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CUP Reverses Its Decision to Censor China Articles (Updated)

by Kevin Jon Heller

Here is CUP’s statement:

Kudos to CUP for doing the right thing. And kudos to everyone — including Jan Klabbers — who took a public stand against CUP’s capitulation to Chinese pressure.

UPDATE: True to form, China is now censoring news of CUP’s decision not to censor!

Technology, Speech, Hate, Virtuality … and the Path of the Law

by Mark Drumbl

[Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute at Washington and Lee University.]

Atrocity Speech Law is a hefty book. It is, as Professor Gordon himself describes it, a ‘tome’. Atrocity Speech Law is rigorous and ambitious: packed with information, breathtakingly detailed, brimming with integrity, and vivified by important themes of law reform. In contrast to the absurd invective it seeks to deter, Gregory’s arguments are measured and modulated, poised and principled.

Although Gregory has invested so much in this book, and the book contains so much, he also is wisely modest that much more remains to be said. So I want to say something about one thing Gregory has identified as something that remains to be said, and then I want to say something about something else that he hasn’t identified as such.

But, first, to the core argument: Gregory posits that atrocity speech law exists but is hampered by the fact it is fragmented. The fragmentation, I would hasten to add, is not deliberate or intentional. Like much of law, the law regulating atrocity speech emerged by virtue of bricolage. That said, and however charmingly organic, bricolage quickly brushes up against important limits: concerns over coherence, predictability, and consistency. In fact, simply by labeling the issue at hand as ‘atrocity speech’, Gregory already contributes structure and parsimony, in that the regulation of speech that encourages violence currently remains cobbled together from various specific crimes such as incitement to genocide, hate speech, ordering, instigation, and persecution as a crime against humanity. By advancing arguments of unification and codification (he proposes a draft convention on atrocity speech), Gregory situates himself within a venerable tradition of international law-making. Although I often find myself attracted to (a bit of) messiness, and believe the value of Cartesian organization in the world of law may be overrated and too hungrily stated, Gregory makes a very compelling case for his vision.

Gregory gestures ahead near the end of the book. He points to historical research, denial, sentencing, and empirical inquiry on the actual effects of hate speech as areas for further research. Among these, I think that sentencing is of particular salience. Gregory finds unexplainable variation among sentences issued for hate speech crimes at the international level.  I am not surprised. I have long questioned the rationalities of sentencing at the international criminal courts and tribunals and the operational coherence of the sentences that actually are issued. Although greater predictability has arisen over time, which is good to see, pockets of concern persist. Assembling together the various crimes that involve speech, which Gregory has done, and providing a heuristic of sentences for these crimes, which Gregory also has done, exposes these underdeveloped aspects of sentencing. Although retribution and deterrence are taken as the two major goal of international sentencing, as re-announced recently by the ICC in Bemba and Al Mahdi, how would these goals apply in the case of atrocity speech? Can persons convicted for speech crimes be rehabilitated? Are they in a position, unlike other criminals, to undo what they had done, to disclaim what they had claimed, to correct the record, to retract, to unwind? If so, how could these remedies form part of the punitive schematic?

Turning now to the something not spoken of: Atrocity Speech Law largely absents conversations about technology. This surprises me. The book has a bit of a last century vibe to it. Sure, some societies are more technologically embedded and uploaded than others, but we are all well beyond newspapers and radio broadcasts. Our world is less one of RTML and Kangura and megaphones and Nuremberg rallies than it is one of social media, anonymous (and instantaneous) information, and virality; of YouTube and the internet; of ‘fake news’ and doctored events; of Instagram and Facebook and  Twitter and Whatsapp and Iphones. Widespread and systematic access to the Web, so to speak, permits everyone to become a speaker (anonymous or otherwise) and to be heard. So hate speech metastasizes much faster than ever before, it can stain so many listeners so quickly, and can become pandemic. Anyone with an internet connection can start it.  State-run television, cable given over to the interests of an ideology, and the press each certainly and assuredly is important. But I would wish to hear from Gregory as to how his (re)construction of atrocity speech law would map onto these new virtual media which definitively change how and through whom and from where ‘information’ is obtained.  How does technology challenge (or not) the many legal elements of the crime?

