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Contextualizing the Debate on First Strikes

by Charles Kels

[Charles Kels is a major in the U.S. Air Force. His views do not reflect those of the Air Force or Department of Defense.]

The fascinating and edifying debate between Adil Haque (see here, here, here, and here) and, respectively, Deborah Pearlstein (see here), Jonathan Horowitz (see here and here), and Kevin Heller (see here and here) over the criteria for non-international armed conflict (NIAC) risks overlooking the proverbial elephant in the room: what to do about the phenomenon of states, notably the United States, invoking jus ad bellum principles to both justify and regulate the use of force?

One way of looking at Adil’s “first strike” proposal is as a solution to the problem of so-called “self-defense targeting” or “naked”/“robust” self-defense: it preserves the distinction between the jus belli branches by ensuring, in Daniel Bethlehem’s formulation, that “any use of force in self-defense [is] subject to applicable jus in bello principles governing the conduct of military operations.” Adil’s framework would, at least presumably, complicate the current White House’s efforts to distinguish between “the use of force in armed conflict or in the exercise of the nation’s inherent right of self-defense,” since the very fact of a military strike against certain non-state actors would automatically trigger a NIAC.

Of course, solving one problem can engender others. As Kevin notes, the lex lata is clearly on the side of Adil’s critics in insisting upon a substantive organization and intensity test for NIACs. Perhaps more to the point, the traditional critique of post-9/11 U.S. counterterrorism operations—particularly of the targeted killing variety—has been that a geographically unbounded conflict, whether framed as a war on terrorism or against specific terrorist groups, is essentially asserting the right to render the entire world a warzone. There is at least some (and maybe more than some) validity to this concern, as evidenced by the malleability of extralegal terms such as “areas of active hostilities” that the president can apparently turn on or off depending upon policy preferences.

This is the problem that Jonathan highlights with his Trojan horse analogy: lowering the NIAC threshold triggers humanitarian protections, but also invites wartime rules for targeting and detention. In this view, Adil’s proposal threatens to undo the hard work of those in academia and elsewhere who have persistently rejected the notion of a transnational NIAC without territorial limitations, or what they perceive as powerful states playing fast and loose with the concept of armed conflict in order to inflict lethal force with relative impunity.

Adil’s response to this critique is as brilliant as it is unsettling. Essentially (and to oversimplify), he maintains that the only real consequence of applying international humanitarian law (IHL) to first strikes is to create war crimes accountability for flagrant violations. Otherwise, the co-application of human rights law (IHRL) operates to negate deadly force as a first resort except where states have formally derogated from applicable treaties and such derogating conduct proves necessary (necessity here can only be understood in the IHRL, rather than IHL, sense). Central to Adil’s argument is the notion that IHL does not authorize conduct which it fails to prohibit: comportment with IHL is a necessary, but not sufficient, condition of lawful killing in armed conflict.

It probably comes as no surprise that as a military practitioner, I have deep misgivings about Adil’s cramped reading of IHL (or put another way, his rendering of IHL-IHRL co-application in a manner that appears to swallow IHL in seemingly every case but pitched battle on Napoleonic terrain). His conception of IHL as solely constraining, and never enabling, seems to cut against the way law in general works. To borrow Adil’s driving analogy, is a speed limit of 75 miles per hour not, at least in some way, permission to drive 70?

More specifically, while Adil astutely emphasizes that IHL does not confer “affirmative” legal authorities on states, it does privilege and immunize certain conduct that would otherwise be illegal. This is the point that Deborah made in her colloquy with Adil: IHL provides the legal framework for status-based targeting in armed conflict, not necessarily because it grants the power to kill, but because it removes the presumption that killing is unlawful in virtually all cases besides self-defense. “War,” as Telford Taylor famously wrote, “consists largely of acts that would be criminal if performed in time of peace.” (To Adil’s point that combatant immunity is inapplicable in NIACs anyway, I would only proffer that the convergence of IAC/NIAC norms may increasingly cut against this, and that better minds than mine—notably Ian Henderson and Jen Ohlin—have taken this issue head-on.)

Indeed, what Adil terms the “mistaken view” of states is, in my estimation, the very key to IHL’s cogency and moral force as a self-contained system of licenses and limitations regulating armed conflict and “alleviating as much as possible the calamities of war.” In my own limited experience and understanding, it is hard to overstate the significance of IHL as not just a set of restrictions overlapping and complementing IHRL, but as a moral lodestar critical to defining what it means to be an honorable warrior. Military lawyers tend to perceive IHL less as a barrier or obstacle telling the client what it cannot do—although it serves this function as well—and more “as a prerequisite to the meaningful exercise of power” in the first place. As Geoffrey Corn recently reminded us, IHL “serves to mitigate the potential moral corrosion that is often produced by mortal combat,” in large part by “providing the warrior with a rational and morally grounded framework” undergirding their actions.

