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Events and Announcements: August 30, 2015

by Jessica Dorsey

Announcements

  • The Goettingen Journal of International Law has recently released the second issue of its sixth volume. The thoroughly selected articles of issue 6.2 address a variety of current questions in international law. Among others, the new edition features an article by Heike Krieger, in which she reflects on developments of immunities. Further contributions are by Sergio Dellavalle, Tim Banning and Mélanie Vianney-Liaud. The journal’s latest issue can be accessed at www.gojil.eu.
  • On Tuesday 11 July 1995, a date which will live in infamy, the town of Srebrenica was overrun by Bosnian Serb forces. In order to commemorate this tragedy, the Board of Editors of the Netherlands International Law Review (NILR) invited a select number of authors to contribute to a Special Issue on the Impact of the Fall of Srebrenica (1995-2015) on various areas of public international law. These areas are: the law relating to the United Nations (peace and security), the law relating to international crimes, the law relating to international responsibility and the law relating to international remedies. The Board of Editors of the NILR is proud to announce the publication its first Special Issue since 2010. So that we will never forget.
  • Volume 6, Number 2 of Trade Law and Development has been published. The contents of the journal can be found here.

Events

  • The T.M.C. Asser Instituut, the Dutch Red Cross and the Amsterdam Center for International Law are hosting a HILAC (Hague Initiative on Law and Armed Conflict) Lecture by Sasha Radin, Editor-in-Chief of International Law Studies and Associate Director of Research at the U.S. Naval War College’s Stockton Center, on September 8, 2015 at the Humanity House in The Hague. Sasha will speak on “Competing Concepts of Security Detention in NIAC.” A growing opinion exists that because of IHL’s lack of explicit law governing the legal basis, grounds and procedures for security detention in NIACs, any such basis must be found outside of IHL (most likely under domestic law and human rights law); absent that legal basis, detention would be arbitrary and unlawful. What are the implications of such an interpretation and is this the best way forward? The event is free. If you’d like to attend, please register with the Humanity House
  • The T.M.C. Asser Instituut is hosting a SCL (Supranational Criminal Law) Lecture by James Stewart, Deputy Prosecutor of the International Criminal Court, on September 9, 2015 at the T.M.C. Asser Instituut in The Hague. James will speak on ” International criminal law – a personal note on its practice and current challenges.” This event is free and does not require registration. For more information, click here.

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.

Emerging Voices: The Weakness of the “Super-Constitutional” Euro

by Francesco Montanaro

[Francesco Montanaro is a dual PhD candidate at Bocconi University (Milan) and Pantéon-Assas University (Paris).]

Saving the Euro at any cost. This imperative drove the EU and EU Member States’ response to the sovereign debt crisis. Following an incremental pattern, they adopted a number of measures that culminated in the conclusion of the European Stability Mechanism (ESM) Treaty and in the adoption of the Outright Monetary Transactions (OMT) program. The ESM Treaty established a permanent crisis resolution mechanism – endowed with full legal personality – that provides financial assistance to Euro area Member States with particularly troubled public finances. However, Eurozone Member States that benefit from this financial assistance are subject to strict conditionality. The OMT program is a measure enacted by the European Central Bank (ECB) to restore an appropriate monetary transmission system. The program consists in the purchase of Eurozone Member State government bonds on the secondary market. Again, the implementation of such a program is conditional upon the fulfilment of the ESM adjustment plans.

These measures were challenged before the Court of Justice of the European Union (CJEU). In both cases, the Court assessed, among other issues, whether these measures violated the division of competences between the Union and the Member States set out in the EU Treaties. In this respect, it is worth remembering that Article 3 of the Treaty on the Functioning of the European Union (TFEU) stipulates that the Union has exclusive competence over monetary policy, while Member States retain the power – which is nonetheless subject to the duty of coordination under Article 121 of the TFEU – to design their economic policies. According to Article 127 of the TFEU, the European System of Central Banks –i.e. the European Central Bank and the national central banks- conducts the monetary policy of the Union with the aim of maintaining price stability. This assessment, however, is everything but straightforward, as both measures have a “hybrid” nature. On the one hand, although the ESM officially aims to provide financial assistance to Eurozone Member States, it also produces effects similar to a monetary policy measure by affecting the amount of Euros in circulation. On the other hand, the OMT program, while ensuring the correct functioning of the monetary policy transmission system, it also impacts on Member States economic policies through the imposition of macroeconomic conditionality. Faced with these issues, the Court scrutinised such measures by looking at their “declared” objectives. In Thomas Pringle v. Government of Ireland, it observed that, although the ESM may produce some indirect effect on price stability, its main purpose remains the stability of the Eurozone. Consequently, it should be considered as an economic policy measure falling within the sphere of competence of EU Member States (para 56). By the same token, in Peter Gauweiler and Others v Deutscher Bundestag, the Court found that the OMT program primarily aims at ensuring the stability of prices by pursuing the ‘singleness’ of the monetary policy and safeguarding an appropriate transmission system (paras 50-51). Therefore, this measure does not exceed ECB’s competence, even though it also foists austerity measures on Eurozone members and seeks to ensure Eurozone stability.