Gregory closes his book with an appeal for both application of penal law and preventative measures. So, then, preventatively, how to ventilate the spaces of the Web in which ‘speakers’ vent their furor? Is social host liability, liability for providing space, an answer? If so, what further cascades might such liability present for freedom of expression? Any vexation? What opportunities for reparations? What can we learn from internet regulation domestically, for example, when virtuality is used to cyberbully or humiliate individuals?

Gregory’s book is a tour-de-force. We are all the better for it. We are lucky to have him, and his work, to guide us through these rapidly growing thickets.

Comment on Atrocity Speech Law by Gregory Gordon

by Roger S. Clark

[Roger S. Clark is the Board of Governors Professor of Law at Rutgers Law School.]

Several important themes are developed alongside one another in Gregory Gordon’s remarkable book on the activity for which he coins the term “atrocity speech law.”  They are captured largely in his sub-title “Foundation, Fragmentation and Fruition” and in his summary of the “fruition” points at pp. 16-24 of the work.  I cannot do justice to all his exhaustive scholarship and his insights in a short blog post,  so I shall comment on the general picture and then outline, idiosyncratically no doubt, a couple of the points that particularly struck me.

Gordon assays a concrete legal definition of his subject area in the text of a creative proposed “Convention on the Classification and Criminalization of Atrocity Speech Offenses” (pp. 378-81).  Article 1 of the treaty has the Parties confirming that “hate speech, when uttered for purposes of triggering or supporting atrocity crimes, should be accurately categorized in its different penal forms and criminalized and punished according to the actual form it takes.”  “Such speech,” it adds, shall be considered to give rise to what is known as ‘atrocity speech liability’”.  Article 2 states that “[f]or purposes of this Convention, ‘atrocity crimes’ means genocide, crimes against humanity, and war crimes, as defined respectively in Articles 6, 7, and 8 of the Rome Statute of the International Criminal Court.”  Obviously, I admire his boldness in trying his hand at treaty drafting, which is why I mention at the outset his global solution to the problems elucidated in the previous three hundred-odd pages.  I’ll return to the Convention later.

The “foundation” part of the argument expands on his understanding of the “historical record,” namely that “instances of mass atrocity have always been accompanied by communications campaigns designed to demonize the intended victims and inflame the passions of would-be perpetrators.”  (P. 5, and see his excellent typography of the various forms of demonization at pp. 284-91, where he relates them especially to the “direct” requirement in respect of public incitement to genocide.)

The first attempt to deal with such activities through the criminal law was at Nuremberg where Julius Streicher was charged, convicted and executed on the basis of the persecution leg of crimes against humanity.  The confusion about whether an inchoate incitement theory, which Gordon espouses, would be appropriate in such cases begins with Streicher, although the issue was not pressing there, as the evil deeds had occurred at the time of trial and could be attributed to him and persecution filled the bill.

It should be noted, though, that the Nuremberg prosecution also sought to use an inchoate conspiracy theory.  Had it been developed further, that might have been a viable way to deal with situations which are of concern to Gordon, where there is no necessary causal link between what the accused did and the atrocities actually committed.  But the Tribunal held that the inchoate conspiracy provision in the Charter applied only to crimes against peace (aggression).

The London drafters of Nuremberg had grappled in a desultory fashion with conspiracy, an important feature of the enterprise for Justice Jackson that was not well understood by the others drafters, even the British.  Sometimes, as I read his transcript of the proceedings, I wonder if Jackson himself really understood what he was doing.  In particular, he and the British were not always clear whether they were talking about the inchoate conspiracy doctrine that the British and American legal systems share, or the peculiarly American doctrine that a conspirator may become liable for the crimes committed by other conspirators in somewhat peripheral situations where they would not be held liable by virtue of basic complicity principles (the “Pinkerton” doctrine which remains a feature of federal law).  More on this later too.

Streicher’s persecution leg of crimes against humanity, which might not necessarily include violence, was essentially spun off to become the core of genocide, as defined in the Genocide Convention.  Genocide appears almost identically in the later Statutes of the ad hoc Tribunals for Former Yugoslavia and Rwanda, and of the ICC, although it still finds an overlapping place in definitions of crimes against humanity.

