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Guest Post: Five Questions on the Colombian Sentencing Practice and the Principle of Complementarity under the Rome Statue

by Marina Aksenova

[Marina Aksenova is a post-doc in the Centre for Excellence for International Courts, Faculty of Law, University of Copenhagen.]

The ICC prosecution team has been conducting preliminary examinations in Colombia for over ten years and has yet to decide whether to move to the stage of formal investigations. In doing so, it must assess, among other things, whether reduced or suspended sentences rendered to senior perpetrators by the local judiciary are adequate in light of the gravity of the crimes committed during the continuing civil war. The ICC prosecution noted in its 2012 report on Colombia that some paramilitaries may benefit from the sentences of 5 to 8 years imprisonment if convicted of genocide, crimes against humanity, war crimes provided they demobilize. The matter is further complicated by the ICC’s capacity to frustrate the ongoing peace negotiations between the government and the FARC guerrillas. These talks aim at ending a conflict disrupting the country for over fifty years.

The issue of sentencing in Colombia illustrates the difficulties the Court faces in applying the principle of complementarity in practice. What are the exact criteria of assessing the state’s willingness to undertake genuine prosecutions? The ICC will evaluate domestic penalties with the reference to two different legal regimes provided by the Rome Statute – admissibility and sentencing. Up until now, the Court has not treated these two issues in conjunction with each other. The post discusses five specific concerns that this exercise may produce. This working paper elaborates on the context surrounding the questions presented below.

  1. Proportionality of sentences

The idea that a penalty must be in proportion to the gravity of the crime is widely accepted in international criminal law. In the Lubanga sentencing decision (para. 36), the ICC held that the ‘gravity of the crime’ is one of the principal factors to be considered in the determination of sentence, which should be in proportion to the offence and reflect the culpability of the convicted person. How will this consideration play out in the complementarity analysis? Will a sentence of 5 to 8 years of imprisonment for crimes against humanity and war crimes be considered grossly disproportionate?

The principle of complementarity presupposes the primacy of states in handling cases domestically. Thus, according to Article 17 of the Rome Statute, a case comes within the purview of the Court only if the crimes are of sufficient gravity and the country in question is unable or unwilling to address them via its national criminal justice system. Article 17(2) specifies that the state is ‘unwilling’ if it initiates the proceedings with an unjustified delay or with the purpose of shielding the person concerned from criminal responsibility or fails to conduct the proceedings independently or impartially – all of which signals lack of intent to bring the person concerned to justice. It is important that the offences allegedly prosecuted and investigated on a national level cover substantially the same conduct as those charged by the ICC, while legal characterization of the underlying incidents matters less.

Consequently, even if domestic prosecutions cover the ‘same conduct’ but result in disproportionately light penalties, this may evidence the state’s intent to shield some persons from responsibility, and, thus, render the case admissible to the ICC. There are three caveats to this argument. First, the ICC’s own sentencing practice so far has been rather lenient: Thomas Lubanga received a sentence of 14 years of imprisonment and Germain Katanga received a sentence of 12 years. The Lubanga analysis of proportionality suggests that no rigid guidelines are available for measuring the correlation between the gravity of the offence and the sentence. The Chamber in its sentencing decision (paras. 92-93) rejected the strict numerical approach suggested by the OTP and upheld its own discretion to assess the totality of factors when deciding on the ultimate number of years of imprisonment. The deficiencies in Mr. Lunbanga’s mens rea and his cooperation with the Court played an important role in the determination of his sentence.

Secondly, in the Al Senussi admissibility decision (paras. 218-219), the ICC dealt with the reverse situation  – the Defence argued that the threat of a death penalty, which the accused faced in Libya, rendered the case admissible because of the adverse effect on the accused. The ICC rejected this plea and granted local authorities a wide margin of appreciation when it comes to punishment, claiming it is not a human rights court. One might expect similar flexibility in cases on the other side of the spectrum.

Finally, Article 53(1)(c) of the Rome Statute allows some room for a manoeuvre granting the prosecution the power not to commence an investigation even where the situation is formally admissible if it serves the ‘interests of justice’. The ‘interests of justice’ is a broad category open to various interpretations, but ultimately it leaves the door open for a political compromise. The fragility of the Colombian peace talks is likely to fall within this category because arguably it provides for a valid reason not to proceed to the official investigations by the ICC.

