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Opinio Juris 2.0

by Kevin Jon Heller, Julian Ku & Sam Zarifi

In 2004, three friends and legal scholars – Peggy McGuiness, Chris Borgen, and Julian Ku – started Opinio Juris, the first blog dedicated to the informed discussion of international law. In 2006, the blog took on its first two non-founding members, Roger Alford and Kevin Jon Heller. Over the past 14 years new voices came and (to a much lesser extent) went, but by and large Opinio Juris remained the same.

Until now.

It is with both great sadness and great excitement that we announce the most fundamental restructuring of Opino Juris in its history. Great sadness, because all of the blog’s current members, save for Kevin and Julian, are stepping aside from regular blogging. And great excitement, because we are relaunching Opinio Juris with a new website, two new permanent members – Alonso Gurmendi Dunkelberg and Priya Pillai – and a wonderful new institutional partner, the International Commission of Jurists (ICJ), led by its Secretary-General, Sam Zarifi.

As you will see in a few days, the Opinio Juris website has undergone radical surgery, not simply a nip and tuck. We have tried to stay true to the blog’s longstanding aesthetic while at the same time giving the website a more modern look and much greater functionality. Users should find Opinio Juris considerably easier to navigate, and our improved platform will allow us to branch out into podcasts, webcasts, live Q&As, and much more.

As for the roster of permanent bloggers, Peggy, Chris, Peter, Duncan, Kristen, Deborah, and Jens are assuming what we are calling “Emeritus” status. Although they will no longer be active members of Opinio Juris, they will be free to post whenever they have something to say – which Julian, Sam, and I hope will be often. The invaluable Jessica Dorsey is remaining with the blog, for which we are deeply grateful. And we are adding two new members, both of whom many of our regular readers will recognize from their writing and blogging elsewhere. We are pleased to welcome Alonso Gurmendi Dunkelberg, who is Professor of International Law at Universidad del Pacífico Law School in Lima, Peru, where he specializes in international humanitarian law and human rights law. We are equally delighted to welcome Priya Pillai, a Manila-based international lawyer who specialises in international justice, transitional justice, and human rights. And we intend to add more new voices in the months (and years) to come, especially those from parts of the world that are underrepresented in the international-law blogosphere.

We are also joined by the truly global collective voice of the ICJ, an august NGO founded in 1952 that brings together senior judges, lawyers, and academics from every continent to develop and implement international and regional human rights law, to protect the independence of judges and lawyers, and to provide accountability for human-rights violations. Regular readers will have noticed a trickle of posts over the past few months from ICJ staff, and we hope that the trickle will become a river as the blog moves into its next phase. Opinio Juris will, however, steadfastly maintain its editorial independence – something the ICJ has insisted upon since we first began to discuss joining forces.

Opinio Juris’s greatest strength, however, is you – our loyal readers. On an average day, the blog is read by judges, diplomats, government lawyers, academics, students, and interested laypeople in more than 70 countries. Some are from the Global North, others from the Global South. Some are conservative and others are liberal. Some care about the ICC and others the WTO. But all share a committment to thinking, writing, and (yes) arguing about international law, whatever their differences. The blog has always tried to maintain a diversity of voices across racial, national, and ideological perspectives, and that will not change. So please keep reading, keep commenting, and keep sending us guest-posts.

On a more practical note, Opinio Juris will go quiet for a few days as we switch over to the new website. Bear with us. We will officially launch on October 1 with a two-week symposium on Harold Koh’s new book, The Trump Administration and International Law – a much more ambitious version of the mini-symposium we held for his article by the same name a while back. The line-up of commentators reads like a Who’s Who of international law. We think it’s the perfect platform for re-launching Opinio Juris. (And you can get a 20% discount on the book by clicking OUP’s ad!)

We hope you will like our new look, our new members, and our new association. It has been a fantastic 14 years for Opinio Juris, and with your help we can ensure that the next 14 are even better.

The Fallacy That Attacking a Judicial Institution and its Personnel Protects Americans: A Response to John Bolton’s Speech

by Jennifer Trahan

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

Monday, at the Federalist Society, National Security Adviser John Bolton delivered a major foreign policy address, devoted almost entirely to attacking the International Criminal Court, a court established to prosecute the most egregious crimes of concern to the international community. At a time when the US does indeed face many national security challenges, including North Korean nuclear weapons development, the topic was in itself an odd choice, but consistent with Bolton’s earlier preoccupation with the ICC during the George W. Bush Administration.

Many of Bolton’s arguments were a re-hash of those early US attacks on the Court during the Bush Administration, and a repeat of earlier flawed arguments that a foreign institution such as the ICC may not exercise jurisdiction over US nationals. I would like to dismiss Bolton’s remarks as “unhinged” and “ridiculous sabre-rattling” as Kevin Jon Heller has, but here in the US, alas, there is a segment of the public his speech will appeal to, so it is important to address the arguments, particularly the threats made against ICC personnel and others.

Most Opinio Juris readers will know the history that under the Bush Administration, the US engaged in a multi-pronged attack on the International Criminal Court, led by John Bolton. The US appears to be returning to this approach. It consisted of attempting to withdraw the US signature from the ICC’s Rome Statute, passing the so-called “American Servicemembers Protection Act” that contained a variety of anti-ICC measures, including standing authorization to liberate American’s from ICC custody (which would involve invading the ICC’s detention facility in The Hague), as well as obtaining over 100 bilateral immunity agreements by which countries agreed never to surrender Americans to the ICC, and, for two years, under Security Council resolutions 1422 and 1487, rendering peacekeepers from non-ICC States Party immune from ICC prosecution.

By most accounts, these measures backfired. When the US threatened states that they needed to enter into these immunity agreements (which Bolton refers to in his speech as “one of [his] proudest achievements”), various states resisted, and rather than bending to US threats of losing military assistance, instead turned to China to receive that assistance. This is then an odd example for Bolton to invoke proudly as it had the net effect of increasing China’s sphere of influence. Insisting on peacekeeper immunity led other states to question why nationals of any country should be above the rule of law, and the measures were not renewed by the Security Council. All in all, most states saw this approach for what it was—bully tactics against a judicial institution. These measures did not help protect the US, but damaged its reputation internationally and US interactions and credibility with US allies, including European allies who are generally staunch supporters of the ICC.

The argument that a foreign institution cannot exercise jurisdiction over Americans absent US consent is of course deeply flawed, and John Bolton would know this. If an American commits murder in Paris, he or she may be tried under the French legal system. Under terrorism statutes, when a country (e.g. the US) tries terrorist for crimes committed abroad, the US doesn’t seek permission from the country of nationality. For example, in conducting prosecutions at Guantanamo, the US didn’t ask permission of Afghanistan, Saudi Arabia, Yemen or any other foreign country – nor does the US do so when conducting terrorism prosecutions in US federal courts. The ICC’s jurisdiction over crimes by US nationals in Afghanistan is based on Afghanistan having ratified the ICC’s Rome Statute, which, under Rome Statute Article 12, created ICC jurisdiction over genocide, crimes against humanity or war crimes committed by Afghan nationals and crimes committed on Afghan territory; as to crimes in Afghanistan, it is worth noting that the ICC is investigating exceedingly horrific and massive crimes by the Taliban, as well as crimes by Afghan forces, so is by no means singling out US nationals.

But, alas, Bolton’s speech is not only rehashing old arguments, but contains a new threat towards ICC personnel, states and companies (i.e., NGOs) that assist any case involving US nationals or if a situation involving Israel or “other U.S. allies” proceeds before the Court:

Bolton states:

If the Court comes after us, Israel or other U.S. allies, we will not sit quietly. We will take the following steps, among others, in accordance with the American Servicemembers’ Protection Act and our other legal authorities: . . .

We will respond against the ICC and its personnel to the extent permitted by U.S. law.  We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.

So, added to the US travel ban will be ICC officials trying to implement the rule of law? And ICC judges and prosecutors are threatened with having assets frozen and being prosecuted? And any “company” (e.g., NGO) or state that assists an investigation involving US nationals can be dealt with similarly? Of course, the ICC Prosecutor and ICC President have to regularly travel to the US to report to the UN Security Council on the Libya and Darfur situations referred by the Council to the ICC. That could prove difficult given these new threats.

Such threats of extra-legal measures appear aimed at trying to subvert a judicial process and stifle the work of US-based NGOs. The Prosecutor’s request to move the Afghanistan situation from the initial Preliminary Examination phase to the Investigation phase is pending. And, whereas Bolton complains of the Prosecutor’s “unaccountable powers,” in fact, this decision regarding the Afghanistan situation will not be made by the Prosecutor, but by the Judges. The ICC judges are, in this way, exactly the “check” that Bolton claims does not exist; other checks and balances are similarly built into the Rome Statute at various stages of proceedings.

Finally, it is not lost, particularly on an American audience, that Bolton made his speech one day shy of 9/11. But it is wrong to link his speech to that horrific day and all those who tragically died. His speech is not about protecting US national security, but ensuring that any American nationals (CIA or Department of Defense) implicated in torture in Afghanistan are above the rule of law. Such a policy of “exceptionalism” actually works against US interests.