It is notable in this regard that many of the pivotal developments in IHL have “owed less to professors, statesmen, or humanitarians, than to soldiers” themselves, resulting in a set of rules both by and for warriors that reflects the accrued wisdom of history and hardship. Armed conflict denotes a specially-defined space wherein soldiers can act effectively, decisively, justly, and—yes—violently pursuant to a unique code of conduct.

This is why it was important to rebut Ryan Goodman when he admirably, but erroneously, argued for a duty to capture under IHL by offering novel conceptions of military necessity and humanity. Under Adil’s proposal, it is worth noting, whether or not IHL imposes a least-restrictive-means requirement wouldn’t terribly matter, since IHRL would sweep in to impose such a requirement in nearly all cases. The difference between Ryan and Adil’s contentions is mostly the locus of the duty to capture—IHL for Ryan and IHRL operating in parallel with IHL for Adil—but the practical effect of undermining clarity in status-based targeting would be similar.

Adil has done us a great service with his erudite discussion shaking up the sometimes stale debate over NIAC definitions. Personally, I find his proposal to lower the NIAC threshold preferable to any suggestion of raising or complicating the categorical IAC threshold, as erring on the side of some realistically effective regulation of violence seems preferable to the prospect of an enforcement vacuum. But we shouldn’t lose sight of the fact that IHL matters, and not just because it puts war crimes culpability on the table. Armed conflict brings into play both the aspects of IHL that human rights lawyers tend to like, and also those that they don’t. Eroding the boundaries between war and peace can’t help but yield this result.

Would Secession by California and Oregon Be Legal?

by Julian Ku

imgresFollowing Donald Trump’s stunning election victory, ballot measures are already being proposed in California and Oregon to secede from the United States.  Ordinarily, one can just chuckle at these measures as the actions of a radical fringe, but it would be hard to overestimate the depth of anger and opposition to a President Trump in states like California, where he lost by probably 20 percentage points.  If such a measure got on the ballot, we might see a serious campaign akin to Scotland’s 2014 referendum on staying in the United Kingdom.

But it seems settled under US constitutional law that unilateral secession from the United States is unconstitutional.  In the 1869 case Texas v. White, the U.S. Supreme Court ruled:

When Texas became one of the United States, she entered into an indissoluble relation. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Some might argue, however, that a unilateral secession by California is authorized by the international law right of self-determination.  This is a much more difficult point to analyze, but I think that neither California nor Oregon would qualify to exercise this murky international law right, at least with respect to seceding.  The Canada Supreme Court’s decision in the Quebec case is probably most on point here.

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

In other words, international law guarantees to every state its “territorial integrity” and it can’t be overridden by “self determination” unless serious freedoms or discrimination against residents in the seceding region are being infringed.  Moreover, this right has generally only been exercised by states under colonization or foreign occupation.  The right might also exist if the state is facing the threat of egregious human rights violations (e.g. Kosovo), but the right in even that circumstance is controversial globally.

But I will admit I am not an expert on the international law of self-determination. If anyone has a good argument for why California or Oregon qualifies to exercise this right under international law, please feel free to share in the comments.

So I am going to go out on a limb here to say that a referendum to secede California or Oregon from the United States is both unconstitutional and unauthorized by international law.  Still, just getting such a measure on the ballot would be significant because they would force the U.S. government to take a position on the legality of such measures. This could affect US government positions on foreign self-determination movements in places like Hong Kong, for instance.

We live in interesting (and dangerous) times.

Opinio Juris and the Trump Presidency

by Chris Borgen

A couple of weeks ago a group of Opinio Juris bloggers held a round-table discussion at St. John’s University Law School about the international law and policy issues facing the next American President. In front of a full room, we considered issues ranging from relations with China and Russia, to the future of national security policy, human rights, international trade agreements and the UN.  We fielded questions from the audience, went past our scheduled closing time, and still had not answered all the questions in the room. It was clear that there is a need and a desire for intelligent discussion on these and other issues of international law and U.S. policy. There were, and are, significant questions of law and policy before the American public.