That being said, the Court’s formalistic approach ultimately allowed the Court to circumvent the somewhat artificial division of competences laid down in the EU Treaties. Given the “hybrid” nature of the measures at issue, spillovers are inevitable: the ESM and the OMT program ultimately pursue monetary policy as well as economic policy objectives. However necessary and unavoidable this approach may seem, it leads to a de facto modification of the EU economic and monetary governance. Notably, it might be argued that the Court conferred a sort of “super-constitutional” ranking on the Euro that in effect override division of competences set out in the Treaties.

However, contrary to what one might expect, such a de facto “super-constitutional” ranking could in the long run undermine the Euro and the EU. As noted above, these emergency measures are combined with adjustment plans that may remove important economic policy choices from Member States’ competence. Although officially involved in their negotiation, Member States to which these plans will apply generally have a weak bargaining position. Thus, they are likely to accept the requests of their counterparties, namely the ECB, the Commission, and the International Monetary Fund. Yet, this might elicit their resistance in the long run. For one thing, Member States’ governments might decide to delay or even discontinue the implementation of the tough adjustment plans attached to the ESM and the OMT program thereby putting at risk their Eurozone and EU membership. The recent Greek referendum on the “bail-out agreement” with creditors represented an unprecedented “act of resistance”, even though Greek government accepted very tough bailout conditions somehow betraying polls verdict a week after the referendum. This referendum constitutes nonetheless an important precedent that might lead other EU Member States to resort to popular vote when facing hard loan conditions. And it cannot be excluded that more powerful and sizeable Member States would manage to withstand EU institutions and creditors’ pressure.

Furthermore, this rather extensive interpretation of the EU Treaties might give rise to the opposition of national judges. In this regard, it is worth mentioning that, in Gauweiler and Others v Deutscher Bundestag, the German federal constitutional in its request for a preliminary ruling made clear that it would have applied the CJEU’s decision only if the latter had met a number of conditions. As is evident, this approach might result in the refusal to apply the preliminary ruling of the Luxemburg Court.

Altogether, these forms of Member States’ resistance not only could bring about a conflict between the EU legal system and the national ones, but also jeopardise the existence of the single currency and, ultimately, that of the European construction. In other words, the de facto “super-constitutional” ranking of the Euro may turn to be its main weakness. Consequently, far from representing a long-term solution, it should prompt Member States to amend the EU Treaties.

Two equally difficult options lie ahead: either a deep overhaul of the EU economic and monetary governance or an orderly “dismantlement” of the single currency. It is time for Europe to take a clear-cut decision in order to solve the still on-going sovereign debt crisis whilst preserving the balance of powers in the Union and ensuring the democratic legitimacy of its decision-making process.  

Emerging Voices: The International Olympic Committee’s Accountability for Human Rights – Learning From the World Bank

by Ryan Gauthier

[Ryan Gauthier is a PhD Candidate at the Erasmus University Rotterdam.]

Mo’ Sporting Events, Mo’ Problems

In June, the 2015 European Olympic Games took place in Baku, Azerbaijan. Did you watch? You might not have even been aware of them! This first edition of the European Olympic Games is a symbol of the growing number of sports mega-events, joining the Olympic Games, the Fédération Intenationale de Football Association (‘FIFA’) World Cup, and others, on an ever-crowded sporting calendar. However, all is not positive. Just before the 2015 Games began, the Netherlands declined to host the 2019 edition of the European Olympic Games, citing the almost €60 million price tag as too much.

Sports mega-events have expanded not only in number, but also in geographic scope. Baku 2015 is an example of sports mega-events being held in developing countries. The BRICS (Brazil, Russia, India, China, and South Africa), and countries such as Argentina and Qatar have hosted the world’s premier sports mega-events (Olympic Games, FIFA World Cup, Commonwealth Games) since 2008.

Unfortunately for the citizens of these countries, these events have also been prime examples of the worst problems caused by sports mega-events. Families have been evicted from their homes (sometimes forcibly), ecologically sensitive areas have lost their protected status so that infrastructure such as ski runs or golf courses can be constructed, labour rights abuses have run rampant on infrastructure projects, and civil dissent has been quashed. To add insult to injury, the same old negative legacies of ‘white elephants’, such as unused or half-empty stadiums, deserted parks, unused hotel rooms, and public debt have reared their head.

 

My PhD research focuses on the accountability of international sporting organisations for the worst outcomes of their events. What I hope to do with this blog post is outline one aspect of accountability, the use of a monitoring mechanism. I will outline the problem of an absent state and a weak mandate. I will then discuss a comparison with the World Bank, and lessons that might be learned by international sporting organisations.

Where Does the Buck Stop?

Many organisations are involved in putting on a sports mega-event. As a start, international sporting organisations such as the IOC and FIFA hold the intellectual property rights to the event. However, these organisations do not directly engage in preparations for the event, but instead provide varying levels of financial and logistical support. The actual preparation is carried out by a local organising committee (which may be public or private), who hires contractors for construction, and so forth. The state government also supports the preparations.

When things go wrong, no party is held to account. This is due in part to the multiplicity of organisations involved, creating a ‘problem of many hands’. This situation is exacerbated because the state, the one organisation which is expected to provide a backstop to guarantee that its citizens are not harmed, is often unwilling or unable to hold anyone else to account. In some cases, particularly in regards to the eviction of individuals, and allowing construction in environmentally-sensitive areas, the government is actually complicit in the harm. Thus, with an absent state, my research examines how the international sporting organisations should be accountable, and should hold others to account, for the harms caused by hosting their sports mega-events.