As I wrote on Opinio Juris last fall, the US has a very easy solution to the ICC Afghanistan inquiry and that is to conduct “complementarity”—that is, to prosecute any cases itself, thereby divesting the ICC of jurisdiction. The ICC is a court of last resort that only acts when the domestic legal system fails to do so. Bolton states that the US has “the most robust system of investigation, accountability and transparency in the world.” In that case, the US should have no trouble prosecuting these cases itself. I am not advocating exposing Americans to ICC proceedings; if the US can prosecute these cases domestically (which it can) then it should do so. But the years of delay that have occurred thus far suggest the US has no interest in this approach. US prosecutions would clearly be the best approach for solving this situation, and avoiding the US/ICC showdown that Bolton threatens, and which will benefit neither the US nor the ICC.

To be completely clear: the US is made safe by following the rule of law. We are not made safe by banning ICC Prosecutor (Fatou Bensouda) or any of the ICC judges from traveling to the US, nor by threatening US-based NGOs, or other states, nor by ensuring American nationals are above the rule of law. These bully tactics do not well-serve the US, and will be seen for what they are.

Method to the Madness? John Bolton and US Objections to ICC Jurisdiction

by Steven Kay and Joshua Kern

[Steven Kay QC is Head of Chambers at 9 Bedford Row. He has appeared as leading counsel in many significant international criminal trials (Tadic, Milosevic, Musema, Gotovina, Kenyatta) – and represented heads of state and leading figures at UN tribunals and the International Criminal Court (ICC). Joshua Kern is a barrister at 9 Bedford Row. He specialises in complex criminal cases with an emphasis on international and transnational criminal law. He has defended clients at the ICC (Kenyatta), the Extraordinary Chambers in the Courts of Cambodia (ECCC) (Ieng Sary), and the International Criminal Tribunal for the former Yugoslavia (ICTY) (Prlic).]

On the eve of 9/11, John Bolton affirmed the Trump Administration’s intention to rely on the full force, and more, of the American Servicemembers’ Protection Act 2002 to shield US and its allied nationals from ICC jurisdiction. Given the ferocity of his attack (and as foreshadowed in the discussion following Kevin’s contribution here), the question of whether the ICC may exercise its jurisdiction over nationals of non-state parties absent a Security Council referral is pressing once again. Dapo Akande’s landmark analysis has, to date, broadly been considered dispositive. But perhaps the question is worth revisiting considering Mr Bolton’s remarks. 

Jurisdiction over nationals of non-states parties absent a Security Council referral

In its Request to investigate the Situation in Afghanistan (“Request”) the OTP drew heavily on Dapo Akande in stating in its clearest terms to date its reasons for finding that states parties are not prohibited from delegating their territorial jurisdiction by treaty. As a result, the OTP argues that the Court may exercise jurisdiction over nationals of non-states parties even in the absence of a Security Council referral.

In its Request, the OTP does not expressly distinguish between prescriptive, adjudicatory, and enforcement jurisdiction and asserts that:

the conclusion of an agreement pursuant to article 98 of the Statute between the Government of Afghanistan and a third State does not impact on the exercise of jurisdiction by the Court… Indeed, the very purpose of article 98 is to regulate how the Court’s exercise of jurisdiction should be enforced.”

While this statement may be accurate with respect to exercise of the Court’s prescriptive jurisdiction, it fails to acknowledge that the exercise of enforcement jurisdiction must be permitted under customary international law too. This because, although international law poses no limits on a state’s jurisdiction to prescribe rules absent a prohibitive rule to the contrary, pursuant to Lotus states are precluded from exercising their enforcement jurisdiction in another state’s territory absent a permissive rule…

Jurisdiction to Adjudicate Under Customary International Law

by William S. Dodge, Anthea Roberts and Paul B. Stephan

[William S. Dodge, Anthea Roberts, and Paul B. Stephan served as co-reporters for the jurisdictional sections of the Restatement (Fourth) of Foreign Relations Law. They write here in their personal capacities.]

In a recent post, Dean Austen Parrish questions whether the soon-to-be-published Restatement (Fourth) of Foreign Relations Law is “remaking international law” when it says that “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” As reporters for Restatement (Fourth), we thought it might be useful to explain why this statement fairly reflects customary international law today.

We recognize that, once one gets past first principles, some controversy exists over the correct methodology for ascertaining international legal obligations. Two of us have written about the phenomenon of “comparative international law,” although we are not prepared to say that our disagreement with Dean Parrish is evidence for this. In our work as reporters for the Restatement (Fourth), we followed the approach for identifying customary international law articulated by the International Court of Justice (ICJ) and adopted by the International Law Commission (ILC).

Customary international law results from a general and consistent practice of states followed out of a sense of international legal right or obligation. This is the approach the ICJ has repeatedly applied in areas ranging from the law of the sea (North Sea Continental Shelf) to the jurisdictional immunities of states (Jurisdictional Immunities of the State). It is also the approach that the International Law Commission has adopted in its project on the Identification of Customary International Law. States often limit their jurisdiction to a greater extent than international law requires. But unless such limits result from a sense of international legal obligation, they reflect international comity rather than customary international law.

One of the objectives of the Restatement (Fourth) is to clarify distinctions among different kinds of jurisdiction under international law. Customary international law imposes different limits on a state’s exercise of jurisdiction, depending on what kind of jurisdiction is at issue. State practice today distinguishes among jurisdiction to prescribe, jurisdiction to adjudicate, and jurisdiction to enforce. Dean Parrish seems to resist this basic point, arguing that “[p]ublic international law constrains state action, regardless of the form in which the power is exercised.” But the distinctions among different categories of jurisdiction are not new. In The Lotus (pp. 18-19), the Permanent Court of International Justice recognized that jurisdiction to enforce was strictly territorial but that the same was not true of jurisdiction to prescribe and jurisdiction to adjudicate. The rules of customary international law depend on state practice and opinio juris with respect to each category of jurisdiction.

Customary international law evolves as state practice and opinio juris change. Today, state practice and opinio juris demonstrate that jurisdiction to enforce remains strictly territorial, a rule restated in Section 432 of the Restatement (Fourth). With respect to jurisdiction to prescribe, state practice and opinio juris have evolved (contrary to what The Lotus suggested) to require a “genuine connection” with the state seeking to regulate, a rule restated in Section 407 of the Restatement (Fourth). Typically, this genuine connection is found in one or more of the recognized bases for prescriptive jurisdiction—territory, effects, active personality, passive personality, the protective principle, and universal jurisdiction (Sections 408-413).

But state practice and opinio juris today do not treat jurisdiction to adjudicate the same as jurisdiction to prescribe or jurisdiction to enforce. Preliminarily, we should make clear that customary international law does impose some limits on jurisdiction to adjudicate in the form of various immunities from suit. In Jurisdictional Immunities, for example, the ICJ held that states are immune from suit in the courts of another state from claims based on the activities of armed forces during armed combat. (Parenthetically, we note that the ICJ applied different rules with respect to immunity from jurisdiction to enforce, again demonstrating that customary international law treats different kinds of jurisdiction differently.)

But the question that concerns Dean Parrish is whether customary international law limits states in the exercise of personal jurisdiction, apart from questions of immunity. To be clear, this is separate question from whether a state has jurisdiction to prescribe rules to govern a particular dispute and from whether a state may exercise measures to compel compliance with judicial orders.

State practice and opinio juris indicate that customary international law does not limit personal jurisdiction. Many states exercise personal jurisdiction on bases that other states consider exorbitant. The examples typically cited are the French practice of exercising personal jurisdiction based on the nationality of the plaintiff, the German practice of exercising personal jurisdiction based on property unrelated to the suit, and the U.S. practice—followed in some other common-law countries as well—of exercising personal jurisdiction based on service of process while the defendant is temporarily present (“tag” jurisdiction). States have not, however, protested such exercises of personal jurisdiction as violations of customary international law. Instead, states have simply refused to recognize and enforce the judgments rendered in such cases. In other words, they have treated exorbitant jurisdiction as a reason not to extend international comity rather than as a violation of international law.

The practice of the European Union is particularly revealing on this point. Under the Brussels I Regulation (Recast), member states are prohibited from exercising personal jurisdiction on exorbitant bases over persons domiciled in other member states (Article 5(2)). But member states are expressly permitted to use such exorbitant bases against defendants domiciled elsewhere (Article 6(2)). What is more, member states are required to recognize and enforce the judgments of other members states, including those rendered on exorbitant bases of jurisdiction against non-EU defendants (Article 36(1)). If it were true that the exercise of exorbitant jurisdiction violates customary international law, one would have to read the Brussels Regulation as an authorization to EU member states to violate that law and as a commitment by other EU member states to assist in such violations. This is certainly not how the EU member states see it.