  1. Participation of the convicted persons in political life

Participation of convicted persons in political life is a burning issue in the peace talks in Colombia. Many senior perpetrators have links to the government or the FARC and hope to remain in power after a deal has been reached. Even if certain leaders from both sides receive formal punishment, the question still remains whether these people will be allowed to form part of a future government. Is it possible to conceive of suspended or lenient sentences as sufficiently reflecting public censure if the convicted person re-enters politics? Can such punishment deter future violations by senior perpetrators?

The Rome Statute does not give any guidance as to whether convicted persons may participate in political life; it restricts the types of punishment to a maximum sentence of 30 years of imprisonment, fine and forfeiture of assets. If one looks at the broader picture, Article 27 renders the official capacity as is generally irrelevant to the ICC prosecutions. This provision is not directly relevant to sentencing, but it reflects the spirit of the Rome Statute. One might argue that for this reason alone the ICC may criticize participation of the convicted person’s in political life.

In its complementarity analysis, the ICC may also refer to the general sentencing practice of the respective state. The Colombian Criminal Code appears rather flexible in this regard; it leaves it up to the judges to decide whether to ban the offender from political life. The law provides for the suspension of rights and public functions as well as the loss of public office as an additional punishment for various offences, such as, murder of certain persons. Loss of public office can last up to 5 years, while suspension of other rights can vary from 5 to 20 years. In certain circumstances, rights can be restored at an earlier date (Articles 43(1), 43(2), 92, 135 of the Colombian Criminal Code).

The ICC is unlikely to be guided solely by the provisions of Colombian law, however. Instead, it is may look at the standards applicable in other states in an attempt to discern generally recognized principles of law deriving from the multitude of domestic legal systems. This is one of the sources of international law along with treaty and custom. It seems that in some jurisdictions there is a blanket prohibition to occupy public posts for those convicted of serious offences. For example, Article 45 of the German Criminal Code reads as follows: ‘Whoever is sentenced for a serious criminal offense to imprisonment for at least one year shall lose for a period of five years the capacity to hold public office and attain public electoral rights.’ This provision reflects an understanding that the public censure element of punishment is severely compromised if someone convicted of a grave offence is allowed to re-enter public life.

  1. Relevance of domestic law for the ICC complementarity analysis

The Rome Statute does not suggest that the ICC should consider the scale of penalties of the relevant state. Its determination of sentences shall solely be guided by the gravity of the crime, individual circumstances of the accused, and mitigating and aggravating factors. It is in contrast to the statutes of the ad hoc tribunals, which allow recourse to domestic law; although, it has rarely been seen in practice.

The ICC will assess Colombian criminal law in its complementarity analysis in the light of the principles enshrined in the Rome Statute and international law. The general principle is that the person cannot invoke domestic law to avoid responsibility under international criminal law. When it comes to the admissibility test, it is essential that the penalty imposed at the national level is not intended to shield the person from criminal responsibility.

  1. Disparity of sentences

The sentencing practice of the Colombian courts shows some disparity in sentences meted out to various parties to the conflict. Colombia attempts to bring to justice different responsible actors, but their penalties are significantly different. How will this aspect play out in the complementarity analysis of the ICC? The question of disparate sentences is tightly linked with the idea of individualized punishments and judicial discretion widely accepted at the ICC. There are a number of factors that might support Colombia’s claim for lenient (and, to a lesser extent, suspended) and/or disparate sentences.

Firstly, it seems that the ICC prosecution already pointed to broad discretion of the Colombian judiciary in its 2012 report (para. 206), when it confirmed that the ICC would examine local sentences individually on the basis of particular factors, such as, the intent to bring perpetrators to justice, the gravity of the crimes and the efforts to establish the truth. Secondly, the ICC practice itself shows relative leniency in its two available sentencing rulings. Thirdly, the reasoning in the Katanga sentencing decision (para. 38) exhibits a trend of integrating reconciliatory aims in sentencing considerations. Fourthly, the Rome Statute upholds the power of the prosecution to halt investigations if it is not in the ‘interests of justice’ in light of the gravity of the crimes and the interests of victims.