The Nuremberg Charter contains no suggestion that there should be responsibility for attempted crimes under international law; the Tribunal itself was not enthusiastic about conspiracies to commit war crimes and crimes against humanity. The Genocide Convention, however, picks up both attempt and conspiracy responsibility, along with direct and public incitement — three inchoate offenses. It included in its definition not only genocide (as a principal) and complicity in genocide, but also that trio of preparatory offenses. These inchoate offenses travelled, uniquely with reference to genocide, into the Statutes of the ad hoc Tribunals.

If this can be regarded simply as an example of the vagaries of the drafting process, the drafting of the Rome Statute is even more curious.  In Article 25 of the Statute, dealing with “individual criminal responsibility,” attempts (defined essentially in the Model Penal Code language of “a substantial step”) can be prosecuted for all Statute offenses (Article 25 (3) (f)).  This, as I see it, includes not only genocide, crimes against humanity and war crimes, but also the crime of aggression, whose inclusion within the effective jurisdiction of the Court is on the horizon.  Direct and public incitement of others to commit genocide is also included (Article 25 (3) (e)).

This type of criminality is, however, not extended to the other crimes within the Court’s jurisdiction.  I was involved as a representative of Samoa in the negotiations on Article 25.  As best I understood the argument, in a process that proceeded on the basis of consensus, it was that genocide was unique and the type of incitement involved did not need to be extended to the other offenses.

Gordon disagrees with this result and I am inclined to think that he has a point. Conspiracy was even more puzzling for the negotiators.  This time, no reference to inchoate conspiracy for genocide based on the Genocide Convention was carried forward into the Rome Statute.  My impression here was that many players, like their predecessors in London in 1945, had no clue about the difference between inchoate conspiracy and conspiracy as a form of complicity.  They thought they had solved the problem with Article 25 (3) (d) of the Statute, a kind of residual complicity provision which renders criminally responsible a person who:

“In any other way contributes to the commission or attempted commission of such a crime by a group or persons acting with a common purpose.  Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group … or (ii) Be made in the knowledge of the intention of the group to commit the crime.”

This is a mode of participation in a crime (or an attempt) when that crime or attempted crime actually occurs, not an inchoate offense for which there is responsibility regardless of what happens afterwards.  If it is a “conspiracy” theory, it is one closer to the Pinkerton doctrine (and its international counterpart Joint Criminal Enterprise) but one which, unlike some versions of those, requires a minimum mens rea of knowledge on the part of the “co-conspirator.”  (Inchoate) conspiracy to commit genocide, from the Genocide Convention, got lost in the shuffle.  Those who worked on defining the crime of aggression, in fulfillment of the expectations of Rome that it would be finalized later, saw no reason to carry forward Nuremberg’s conspiracy to commit aggression, given that it had disappeared in Rome in respect of genocide.  (They did think that Article 25 (3) (d) might apply to aggressors in some cases, as long as they were leaders; see Article 25 (3 bis).)

The “fragmentation” part of the book analyzes, in particular, the relative incoherence of the jurisprudence, especially that of the Rwanda Tribunal.  There are difficulties especially with the ways in which the Tribunals have dealt with the “public” and “direct” aspects of incitement to genocide, and with the definitions of persecution and of the complicity words “ordering” and “instigation.”  There is, moreover, the absence of the crime of incitement to commit war crimes.  Gordon argues for improved definitions and for creating the crime of incitement to commit war crimes.  I think he should probably argue for the sake of consistency for responsibility for inciting crimes against humanity also, but I could not find him doing so explicitly.  He has argued in a separate book chapter for a kind of incitement to commit aggression.  He does not appear to be a fan of conspiracy as an inchoate offense, in spite of its tenuous history in relation to aggression at Nuremberg or in the Genocide Convention.

Incidentally, Professor Gordon notes (p. 357) “Conspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, crimes against peace, crimes against humanity and war crimes” are defined as criminal in the United States Army Field Manual 27-10.  He also notes the complete absence of application or of expert commentary on this provision.  Note also that the Military Commissions Act of 2009 (echoing the earlier 2006 version) claims jurisdiction in Commissions for attempts, conspiracy and (inchoate) “solicitation” to commit the motley bunch of substantive offenses (not including aggression) outlined in the statute.  I assume that ‘solicitation” here is the same as “direct incitement” in the Field Manual.  The requirement of directness perhaps protects some speech, a legitimate concern for Gordon.  The conspiracy part of the MCA has been the subject of extensive litigation, not least in the Hamdan saga.  The legislative assertion that “[t]he provisions of this subchapter codify offenses that have traditionally been triable by military commission” has to be taken with a large dose of salt.