To be sure, states generally do not exercise personal jurisdiction without a basis for doing so that is widely recognized by other states. But the fact that many states maintain the right to exercise jurisdiction on other bases, and the fact that other states do not protest such exercises as violations of customary international law, forecloses the conclusion that the limits generally observed are followed out of a sense of legal obligation. In other words, states limit adjudicative jurisdiction as a matter of international comity, not customary international law.

Dean Parrish also asserts that Restatement (Fourth)’s position on adjudicative jurisdiction under customary international law is a departure from the past positions of the American Law Institute. First, the Principles of Transnational Civil Procedure that Dean Parrish invokes are not on point. They are standards recommended to national legal systems, not restatements of customary international law. Second, Dean Parrish is mistaken that the Restatement (Second) of Foreign Relations Law took the position that customary international law limited adjudicative jurisdiction. In fact, the Restatement (Second) recognized only two categories of jurisdiction—jurisdiction to prescribe and jurisdiction to enforce (see Section 6)—and thus did not separately treat jurisdiction to adjudicate. Third, while the Restatement (Third) did set forth “international rules and guidelines” for adjudicative jurisdiction, it also conceded that “it is not always clear whether the principles governing jurisdiction to adjudicate are applied as requirements of public international law or as principles of national law.” Restatement (Third), Part IV, Chapter 2, Introductory Note.

The Restatement (Third) did identify one particular state practice, the exercise of “tag” jurisdiction based on the service of process to a person with only a transitory presence in the jurisdiction, as “not generally acceptable under international law.” Section 421 comment e. Yet the U.S. Supreme Court rejected a constitutional challenge to this practice three years later in Burnham v. Superior Court of California. In light of this additional practice by the United States, the practice of the EU member states already mentioned, and the absence of protests from other states, we concluded that “tag” jurisdiction—like other exorbitant bases of personal jurisdiction—does not violate customary international law. As this example illustrates, we looked at the general question again in light of current state practice and opinio juris.

Finally, Dean Parrish suggests that what the Restatement (Fourth) says concerning customary international law and adjudicative jurisdiction may be “controversial.” Certainly there were a number of questions that arose during the drafting of the Restatement (Fourth) that generated controversy. But the question whether customary international law places limits on adjudicative jurisdiction (other than immunity) was not one of them.

One of us has previously described on this blog the exacting process for restatements in general and for the Restatement (Fourth) of Foreign Relations Law in particular. We had the benefit of counsel from a wide range of advisers (including foreign advisers) with deep experience in customary international law and of vigorous debates on many issues. The resulting product does not simply reflect the views of the reporters about the content of customary international law governing jurisdiction. It reflects the best judgment of the American Law Institute based on an evaluation of state practice and opinio juris today.

John Bolton, Unplugged – and Unhinged — About the ICC

by Kevin Jon Heller

Much has been made of how relations between the ICC have improved since the second term of Bush the Younger. I think we all expected that to change in the wake of Trump’s election, particularly after the OTP announced its intention to investigate detention-related abuses in Afghanistan and in CIA black sites in Eastern Europe For a while, nothing much of note happened…

Enter John Bolton, comic-book villain, stage right:

Mr. Bolton also planned to threaten to impose sanctions against the International Criminal Court if it moves ahead with investigations of the U.S. and Israel.

“If the court comes after us, Israel or other allies, we will not sit quietly,” Mr. Bolton planned to say, according to his prepared remarks.

Among the responses, Mr. Bolton says, the U.S. would ban ICC judges and prosecutors from entering the country.

“We will sanction their funds in the U.S. financial system, and we will prosecute them in the U.S. criminal system,” Mr. Bolton adds. “We will do the same for any company or state that assists an ICC investigation of Americans.”

I am not going to bother taking these statements seriously, other than to note my curiosity about what provision in the US Code criminalises working with an international tribunal properly exercising its jurisdiction. Suffice it to say that the statements are completely unhinged and should be met with a hardy guffaw by the OTP.

I’m old enough to remember when Bolton’s patented brand of ridiculous sabre-rattling would have met with astonishment, if not outrage, in the US and elsewhere. In the age of Trump, though, we are just delighted to see a senior Trump administration official make threats in complete sentences — and without random capitalization.

The ICC Has Jurisdiction over One Form of Genocide in the Rohingya Situation

by Kevin Jon Heller

A number of commentators — including me — have questioned whether the OTP should open an investigation into Myanmar’s treatment of the Rohingya if that investigation would be limited to the crime against humanity of deportation. Here, for example, is what I wrote in April:

[T]here is the question of situational gravity. Should the OTP investigate the Rohingya situation if it can only charge perpetrators with deportation as a crime against humanity and/or as a war crime? There is no legal reason it cannot, but imagine if the Commander-in-Chief of the Myanmar Army ended up in the dock at the ICC. Would the Rohingya be satisfied if he was not charged with genocide or murder or sexual violence? Would Human Rights Watch or the International Commission of Jurists? Deportation is a serious crime, but it doesn’t inherently involve physical violence. And it’s unquestionably not the most serious crime committed by the Myanmar military and government. So I genuinely wonder whether an OPT investigation into deportation and deportation alone would be worth it.

The PTC’s decision yesterday fundamentally changes that calculus. The OTP will no longer be limited to investigating “deportation and deportation alone.” On the contrary, the PTC did everything but order the OTP to also investigate the crimes against humanity of persecution and “other inhumane acts.”

Nor is that all. I think it is now clear that the OTP can investigate genocide, as well — at least the form in Art. 6(c) of the Rome Statute, “deliberately inflicting conditions of life calculated to bring about physical destruction.”

Recall the central principle of the PTC’s analysis:

74. The Chamber considers it appropriate to emphasise that the rationale of its determination as to the Court’s jurisdiction in relation to the crime of deportation may apply to other crimes within the jurisdiction of the Court as well. If it were established that at least an element of another crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party, the Court might assert jurisdiction pursuant to article 12(2)(a) of the Statute.

As Kip Hale and I discussed today on Twitter, the PTC notably did not limit the Court’s territorial jurisdiction to crimes whose essential elements necessarily take place in two states. If that was the case, the Court’s jurisdiction might indeed be limited to deportation as a war crime and as a crime against humanity. (I’d have to think about other possibilities.) Instead, the PTC adopted a much broader approach, holding that the Court has jurisdiction over any crime committed primarily on the territory of a non-state party as long as, as a factual matter, either an essential element or part of the crime is committed on the territory of a state party. That is why the PTC implies that the Court “might” — nudge, nudge; wink, wink — also have territorial jurisdiction over the crimes against humanity of persecution and other inhumane acts. Neither crime necessarily takes place in more than one state, but in fact both did take place in two states in the context of Myanmar’s violence toward the Rohingya: their persecution took place in part in Bangladesh because the crime of persecution was connected to a deportation that was only complete once they were driven out of Myanmar; their inhumane treatment took place in part in Bangladesh because the prohibited act –causing the Rohingya great suffering — was not permitting them to re-enter Myanmar.

And here’s the rub: under this approach, the Court also has jurisdiction over “conditions of life” genocide. That form of genocide has the following elements:

1. The perpetrator inflicted certain conditions of life upon one or more persons.

2. Such person or persons belonged to a particular national, ethnical, racial or religious group.

3. The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.

4. The conditions of life were calculated to bring about the physical destruction of that group, in whole or in part.

5. The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.

Let’s assume that these elements are satisfied not only within Myanmar — as the Independent International Fact-finding Mission on Myanmar has found — but in Bangladesh, as well. In other words, let’s assume that the Myanmar military drove the Rohingya into Bangladesh not just to ethnically cleanse Mynamar, but also — echoing the Armenian genocide — to subject the Rohingya to conditions of life that would naturally (without outside intervention) lead to their destruction. That assumption seems sound, given the horrific conditions in the refugee camps in Bangladesh. Here, for example, is a snippet of a report by UNICEF:

As of 27 January 2018, the Inter-Sector Coordination Group (ISCG) reported that almost 688,0001 Rohingya refugees have entered Bangladesh since the attacks. Per ISCG’s rapid needs assessment, 58 per cent of new arrivals are children and 60 per cent are girls and women including a high number of pregnant (3 per cent) and lactating women (7 per cent). The estimated total affected population of existing refugees, new arrivals and host communities is 1.2 million people. 2 This includes 720,000 affected children in need of urgent humanitarian assistance including critical life-saving interventions.

Existing basic services for refugees and host communities have been overwhelmed due to the sudden and massive increase in population. The high population density in the settlements has increased the risk of disease outbreaks and 1.2 million people urgently require water and sanitation services. More than 17 million litres of clean water per day are needed and approximately 50,000 latrines with semi-permanent structures need to be constructed or maintained. Vaccination coverage amongst new arrivals is very low and deadly outbreaks of communicable diseases (measles and diphtheria) have already occurred. In the densely-populated settlements, with poor sanitation and hygiene conditions, an outbreak of cholera or acute watery diarrhoea (AWD) is a risk that is being addressed in the rainy/cyclone season preparation plan. Urgent nutrition needs have been prioritized for children under five (including infants), pregnant and lactating women (PLW) and adolescent girls, with 3 per cent of children suffering from life-threatening severe acute malnutrition (SAM) in the biggest settlement (Kutupalong). An estimated 400,000 Rohingya children are also in need of psychosocial support and other protection and education services.