  1. Remedy to the victims

When combining two legal frameworks for the purposes of complementarity analysis, the ICC might have to decide where it stands on the issue of enforcement of human rights and victims’ rights. In the recent complementarity decision in the Al Senussi case (paras. 218-219), the ICC refused to act as a human rights court and rendered the case inadmissible, notwithstanding the death penalty threatening the accused. The Court’s view might be altered when victims’ rights are at stake, as is the case in Colombia. Both the Colombian national legislation and the Rome Statute contain provisions upholding victims’ rights in the process of criminal adjudication. Reduced sentences for war crimes and crimes against humanity may be at odds with the victims’ quest for justice. One way to resolve this contradiction is to ensure that victims receive adequate reparations for their suffering. It will not ‘offset’ the perceived impunity of senior perpetrators entirely, but it will help in mitigating the concern.

Wherein I Defend Jeb Bush (Really!)

by Kevin Jon Heller

Both the liberal media and the conservative media are pulling out the fainting couches over something Jeb Bush said to Megyn Kelly during an interview on Fox News. In response to a question about whether he would have invaded Iraq in 2003 if he knew what we know now about WMDs and the like, Jeb supposedly said yes — he would still invade. That’s how both Josh Marshall and Byron York (polar opposites, they!) read Jeb’s answer. (And Kevin Drum. And Ed Kilgore.)

But that’s not what Jeb said. Here is the exchange, taken from York’s post:

Fox News’ Megyn Kelly asked Bush a straightforward, concise question: “Knowing what we know now, would you have authorized the invasion?” Bush’s answer was an unhesitating yes.

“I would have, and so would have Hillary Clinton, just to remind everybody,” Bush said, “and so would have almost everybody that was confronted with the intelligence they got.”

“You don’t think it was a mistake?” asked Kelly.

“In retrospect, the intelligence that everybody saw, that the world saw, not just the United States, was faulty,” Bush answered.

Jeb now says that he misunderstood the question. And that does, in fact, seem to be the case. Note the verb tenses in his first answer: he “would have” invaded Iraq, as “would have” Hillary Clinton and anyone else who had seen the intelligence “they got.” He didn’t say he or Hillary or anyone else “would” invade Iraq given the intelligence “they have now.” The tenses thus clearly indicate that Jeb was answering a different question — namely, whether he would have invaded Iraq given what decision-makers knew at the time. That reading is then confirmed by his second answer, in which he acknowledges that “in retrospect” — ie, based on what we now know — the invasion was a mistake.

To be sure, Jeb deserves some criticism for his answer. A number of important people opposed the invasion of Iraq even in the face of the faulty intelligence George Bush and Hillary Clinton received. And, of course, if Jeb wants to be president, he should probably pay attention to the questions journalists ask him in televised interviews.

But Jeb didn’t say he would have invaded Iraq knowing what we know now. He just didn’t.

Guest Post: Iran’s Relief Ship and the Blockade of Yemen 

by Eugene Kontorovich

[Eugene Kontorovich is Professor of Law at Northwestern University School of Law.]

Iran has announced that it will be sending a ship with humanitarian supplies to Yemen, departing the evening of May 10th. Many parts of the Yemeni conflict raise law of war questions, from the legality of the pan-Arab intervention to questions about the use of force and civilian casualties. The Iranian relief ship puts into focus the blockade maintained by Saudi Arabia and its allies, with logistical and intelligence support from the United States.

Saudi Arabia imposed a blockade of Yemen’s ports from the start of the campaign. Since then, the humanitarian situation has become dire, according to many reports, with significant shortages of medicine, food and water.  (Saudi Arabia also bombed the Sanaa airport to prevent Iranian relief planes from landing.) According to Oxfam, “there is no exit” for Yemen’s 10 million people, half of whom are already going hungry.

Blockade is an entirely valid military tactic, which necessarily puts pressure on the civilian economy and well-being. However, there is a theory, which in recent years has attracted considerable support, that international law prohibits blockades in a non-international armed conflict (NIAC). This limitation on blockade has been discussed almost exclusively in connection with Israel’s blockade of Gaza. Assuming that the Yemeni conflict is a NIAC, as most observers seem to view it (a civil war with foreign assistance to both sides), the Saudi blockade raises the same questions as the Gaza blockade, as Tehran has gleefully noted.