Now we know who the next President will be. Sustained and informed commentary about international law and the United States’ role in the world has never been more relevant.  We founded Opinio Juris as a forum for engaged and intelligent discussion on a broad range of international legal issues.  We have fostered a dialogue with voices from varying political, legal, and national perspectives. Among the hundreds (if not thousands) of issues we have covered, we have had commentary by sitting Department of State Legal Advisers on Bush Administration policies in the War on Terror and also concerning the U.S. operation against Osama Bin Laden during  the Obama Administration, as well as expert observations from the negotiations in Paris leading to the climate change agreement (see, for example, 1 and 2), examinations of the development of international criminal law, analyses of the  work of international courts and tribunals, emerging technologies and international law, and conversations about U.S. policy on the conflict in Syria. For the last eleven years we have tried to reflect upon the breadth and depth of international law and policy.

As the U.S. begins its transition into what will be the Trump Administration, we will continue to provide commentary that is informed by expertise in international law and is engaged with the policy debates of our time. A brief scan of the list of initiatives Donald Trump listed in October as the priorities for his first 100 days in office is full of international legal implications. He stated that on his first day in office, among other things:

* FIRST, I will announce my intention to renegotiate NAFTA or withdraw from the deal under Article 2205

* SECOND, I will announce our withdrawal from the Trans-Pacific Partnership

* THIRD, I will direct my Secretary of the Treasury to label China a currency manipulator

* FOURTH, I will direct the Secretary of Commerce and U.S. Trade Representative to identify all foreign trading abuses that unfairly impact American workers and direct them to use every tool under American and international law to end those abuses immediately…

* SEVENTH, cancel billions in payments to U.N. climate change programs and use the money to fix America’s water and environmental infrastructure

Additionally, on the first day, I will take the following five actions to restore security and the constitutional rule of law:

* FIRST, cancel every unconstitutional executive action, memorandum and order issued by President Obama

* SECOND, begin the process of selecting a replacement for Justice Scalia from one of the 20 judges on my list, who will uphold and defend the Constitution of the United States

* THIRD, cancel all federal funding to Sanctuary Cities

* FOURTH, begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won’t take them back

* FIFTH, suspend immigration from terror-prone regions where vetting cannot safely occur. All vetting of people coming into our country will be considered extreme vetting.

This is only part of the list. For example, other statements from President-elect Trump or his surrogates have concerned whether the new administration would honor U.S. obligations under the Geneva Conventions and international humanitarian law, the future of NATO, and commitments to address climate change, to take three examples.  As the transition proceeds and President-elect Trump’s actual agenda takes shape, we will assess and address the international legal issues implicated by his proposals and stances. More generally, we will continue to thoughtfully consider the expansive international legal and policy issues facing the U.S. We hope to add to an informed public discourse.

We started this website as a forum for debate and discussion about international law and policy. Almost 10,000 posts later, this conversation has never been more important and we look forward to hearing what you have to say in the days and weeks to come.

How President Obama Gave President-elect Trump the Power to Undo the Iran Deal and Paris Agreement

by Julian Ku

As regular readers of this blog probably guessed, I did not support Donald Trump for President (I didn’t support Hillary Clinton either, but that’s another story). I did, however, take the possibility of his election seriously and published a couple of posts (see this one here) analyzing the legal issues raised by his campaign promises to withdraw from existing U.S. international agreements such as the Iran Nuclear Deal, the Paris Climate Change Agreement, and the North American Free Trade Agreement.

In general, I concluded in my prior posts that President-elect Trump has the clear constitutional authority to withdraw from the Iran Nuclear Deal and the Paris Climate Change Agreement without seeking the approval of Congress.  It is somewhat less clear, but it is certainly possible that a President-elect Trump has the constitutional authority to withdraw from trade agreements like NAFTA without Congress, but that is less certain.

It is important to keep in mind that the reason a President Trump can unilaterally withdraw from the Iran Nuclear Deal and the Paris Climate Change Agreement is that President Obama chose to avoid submitting either agreement to Congress or the Senate for approval.  Indeed, President Obama’s lawyers went even farther to clarify that the Iran Nuclear Deal was a nonbinding political agreement and that the emissions targets in the Paris Climate Change Agreement were also legally nonbinding.

This important concession was made to avoid any need to submit these controversial agreements to approval by a (very) hostile Congress.  At the time, the legal sophistication and dexterity of the Obama team’s strategy was lauded, and I supported their legal position even though I disagreed with the policies embodied in the agreements.  But I warned that the cleverness of their legal positions came at a price: a future President could unilaterally undue both agreements without the approval of Congress and without even incurring US violations of those agreements since both are largely legally nonbinding.

Well, the day to pay the cost of this strategy is at hand.  Trump has won the presidency and there is no legal obstacle to his unilateral reversal of two of President Obama’s signature foreign policy achievements.  No filibuster will save them. And President Obama will have no one to blame but himself and his legal team for this fact.