Baby Steps

As part of its response to this situation, (more…)

The National Security Law Journal Outdoes the Onion

by Kevin Jon Heller

The journal has published what has to be the most ridiculous article in the history of IHL scholarship. And no, I’m not being hyperbolic. Written by someone named William C. Bradford, identified — terrifyingly —  as an “Associate Professor of Law, National Security, and Strategy, National Defense University, Washington, D.C,” it’s entitled “Trahison des Professeurs: The Critical Law of Armed Conflict as an Islamist Fifth Column.” (Props to the author for knowing how to use Google: the main title translates as “treason of the professors.”)

I’m not going to waste even a few seconds of my life responding to the article, which blathers on for 180 pages and nearly 800 footnotes. (Seriously.) I will just offer two quotes, almost chosen at random. In the first, the author advocates prosecuting CLOACA scholars (the “critical law of armed conflict academy” — a scatological acronym the author no doubt finds profoundly clever) for material support for terrorism. Bonus points for actually calling for a new House Un-American Activities Committee!

In concert with federal and state law enforcement agencies, Congress can investigate linkages between CLOACA and Islamism to determine “the extent, character, and objects of un-American propaganda activities in the U.S. [that] attack the . . . form of government . . . guaranteed by our Constitution.” Because CLOACA output propagandizes for the Islamist cause, CLOACA would arguably be within the jurisdiction of a renewed version of the House Un-American Activities Committee (Committee on Internal Security) charged with investigating propaganda conducive to an Islamist victory and the alteration of the U.S. form of government this victory would necessarily entail.

“Material support” includes “expert advice or assistance” in training Islamist groups to use LOAC in support of advocacy and propaganda campaigns, even where experts providing such services lack intent to further illegal Islamist activity. CLOACA scholarship reflecting aspirations for a reconfigured LOAC regime it knows or should know will redound to Islamists’ benefit, or painting the United States as engaged in an illegal war, misrepresents LOAC and makes “false claims” and uses “propaganda” in a manner that constitutes support and training prohibited by the material support statute. Culpable CLOACA members can be tried in military courts: Article 104 of the Uniform Code of Military Justice provides that “[a]ny person who . . . aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things . . . shall suffer death or . . . other punishments as a court-martial or military commission may direct;” the Rule for Court Martial 201 creates jurisdiction over any individual for an Article 104 offense.

But that’s not my favourite quote. This one is — in which the author argues that that CLOACA scholars are unlawful combatants who can be killed in their law-school offices:

CLOACA scholarship and advocacy that attenuates U.S. arms and undermines American will are PSYOPs, which are combatant acts. Consequently, if these acts are colorable as propaganda inciting others to war crimes, such acts are prosecutable. CLOACA members are thus combatants who, like all other combatants, can be targeted at any time and place and captured and detained until termination of hostilities. As unlawful combatants for failure to wear the distinctive insignia of a party, CLOACA propagandists are subject to coercive interrogation, trial, and imprisonment. Further, the infrastructure used to create and disseminate CLOACA propaganda—law school facilities, scholars’ home offices, and media outlets where they give interviews—are also lawful targets given the causal connection between the content disseminated and Islamist crimes incited. Shocking and extreme as this option might seem, CLOACA scholars, and the law schools that employ them, are—at least in theory—targetable so long as attacks are proportional, distinguish noncombatants from combatants, employ nonprohibited weapons, and contribute to the defeat of Islamism.

No, I’m not kidding. And no, the author apparently isn’t either.

I won’t tell readers to go read the article for themselves, because that would be cruel and unusual punishment. I will simply end by pointing out the most fundamental flaw in the article: namely, that it fails to note that I am a card-carrying member of CLOACA. Indeed, I’ve been advocating for radical Islam to defeat the West for years now, both here on the blog and in my scholarship. Surely I should be targeted, too!

UPDATE: The author of the article, William C. Bradford, resigned from Indiana University-Indianapolis’s law school in 2005 after it was revealed that he had lied about his military record — including falsely claiming to have won a Silver Star during Desert Storm. See this article in Inside Higher Education.

Emerging Voices: The Role of Attribution Rules Under the Law of State Responsibility in Classifying Situations of Armed Conflict

by Remy Jorritsma

[Remy Jorritsma (LL.M.) is a lecturer in public international law at the Department of International and European Law of Maastricht University. In September 2015 he will join the Max Planck Institute Luxembourg as a Research Fellow/PhD candidate. Contact at r [dot] jorritsma [at] maastrichtuniversity [dot] nl.]

Armed conflicts involving e.g. Ukraine/Russia, Israel/Palestine, and the self-proclaimed Islamic State demonstrate legal ambiguities with regard to State responsibility as a result of the State exercising control over organized armed groups. Under customary international law an act by a non-State actor is attributable to a State if, inter alia, the latter exercises a certain level of control over the former.

However, it is unclear how much control is required for attribution. Equally unclear is the exact function of attribution in relation to the application of international humanitarian law (IHL). At stake is the issue whether the secondary rules of attribution may assist in classifying the armed conflict, thereby determining the framework of primary rules in which hostilities take place: the rules of international armed conflicts (IACs) or non-international armed conflicts (NIACs). The line of case law responsible for this debate is often characterized as a conspicuous example of “fragmentation” of international law (see here, here; but see with more nuance here).