To be sure, considerable authority concludes that blockade is entirely permitted in NIACs. The Saudi blockade gives a good occasion to revisit the debate, which has thus far proceeded with an incomplete account of state practice.

Israel’s blockade of Gaza appears to be the first one where said to be illegal because of the nature of the conflict. In the Gaza context, the illegality argument was based largely on what was said to be scanty affirmative precedent for such actions in such contexts, though a lack of precedents does not normally create a prohibition in international law.

Though it was not mentioned in the extensive discussions of Israel’s Gaza policy, there is not only historical precedent, but also contemporary practice supporting NIAC blockades. In particular, Georgia’s blockade of the separatist Abkhazia region, which has been in effect since 2008. The details of the blockade are murky, in part because it has generated not only no international protest, but also no international interest. It is clear that the blockade has been used to interdict neutral vessels carrying non-military supplies. Indeed, the blockade is so well accepted, that the commentators on the legality of the Gaza blockade appear to have been entirely unaware of it.

Then there is Sri Lanka’s blockade of Tamil-held areas during their decades-long civil war. Douglas Guilfoyle, the author of one of the major analyses of the legality of the Gaza blockade, dismissed the relevance of the Sri Lankan precedent:

Most reported maritime interceptions appear to have occurred with Sri Lanka’s territorial sea or contiguous zone, ostensibly on suspicion the vessels were engaged in smuggling weapons or supplies… The practice certainly involved no assertion of rights against neutral vessels on the high seas.

Unfortunately, this account appears to be mistaken on all major points. The blockade certainly applied to neutral ships carrying food and relief supplies, even under Red Cross emblem. Indeed, the blockade resulted in major shortages of basic necessities. The seizure Guilfoyle points to as being within the contiguous zone was, according to all other news accounts, well outside it (and was in any case after the cessation of hostilities and defeat of the Tamils). Nonetheless, the international community does not appear to even have questioned the legality of this blockade.

In another precedent that has not factored into the NIAC-blockade discussion, Indonesia imposed a naval blockade on East Timor when it invaded the territory in 1975, according to accounts of the conflict. Despite fairly strong international condemnation of the invasion itself, I have not found specific criticism of the legality of the blockade.

Incidentally, in 1992, a  “peace ship” carrying activists, Western politicians, and a slew of journalists was turned back by the Indonesian navy after attempting to symbolically challenge that blockade. In that incident, the ship turned back of its own accord after Indonesian threats to open fire; despite the strong international focus on the incident at the time, no one suggested the illegality of such actions in a NIAC.

There may be other recent state practice that has gone unnoticed as well. The episodes discussed here generated relatively little legal controversy – ironically, permissive precedent is most likely to go unnoticed. (The discussion’s of Israel’s blockade dwelt mostly on the United States blockade of Confederate ports in the Civil War and the France’s blockade of Algeria, rather than more current ones, no doubt because they attracted more attention, and better sourced in English and French publications than the Indonesian, Georgian and Sri Lankan measures.)

The blockades discussed here, including the Saudi one, all appear to proceed without all of the formality of the a traditional international armed conflict blockade; for example, it is not clear that there were formal declarations, and the blockaded enemy does not seem to have been always been recognized as a belligerent. This suggests state practice supports a less legally restrictive blockade regime for NIACs.

Thus if Riyadh and its allies are inclined to maintain the blockade, and intercept the Iranian relief ship, it has a strong legal basis. Of course, the Saudi blockade itself becomes part of the state practice on this issue, and on other blockade issues such as proportionality.  One may have thought that, prior state practice to the contrary, Gaza suggested an interest by some states in changing the rules about blockade in NIACs. The Yemen blockade, in force since late March, has not been denounced as illegal, suggesting that no new rule is taking shape.

In regards to the conduct of the blockade, it is interesting to note that Human Rights Watch today criticized the coalitions conduct of the blockade, in particular urging for allowing in fuel. The report, which is well worth reading for more detail on the naval blockade, paints an absolutely catastrophic picture of the situation in Yemen, with much of the population facing death by hunger, water shortage and associated diseases.