The larger lesson from this saga is that legal rules and processes matter more than even we lawyers acknowledge.  A smart political achievement that cuts the corners on the law will come at a cost.  Past and future presidents should probably keep this in mind.

New Report on European Counterterrorism Practice

by Deborah Pearlstein

Anthony Dworkin, a senior policy fellow at the European Council on Foreign Relations, has an interesting new report out about developing ways in which European governments are using force abroad to combat the threat of terrorism of various sorts. The study is full of useful data points so is worth reading in its entirety, but I write here briefly to emphasize a conclusion it does not reach. The way the study is pitched at the outset of Dworkin’s blog post about its issuance – emphasizing the convergence of U.S. and European counterterror legal theories – those reading quickly might imagine it to support the view that various European powers have at long last embraced the United States’ novel post-9/11 legal theory of a global, non-international armed conflict (NIAC) against Al Qaeda, the Taliban and associated forces. But the study itself makes clear that while France and Britain, for instance, have come to use force in Syria and Iraq for various reasons, it is not the case that their engagement in this conflict reflects an acceptance of the concept of a global NIAC. See, for example, this section:

“In one important respect, however, European governments involved in counter-terror wars have stopped short of the expansive legal position adopted by the United States. EU member states (including France, despite the rhetoric used by government officials) are united in rejecting the notion of a single transnational armed conflict with the ISIS or al-Qaeda network. In the words of one British official, they continue to treat these terrorist groups as presenting a series of ‘specific threats in specific locations….’ This approach reflects both a strategic view about the most effective approach to fighting terrorist organisations and a legal analysis that rejects the notion of a geographically unbounded armed conflict against a non-state group.”

Recent practice of a few European states to be sure bear on other important questions of, for example, the extent of the embrace of the U.S. “unwilling or unable” theory of overcoming sovereignty objections to the use of force; and, for example, how international human rights law is thought to inform state use of force in self-defense against terrorist groups. But those looking for evidence of European support for the existence of such a thing as a transnational NIAC won’t find it here.

International Law and the U.S. Election: Trumpxit, Syria and State Marijuana Laws

by Julian Ku

Those of us here in the US are pretty obsessed with tomorrow’s U.S. presidential election (and from what I can tell, those of you outside the States are pretty interested as well). International law has not been a huge issue in the election, but I do think tomorrow’s result could have at least three big impacts on the international legal system.

Trumpxit

As I have noted in earlier posts, Republican nominee Donald Trump has been notable for pledging to renegotiate and possibly terminate numerous U.S. international agreements.  Most clearly, he has pledged to withdraw from the Paris Climate Change Agreement and the Iran Nuclear Agreement. He has also pledged at various times to withdraw from the North American Free Trade Agreement, the US-Japan Defense Treaty, and the North Atlantic Treaty Organization.

As a legal matter, there is no doubt in my mind that a President Trump would have the legal power to terminate the Paris Agreement and the Iran Agreement on his first day in office without any authorization by Congress.  Both of those agreements were concluded as sole executive agreements, and most of the provisions are also legally nonbinding political agreements.

I also think that under existing US precedent, a President Trump could unilaterally terminate US participation in NATO and the US-Japan Defense Treaty.  As I noted earlier, the US Supreme Court in Goldwater v. Carter refused to block a similar presidential termination of the US-Republic of China (Taiwan) Defense treaty and although that case is not entirely clear, it seems likely that the president can do this on his own.

As I also noted, however, it is much less clear if the President can unilaterally withdraw from NAFTA and other trade agreements because those agreements have been codified by statute.  This would raise the “Brexit” scenario currently embroiling the UK.

In any event, I think “Trumpxit” is probably one of the biggest consequences of electing the GOP nominee because his powers in this area are largely unilateral and do not require Congress.

US Military Action in Syria

As Deborah has explained on this blog in recent weeks, the US is currently engaged in some sort of “armed conflict” in Syria that doesn’t seem to clearly fit into the Geneva Convention’s categories for either international or non-international armed conflicts.  On a domestic legal front, the US Congress has not specifically authorized the action in Syria as well, making its domestic legality questionable at the very least.

The next President will have to decide how to frame the Syria conflict under international and US constitutional law. My guess is that both Clinton and Trump would follow the Obama approach of treating the conflict as a non-international armed conflict against the Islamic State that is authorized by the 2001 congressional authorization for the use of force.  But this is something the next President will have to engage with seriously, since there continue to be serious doubts about the legality of US actions in Syria.