In the Nicaragua case the ICJ assessed whether the acts of the contras could be attributed to the US for the purpose of State responsibility. The Court set the required level of control as follows:

‘[Even decisive participation] in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of whole of its operation, is still insufficient [. I]t would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.’ (§115, emphasis added.)

The Nicaragua test did not convince the ICTY Appeals Chamber when it had to ascertain the nature of the armed conflict between Bosnia and Herzegovina and the Federal Republic of Yugoslavia, acting after 19 May 1992 through the Bosnian Serb Army. The Appeals Chamber considered when an organized armed group fighting in a prima facie NIAC acts on behalf of another State – or ‘belong[s] to a Party’ in the sense of Article 4(a)(2) of Geneva Convention III – with the result that the conflict is internationalized and thus subject to IAC law. It held this to be the case if that State exercises…

‘overall control, going beyond the mere financing and equipping of [organized armed] forces and involving also participation in the planning and supervision of military operations. [It is not required] that such control extend to the issuance of specific orders or instructions relating to single military actions.’ (§145)

The next round of this ‘dialogue des sourds’ (Simma 2009, p.280) came when the ILC cited with approval the Nicaragua test in its Commentary (§5) to Article 8 of the Articles on State Responsibility, apparently discarding the overall control test. Later in the Lubanga Confirmation of Charges Decision the ICC approved (§211, later endorsed in the Lubanga Judgment at §541) the overall control test for the purpose of determining the nature of the conflict. Finally, the stamp of approval for the effective control test comes when the ICJ in Bosnian Genocide explicitly rejects (§403) the Tadić test of overall control for the purpose of State responsibility. Oddly, and perhaps even merely as a ‘gracious concession to the ICTY’ (Cassese 2007, p.651), the Court in Bosnian Genocide somehow purports (§405) to conceal this conflict by suggesting that the level of control required for the internationalization of a NIAC can ‘without logical inconsistency’ differ from the degree of control required for attribution in terms of State responsibility. The Court thus leaves open the possibility that the less-demanding test of overall control may be used to bring about an international(ized) armed conflict.

This line of case law reveals a fundamental difference of opinion as to if, and how, questions on State responsibility and conflict classification can be answered through a process of attribution of conduct. Two specific points of conflict can be observed: (1) disagreement as to the level of control required for State responsibility, and (2) disagreement as to whether conflicts can be classified by “borrowing” from the law on State responsibility. Bosnian Genocide creatively seeks to avoid the appearance of an all-out confrontation with the ICTY by acknowledging its subject-matter expertise and by approving of its approach in matters of conflict situation. However, what was meant to avoid or minimize the appearance of fragmentation actually ended up exacerbating it. There are three possible ways of looking at the overall/effective control debate (cf. Report of the Study Group on Fragmentation, §43-50):

  • As involving a conflict between two different interpretations of international law: effective control versus overall control for State responsibility;
  • As involving a conflict between the general law and a particular rule that claims to be the lex specialis exception to it: effective control for State responsibility but overall control for State responsibility in situations of armed conflict;
  • As involving no conflict at all, because the cases can be distinguished on basis of facts: Nicaragua/Bosnian Genocide concerned State responsibility, whereas Tadić concerned classification of armed conflict.

Particularly the ICJ’s disconnection between State responsibility and classification of conflict by differentiating between various functions of attribution is problematic for a number of reasons.

First, the ICJ’s suggestion that State responsibility is conceptually distinct from conflict classification appears to depart from its earlier practice in Nicaragua. Here the Court held that the actions of the contras in relation to Nicaragua, not imputable to the US, were subject to the law of NIACs, whereas the actions of the US itself (e.g. issuing a guerrilla warfare manual to the contras) were subject to the law of IACs. Without explicitly saying so, Nicaragua suggested a close link to exist between attribution of conduct and classification of armed conflict, making it unlikely to maintain that these questions are very different in nature. The lack of attribution through effective control meant that the conduct of the contras was de facto and de jure their own. Conversely, should the Court have found that the contras’ acts were legally attributable to the US, it is expected that their actions be assessed in light of the rules of IACs (cf. § 215 and 254).

Second, the primary rules of IHL also demonstrate a clear connection between attribution, State responsibility, and classification of conflict. An IAC subject to the rules of IHL exists whenever there is an armed conflict between States, whereas NIACs are armed conflicts in which at least one of the belligerent parties is not a State. In the Bemba Confirmation of Charges Decision the International Criminal Court held (§223) that an IAC exists ‘in case of armed hostilities between States through their organs or other actors acting on behalf of the State.’ Having in mind that conflicts are distinguished by the parties involved (Zegveld 2002, p.136), it becomes clear that ‘a determination of attribution will affect the classification of conflict’ (Somer 2006). The legal process of attribution in armed conflict situations defines who the belligerent parties are, and this in turn determines the applicable law in light of which the lawfulness of the belligerent parties’ behaviour must be assessed. This interpretation of IHL by reference to general rules of international law (Art. 31(3)(c) VCLT) arrives at a solution that is the most coherent when looking at IHL as such, and at IHL within the wider system of public international law.