If these conditions amount to “conditions of life… calculated to bring about the physical destruction” of the Rohingya, at least one of the essential elements of that form of genocide is taking place on the territory of a state party, Bangladesh. And that means, pursuant to the PTC’s decision yesterday, that the Court has jurisdiction over conditions of life genocide in the Rohingya situation.

I am somewhat surprised that the PTC did not discuss genocide in its decision, given (1) the structural similarities between genocide and the crime against humanity of persecution, and (2) the similar argument made by Global Rights Compliance, under the able leadership of my friend Wayne Jordash QC, in its excellent brief on behalf of Rohingya victims. The PTC’s silence likely reflects its belief that the factual predicates for conditions of life genocide are less clearly established than for the crimes against humanity of persecution and “other inhumane acts.”

The point of an OTP investigation, however, is to establish the facts necessary to bring charges against individuals responsible for international crimes. So there is no reason why the OTP shouldn’t investigate whether Myanmar officials have committed conditions of life genocide against the Rohingya in Bangladesh. If the necessary factual predicates can be established, the Court clearly has territorial jurisdiction over that crime.

NOTE: I want to acknowledge Toby Sterling of Reuters, whose email this morning started me thinking about this issue. He anticipated many of the points I make above.

‘The Role of Social Media is Significant’: Facebook and the Fact Finding Mission on Myanmar

by Emma Irving

[Emma Irving is an Assistant Professor of Public International Law at Leiden University.]

The OHCHR Fact Finding Mission on Myanmar drew the world’s attention last week by issuing a report finding that genocide, war crimes, and crimes against humanity against the Rohingya and other ethnic groups took place in Myanmar last year. The Mission went further, drawing up a non-exhaustive list of perpetrators, and pointing the finger directly at six members of the Myanmar military who the Mission found exercised effective control over the perpetrators. In addition to these features of the report, there is another development that is worthy of discussion: the attention paid to the role of Facebook in the violence in Myanmar.

Facebook and the Fact Finding Mission Report

On a general note, the Fact Finding Mission describes ‘the role of social media’ as ‘significant’ in the spreading of hate speech in Myanmar (§74). The report describes in detail the ratcheting up of ethnic tensions and systematic discrimination and abuse over decades; a key part of which was the spreading of hate speech by non-state actors and the military (and the civilian government’s failure to address this). In recent years, Facebook’s prominence in the country – the report notes that Facebook is the internet in Myanmar – means that it has become a ‘useful instrument for those seeking to spread hate’ (§74). The preponderance of hate speech is one of the factors that is said to have created a climate in which the catastrophe inflicted on the Rohingya and other ethnic groups was entirely predictable.

Beyond commenting on Facebook’s general role in facilitating the spreading of hate speech, the report uses specific Facebook posts to support its findings. In one instance, the report cites a Facebook post from the Myanmar State Counsellor Office as its source for the Government’s position on when the operations in Rakhine State ended (§49). In other instances, the use of Facebook posts is more interesting. One particular post by the military’s Commander-in-Chief attracted attention: ‘The Bengali problem was a long-standing one which has become an unfinished job despite the efforts of previous governments to solve it. The government in office is taking great care in solving the problem.’ (§35) This statement is used in the report to support two findings. First, it supports the Mission’s finding that the ‘nature, scale and organisation of the operations suggests a level of preplanning and design on the part of the’ military leadership (§35). This is an important consideration for establishing criminal responsibility. Second, it supports the Mission’s finding of the existence of genocidal intent (§86). Without genocidal intent, the acts perpetrated against the Rohingya cannot be labelled as genocide, making this element of particular importance for the claim that genocide took place. While the Facebook statement is not the only piece of information on which the two findings are based, it is the only one that is expressly set out in the report.

The Fact Finding Mission’s inclusion of Facebook posts as an important source of information fits within a broader trend among international accountability mechanisms. In August 2017, the ICC issued its first arrest warrant to be based largely on seven videos obtained from social media (commentary on Al-Werfalli arrest warrant). In the second arrest warrant for Al-Werfalli, issued in July 2018, the Pre-Trial Chamber reaffirms position that the videos are sufficient to establish ‘reasonable grounds to believe’. The IIIM, for its part, has formed partnerships with organisations that specialise in the collection of open source digital information (including social media) in order to pursue its mandate of accountability for Syria (here). The report of the OPCW Fact Finding Mission in Syria also lists open source information among the types of information it relied upon, and the annex to the report lists Twitter, Facebook, and YouTube posts. This trend is a consequence of technological developments and the digitisation of conflict facilitating remote investigations, and is new ground into which international accountability mechanisms are carefully but surely treading.

Facebook’s Response

The same day that Fact Finding Mission report was released, Facebook announced a number of measures that the platform was taking in response to the report. Admitting that it was ‘too slow to act’, Facebook claimed that it is now making progress, and has developed better technology to identify hate speech. As part of the response in relation to Myanmar, Facebook has removed a total of 18 Facebook accounts, one Instagram account, and 52 Facebook pages. Among the removed accounts is that of the Commander-in-Chief Senior-General Min Aung Hlaing, the same individual whose posts have been used in the Fact Finding Mission report to support the finding of genocidal intent. In its response, Facebook doesn’t mention whether it will address the Mission’s ‘regret’ at its unwillingness to provide data about the spread of hate speech in Myanmar, suggesting that Facebook’s uncooperative tendencies may continue in this regard.

There is one element of Facebook’s response which is particularly noteworthy and welcome. In relation to the accounts and pages that have been removed, Facebook has stated that it has preserved the data and content associated with them. This is significant, as concerns have emerged over the last year concerning the take-down policies of prominent social media platforms (here and here). In summer of last year, many organisations that use social media to document conflicts, including those in Syria, Yemen, and Myanmar, noticed that either their social media accounts had been shut down, or large amounts of their content had been removed. These take-downs were part of a new strategy to remove extremist and terrorist content from social media platforms, but the algorithms behind the process lacked nuance, and insufficient account was taken of the fact that certain content related to documentation and accountability efforts. While some content has been restored, much remains unavailable, and it is not clear whether the removed content has been preserved or destroyed. If the latter, this could have a detrimental impact on accountability efforts. In light of this, Facebook’s assurance that the content from the removed pages and accounts in Myanmar is being preserved is important.

Facebook’s response of taking accounts and pages offline, while an improvement on the inaction of the past, is unlikely to be sufficient to reign in hate speech. Removing accounts and improving systems for reporting hate speech are not enough when the very algorithms that power Facebook are promoting hateful content. Reports show that Facebook posts drawing on negative, primal emotions such as anger, fear, and tribalism perform better on the platform and are made more visible. A study looking at anti-refugee violence in Germany made similar findings, positing that Facebook made ordinary individuals more prone to xenophobic violence. This problem is not unique to Facebook, with similar concerns being raised about YouTube.

Conclusion

The Fact Finding Mission on Myanmar did not shy away from using an important source of information about the violence in Rakhine State: Facebook posts. It relied on Facebook posts (among other sources) to support significant findings on the planning of the violence and on genocidal intent. In doing so the Mission remained cautious, indicating that only corroborated and verified information had been relied upon, and thereby pre-empting the criticisms that justly accompany the use of open source information. Beyond Facebook, the Mission also relied on another form of digital technology: satellite imagery. Before and after images of burned and razed villages were used to establish a pattern of widespread and systematic violence. Technologically-derived information therefore has a clear place in the work of the Fact Finding Mission, and in this sense the Mission joins the other international accountability mechanisms that are incorporating technology into their work.

One of the main take-aways from the Fact Finding Mission report, apart from the important findings on events and crimes committed in Rakhine State, is the signal that international accountability mechanisms do not have a blind spot when it comes to social media. Where possible and appropriate social media will be used to support findings of fact and intention; and where social media platforms are part of the problem, these mechanisms can generate international pressure to do better.

ICC Says Trump Can Be Prosecuted for Crimes Against Humanity Involving Mexican-Americans

by Kevin Jon Heller

Okay, it didn’t directly say that. But that is the logical consequence of the Pre-Trial Chamber’s new decision upholding the Court’s jurisdiction over the deportation of the Rohingya from Myanmar. According to the PTC (para. 71), the crime against humanity of deportation (unlike forcible transfer) necessarily takes place in two states, because one of the essential elements of the crime is that the civilians are forcibly displaced across an international border. The Rohingya were forcibly displaced from the territory of a non-state party (Myanmar) into the territory of a state party (Bangladesh). Hence the Court has territorial jurisdiction.

But that is not all the PTC said. It also essentially holds that the Court has jurisdiction over two other crimes against humanity — crimes it practically begs the OTP to charge: persecution and “other inhumane acts.” Here is what it says about the crime against humanity of persecution:

75. First, article 7(1)(h) of the Statute identifies, as a crime against humanity within the jurisdiction of the Court, “[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph […]”. The reference to “any act referred to in this paragraph” signifies that persecution must be “committed in connection with any other crime within the jurisdiction of the Court”, which includes the crime against humanity of deportation, provided that such acts are committed pursuant to any of the grounds mentioned in article 7(1)(h) of the Statute.