Interestingly, HRW does not challenge the legality of the blockade, or its apparently very narrow list of “free goods” (those permitted to pass the blockade after being subject to inspection). In particular, HRW does not call for the US or the UN to condemn the operation, as it has for other blockades. While HRW interestingly reports that the Saudi’s contraband list is not public (generally a legal problem for blockade), it also does not protest what appear to be its fairly comprehensive scope.

Weekly News Wrap: Monday, May 11, 2015

by Jessica Dorsey

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • The United States on Friday described as horrifying accusations of sexual abuse of children by French and African troops in Central African Republic, and called for a separate inquiry into how the United Nations handled the allegations.
  • The European Union and the United States are close to completing negotiations on a deal protecting personal data shared for law enforcement purposes such as terrorism investigations, three people familiar with the matter said.
  • Omar Khadr, a Canadian who was once the youngest prisoner held on terror charges at Guantanamo Bay, was released on bail from an Alberta prison Thursday while he appeals a murder conviction by a U.S. military tribunal.

Oceania

  • Australian police said on Saturday they had thwarted an imminent terror attack after discovering explosives at a Melbourne home and arresting a 17-year-old boy, in the latest example of the threat posed by radicalized teenagers in the country.

UN/World

Events and Announcements: May 10, 2015

by Jessica Dorsey

Events

  • On May 14, 2014, the British Institute of International and Comparative Law is hosting: Interpretation in International Law: The Object, the Players, the Rules, and the Strategies. Interpretation in international law is usually referred to as an art or a science. These perspectives imply that interpretation is a static exercise, tied to the rules in the Vienna Convention on the Law of Treaties (VCLT). However, in today’s international legal reality, characterised by the proliferation of international judicial bodies and a variety of participants before them, such understandings have become too narrow. Although the VCLT remains the primary legal source, there is no doubt that interpretation in international law has become a complex and purposeful process, which involves numerous players (litigators, judges, academics, NGO counsels, legal advisers) who devise various strategies to bring a case to a persuasive conclusion. This event will explore the dynamic understanding of interpretation of international law before international and English courts. A drinks reception will follow. Please register here.
  • On May 17-18, 2015, the Benjamin Cardozo School of Law is hosting Constitutional Conflicts and the Judicial Role in Comparative Perspective. This conference, which marks the launch of the Israeli Supreme Court Project at Cardozo Law, will explore the Court’s jurisprudence on complex and challenging questions facing open and multi-cultural societies everywhere. Because these issues are salient in, but by no means peculiar to, Israel, a comparative perspective will enrich our understanding of how such issues are, and might be, dealt with in other democratic societies. Panels will address the general question of the value and challenges of comparative legal study, differing conceptions of the role of the judiciary and doctrines of justiciability, and substantive areas of current controversy, including the role of the courts in overseeing national security and intelligence gathering; immigration, asylum, and treatment and status of refugees; and religion in the modern nation-state. The conference is free and open to the public, but registration is required. Please email ISCP [at] yu [dot] edu with your name, affiliation, and contact information. More information found here.

Announcements

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

Weekend Roundup: April 25-May 9, 2015

by Jessica Dorsey

The blog saw quite some discussion over the last two weeks.

As Julian was avoiding grading exams, he posted about Helmerich & Payne v. Venezuela, where the U.S. Court of Appeals for the D.C. Circuit held that “domestic takings” can violate international law. He also covered the Sea Shepherd petition for certiorari with the U.S. Supreme Court and how Russia, in lecturing the EU in international law, threatened to veto the EU’s attempt for authorization of force against traffickers in Libya from the Security Council. Additionally, Julian posed the question of whether investor-State arbitration weakens the rule of law in reference to the ongoing discussion about the TPP and TTIP and urged us to listen to President Obama rather than candidate Obama when it comes to unilateral presidential war powers, in light of a panel on which he was recently a speaker.

Kevin pointed out Darryl Robinson’s must-read new article on the ICC–“Inescapable Dyads: Why the ICC Cannot Win,” which Cambridge University Press has made available to our readers for free until the end of October 2015. He also continued the discussion on Harold Koh’s appointment at NYU by highlighting Human Rights First’s Elisa Massimino’s position (with which he agrees) defending Koh and highlighted Breaking the Silence’s recent report on Operation Protective Edge.