Third, more generally, attribution rules are relevant to ‘define the conditions upon which the primary rules applies’ (Gaja 2014, p. 989). They are ‘transsubstantive’ rules (Caron 1998, p.128) which permeate the content and scope of primary rules. Primary rules may be addressed to specific legal subjects only and secondary rules of attribution rules then serve to determine whether the conduct complained of can be imputed to the addressee of the norm. This, of course, only unless a special law determines otherwise (cf. Art. 55 ARSIWA). If a State exercises control over a non-State actor this triggers the application of fields of law made to regulate State behaviour.

The ICJ’s separation of control for conflict classification from control for State responsibility rigidly adheres to a strict separation between primary and secondary rules. By suggesting to agree on a minor point with the ICTY the ICJ actually obscured the bigger picture and created more legal uncertainty. Also, a less-demanding test for conflict classification being distinct from State responsibility opens the door for States to fight a proxy IAC without being responsible towards the victims for possible violations committed in the course of that conflict. This is unacceptable in light of IHL’s emphasis on responsible command and at odds with the general structure of the law on State responsibility which logically places attribution before establishment of a breach or legal consequences.

At the end of the day, the ICJ and ICTY/ICC’s diverging approach towards the function of State control over a non-State actor may just as well be regarded as a case of concealed confrontation, or at the very least a judicial dialogue that feigns some agreement in order to downplay the actual extent and form of fragmentation.

Weekly News Wrap: Monday, August 17, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

Events and Announcements: August 16, 2015

by Jessica Dorsey

Announcements

  • NALSAR International Law Society (affiliated to I.L.S.A) and NALSAR University of Law, one of the premier law schools in India, are glad to announce the launch of NALSAR International Law Journal. NALSAR International Law Journal, a biannual peer-review e- journal, seeks to provide a platform for highest quality debate on International Law, both on levels of theoretical abstraction and on the level of contemporary international legal issues. In this issue of the Journal, we have incorporated a wide range of articles, some dealing in policy questions, some doing normative analysis of a contemporary international legal issues. Prof. James Nedumpara’s article highlights the issue of widening of international law beyond traditional confines of “law of nations” and illustrates the role of networking societies in WTO engagements. Articles by Himanil Raina and Pratik Ranjan Das engage in a debate about a very contemporary issue of great significance—that is scope of Article 2 (4) of UN Charter and prohibition of use of force in light of modern issues like attacks by non-state actors and cyber-attacks. On a similar vein, Abhik Chakraborty’s paper deals with questions of attributability that has become especially important in this age of irregular warfare. Edrine Wanyama’s article examines the theoretical and normative underpinnings of the Calvo Doctrine and its importance especially for the Third World nations. Others have done analysis of issues such as Odious Debts, Immunity of International organisations and so on. Readers can access the Journal here. You can write to the editors at: nalsar [dot] ils [at] gmail [dot] com.
  • The Utrecht Journal of International and European Law is pleased to announce that the new issue of the journal, the 2015 General Issue, has just been published. The full Volume 31, Issue 81 of the Utrecht Journal of International and European Law is available here.

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.

New Essay on Perfidy and Permissible Ruses of War

by Kevin Jon Heller

Regular readers might remember a debate here and at Just Security (links here) in which I and a number of others debated whether it was perfidious for Mossad to use a booby-trapped civilian SUV to kill Imad Mughniyah, Hezbollah’s intelligence chief, in a Damascus suburb. I am pleased to announce that International Law Studies, the official journal of the US Naval War College, has just published an essay in which I explore the underlying legal issue at much greater length. Here is the brief abstract:

A number of scholars have claimed that it is inherently perfidious to kill an enemy soldier by disguising a military object as a civilian object. This essay disagrees, noting that conventional and customary IHL deem at least five military practices that involve making a military object appear to be a civilian object permissible ruses of war, not prohibited acts of perfidy: camouflage, ambush, cover, booby-traps, and landmines. The essay thus argues that attackers are free to disguise a military object as a civilian object as long as the civilian object in question does not receive special protection under IHL.

You can download the essay for free here. As you will see, although I disagreed with Rogier Bartels during the blog debate, I have since changed my mind — because of spatial limits conventional and customary IHL imposes on the use of booby-traps in particular, I now agree with Rogier that Mughniyah’s killing was, in fact, perfidious.

As always, comments more than welcome. My thanks to ILS for such an enjoyable publication experience!

Emerging Voices: The Law of the Sea as a Tool for Stability and Progress in the Eastern Mediterranean Sea

by Nikolaos Ioannidis

[Nikolaos A. Ioannidis is a PhD candidate in Public International Law (University of Bristol).]

On the verge of the 21st century, the discovery of “Noa”, a gas field offshore Israel, reinvigorated the Eastern Mediterranean (East Med) states’ interest in the sea. Additional hydrocarbon deposits were found in the sea waters adjacent to Israel, Gaza, Cyprus and Egypt, while the United States Geological Survey estimated that the Levant Basin alone contains 1.7 million barrels of oil and 122 trillion cubic feet of natural gas. These developments made the regional states realize that, in order to avail themselves of the immense underwater wealth, they should first demarcate their maritime space in conformity with the law of the sea rules. This post analyses the maritime boundary delimitation agreements concluded so far in the East Med. It should be pointed out that these are the first EEZ delimitation agreements to have been signed in the Mediterranean Sea. Perhaps the most noteworthy features of these arrangements is the use of the median line and the adherence of Israel to the 1982 Law of the Sea Convention (LOSC or the Convention) rules on the EEZ and maritime delimitation, despite the fact that it is not a state-party to the Convention.