76. Therefore, if it were established to the applicable threshold that members of the Rohingya people were deported from Myanmar to Bangladesh on any of the grounds enumerated in article 7(1)(h) of the Statute, the Court might also have jurisdiction pursuant to article 12(2)(a) of the Statute over the crime against humanity of persecution, considering that an element or part of this crime (i.e. the cross-border transfer) takes place on the territory of a State Party.

In other words, the ICC has jurisdiction over the persecution of the Rohingya because in that context (1) the crime against humanity of deportation is the “any other crime within the jurisdiction of the Court” that satisfies Element 4 of the crime against humanity of persecution, and (2) one of the elements of the crime against humanity of deportation involving the Rohingya took place on the territory of a state party, Bangladesh. Because of (1) and (2), it does not matter that the acts of persecution themselves — depriving the Rohingya of internationally-protected rights — might have taken place solely on the territory of a non-state party, Myanmar.

And here is what the OTC says about the crime against humanity of “other inhumane acts”:

77. Second, article 7(1)(k) of the Statute stipulates that “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”, amount to a crime against humanity within the jurisdiction of the Court. The Chamber notes that, following their deportation, members of the Rohingya people allegedly live in appalling conditions in Bangladesh and that the authorities of Myanmar supposedly impede their return to Myanmar. If these allegations were to be established to the required threshold, preventing the return of members of the Rohingya people falls within article 7(1)(k) of the Statute. Under international human rights law, no one may be arbitrarily deprived of the right to enter one’s own country. Such conduct would, thus, be of a character similar to the crime against humanity of persecution, which “means the intentional and severe deprivation of fundamental rights contrary to international law”. Furthermore, preventing a person from returning to his or her own country causes “great suffering, or serious injury […] to mental […] health”. In this manner, the anguish of persons uprooted from their own homes and forced to leave their country is deepened. It renders the victims’ future even more uncertain and compels them to continue living in deplorable conditions.

78. In these circumstances, the preconditions for the exercise of the Court’s jurisdiction pursuant to article 12(2)(a) of the Statute might be fulfilled as well. This is because an element or part of this crime (i.e. unlawfully compelling the victims to remain outside their own country) takes place on the territory of Bangladesh, a State Party, provided that the allegations are established to the required threshold.

In other words, the ICC has jurisdiction over the crime against humanity of other inhumane acts because (1) unlawfully preventing the Rohingya from returning to their state of nationality, Myanmar, causes them the kind of great suffering that qualifies as an inhumane act, and (2) the acts preventing the Rohingya from returning to their state of nationality are taking place on the territory of a state party, Bangladesh.

I think both conclusions are legally sound. But I wonder whether the PTC has thought through their  implications — which brings me back to the intentionally provocative title of this post. As has been widely reported, the Trump administration is currently preventing an increasing number of American citizens from returning to the US from Mexico by revoking their passports at the border. According to the administration, the revocations are justified because of questions about the passport holders’ citizenship. It is overwhelmingly likely, however, that the revocations are actually just the latest manifestation of the Trump administration’s systematic discrimination against Mexican-Americans. White Americans are not having their passports revoked at the border.

By the PTC’s (sound) logic, the man responsible for the discriminatory passport revocations, President Donald Trump, is guilty of both the crime against humanity of other inhumane acts and the crime against humanity of persecution. With regard to the former, the PTC has specifically said (1) that unlawfully preventing civilians from returning to their state of nationality causes them the kind of great suffering that qualifies as an “inhumane act,” and (2) preventing civilians from crossing the border into their state of nationality is an act that takes place on the territory of the state they are trying to leave. Here, Donald Trump’s policies are unlawfully preventing Mexican-American civilians from returning to their state of nationality, the US, from the territory of Mexico, a state party. There is little question that enough Mexican-Americans are being prevented from returning to the US to satisfy the “widespread or systematic” contextual element of crimes against humanity. The ICC thus has jurisdiction to prosecute Donald Trump for the crime against humanity of other inhumane acts.

And if that is the case, the ICC also has jurisdiction to prosecute Donald Trump for the crime against humanity of persecution. Trump is preventing Mexican-Americans from returning to their state of nationality because of their ethnicity. Like the Rohingya, therefore, those Mexican-American civilians are (1) being deprived of an internationally-protected right (their right as citizens to not be arbitrarily prevented from enter their state of nationality), (2) on the basis of an impermissible ground (ethnicity), (3) in connection with “any other crime within the jurisdiction of the Court” (other inhumane acts) that takes place, at least in part, on the territory of a state party. The only (legally relevant) difference between the two situations is the particular “other crime”: deportation for the Rohingya, an element of which takes place in Bangladesh; other inhumane acts for the Mexican-Americans, an element of which takes place in Mexico.

To be sure, I doubt that the OTP will ever ask the PTC to authorize an investigation into the Mexican-American situation. The point is that, according to the PTC’s sound logic, the OTP could. Donald Trump is committing crimes against humanity within the jurisdiction of the Court as I write this.

Remaking International Law? Personal Jurisdiction and the Fourth Restatement of the Foreign Relations Law

by Austen Parrish

[Austen Parrish is the Dean and James H. Rudy Professor at Indiana University Maurer School of Law. He is the author of Judicial Jurisdiction: The Transnational Difference. A draft of the article is available on SSRN.]

This month, the American Law Institute will publish its Fourth Restatement of the Foreign Relations Law of the United States. It’s an impressive document, compiled by some of the nation’s most prominent scholars and practitioners in the field. Its predecessor—the Third Restatement, which was released over thirty years ago—was influential. I suspect the Fourth Restatement will be too. We should expect to see increased focus on this important publication over the coming year. In January, for example, the University of Virginia School of Law will dedicate its 2019 Sokol Colloquium to it.

While much of the Fourth Restatement recites settled understandings and carefully reflects the law’s evolution over the last three decades, portions of it are more controversial. One question, common with all Restatements, is whether the ALI reporters have clarified and restated existing law, or whether in places the new Restatement attempts to effect change.

At least in one area, the Fourth Restatement appears to take the latter tack. It indicates that “[w]ith the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” Bill Dodge, one of the co-reporters to the Restatement’s section on jurisdiction, has perhaps been the most forceful advocate for this new approach. Writing on this blog earlier this year, he argued that the Fourth Restatement’s position reflects settled law. In an article published last year in the Michigan Law Review, he and Scott Dodson indicated that any concerns over international law can be “easily dismissed” because even exorbitant assertions of adjudicatory jurisdiction do not violate customary international law.

As an initial matter, it’s worth underscoring how striking a departure this is from past practice. The Second Restatement and the Third Restatement were clear that international law limited adjudicatory jurisdiction. While the Third Restatement’s reasonableness standard was contested, few would have asserted that civil jurisdiction was unregulated. Just over a decade ago, the ALI and Unidroit in their Principles of Transnational Civil Procedure indicated that a “substantial connection” standard was generally accepted for personal jurisdiction in international cases. No explanation in the Fourth Restatement is provided for why the ALI suddenly discarded these prior understandings.

It is not just the ALI and Unidroit, however, who previously understood international law to constrain jurisdiction to adjudicate. While international law’s limits are ill-defined, well-regarded international law treatises—from Oppenheim’s, to Brownlie’s, to Lowe’s—all agree some link between the state and the defendant is needed to justify a state’s exercise of adjudicatory jurisdiction. U.S. courts reached the same conclusion, with early cases either incorporating or deriving constitutional limits on personal jurisdiction from international law. Most modern commentators— for example, recent chapters in the Encyclopedia of Private International Law by Donald E. Childress III and Ralph Michaels—note that public international law sets the outer boundaries of adjudicatory jurisdiction. As Gary Born and Peter Bo Rutledge explain in the latest edition of their influential casebook: “the weight of authority agrees with the Third Restatement in supporting the existence of some international law limits on national assertions of judicial jurisdiction.” Or as Alex Mills confirms: “there is little in practice or policy to support the idea that an assertion of jurisdiction . . . in civil proceedings is anything other than an exercise of state regulatory power,” which is “restricted by public international rules on jurisdiction.” The position that international law imposes no constraints on a court’s adjudicatory jurisdiction in civil cases has always been very much a minority position.

The defense offered for the Restatement’s position itself departs from established practice. According to Professor Dodge, “an honest look at state practice and opinio juris today reveals no limitations on jurisdiction to adjudicate outside the area of immunity.” But if that is the Restatement’s justification, it’s based on a discredited approach to international law. The idea that jurisdiction is plenary absent an express prohibitive rule has long been rejected: freedom of a state to act is derived from legal right, and not from an assertion of unlimited will.