We had three guest posts. The first, from Sondre Torp Helmersen and Niccolò Ridi, discussed whether there was a case for destroying the smugglers’ boats in the crisis in the Mediterranean and the second, from Elisa Freiburg, analyzed Stephen Preston’s recent speech on “The Legal Framework for the United States’ Use of Military Force since 9/11″ at the ASIL Annual Meeting, calling it old wine in new bottles. Finally, Stuart Ford made the case that the complexity of international trials is necessary.

To round it all off, I wrapped up the news here and here, and listed a few events and announcements here. Have a great weekend!

Whale Wars Seeks a New Forum: The U.S. Supreme Court

by Julian Ku

Sea Shepherd, the activist group that has been aggressively protesting Japanese whaling practices, has filed a very interesting petition for certiorari with the U.S. Supreme Court.  Readers may recall that Sea Shepherd was sued by a group representing Japanese whalers under the Alien Tort Statute (ATS).  The Court of Appeals for the Ninth Circuit held that Sea Shepherd’s actions of boarding the Japanese whalers and obstructing them could fall within the definition of “piracy” for the purposes of jurisdiction under the ATS.

The best argument for Sea Shepherd is that the definition of piracy adopted by the Ninth Circuit cannot meet the Supreme Court’s “Sosa” standard for requiring ATS claims to be “universal” and “specific” under international law.  I think there is some force to this argument, although I find their disparagement of the UN Convention of the Law of the Sea’s definition of piracy a little odd.  In any event, the question may turn on the definition of “private ends” that UNCLOS requires as an element of piracy.  I don’t have a strong view on this, but I refer our readers to Kevin’s critique of the Ninth Circuit conclusion that private ends can include political activism, and Eugene Kontorovich’s contrary view in support of the Ninth Circuit. The petition for certiorari smartly frames this as a “Sosa” issue, which would ordinarily mean that the uncertainty as to the applicability of “private ends” here should defeat ATS jurisdiction.  I am not sure the petitioners will get much traction, given the unusual and narrow facts of this case, but no doubt this case is worth watching.

U.S. Appeals Court Holds that “Domestic Takings” Can Violate International Law

by Julian Ku

As I continue to avoid grading my exams, I ran across this interesting recent case (Helmerich & Payne v. Venezuela) from the U.S. Court of Appeals for the D.C. Circuit which considered whether Venezuela’s expropriation of a Venezuelan subsidiary of a U.S. corporation is a “taking in violation of international law” under Section 1605(a)(3) of the U.S. Foreign Sovereign Immunities Act. Helmerich & Payne, a U.S. based company, alleges that the government of Venezuela expropriated its Venezuelan subsidiary and sued Venezuela in U.S. court.  Ven

Helmerich & Payne, a U.S. based company, alleges that the government of Venezuela expropriated its Venezuelan subsidiary and sued Venezuela in U.S. court.  Venezuela argued that it is immune under the U.S. Foreign Sovereign Immunities Act because, among other reasons, its expropriation fo the subsidiary is not a “taking in violation of international law” for the purposes of the FSIA.  The FSIA does contain an exception for such claims in the so-called “Hickenlooper Amendment” to the FSIA enacted in the wake of the well-known Sabbatino case from the early 1960s.

What I find fascinating is the Court’s rejection of Venezuela’s argument that as a “domestic takings”, its expropriation of a Venezuelan company cannot violate international law, even if (as in this case) the sole shareholder of that Venezuelan company was a U.S. national and that there is plenty of evidence of anti-U.S. animus motivating the expropriation.      This is indeed a difficult question, and I am struck that the D.C. Circuit held that such a taking “could” violate international law but it relied solely on other U.S. court precedents (the 1962 Second Circuit decision in Sabbatino) and Section 712 of the Restatement of U.S. Foreign Relations Law.  This is pretty thin precedent, as the dissenting judge in this case points out.  I am not ordinarily one to yell for citation of international and foreign sources, but given the clear language of the FSIA (a “taking in violation of international law”), it is odd that no international or foreign sources were consulted.