In particular, four East Med states proceeded with the conclusion of bilateral maritime boundary delimitation agreements; the first delimitation agreement between Egypt and Cyprus in 2003 was followed by another two between Lebanon-Cyprus in 2007 (pending ratification by Lebanon); and Israel-Cyprus in 2010. All three agreements are concise and comprise five virtually identical articles each. Undoubtedly, maritime boundary delimitation is a pivotal function within the realm of the law of the sea. As the Arbitral Tribunal in the Bangladesh/India Award stressed:

“The importance of stable and definitive maritime boundaries is all the more essential when the exploration and exploitation of the resources of the continental shelf are at stake… the sovereign rights of coastal States, and therefore the maritime boundaries between them, must be determined with precision to allow for development and investment (emphasis added).”

Even though the East Med states maintain variant positions on maritime affairs, they have perceived the utility of the law of the sea apparatus in facilitating hydrocarbon exploration and exploitation, hence they decided to act within its ambit and collaborate with a view to gaining multiple profits from the energy windfall.

Legal analysis of the agreements

In the Preambles of these instruments, the contracting parties set forth the desire for cooperation, note the importance of EEZ delimitation “for the purpose of development” and recall the relevant LOSC provisions. The invocation of the LOSC in the Israeli-Cypriot agreement is of utmost significance as it not only illustrates the universal application of the Convention, but, most importantly, highlights the willingness of Israel to act in conformity with the LOSC, despite not being a party to the Convention, at least in terms of the provisions relevant to the EEZ. In any event, the EEZ concept forms part and parcel of customary international law, thus, even non-member states to the Convention are entitled to use and are obliged to observe the relevant rules [Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (Judgment) [1982] ICJ Rep. 18, para. 100; Delimitation of the Maritime Boundary in the Gulf of Maine Area [1984] ICJ Rep. 246, para. 94; Continental Shelf (Libyan Arab Jamahiriyia/Malta) (Judgment) [1985] ICJ Rep. 13, para. 34].

Perforce Article 1(a) of each agreement, the maritime limit between the contracting states is the median line, namely a line “every point of which is equidistant from the nearest points on the baselines of the two Parties” (Article 15 LOSC). The mutual acceptance and use of the median line evinces the establishment of a regional practice in the East Med favouring this method, contrary to the efforts of Turkey, which has diachronically been rejecting the median line/equidistance principle; instead, Turkey has been advocating the vague equitable principles/relevant circumstances method, which provides that all relevant factors should be considered so as to reach an equitable result. Paragraphs b-d of Article 1 address the definition of the coordinates of the maritime boundaries.

Furthermore, (more…)

New Opportunities to Research Civil War at Melbourne Law School

by Kevin Jon Heller

My colleague Anne Orford has just received — and deservedly so — a very significant Australian Laureate Fellowship for a program entitled Civil War, Intervention, and International Law. The program is funded by the Australian Research Council from 2015 to 2020 and will establish an interdisciplinary research team based at Melbourne Law School. Here is a snippet from the description of the program:

Professor Orford’s ARC Laureate Fellowship Program will undertake a comprehensive analysis of one of the most pressing questions in contemporary international law and politics: whether, and if so under what conditions, foreign actors can lawfully intervene in civil wars. The lawfulness of external intervention in the domestic affairs of states is one of the most enduring and contested topics of debate within the disciplines of international law and international relations. The intensity of debates about the legality of intervention by the US and its allies in Iraq and Syria on the one hand, and by Russia in the Ukraine on the other, illustrates both the urgency of this issue and the difficulty of finding general principles to address it. The project will combine archival research, legal analysis, and critical theorising to develop a conceptual framework that can better grasp the changing patterns and practices of intervention.

The program is now inviting applications for two Postdoctoral Fellowships, which are full-time, fixed term research positions that can last up to five years. Here is the description:

The Postdoctoral Fellows will be appointed to undertake projects that explore the historical and contemporary practice of interventions in a specific region, chosen from Africa, Asia, Europe, Latin America, or the Middle East. The specific regional studies, as well as the cases to be explored as part of those regional studies, will be chosen by the Postdoctoral Fellows in conjunction with Professor Orford. The Postdoctoral Fellows will take responsibility under the supervision of Professor Orford for developing the regional studies and for drawing out cross-cutting themes between them. The aim will be to map and evaluate the specific legal, political, and economic issues that have influenced and shaped interventions in civil wars in particular regions, the legal justifications that have accompanied those interventions, and the normative innovations that have resulted. It is well accepted, for example, that the principle of non-intervention has a particular meaning and importance in the inter-American context, as many early formulations of the principle emerged out of attempts to renegotiate the relation between the US and its near neighbours in Central and South America. Similarly, the responsibility to protect concept has a close association with African states and attempts to manage civil wars on that continent. The cases within each regional study may include pre- and immediately post-World War 2 situations (such as those in Spain and China), early post-colonial conflicts (such as those in Korea, Vietnam, and Cambodia), proxy wars of the 1980s (such as those in Afghanistan and Nicaragua), and post-Cold War situations (such as those involving the former Yugoslavia, Rwanda, the Democratic Republic of the Congo, Libya, Iraq, Ukraine, and Syria). The focus of the program is on developments over the twentieth and twenty-first centuries, but proposals focusing on nineteenth century practice will also be considered. It is anticipated that the studies undertaken by the Postdoctoral Fellows will be published as monographs.