Outside the established bases of jurisdiction (territoriality, nationality, universality, etc.), exercise of state power is prohibited unless a customary international norm permits the exercise of jurisdiction. Indeed, this is the approach the Fourth Restatement itself takes with prescriptive jurisdiction. Said differently, to support the Fourth Restatement’s position on adjudicatory jurisdiction there would need to be state practice and opinio juris to show that states can exercise personal jurisdiction even in circumstances when no genuine connection to the defendant exists. In this context, “an honest look” at state practice reveals that no state has adopted universal adjudicatory jurisdiction over garden-variety civil law claims, let alone the widespread state practice necessary to create customary law.

Accepting the Restatement’s position would also render long-standing debates nonsensical. Why argue about the scope of universal civil jurisdiction for egregious international law violations (e.g., genocide, war crimes, torture, and crimes against humanity) if no limits exist in any context? For domestic doctrine, much of the ongoing horizontal federalism debates surrounding personal jurisdiction under the Fourteenth Amendment involves to what extent the rights of states as once-independent nations were incorporated into the Due Process Clause. If the inherent sovereignty of nations includes no adjudicatory limits, this long-standing debate is hard to fathom.

Another conceptual problem exists too. Public international law constrains state action, regardless of the form in which the power is exercised. Why state power exercised through the judicial branch—but only in civil cases—is now treated differently than state power exercised through the legislative and executive branches, or in criminal law cases, is unclear. And, as the Fourth Restatement itself notes, outside the United States many authorities continue to view the jurisdiction of national courts to adjudicate cases as “a natural extension of that state’s jurisdiction to prescribe.” The Third Restatement’s innovation to treat adjudicatory jurisdiction separate from jurisdiction to prescribe and to enforce was intended as a way to better understand the limits that international law imposes on courts, not as a way to eliminate them.

The Fourth Restatement’s new approach also represents a step back from the major trends in modern international law. Over the last several decades, international law moved beyond the old Westphalian notion of near impermeable sovereign power, to focus on the individual and on human rights. That evolution sought for the rule of law to further limit state power: to avoid having sovereignty used as a shield and to constrain aggressive imperialistic tendencies. Rejecting colonial practices, international law sought to recognize even more sharply the right of states and their citizenry—so long as human rights norms were respected—to be free from foreign oversight or hegemonic expansion. In this context, it’s hard to understand how international law, particularly outside the human rights context, permits states to universally adjudicate the rights of citizens of other states without limit. At the very least, if the fundamental structural limits of the international system no longer exist, then some explanation much be proffered for why principles of national sovereignty and non-interference no longer apply.

Finally, more pragmatic foreign policy considerations make the Restatement’s new approach puzzling. The U.S. Constitution provides separate, more restrictive limitations on judicial power. As a result, the Fourth Restatement’s newfound position is unlikely to change the scope of U.S. court adjudicatory authority. But the Fourth Restatement could be influential abroad. Absent domestic law limitations, the Fourth Restatement suggests that foreign courts can lawfully exercise jurisdiction over U.S. citizens in civil cases when no connection to the foreign state exists. This may be particularly concerning if, as some have observed, the legal profession continues to globalize and foreign courts become increasingly attractive to litigants.

It’s appropriate to celebrate the Fourth Restatement on the eve of its publication. As others have written, however: “It is a matter of great regret that the forthcoming [Fourth Restatement] appears to have departed from the approach previously recognized under U.S. law. . . .” I share the concern. For those who think the U.S. should be more cognizant of international law, not less, this represents a step backwards. At the very least, courts and commentators should be mindful to not uncritically accept the Fourth Restatement’s contested view on adjudicatory jurisdiction.

Kofi Annan’s Legacy in International Law

by Ian Johnstone

[Ian Johnstone is the Dean ad interim of the Fletcher School of Law and Diplomacy. This contribution is cross-posted here.]

Tributes to Kofi Annan have poured in since his death on August 18, praising his diplomatic skills, his dignified leadership, and his basic human decency.  Having worked with him closely from 1996 to 2000, first in the United Nations Department of Peacekeeping Operations and then the Executive Office of the Secretary-General, I can also testify to his warmth as a human being. He cared for the people the UN is meant to serve, and showed great respect for the people he worked with. I often travelled with him on official business and he treated us all, from the most senior aides to junior support staff, as integral members of his team.

A less well-known feature of his leadership is his impact on international law.  Often described as a secular pope, the Secretary-General (SG) has no army at his disposal nor the authority to sanction violators of international law. What the SG does have is the power of persuasion. This power depends on both the diplomatic and advocacy skills of the office-holder and on the office itself – the so-called “bully pulpit.”

Kofi Annan was masterful in his use of the bully pulpit, in part because he understood the distinctive power of international law as a tool of persuasion.  The (limited) formal authority of the office and the personal traits of the office-holder will only get you so far. These must be matched by a fine-tuned appreciation of the political and normative context in which international relations are conducted. International law by its very nature embodies a normative consensus among states. As such, it is more powerful as an advocacy tool than say political, social or religious norms.  Kofi Annan understood this and used it to advantage. In so-doing, he not only had an impact on the course of events, he also contributed to the development of international law. Three examples illustrate the point.

When NATO intervened in Kosovo in 1999, SG Annan was at the center of debates about the wisdom and legality of the action. Having been head of the Department of Peacekeeping Operations at the time of the Rwanda genocide and Srebrenica massacre, he felt deeply that the UN had a responsibility to stop such atrocities from occurring again. In a speech he made to the General Assembly in 1999,  he said “massive and systematic violations of human rights – wherever they take place – cannot be allowed to stand,” launching a global debate that led to the endorsement of the ‘responsibility to protect’ (R2P) at the 2005 World Summit. While the concept of R2P has lost some of its luster since 2005, it still has traction. As a legal matter, the World Summit statement constitutes an authoritative interpretation of Article 39 of the UN Charter – signifying that atrocity crimes in themselves are “threat to the peace” justifying coercive Security Council (SC) action (if the political will can be mustered). As a practical matter, the norm has had a significant impact on UN peace operations, almost all of which now have mandates to protect civilians, by force if necessary.

The author and Kofi Annan visiting a temple in China on a United Nations visit.

Kofi Annan was also a central figure in debates leading to and after the US-led intervention in Iraq in 2003. As pressure for war was building in September 2002, he made a double-barreled statement : 1) implying that military action against Iraq had to be authorized by the SC; and 2) that if Iraq continued to defy its obligations, the Council “must face its responsibilities.” The former is a legal opinion; the latter a political judgment. He made the legal claim explicitly in September 2004 (more than a year after the intervention) when pressed by a BBC journalist, stating “I have indicated [the war in Iraq] is not in conformity with the UN Charter…It was illegal.”  These public statements did not go down well in Washington D.C., but he made them because he knew that the UN Secretary-General remaining silent would have added to the damage the Iraq intervention did to the rule of law and to the UN.  Joining the chorus of those who called the war illegal increased the reputational costs the US and UK paid. The stark contrast between the broad support for intervention in Iraq in 1991 and Afghanistan in 2001 and the lack of support for the 2003 war is evidence of the benefit even powerful states gain from being able to make a persuasive legal case for their actions.

Third, SG Annan made deft use of international law in his quieter diplomatic initiatives. In the height of the violence that followed the vote on independence in East Timor (now Timor Leste) in 1999, he engaged in intensive private and public diplomacy. When private efforts failed to persuade then-Indonesian President Habibie to take steps to quell the violence, Kofi Annan publicly called for an intervention force, adding that those responsible should be held to account for “what could amount to…crimes against humanity.”  When he visited Nigeria in July 1998 to seek its help in managing conflicts in West Africa, he took the opportunity to press the government on its own transition to democracy, which was underway haltingly but by no means certain. This was aligned with a larger international effort to promote a right to political pluralism if not a nascent “right to democracy.” His later mediation efforts in Kenya on behalf of the UN and African Union could be seen in the same light.

Kofi Annan was not naïve about the limitations of international law and institutions. From his perch at the UN, he witnessed too much suffering, negotiated with too many dictators (Saddam Hussein, Muammar Al-Qaddafi, Bashir Al-Assad), saw too many peace processes fail, and was buffeted too often by great power politics. But nor was he naïve about the limits of force. The five permanent members of the SC have vast military and economic resources, not to mention the veto power. Yet that is not enough to enable them to bend the rest of the world to their will. Consider their shared interest in combatting terrorism. To do so effectively, they need the buy-in of a wide variety of actors – from fragile states that serve as safe havens, to multinational banks that control the flow of money. To get that buy-in, they need the legitimacy and predictability legal norms can provide.

Kofi Annan knew this. He will be remembered as an enlightened leader, superb diplomat, and a voice for vulnerable populations. He should also be remembered as a champion of international law. He understood that law could not solve all the world’s problems but could be harnessed to help manage some of them. He used it for those purposes and, in so-doing, made it stronger. This could well be the most enduring legacy of his life’s work.

Is Sudan an Indispensable Party in the Al-Bashir Immunity Appeal? A Monetary Gold Question for the ICC

by Michail Vagias

[Michail Vagias is a Senior Lecturer in Law and the Program Manager of ProCuria 2017-2018 at The Hague University of Applied Sciences.]