In any event, I am curious whether any of our readers could help out by pointing to other precedents on the question of “domestic takings” under international law.  I have a feeling the DC Circuit reached the right conclusion here, but I am troubled by the lack of authority for its holding.

 

Must Read: Darryl Robinson on the ICC’s “Inescapable Dyads”

by Kevin Jon Heller

Darryl is one of my very favourite international criminal law scholars. Indeed, I think he is the leading purveyor of what we might call “meta” ICL scholarship — scholarship that is concerned less with doctrine than with the nature of ICL reasoning and rhetoric itself. His article “The Identity Crisis of International Criminal Law” is a genuine classic, and I learn from everything he writes. So it is with great pleasure that I call readers’ attention to Darryl’s brilliant new article, just published in the Leiden Journal of International Law. It’s entitled “Inescapable Dyads: Why the ICC Cannot Win,” and here is the abstract:

The International Criminal Court (ICC) is surrounded by controversies and criticisms. This article highlights some patterns in the arguments, showing that many plausible criticisms reflect inescapable dyads. For any position that Court could take, one or more powerful criticisms can inevitably be advanced. The tension can be obscured because shared terms are often recruited for opposite meanings. Awareness of these patterns can (i) provide a framework to better situate arguments, (ii) reveal the deeper complexity of the problems, and (iii) help us to evaluate and improve upon the arguments. Awareness of dyadic structures can lead to a debate that is more generous, as we acknowledge the difficulty and uncertainty of choosing among flawed options, yet also more rigorous, as we attempt to articulate and improve upon our frameworks of evaluation. The goal of this article is to encourage a better conversation that can generate better insights.

The article is a must-read for anyone interested in ICL. You can find the published version here (free until end of October 2015) and an earlier SSRN draft here.

Russia Lectures EU on International Law, Threatens to Veto Proposal to Attack Human Traffickers in Libya

by Julian Ku

Apropos of our guest post earlier this week, it looks like the EU will be stymied in its effort to seek authorization from the UN Security Council to use military force against ships used to traffic desperate migrants out of North Africa (h/t Walter Russell Mead).

“Apprehending human traffickers and arresting these vessels is one thing,” said Vladimir Chizhov, Russia’s ambassador to the EU. “But destroying them would be going too far.”He added that the destruction of ships without a court order and the consent of the host country would amount “to a contravention of the existing norms of international law”.

As Helmersen and Ridi argued, there is little if no legal basis for the EU to use military force without UNSC authorization. So Amb. Chizhov is quite right on the law.  But there is something striking about being lectured on this subject by Russia, especially in a context where military force seems much more justified than, say, in eastern Ukraine.

Guest Post: Stephen W. Preston on ‘The Legal Framework for the United States’ Use of Military Force since 9/11’ (ASIL Annual Meeting 2015)–Old Wine in New Bottles

by Elisa Freiburg

[Elisa Freiburg, LL.M. (LSE), is research associate for international law at the University of Potsdam and a doctoral candidate at the University of Heidelberg. Her research focuses on international human rights, development, international criminal law, and the use of force.]

On April 10, 2015, Stephen W. Preston, General Counsel at the United States Department of Defense, delivered a keynote speech at the ASIL Annual Meeting. This speech addressed a vast number of US policy issues and describes the current state of the US understanding of international law on the use of force – an understanding that should worry the international community.

A central issue and starting point of Preston’s speech was the 2001 Authorization for Use of Military Force (AUMF), which had been passed by the US Congress in the aftermath of 9/11 on September 14, 2001, and still, as of today almost 14 years later, continues to authorizes the US President under domestic law to use “all necessary and appropriate force against those nations, organizations, or persons” responsible for 9/11  (or those who harbored such organizations or persons), “in order to prevent any future acts of international terrorism against the United States”. In 2009, the Obama Administration filed a memorandum in the Guantánamo habeas litigation, arguing that the President’s authority to detain “persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners” could be derived from the 2001 AUMF (thereby actually abandoning the “enemy combatant” argument of the Bush administration). By the National Defense Authorization Act for Fiscal Year 2012, US Congress endorsed this new formula which meant that the initial definition of the 2001 AUMF had been significantly expanded.