So, to the “fruition” part of the argument.  I think that his modest proposal is to fix Article 25 (3) of the Rome Statute, at least extending incitement (without the public requirement which the case-law suggests is unnecessary) to cover war crimes (p. 351) and presumably crimes against humanity.  The more radical proposal is the proposed treaty on Atrocity Speech Offenses, noted above, which would replace (or run parallel?) to the present less than coherent assemblage of offenses.  The basic idea is apparent from the definition that I quoted earlier.  Article 5 of the draft includes the gamut of different kinds of conduct involving hate offenses which the parties are required to criminalize: “Incitement,” “speech abetting” (encouragement during ongoing atrocities without proof of causation), “instigation” and “ordering” with freshened definitions in each case.

There is plenty to mull over here and examining the Convention in detail would take up a book of blogs, not a mere 1800 words.

A Set of International Crimes without Coherence or a Proper Name: The Origins of “Atrocity Speech Law”

by Gregory Gordon

[Gregory Gordon is Associate Professor of Law, Associate Dean for Development and External Affairs and Director of the Research Postgraduates Programme at The Chinese University of Hong Kong Faculty of Law.  He was formerly a prosecutor with the International Criminal Tribunal for Rwanda and the U.S. Department of Justice, Office of Special Investigations.]

I have always felt that great scholarship is born of great frustration. And that’s what inspired me to write Atrocity Speech Law: Foundation, Fragmentation, Fruition (Oxford University Press 2017). Why was I so frustrated? The answer goes back to my salad days as a lawyer with the Office of the Prosecutor at the International Criminal Tribunal for Rwanda, when I was assigned to the “Media” team. We investigated, and eventually indicted, certain newspaper and radio executives/employees responsible for inflammatory rhetoric disseminated in the lead up to and execution of the Rwandan Genocide. But there were few legal precepts, and even less jurisprudence, available to guide us. What little there was emanated from Nuremberg, where rabid Jew-hating journalist Julius Streicher, Nazi Radio Division head Hans Fritzsche and Reich Press Chief Otto Dietrich had been prosecuted. So, from a legal perspective, we had to be resourceful as we constructed our ICTR media cases centering on charges of direct and public incitement to commit genocide and hate speech as the crime against humanity of persecution – only the latter having been charged against the just-mentioned Nazi propagandists (other possible speech-related charges available to us were instigation and ordering). But given that we were venturing onto what was largely legal terra nullius (especially with respect to incitement), we often had to grope in the doctrinal dark. So that was the first stage of frustration.

Still, from a law development perspective, I remained sanguine. The key “Media” defendants were ultimately convicted – Ferdinand Nahimana and Jean Bosco Barayagwiza (founders of the infamous Radio Télévision Libre des Milles Collines or RTLM, otherwise known as “Radio Machete”), RTLM announcer Georges Ruggiu, and extremist Hutu newspaper editor Hassan Ngeze. The judgments against them, along with that of Mayor Jean-Paul Akayesu for incitement to genocide (the first in history) – offered hope that a decent foundation had been laid for a law that could effectively govern the relationship between speech and atrocity. But that hope turned out to be misplaced.

Over time, for example, it became clear that there were problems with the formulation and application of the incitement crime, comprising the elements of “direct,” public,” “mens rea,” “incitement” and, possibly causation. Issues arose with respect to each of these. I will not deal with each of them here but will provide some brief examples for illustrative purposes. For instance, thanks in large part to the Akayesu judgment’s paying wishy-washy obeisance to both French- and English-language sources, treatment of the “direct” element was schizophrenically situated somewhere between Common Law and Civil Law conceptions. Unfortunately, the French word for “incitement” – inciter – was also the French word for “instigation” – one of whose elements is resultant violence. So that seemed to engender confusion with respect to causation. Incitement, as an inchoate crime, should not require causation. But Akayesu and its progeny were examining causation in the factual portions all the same and the Akayesu judges even went so far as to assert the need to prove “a possible causal link” between the relevant speech and subsequent violence in that case.