The problem: Discussing Sudan’s immunities in the absence of Sudan

On 29 March 2017, Sudanese President Al-Bashir made an official visit to Jordan for the 28th Arab League Summit. Jordan neither arrested nor surrendered him to the International Criminal Court, pursuant to the arrest warrants issued against him in 2009 and 2010. In light of these events, Pre-Trial Chamber II proceeded to issue on 11 December 2017 a decision of non-compliance against Jordan and referred the matter to the Assembly of States Parties and the Security Council.

So far, there is nothing new under the sun. The issuance of the arrest warrants against President Al-Bashir failed to prevent his international travels. The Jordan decision is therefore only the latest in a string of non-compliance decisions issued by the Court against states – such as the Democratic Republic of the Congo, Uganda, Chad and South Africa – where Al-Bashir travelled officially but was not arrested.

The new development in this saga was Jordan’s decision to appeal the non-compliance decision of the Pre-Trial Chamber. On 21 February 2018, the Pre-Trial Chamber granted leave to appeal three issues, as formulated by Jordan. The first issue questions whether the Chamber erred as regards Jordan’s duty to respect the immunity of Al-Bashir according to the Rome Statute and the 1953 Convention on the Privileges and Immunities of the Arab League, the second whether the Chamber erred in the interpretation of UN SC Resolution 1593 (2005) and the corresponding state obligations flowing therefrom, whereas the third is whether the Chamber abused its discretion by referring the non-compliance to the UN Security Council and the ICC Assembly of States Parties.

So far, in response to the Court’s call for submission, beyond the Prosecutor and Jordan, academics and the League of Arab States filed submissions debating the merits of these issues. However, one question that has remained at the fringes of this rich discussion, is whether this appeal should actually take place even though Sudan and President Al-Bashir are absent. After all, one of the main issues of the litigation is the immunity of the President of Sudan under international law and its effect in the ICC context.

The Appeals Chamber has tried to address this issue by inviting Sudan to participate, although the latter has not participated in the process within the time limit set for that purpose (16 July 2018). In its invitation decision, the Appeals Chamber acknowledged that Sudan and Al-Bashir are ‘concerned in the legal questions presented in the appeal’. In this context, an interesting question is whether this ‘concern’ is significant enough to have the appeal declared inadmissible by applying in the ICC context a variation of the ‘Monetary Gold’ principle well-known from ICJ litigation. In a nutshell; Are Sudan and President Al-Bashir indispensable parties for the purposes of the Appeals Chamber proceedings?

Indispensable Party Doctrine in ICJ Jurisprudence

The indispensable party doctrine became well known from the jurisprudence of the International Court of Justice. In light of the fundamental significance of state consent for the jurisdiction of that Court, the question soon emerged whether the Court could adjudicate cases involving the rights and duties of states that do not participate in the relevant proceedings.

In its 1953 decision in the case of the Albanian Monetary Gold, the Court held that Albania’s participation was indispensable for the adjudication of a case, where Italy had filed an application against France, UK and the US concerning the fate of the Albanian Monetary Gold in Rome after World War II. The Court highlighted that “in the present case, Albania’s legal interests would not only be affected by a decision, but would form the very subject-matter of the decision. In such a case, the Statute cannot be regarded, by implication, as authorizing proceedings to be continued in the absence of Albania.” (Monetary Gold, p. 32).

Beyond this laconic and somewhat cryptic statement of law, international lawyers had little by way of guidance as regards the nature and the scope of the legal threshold, beyond which a party became ‘indispensable’ for the purpose of the relevant proceedings. It is therefore unsurprising that subsequent jurisprudence fluctuated considerably as regards the degree of interest required to transform an absent litigant to an ‘indispensable party’ and thus preclude judicial proceedings before the Court. In Nicaragua v. US (para. 88), the United States tried unsuccessfully to invoke Monetary Gold, claiming that the rights and duties of Honduras and El Salvador constituted the ‘very subject-matter’ of that case and therefore the case could not proceed without them. In East Timor (para. 29), on the other hand, Monetary Gold was successfully invoked, insofar as the Court refused to adjudicate a case involving the validity of the 1989 East Timor Gap Treaty between Indonesia and Australia in the absence of Indonesia. In Croatia v. Serbia, the respondent argued Monetary Gold due to the absence of Yugoslavia from the litigation involving allegations of genocide against Croatians; the Court rejected the argument, explaining that “such a state no longer possesses any rights and is incapable of giving or withholding consent to the jurisdiction of the Court” (para. 116).

It would seem that the Court pays particular attention to state consent as the foundation of its jurisdiction. Therefore, in the absence of such consent, it refuses to engage with the subject-matter sub judice. In this context, the Monetary Gold rule can be seen as a procedural obstacle to litigant’s attempts to bypass state consent as a requirement to ICJ jurisdiction.

Sudan and Al-Bashir: Are they indispensable parties in the Appeals Chamber immunity litigation?

In the current Al-Bashir litigation, the formulation of the first and second ground of appeal put squarely before the Court questions concerning Sudan’s right to respect for the immunity of its Head of State, as well as the scope of Sudan’s obligations under SC Res 1593.

In this situation, Jordan, governmental organisations and academics are arguing the immunity afforded by international law to Sudan and its president and its applicability under the ICC Statute and general international law – in the absence of Sudan and Al-Bashir. To compound the situation, this happens without any indication that Jordan – or anyone else for that matter – is acting on behalf of Sudan or Al-Bashir. Sudan’s entitlement to international respect for the immunity of its head of State appears inextricably intertwined with the question of Jordan’s obligation to disregard it, arrest and surrender him to the Court. Equally, an adverse interpretation of SC Res 1593/2005 may lead to the imposition of important obligations upon Sudan. In a situation where the rights of one state and the obligations of the other appear to constitute two sides of the same coin, can it be said that the litigation is inappropriate in the absence of one of them?

Beyond the state level, President Al-Bashir has human rights relating to a fair trial. In that context, an Appeals Chamber decision declaring that the immunity of the Sudanese President is not applicable before the Court may be issued soon. Such a ruling made in his absence may prove of considerable importance, if the suspect is one day arrested and brought before the Court. Against that backdrop, should the appeal be declared inadmissible in the absence of the suspect to avoid prejudice to his eventual defence?

The argument against using Monetary Gold – or a variant thereof – in the ICC Context

To begin with, critics would suggest that Monetary Gold or indispensable party considerations are inapplicable in the ICC context. The Statute provides that no trial may take place in absentia and to that extent, it may be said to make the presence of an accused indispensable for the trial process. However, the drafters did not choose to add such requirement for the pre-trial process. Therefore, since such requirement is not explicitly included in the Statute, it cannot be devised, lest the Court usurp the role of the ASP in the formulation of the Rules of Procedure.

Secondly, the analogy between ICJ and ICC proceedings is inapposite, as far as the principle justification for the transposition of Monetary Gold is concerned. The foundation of ICJ jurisdiction is consent. The Statute and the Rules provide the details through which such consent can be given to the Court. The same, however, is not necessarily true as regards ICC jurisdiction in the case of SC referrals. The two-tier ICJ approach to jurisdiction was proposed by the ILC in its draft ICC statute in 1994 but was rejected by the drafters in Rome. It is true that the Court’s creation is due to state ratification. However, the Court also acts as a substitute for ad hoc tribunals, insofar as the Rome Statute allows for a Security Council referral under Chapter VII. In the Al-Bashir case specifically, the Court is acting pursuant to a Security Council resolution adopted under Chapter VII of the UN Charter. In these circumstances, its function is not that much different to that of a fictional ‘International Criminal Tribunal for Sudan’, in the tradition of the ICTY and the ICTR. In this context, the discussion on consent can proceed no further than the admission of Sudan to the UN and its obligation to abide by binding SC Resolutions.

Third, even if Monetary Gold or a variant thereof did apply, it is not clear whether the rights of Sudan and its President constitute the ‘very subject-matter’ of the litigation. The main issue properly defined is whether Jordan failed to uphold its obligations under the ICC Statute and the UN Charter. These are obligations owed to the Court. Therefore, the Court has a clear legal interest in seeking legal redress to their purported violation. Jordan’s justifications for failing to do so are relevant; however, they are only incidental to the discussion. The final decision will concern Jordan’s failure to respect its international obligations owed to the Court. Sudan’s immunities will be incidental, but not the main issue. For example, if Jordan presented a different excuse, the main subject-matter would remain the same, regardless of Sudan’s rights or duties (e.g. inability due to a natural disaster). This can only be an secondary issue due to the adoption of article 98 of the Rome Statute.

Fourth, there is no human right under international law to choice of jurisdiction. Considerations of fair trial therefore are not relevant, to the extent that they would be argued in a ‘forum shopping’ in criminal matters type of exercise.

The argument in favour of using Monetary Gold – or a variant thereof – in the ICC Context

At the same time, however, there is also an argument to be made in favour of using Monetary Gold or a variant thereof in the present proceedings.