Certainly, the term “or associated forces” in that definition offers endless possibility to expand the scope of alleged detention authorities. Preston reiterated the interpretation by his predecessor, Jeh Johnson, who had held in 2012 that an associated force must be both (1) an organized, armed group that has entered the fight alongside al-Qa’ida (no mere alignment), and (2) a co-belligerent with al-Qa’ida in hostilities against the US or its coalition partners. Preston also referred to a public hearing before the Senate Foreign Relations Committee in May 2014, during which he had listed the groups and individuals against which the US were taking military action (in the sense of capture or lethal operations) under the 2001 AUMF, namely: al-Qa’ida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-Qa’ida in the Arabian Peninsula (AQAP) Yemen; individuals who are part of al-Qa’ida in Somalia and Libya; (since 2014) the Nusrah Front and the Khorasan Group in Syria; and “the group we fought in Iraq when it was known as al-Qa’ida in Iraq”, the Islamic State. This list already shows how the understanding of the original scope of the AUMF (applicable to those responsible for the 9/11 attacks) has been expanded since 2001. Though Preston tried to differentiate between the Islamic State and its ties with al-Qa’ida, and (theoretically) a totally new group arising “fully formed from the head of Zeus”, in practice one might wonder whether a new group in the region without any links to al-Qa’ida would not rather constitute an abnormality than the rule (at least for the foreseeable future), thereby allegedly allowing the US to include every terrorist group in the region into the AUMF scope if they wanted to. The inclusion of the Islamic State, which does not consider itself as forming part of al-Qa’ida, but as a new group, demonstrates that this line of association might last, from the US perspective if not forever, then for quite a while. (more…)

Does Investor-State Arbitration “Weaken[] the Rule of Law”? Judith Resnik and Larry Tribe Seem to Think So

by Julian Ku

I have not been surprised by the swelling opposition in the U.S. (mostly from the progressive left) against proposed trade agreements with Pacific and European nations (TPP and TTIP).  But I am mildly surprised by the way in which TPP and TTIP opponents have zeroed in on the inclusion of investor-state arbitration mechanisms as a rallying point for their opposition.  Not only has former Harvard lawprof (and now U.S. Senator) Elizabeth Warren come out against the inclusion of investor-state dispute settlement (or ISDS), but yesterday, Yale law prof Judith Resnik and Harvard lawprof Lawrence Tribe, along with Nobel Laureate Joseph Stiglitz and a few others released a letter outlining their concerns with (really, their opposition to)  ISDS.  This letter is much more sophisticated and persuasive than an earlier lawprof letter Roger criticized here.  Indeed, its critique is far broader and echoes “sovereigntist” critiques that many on the political right have often applied to international tribunals.  Here is one snippet of their argument.

ISDS weakens the rule of law by removing the procedural protections of the legal system and using a system of adjudication with limited accountability and review. It is antithetical to the fair, public, and effective legal system that all Americans expect and deserve.

The letter valorizes U.S. courts and Article III judges, as well as the importance of democracy, and contrasts those institutions and values with the secretive ISDS process.  The main complaint, which is quite true, is that ISDS gives foreign investors a “separate legal system” to which others, including US citizens and corporations, cannot access. ISDS is not subject to any serious review by either courts or other arbitral tribunals.

None of the statements in the letter are inaccurate or incorrect. But they do leave out the basic assumption and rationale behind ISDS provisions. Foreign investors are presumed to be more likely to face disadvantages in a foreign legal system, which is why they are presumed to need “extra” protections from ISDS.  I think the rationale for ISDS is weaker for trade agreements between the US and Europe or the US and other developed industrialized countries.  But it is still probably true that there is a greater risk of discrimination against foreigners from a local legal system than against local companies.

I am not convinced of the necessity of ISDS in these trade agreements, but I don’t think it is necessarily a bad thing to include them either. I do recognize that these systems of dispute settlement do create non-trivial tensions with the domestic legal systems of member countries. In other contexts (law of the sea, ICJ/death penalty, etc), raising concerns about these tensions has been associated with the political right. So it is interesting to see progressives borrow sovereigntist arguments in their campaign against ISDS.