approach in its ongoing United Nations Convention on the Law of the Sea (UNCLOS) arbitration with the Philippines (which it recently confirmed again this past December). Russia also followed this strategy by simply not showing up at the International Tribunal on the Law of the Sea ITLOS provisional measures hearing related to its seizure of the Greenpeace vessel Arctic Sunrise.  And Russia has recently confirmed that it will adopt this “non-participation” approach with respect to a recent arbitration brought by a Ukrainian business alleging expropriation of its ownership of an airport in Crimea.

Three cases do not make a trend, but observers of international law and adjudication should take notice nonetheless.  Will “non-participation” prove a viable strategy for states (as opposed to actually making legal arguments against jurisdiction)?  Granted, as far as I can tell, neither China nor Russia have very strong arguments against jurisdiction in the cases above.  So is it better to simply walk away?  If the state has no intention of complying with a negative award, it might make rational sense to simply avoid the process altogether.  Will other states try this approach?