First, under general international law, immunities are a right of a state. In this case, the immunity of Sudan and its head of state constitute international rights of Sudan. Therefore, no other state in the world has the same legal interest as Sudan in a finding that such immunities do not exist or are not applicable in the ICC context. It is the right of Sudan that generates an obligation for Jordan, which the latter is bound to respect. Therefore, in this case, Jordan’s claim of an obligation is directly connected to Sudan’s sovereign rights. Arguably, the source of such obligations is not only customary law, but also treaty law (the 1953 Arab League Treaty). Therefore, in the same way the ICJ refused to discuss the validity of the Timor Gap Treaty between Australia and Indonesia in the absence of Indonesia in East Timor, the ICC should also refuse to discuss the legal effect of a treaty in the absence of the key party before it. It is not possible to make a determination in this litigation without ruling on Sudan’s international rights, in its absence. Finally, it is worth noting that Sudan never authorised Jordan or the Arab League or the African Union to act on its behalf and represent it before the ICC on the adjudication of its rights (immunities) and obligations (under UNSC 1593/2005).

Secondly, the proceedings under consideration would in effect render meaningless article 19(2)(a) and (b) of the Rome Statute. Under these provisions, Sudan and Al-Bashir have the right to raise a challenge to the jurisdiction of the Court. It does not take much imagination to contemplate an immunity challenge to jurisdiction, once the suspect is in custody. However, the present litigation may result issue a final decision on point, albeit clothed in the typical ‘without prejudice’ language. Be that as it may, however, it is difficult to see how this decision will not pre-empt and render meaningless any possible challenges to jurisdiction on the basis of immunity. It is true that decisions of the Chambers are not binding; it is also true that such decision does not mean that the suspect cannot bring other types of challenges to jurisdiction. However, a final decision by the Appeals Chamber on point would pre-judge an important right of the suspect under the statute and his state of nationality and in their absence to boot.

Third, the ICC is no stranger to procedural innovation, when it felt that it was needed. It has adopted procedural novelties as an expression of its implied or inherent powers, for example as regards its authority to stay proceedings or to decide no-case-to-answer motions and declare a mistrial. Making a decision on the inadmissibility of this appeal – at least as regards the first two grounds – in order to preserve the judicial process could be argued therefore as a matter within the scope of its judicial duties. After all, it is the Court’s responsibility to satisfy itself of its jurisdiction under article 19(1) of the Statute; this duty cannot be outsourced to anyone else.

Concluding Remarks

This blog post offered some brief thoughts on the application of the Monetary Gold rule in the Al-Bashir immunities litigation. The Appeals Chamber seems aware of the difficulties. It has already invited Sudan and President Al-Bashir to submit observations – to no avail. It has acknowledged that they are ‘concerned in the legal questions’ of this appeal.

As things stand presently, we are faced with an ICC litigation where Jordan, the Arab League, the AU and certain academics are arguing for Sudan’s immunities and its obligations under SC Res. 1593/2005 in Sudan’s absence. The Court is required to balance safeguarding the integrity of the eventual subsequent process against the need to send a clear message to states that Al-Bashir must be arrested. It remains to be seen which way the balance will finally tilt. In this delicate exercise, the Court’s final decision is anticipated with interest.

The Kafkaesque “Diciotti” Case in Italy: Does Keeping 177 People on a Boat Amount to an Arbitrary Deprivation of Liberty?

by Massimo Frigo

[Massimo Frigo is a Senior Legal Adviser of the International Commission of Jurist’s Europe Programme.]

In these days, the world saw unfolding before its eyes the absurd (yet not isolated) and Kafkaesque situation of an Italian Government trying to prevent a boat of the Italian coastguard to board an Italian harbor.

What is worse is that the ship of the Italian coastguard was carrying 177 people on board rescued in the Mediterranean Sea.

The boat in question is called “Ubaldo Diciotti” and was anchored at the port of Catania (Sicily), but the 177 persons on board could not get to land for five days, blocked by order of the Minister of the Interior, Matto Salvini. They were finally allowed to disembark in the night between Saturday 25 and Sunday 26 August. Matteo Salvini had earlier threatened that he would not let anyone land until he got any agreement from “the EU” about their relocation in other countries.

Setting aside the many questions with regard to the duties of rescue and the current EU laws and political implications surrounding migration, this case highlights what would appear to be a set of violations of the right to liberty of the persons aboard.

As correctly identified by Italy’s National Prevention Mechanism, the 177 people aboard were “in a condition of de facto deprivation of liberty” and this may amount to violations of articles 5 of the European Convention on Human Rights, and 12 of the Italian Constitution, i.e. the right to liberty, enshrined as well in article 9 of the International Covenant on Civil and Political Rights.

Indeed, it is established, under the international law of the sea and under international human rights law, that when a person is on a boat flying the flag of one State, it is under such State’s jurisdiction. And of course when that boat is a boat of the State’s coastguard they are under the effective control of the State, which in itself is a basis for juridiction. In the landmark case Hirsi Jamaa and others v Italy, the European Court of Human Rights ruled that:

  1. … by virtue of the relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying. This principleof international law has led the Court to recognise, in cases concerning acts carried out on board vessels flying a State’s flag, in the same way as registered aircraft, cases of extraterritorial exercise of the jurisdiction of that State …. Where there is control over another, this is de jurecontrol exercised by the State in question over the individuals concerned.

  2. The Court observes, furthermore, that the above-mentioned principle is enshrined in domestic law in Article 4 of the Italian Navigation Code and is not disputed by the Government … . It concludes that the instant case does indeed constitute a case of extraterritorial exercise of jurisdiction by Italy capable of engaging that State’s responsibility under the Convention.

The 177 people aboard the Diciotti were therefore already in Italy for all purposes of international and national law. Any action aimed at preventing their disembarkment was therefore pointless, from a legal point of view, if aimed at preventing them from reaching Italy, but effective to influence public perceptions.

The 177 people were already entitled to access an asylum procedure in Italy as well as to be ensured the enjoyment of their human rights by the Italian Government.

Because the passengers were already under Italy’s jurisdiction, the Italian Government must respect, protect and fulfil their human rights, including the right to liberty.

This entails that no one may be deprived of his or her liberty save under certain circumstances “in accordance with a procedure prescribed by law” (article 5.1 ECHR, article 9.1. ICCPR) and that, even in such cases, they should “be informed promptly, in a language [they] understand, of the reasons of (their) arrest and of any charges against [them]” (article 5.2 ECHR, article 9.2 ICCPR) and are entitled to challenge the lawfulness of their deprivation of liberty before before a court that must decide speedily about it (article 5.4 ECHR, article 9.4 ICCPR).

The first question to answer is whether preventing 177 people aboard an Italian coastguard boat from disembarking qualifies as a deprivation of liberty.

Under international human rights law, a deprivation of liberty is not defined with reference to the classification imposed by national law, but rather takes into account the reality of the restrictions imposed on the individual concerned. As the European Court of Human Rights pointed out in 1980 in the case of Guzzardi v Italy,

  1. … in proclaiming the “right to liberty”, paragraph 1 of Article 5 … is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. … the paragraph is not concerned with mere restrictions on liberty of movement … . In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 …, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question … .

  2. The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 … depends.

There is little doubt that, when 177 people are confined on a boat and cannot disembark (for already two days if we count only the time spent at the docks of Catania) for order of the authorities of a country, the intensity of the restriction of liberty is such as to qualify as deprivation of liberty, as correctly identified by the Italian NPM.

In this case, there is one important element to be recalled: any deprivation of liberty must have a legal basis in national (or international if directly applicable) law that must be clear, precise and foreseeable, and ordered in accordance with a procedure established by law. As held by the European Court of Human Rights in the similar case of Medvedyev and others v France:

  1. .. where deprivation of liberty is concerned it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail … .

Furthermore, even if a lawful basis were to be established under domestic law, detention could still be arbitrary under article 9 ICCPR. The UN Human Rights Committee has indeed highlighted

An arrest or detention may be authorized by domestic law and nonetheless be arbitrary. The notion of “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. (General Comment no. 35, para. 12)

With all the contentiousness that have surrounded the case of the “Diciotti” as known in Italy and internationally, the Government has yet to clarify on what legal grounds the detention has been ordered, nor has it produced a detention order, that in Italy can be issued only by judicial authorities according to article 13 of the Constitution. News reports say that a public prosecutor in Agrigento has started an investigation on unlawful deprivation of liberty.

It seems quite clear that one of the more basic guarantees of human rights and of the rule of law that no one may be deprived of his or her liberty arbitrarily, has been bypassed in this case without even the stroke of a pen. And, what is even more Kafkaesque, this has been done in order to avoid the disembarkment onto Italian territory of 177 people who are already under Italian jurisdiction.

What is certain is that this cruel set of actions is once more setting Italy outside of the boundaries of international law and the rule of law with no real practical benefits apart from a storm of media attention.

Now that everyone has been disembarked, the case seems to be over in the news. However, this is certainly not the end of the story, from a legal point of view, before Italian, and, possibly, international courts. And sadly, not the last of these cases.