More US Violations of Drug Control Treaty

Five more US states have referenda tomorrow to legalize recreational marijuana.  If approved, this would mean nine US states plus the District of Columbia have legalized recreational marijuana, and many more have legalized medical marijuana.

It seems clear that continued non-federal enforcement of marijuana prohibitions in these states would violate US obligations under drug control treaties.  There are at least three that arguably conflict with legalized marijuana: The 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.  As this fine Brookings Institution report notes, the US is going to be in clear violation of these treaties soon and needs to renegotiate them to accommodate US state laws.  Presumably, this is on the agenda of the next President (low on the agenda, but on there somewhere).

Ratification of the Law of the Sea Treaty

Most projections indicate the US Senate will remain deeply divided (maybe even 50/50) between Democrats and Republicans.  If so, I don’t think there is a high likelihood that proponents of US ratification of the UN Convention for the Law of the Sea will have enough votes to push it over the 67 vote threshold.  We may see another effort, however, if the Democrats unexpectedly pick up a strong majority of seats (say in the 53 plus range).  There continues to be strong support in the US Navy and in US energy circles for US ratification so it is still on the agenda.

o o o

I am sure I am missing a few issues. Readers should feel free to add in the comments any other international law issues that are likely to be affected by tomorrow’s results.

Weekly News Wrap: Monday, November 7, 2016

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: November 6, 2016

by Jessica Dorsey

Calls for Papers

  • To mark 15 years since the coming into force of the Statute of the International Criminal Court (ICC) on 1 July 2002, the Journal of International Criminal Justice is pleased to announce a forthcoming symposium on ‘The International Criminal Court’s Policies and Strategies’ to be published in July 2017. The Court and its various organs have continually issued a number of documents explaining the Court’s policies on numerous distinct issues as well as its strategies for the future. The Journal’s Editorial Committee believes that the time has come to take a closer and systematic look at these documents, looking at the choices made thus far, the level of transparency and consistency, as well as suggesting avenues to strengthen the overall effectiveness and credibility of ICC investigative and prosecutorial strategies. The Journal calls for submission of abstracts not exceeding 500 words on the questions described above, or related areas of interest, no later than 15 November 2016. After the abstracts are reviewed, in early December, the Editorial Committee will invite a number of contributors to submit full papers of no more than 8000 words (including an abstract and footnotes) by 28 February 2017. For more information about the call, please visit the website here or contact the Executive Editor at jicj [at] geneva-academy [dot] ch.
  • The university of Michigan Law School will be hosting its Third Annual Young Scholars’ Conference on March 31 – April 1, 2017. This year, The Michigan Journal of International Law intends to publish selected papers from the conference. More information about the call for papers and the conference can be found here.
  • In advance of the 6th Conference of the Postgraduate and Early Professionals/Academics Network of the Society of International Economic Law (PEPA/SIEL) 2017, taking place in Tilburg, the Netherlands, 20-21 April 2017, and with SIEL’s Postgraduate and Early Professionals/Academics Network (PEPA/SIEL) being, among other things, interested in fostering collaboration and mentoring opportunities for emerging academics and professionals in International Economic Law (IEL). PEPA/SIEL fulfils these goals through various activities such as organising conferences at which emerging IEL academics and professionals can present and discuss their research in a supportive and welcoming environment, have issued a call for papers. More information can be found here.

Events

  • The Centre for Business and Commercial Laws of the National Law Institute University, Bhopal in collaboration with Trilegal, is organizing the second edition of NLIU-Trilegal Summit on Mergers and Acquisitions on 25th & 26th February, 2017. Participating authors are expected to submit either an article or an essay on Mergers and Acquisitions within the contours of the sub-themes. Authors are required to register themselves provisionally by sending an e-mail to trilegal [dot] nliusummit [at] gmail [dot] com outlining their intention of contributing to the summit. Provisional Registration is open up to 30 November, 2016. All papers, along with an abstract (not more than 300 words), must be submitted on or before 15 December, 2016 (11.59 pm). Further details can be found in the Brochure and Submission Guidelines. The brochure can be accessed here and submission guidelines can be accessed here.