The program is also seeking two PhD students:

The doctoral projects will each study an emerging area of conceptual innovation that has played a role in reshaping the broader normative framework governing intervention in civil war over the past decades. One project will analyse the impact of the related concepts of humanitarian intervention and the responsibility to protect, and the second will analyse the impact of the concepts of collective self-defence and intervention by invitation that have been invoked in the context of the war on terror. The projects will study particular cases of intervention in civil war that were justified either in terms of protecting civilians (using concepts such as humanitarian intervention or the responsibility to protect) or of responding to terrorism (using concepts such as collective self-defence or intervention by invitation). The projects will involve detailed analyses of how legal arguments have been used in practice – for example, the ways in which legal concepts have been invoked by parties to civil wars (including foreign interveners), the extent to which the use of legal arguments has been innovative and directed to transforming existing norms, the patterns of diplomatic and military practice that those legal arguments have sought to justify, how other states have responded to such justifications, what positions states have taken publicly in debates on relevant issues in the General Assembly and the Security Council, and how decisions by external actors to support or recognise particular groups have been publicly justified. It is anticipated that the resulting doctoral theses will be published.

Anne is a fantastic scholar, the law school has a superb academic culture, and there are very few places in the world more pleasant to live than Melbourne. I hope interested readers will apply. You can find more information here.

Emerging Voices: Excuse in International Law

by Arthur Kutoroff

[Arthur Kutoroff is a graduate of Cornell Law School. He can be reached at Kutoroff [at] gmail [dot] com.]

There is a fundamental asymmetry between the treatment of individuals and the treatment of states within international law: individuals may claim excuses for their violations of legal obligations, but states may not.

Philosophers and lawyers distinguish between justifications and excuses: an action is justified if it is morally good or right (or at least not bad or wrongful); an action is excused if it is wrongful but the actor is not culpable for the wrongful action. This distinction affects the rights of third parties as well: third parties may lawfully assist a justified action, but may not assist an excused action because excuses are personal to the excused.

This distinction has been widely influential in domestic criminal law, as many jurisdictions clearly distinguish between justifications such as self-defense and excuses such as insanity. International criminal law seems to recognize excuses as well. The Rome Statute provides defenses such as duress, insanity, and intoxication for defendants before the ICC, although the Rome Statute is not entirely clear about which defenses are justifications and which are excuses. Moreover, in the Erdemovic case the ICTY recognized duress as a defense, albeit in limited circumstances.

International law does recognize defenses for states that breach their international obligations, but it does not clarify which defenses are justifications and which are excuses. For example, in the 1838 Caroline affair, British forces entered United States territory to destroy an American ship that was supplying Canadian rebels during the Upper Canada Rebellion. In response, United States Secretary of State Daniel Webster argued in a letter to the British government that the British failed to meet the standard of self-defense, which requires “necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment of deliberation.” This definition combines elements of excuse and justification. The requirement that an exercise of self-defense is necessary suggests that self-defense is a justification, since jurisdictions generally recognize that a necessary action is justified. Yet, as George Fletcher and Jens Ohlin explain, the requirement that one could not do otherwise invokes the idea of self-preservation, which is more an excuse than a justification. Moreover, that requirement that one has no moment of deliberation invokes the idea of provocation, which is arguably a partial justification and a partial excuse.

Yet more recently international law has abandoned the language of excuse. The United Nations Charter authorizes the use of force if Security Council approves the use of force, and also maintains “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” In both of these circumstances, the use of force is justified, not merely excused: a state using force with UN Security Council approval or in self-defense has not committed a wrongful action.

Since World War II, international law has continued to recognize defenses to breaches of international obligations, but it has not clearly distinguished between justifications and excuses. Yet defenses in international law seem more like justifications than like excuses. As an illustration, consider the Draft Articles on State Responsibility, which provides a set of defenses to breaches of international law. Consider the defense of necessity, which was described in the Draft Articles and recognized by the ICJ in the Gabčíkovo-Nagymaros Project case. The Draft Articles describe necessity as “a ground for precluding the wrongfulness of an act not in conformity with an international obligation,” which invokes the language of justification rather than excuse. Recently the UN General Assembly has commended the Draft Articles (now just “the Articles”), further solidifying their place in international law yet further entrenching the ambiguity between justifications and excuses.

International law should consider recognizing excuses for states, as the theories that warrant the provision of excuses for individuals may apply to states as well. As an illustration, consider H.L.A. Hart’s theory of excuses: agents should be punished for their actions only if they have “the normal capacity, physical and mental, for doing what the law requires and abstaining from what it forbids, and a fair opportunity to exercise these capacities.” Hart considers various excuses, such as duress, mistake, and insanity, and notes that in these circumstances the defendant “could not have done otherwise.” There are other theories besides Hart’s: scholars have advocated alternative theories of excuse grounded in causation, choice, character, utilitarianism, and other considerations as well. But given H.L.A. Hart’s influence, his theory is a useful starting point.

Hart’s capacity and opportunity theory of excuse seems to apply to states as well as to individuals. Consider the prospects of a duress defense for states. States may be subject to coercive pressure from other states, and such coercive pressure may undermine the normal capacity of a government to act in conformity with international law. Moreover, coercive pressure from other states may deny a state a fair opportunity to conform their conduct to the requirements of international law.