As for the “public” element, its inadequacies were exposed in the so-called “roadblock cases” at the ICTR. Even though inflammatory speech uttered at roadblocks was in a “public” place — because on public roads accessible to all citizens — the speech was held not to be “incitement” because “members of the public” were not present. But if enough persons were present at the roadblock, then “members of the public” could be considered in attendance and the speech could be considered “incitement.” This was a distinction without principle and did not seem to be justified from a policy perspective. Moreover, an advocate’s voice in closer proximity to a listener is arguably more compelling than one from a distance. In other words, private incitement can be just as lethal, if not more, than public.

There were problems with crimes against humanity(CAH)-persecution too. That crime consists of (1) knowingly uttering speech as part of a widespread or systematic attack against a civilian population; (2) resulting in a severe fundamental group-rights deprivation (motivated by group-status); and (3) considered as being of the same gravity level as the other CAH acts. Unfortunately, the ICTR and ICTY have adopted polar opposite positions regarding the issue of whether hate speech not calling for violence can serve as the actus reus for persecution as a crime against humanity. The ICTR concluded that such rhetoric blatantly deprives the target ethnic group of fundamental rights and thus could be the basis for charging persecution. But the ICTY, in the Kordić judgment, found that hate speech not directly calling for violence did not constitute persecution because it failed to rise to the same level of gravity as the other enumerated crimes against humanity acts (such as imprisonment or deportation, for example). And so doctrinal gridlock ensued.

Instigation, the prompting of another to commit an offense (resulting in commission of the offence) – with a connection between the prompting and the crime (i.e. a “contribution”) has also been plagued with problems. As we have seen, it has been consistently confused with incitement and this has exacerbated the muddled jurisprudence regarding causation in both bodies of law. Moreover, there is no consistent approach to the crime’s “contribution” requirement, leading to a series of disjointed pronouncements regarding the degree of contribution and, reading last year’s horrid Šešelj judgment, arguably importing a “but for” causation requirement into the jurisprudence. Ordering, essentially instigation in the context of a superior-subordinate relationship, has been deficient as it permits the superior to escape liability if the command is not carried out (clearly problematic when juxtaposed with incitement to genocide, where there is no superior-subordinate relationship between speaker and listener but the speech utterance itself – regardless of resultant violence — carries liability).

In addition to such individual offense problems, I was also beginning to realize these modalities did not function well together as an ensemble, thus creating significant liability loopholes. For example, in the law’s current state, liability for “incitement” — an inchoate crime — is limited to genocide. Crimes against humanity and war crimes are also horrific atrocity offenses. Why was there no incitement liability connected to those crimes? Similarly, speech uttered in support of contemporaneous mass violence — and with knowledge that the violence is occurring — is limited to the offense of persecution as a crime against humanity. Why was there no speech-specific liability for rhetoric uttered knowingly in support of ongoing acts of genocide or war crimes? The answer could not lie in generic accomplice liability, as it does not recognize the unique power of speech to provoke mass atrocity in the first place.

Upon deeper reflection, it occurred to me that this problem owed to the piecemeal development of the entire body of the law from its inception. On an ad hoc basis, according to individual exigencies at different times, this doctrinal assemblage had been cobbled together by taking a hodgepodge of legal concepts, such as inchoate or accomplice liability, and willy-nilly fastening them to different speech activities. Thus, it is only by historical chance that incitement, a form of inchoate liability, only applies to genocide and not to crimes against humanity or war crimes. The resulting gaps frustrate prevention efforts and help encourage repressive regimes to take advantage of the ambiguity and suppress legitimate speech.

So, in the full measure of time, the growing body of jurisprudence was clearly not allaying my initial sense of frustration. Perhaps, I began thinking, fellow academics and other experts were also noticing these problems and offering solutions. But a review of the literature also left me disappointed – it was as fragmented as the doctrine. Despite excellent individual pieces by talented scholars such as Susan Benesch, Carol Pauli, Wibke Timmermann, Diane Orentlicher and Richard Wilson, among others (myself included – guilty as charged!), there had been no comprehensive study of this body of law. Some articles and books had dealt with parts of it but no single volume had furnished a comprehensive analysis of the entire jurisprudential output and the relation of each of its parts to one another and to the whole (although Wibke’s monograph Incitement in International Law, published after I started writing my book, came closest). No one had yet bothered to step back, systematically consider what has been produced, and provide holistic, constructive analysis and suggestions for change.