Announcements

  • Fietta associates Ashique Rahman and Laura Rees-Evans, along with other public international law practitioners from within private practice and government, have established the Young Public International Law Group (YPILG).  The YPILG aspires to connect PIL practitioners to one another to facilitate knowledge-sharing in the PIL field.  The group will promote the next generation of PIL professionals.  Fietta, Debevoise & Plimpton, Clifford Chance, Matrix Chambers, Essex Court Chambers and the Foreign & Commonwealth Office are the initial co-sponsors of the YPILG.  A drinks reception to launch the YPILG will take place on 29 November 2016 at the Foreign & Commonwealth Office.  Professor Vaughan Lowe will be the keynote speaker. Further information about YPILG, including how to register for the launch event, can be found on the YPILG website 
  • The WZB Berlin Social Science Center’s research area International Politics and Law, unit Global Governance (Director: Prof. Dr. Michael Zürn) is seeking to appoint two research fellows to be employed fulltime (39 hours/week) for up to five years, commencing on 16th January 2017 or as soon as possible thereafter. Main tasks involve the theory-based research of transnational and international institutions, their social and political prerequisites, and the repercussions on national processes. The successful candidates are to work within the framework of the research programme of the Global Governance unit. Please see the unit’s website for more information. Applications (motivation letter, CV, list of publications, references, if applicable) should be sent to the following e-mail address in the form of a single PDF file by 21.11.2016: Barçın Uluışık: barcin [dot] uluisik [at] wzb [dot] eu.
  • The British Institute of International and Comparative Law (BIICL) is looking to appoint a strong candidate to the Arthur Watts Senior Research Fellowship in Public International Law (.pdf) to build on BIICL’s pre-eminence in this area. Public international law helps to address fundamental challenges facing individuals, businesses and governments, including international trade, investment, business, peace and security, armed conflict, terrorism and counter-terrorism, human rights, taxation, communications and the environment. The Fellowship and its activities are funded through the Arthur Watts Appeal,in memory of the late Sir Arthur Watts QC, one of the leading international lawyers of his generation. The Fellowship’s purpose is to ensure that the practical application of public international law remains securely at the heart of BIICL’s work. The Appeal is an active fundraising campaign led by Sir Frank Berman, KCMG, QC and Chair of BIICL’s Board of Trustees. Further details on the Appeal are available 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.

Addressing the Urban Future

by Chris Borgen

Urbanization is our present and it is our future. Between the recently completed UN Habitat III conference in Quito, Ecuador, and Iraqi Special Operations entering Mosul, starting what may be a complex urban battle, we face constant reminders that  much of the world’s population now lives in cities. How we protect rights, foster development, interact with the environment, organize politically, and fight wars is increasingly an urban story.

Consider the bleak picture of megacities and the future of combat in this leaked Pentagon video (at the link and also embedded above). Some key take-aways from the video:

  • By 2030 60% of world’s population will be in cities. Most of the urban growth will be in the developing world.
  • Illicit networks will fill the gaps left by overextended and undercapitalized governments.
  • Growth will magnify the increasing economic separation between rich and poor, even thought they may be in close proximity. Uneven growth means that slums and shantytowns will rapidly expand alongside ever increasing levels of prosperity.
  • Moreover, religious and ethnic tensions will be a defining element of these urban environments
  • Megacities are complex systems where people and structures are compressed together in ways that defy both our understanding of city planning and military doctrines.
  • Living habitats will extend from the high-rise to the ground level cottage to subterranean labyrinths, each defined by its own social code and rule of law.
  • Social structures will also be stressed. Criminal networks will offer opportunity for the growing class of unemployed  and will be part of the nervous system of non-nation state, unaligned, individuals and organizations that live and work in the shadow of national rule.
  • There will be increasing complexity of human targeting as proportionally smaller number of adversaries mix with an increasingly large population of citizens.
  • The interactions of governmental failure, illicit economies,  economic growth and spreading poverty, informal networks, environmental degradation, and other factors leads to an environment of convergence hidden within the enormous scale and complexity of megacities, which become the source of adversaries and hybrid threats.
  • Classic military strategy counsels either (a) avoiding the cities or establishing a cordon to wait out the adversary  or (b) draining the swamp of non-combatants and then engaging the adversary in high-intensity conflict. But megacities are too large to isolate or cordon in their entirety.  The U.S. military will need to operate within the urban environment and current counterinsurgency  doctrine is  inadequate to address the sheer scale of megacities
  • “This is the world of our future. It is one we are not prepared to effectively operate within and it is unavoidable.”

According to FoxtrotAlpha, this video was produced for a course at the Joint Special Operations University on “Advanced Special Operations Combating Terrorism,” it is focused on urbanization from the perspective of military planning. A 2010 issue of the International Committee of the Red Cross’s journal was devoted to humanitarian law and conflict in built-up urban areas. The ICRC also had recommendations for the UN’s Habitat III conference that just ended.