To an extent, international law already recognizes duress, as the Draft Articles recognize coercion as a defense. Yet international law should clearly recognize duress or coercion as an excuse, not a justification. The moral significance of coercion is not that coercion justifies an otherwise wrongful action, but rather that it transfers culpability to the coercive third party. Were international law to recognize duress as an excuse, it would open the conceptual space to condemn wrongful conduct without condemning those who lacked the opportunity and capacity to follow their obligations.

As illustration of the effect of duress on state conduct, (more…)

Emerging Voices: What’s in a Mandate? Protecting Civilians in South Sudan

by Bart Smit Duijzentkunst

[Bart L. Smit Duijzentkunst recently received his PhD in international law from the University of Cambridge. He will be teaching international law at the Fletcher School of Law and Diplomacy, Tufts University, in the 2015 fall semester.]

When, in December 2013, the United Nations Mission in South Sudan (UNMISS) opened its gates to thousands of civilians fleeing violence in the wake of an alleged coup, it also opened a new chapter on the UN’s commitment to the protection of civilians. Two decades earlier UN troops had received vague orders to protect “safe areas” in Bosnia and Rwanda—with disastrous consequences. Today UNMISS is explicitly authorised to use “all necessary means” to protect civilians. Yet while the language of UN mandates has evolved, so have developments on the ground. UN policy-makers originally envisioned protection of civilians measures as short-term, localised interventions to ensure the physical safety of persons in acute emergency situations. In South Sudan, however, 18 months after the outbreak of hostilities almost 140,000 people continue to reside in so-called “protection of civilians sites” across the country. As a result, UNMISS peacekeepers are not simply called upon to protect against external threats, but also to maintain public safety and security within protection of civilians sites. But does their mandate cover these activities? This post briefly discusses the evolution of peacekeeping mandates before offering some reflections on UNMISS’ authority.

Protection of civilians mandates emerged in UN Security Council practice on the eve of the new millennium. In “traditional” mandates, the protection of civilians had been an afterthought, the fortuitous consequence of other peacekeeping objectives. For example, the mandate of UNPROFOR, operating in the Balkans in the mid 1990s, merely called upon the mission to deter attacks on so-called “safe areas”, to monitor cease-fires and to promote the withdrawal of military and paramilitary units from these areas. UNPROFOR could only take “all necessary measures”, including the use of force, in self-defence. Similarly, when UNAMIR in Rwanda was authorised to establish “secure humanitarian areas” in 1994, the UN Security Council recognised that the mission might be required to take action in self-defence to protect the areas, but did not explicitly authorise it to use force to do so.

Propelled by the failures in Bosnia and Rwanda, and encouraged by the emerging idea that the international community held a “responsibility to protect” vulnerable populations, in 1999 the UN Security Council started to explore the protection of civilians as an objective of peacekeeping. It began passing dedicated resolutions and included protection of civilians clauses in operational mandates. These “robust” mandates reflect a recognition by the Security Council that impartiality of UN peacekeeping operations “is not the same as neutrality or equal treatment of all parties in all cases for all time” and that in certain circumstances “peacekeepers may not only be operationally justified in using force but morally compelled to do so.”

In the same year, the UN Security Council vested certain missions with far-reaching administrative powers. UNMIK in Kosovo and UNTAET in East Timor were tasked to provide administrative functions while developing domestic institutions. In line with their “executive” mandates, these missions were empowered to draft local laws, implement domestic policies and administer justice, including arresting and sentencing alleged criminals, until these powers were transferred to local governments (in 2008 and 2002 respectively).

With these differences between traditional, robust and executive mandates in mind, let’s return to the situation of UNMISS. Following South Sudan’s independence on 9 July 2011, UNMISS’ initial mandate focussed on state-building and conflict resolution efforts; the protection of civilians was buried deep in its sub-clauses. These political ambitions went up in flames with the outbreak of violence on 15 December 2013, when an alleged coup triggered a civil war between Government forces, led by President Salva Kiir, and the Sudan People’s Liberation Movement/Army – In Opposition (SPLM/A-IO), headed by former vice-President Riek Machar.

In light of the persistent fighting and the massive influx of internally displaced persons and refugees onto UNMISS premises, the UN Security Council revised UNMISS’ mandate in November 2014 to make the protection of civilians its top priority. The new, robust mandate removes references to “imminent” threats, simply authorising UNMISS to “use all necessary means” to “protect civilians under threat of physical violence, irrespective of the source of such violence”. While housing, food and sanitation are principally provided by humanitarian organisations, UNMISS is in charge of “maintain[ing] public safety and security within and of UNMISS protection of civilians sites”.

This is not the first time that the UN has provided shelter to civilians on its premises: from East Timor to Palestine, over the last decades civilians have flocked to UN bases in the face of violence. The UN has developed various policies to deal with these situations, which range from setting out general principles to providing specific guidelines on civilians seeking protection at UNMISS sites (the latter drafted prior to December 2013). All these documents stress the exceptional and temporary nature of these measures: they speak of protection in terms of hours or days, not weeks or months. Yet as the conflict in South Sudan persists and peace remains elusive, what might have seemed a temporary measure at first has turned into a prolonged situation with few prospects of resolution.

(more…)