The topics covered, though, are very much the province of law and lawyers, including the needs of the urban poor, the operations of criminal networks, environmental degradation and climate change, the law of armed conflict and targeting in built-up areas, informal rulemaking in communities (“order without law”), informal markets and economies,  and the role of non-state actors, to name only some of the topics that crop up. While this video is (understandably) focused on the implications on combat operations, what I also see is the need for sustained  engagement in the protection of human rights, the distribution of public goods, the fostering of inter-communal dispute resolution, and the spurring of bottom-up economic development in megacities.

The video emphasizes that the future is urban. But, as the writer William Gibson has said, “The future is already here; it’s just not very evenly distributed.”

 

How Dualism May Save the United Kingdom from Brexit

by Julian Ku

Early in my international law education here in the U.S, I learned that dualism was an unfortunate concept that led to the U.S. violating international law obligations by failing to enforce those obligations (usually treaties) domestically.  But today’s blockbuster decision from a UK court in Miller v. Secretary of State on Brexit should remind us that dualism can also work to protect international law. How?  Well, if a country has many international obligations but is now seeking to withdraw from those obligations, dualism makes it harder to withdraw from those obligations.

In Miller,  the court noted that although the UK Prime Minister usually has the unilateral authority to enter into and withdraw from treaties, that power cannot be used in anyway that would affect or change domestic UK law. Quoting an earlier decision, the High Court today noted that under the UK constitution, the Crown (through her ministers) has the sole and unreviewable power to make treaties. No Parliamentary assent or approval is needed. However,

[T]he Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.  Treaties, as it is sometimes expressed, are not self-executing.  Quite simply, a treaty is not part of English law unless and until it has been incorporated into law by legislation. 

(Citing J.H. Rayner (Mincing Lane) Ltd. v Department of Trade and Industry [1990] 2 AC 418).

This basic principle seems to me crucial to the UK court’s holding today that the Crown (through her ministers) does not have the power to give notice under Article 50.  Although the Crown would ordinarily have this power, the fact that triggering Article 50 would alter the domestic law of the UK makes this a question for Parliament.

In the US system, the President holds similar powers as the Crown and has similarly exercised unilateral powers to withdraw from treaties.  But because treaties in the US have a vaguely monist character — they are self-executing and they have been approved by the Senate — it is harder to argue that the President cannot terminate treaties even if that termination would affect domestic US law. Why?  Because if the treaty was “monist” and self-executing when made, then it is less troubling to unmake that treaty without going back to Congress.  Unlike the UK, treaties are the supreme law of the land and directly preempt state law and earlier in time federal statutes.  The kind of argument wielded by the Court in Miller just wouldn’t have any purchase here.

In any event, I don’t want to stretch this argument too far.  The US may be facing its own Brexit moment soon if a President Trump makes good on his threat to withdraw the US from NAFTA.  And if that happens (god forbid), expect pro-NAFTA folks to raise the case for congressional approval of any termination.  But all in all, I think the dualist nature of the UK system aided the cause of the anti-Brexiteers in this case, which is a somewhat surprising result if you grew up learning that dualism was one of the great obstacles to a stronger international legal system.

Call for Papers: ICTY Legacy Conference

by Kevin Jon Heller

As part of its “ICTY Legacy Dialogues” events, the International Criminal Tribunal for the former Yugoslavia (“ICTY”) is organising in the week of 19 June 2017 a conference on the legacy of the ICTY in Sarajevo, Bosnia & Herzegovina. We invite your participation.

With the ICTY’s closure scheduled for 31 December 2017, the conference aims to enable others to build on the achievements of the ICTY over its 24 year history. The vision is for a series of dynamic dialogues with actors who can take what the ICTY has developed into new areas, with a particular focus on the role of national actors. The conference will explore how the work of the ICTY can inform responses to atrocities and international crimes at a national level in a number of fields.

Examples of topics to be addressed include:

  • Institutional and Administrative Legacy e.g. Witness protection and support – post testimony support: needs and resources; reparations and victim status; gender sensitive witness support.
  • Normative Legacy – Synergies, cross-fertilization, and discrepancies between the jurisprudence of the ICTY, national jurisdictions, regional courts, and other international courts and tribunals; with a special focus on: how ICTY jurisprudence has influenced national jurisdictions, for instance in the region of the former Yugoslavia; and how domestic law and jurisprudence has informed international justice.
  • Operational Legacy/Complementarity – Challenges faced by the Office of the Prosecutor in investigating and prosecuting conflict-related crimes, including challenges in building leadership cases and obtaining access to evidence; OTP’s capacity building challenges and outcomes; perspectives on operational challenges facing national jurisdictions and potential/demonstrated solutions (including through lessons learned and applied from OTP’s experience).
  • Legacy on Access to Justice for Women – The evolution of jurisprudence on conflict-related sexual violence; participation of women in the justice process; working with NGOs and civil society to identify witnesses; protection of sensitive witnesses/victims; compensation mechanisms for sexual violence victims in national jurisdictions.
  • Participatory Legacy – Defence in international criminal trials at international and national courts; defence investigations; defence organizations and offices; rights of the accused.
  • Historic Legacies – Historic value of the extensive records of the ICTY; records as a means of combating denial; access to ICTY records and archives in the region; importance of user friendly information sharing and judicial databases.
  • Non-Judicial Legacy – The ICTY and its limitations; to what extent can a judicial institution contribute to peace and reconciliation; how to fill the gap through non-judicial mechanisms; the importance of memorialisation and the consolidation of the rule of law through capacity building.
  • Leaving a Legacy: Outreach Activities – What should be the scope and goals of outreach on the ICTY legacy after the closure of the Tribunal; what are the needs of local communities in respect of the ICTY’s legacy; what are the responsibilities of different societal actors – e.g. politicians, journalists, the legal community, civil society?

Those interested in presenting a paper at the conference should submit an application via email to the ICTY Legacy Committee at: ictylegacypapers [at] un [dot] org

Applications must include:

  1. A 300-word abstract of the proposed paper;
  2. The author’s name, title, and affiliation (if any);
  3. The author’s curriculum vitae/résumé; and
  4. The author’s contact details including phone number and email address.

All applications must be received no later than 15 December 2016.

Successful applicants will receive by approximately 15 January 2017 an invitation to submit a full paper, and first drafts of papers will be expected to be submitted by 15 April 2017. Submission of an application will be considered as acknowledgement that the author is available to be in Sarajevo (or other regional access point) in June 2017 to participate in the conference. Subject to securing sufficient funding, the ICTY will endeavour to cover travel and/or accommodation costs of successful applicants.

A Quick Reply to Stephen Rapp About the US and the ICC

by Kevin Jon Heller

The inimitable David Bosco dropped quite the bombshell yesterday at FP.com: The Office of the Prosecutor at the ICC intends to open a formal investigation into the situation in Afghanistan — a situation that includes, as the OTP discussed in its most recent preliminary-examination report, US torture of detainees between 2003 and 2005. I’ll have more to say about the possibility of an investigation in the coming days, when I’m a bit less harried. But I wanted to briefly respond to something Stephen Rapp, the former US War Crimes Ambassador, recently said about that torture — a comment that David reprints in a post today. Rapp contrasted US torture in Afghanistan with the kinds of crimes international criminal justice normally addresses:

[T]he alleged crimes committed during US enhanced interrogations do not reach anything like the scale of these other violations. The Durham review was looking into 101 cases of alleged abuse, including those of two detainees who died in custody. A broader inquiry could increase those number, but even with the widest scope, the numbers of victims pale in comparison to those in the situations that have come before international courts and tribunals.

As is often the case when people discuss crimes potentially within the ICC’s jurisdiction, Rapp’s comment elides the critical difference between situational gravity and case gravity. If the OTP was considering opening an investigation only into US torture in Afghanistan (not “enhanced interrogation”), Rapp would have a point — the situational gravity would almost certainly be insufficient to justify a formal investigation. Israel’s attack on the Mavi Marmara is a good point of comparison: however unjustifiable Israel’s actions, the numbers simply weren’t large enough to investigate. (And I say that as perhaps the earliest opponent of a quantitative approach to situational gravity.)

But that is not what Bosco says the OTP will do. According to Bosco, and consistent with its previous statements, the OTP will be opening a formal investigation into the situation in Afghanistan generally — not only crimes committed not by US forces, but also crimes committed by the Taliban, by Afghan government forces, and by other members of the coalition. At most, therefore, US torture will be one case within the overall situation in Afghanistan. That’s critical, because it means that the scale of US torture should be compared to the scale of crimes at issue in other individual cases the OTP has pursued, not to the scale of crimes in other situations as a whole. And there is no question that the OTP has pursued similarly limited cases. To take only the most striking example, Ahmad Al Faqi Al Mahdi was charged with and convicted of purely victimless crimes — destroying cultural property. If the Al Mahdi case was grave enough for the OTP, surely US torture in Afghanistan would be.

To be clear, I do not expect the OTP to bring charges against an American anytime soon. But if no such case materialises despite the OTP opening a formal investigation into Afghanistan, it won’t be because US torture there is insufficiently grave enough to prosecute.

NOTE: I am using Rapp’s comment to make a point, not to criticise him. I have great respect for Rapp’s commitment to international criminal justice, and I like him very much as a person.