And thus was the Atrocity Speech Law project born. After completing my research, I found the book logically divided into the three components of its subtitle. Part 1, “Foundation,” begins with a brief history of atrocity speech, focusing on the Armenian genocide, the Holocaust, and mass killing in the former Yugoslavia and Rwanda in the 1990s. It then looks at the modern treatment of hate speech in international human rights treaties (such as the International Covenant on Civil and Political Rights) and in domestic jurisdictions. This serves as a bridge to a history of atrocity speech law focusing on its origins at the Nuremberg trials. Flowing from this, the book examines the development of speech crimes as formulated in the Genocide Convention and the statutes of the ICTR, ICTY and ICC. It then analyzes the relevant decisions issued by these courts, including the seminal ICTR Akayesu, Ruggiu, and Media Case judgments as well as the ICTY’s Kordić decision. It concludes by considering the general framework and the elements of the crimes established by these decisions.

Part 2, “Fragmentation,” goes on to identify the discrepancies within that framework, its inconsistent applications and other problems the framework engenders, as discussed above. Finally, Part 3, “Fruition,” recommends how the law should be developed going forward to deal with these issues. It begins by proposing how to fix the various problems within each individual speech offense. Then it suggests a more comprehensive and elegant solution: a “Unified Liability Theory” that would replace the current patchwork of speech offenses surrounding atrocity — e.g., incitement only applying to genocide, speech-specific inchoate liability not applying to crimes against humanity or war crimes, and speech offenses related to war crimes being limited to instigation/ordering — and create four general categories of speech offenses: (1) “incitement” (an inchoate mode of liability applying to all three core crimes — genocide, crimes against humanity and war crimes — but eliminating the “public” element from the liability portion of the crime and attaching it to sentencing considerations — while removing “direct” from the title only, not the prima facie elements to help protect free speech); (2) “speech-abetting” (a type of accomplice liability for speech knowingly delivered simultaneously with commission of atrocities, and also applying to all three core crimes); (3) “instigation” (a form of commission liability applying to all speech causally related to subsequent atrocity and thus also linked to the three core crimes); and (4) ordering (criminalizing commands to commit atrocity within a superior-subordinate relationship and incorporating inchoate liability).

And all of these reforms can be operationalized through promulgation of a new treaty, “The Convention on the Classification and Criminalization of Atrocity Speech Offenses,” and/or through amendment of the Rome Statute to include Article 25bis — “Liability Related to Speech.” That new provision, whose equivalent could also be placed in domestic statutes as well as the constituent instruments of existing and/or new ad hoc international tribunals, would contain all four types of speech liability — incitement, speech abetting, instigation and ordering — connected to all three core international offenses — genocide, crimes against humanity and war crimes. The point is that speech’s unique and potent contribution to atrocity should be recognized and criminalized in its own right. It should not become lost in a set of scattered provisions, relegated as a functionally invisible adjunct to other criminal law concepts in the general “modes of responsibility” sections of statutes, charters and codes. And the set of principles it gives rise to should have a name commensurate with its elevated status. That name should capture the entire range of the doctrine and its intimate relationship with mass violence. And this book coins that name: “atrocity speech law.”

Symposium: Gregory Gordon’s “Atrocity Speech Law”

by Chris Borgen

Over the next three days we will have an online discussion concerning Gregory Gordon’s new book Atrocity Speech Law: Foundation, Fragmentation, Fruition (Oxford 2017).

We welcome Professor Gordon (The Chinese University of Hong Kong Faculty of Law), as well as Roger Clark (Rutgers Law), Mark Drumbl (Washington and Lee School of Law), and David Simon (Yale Dept. of Political Science), who will comment on themes from the book.

We look forward to the conversation!

The Conundrum of International Organisations Immunities: Jam et al v International Finance Corporation  (Part 2 of 2)

by Rishi Gulati

[Rishi Gulati is a Barrister at the Victorian Bar, Australia; Dickson Poon Scholar of Law at King’s College London; and Academic Expert, Bretton Woods Law, London. This is the second of a two part post concerning recent litigation against the International Finance Corporation (‘IFC’) in US courts. Part I is available here.]

The recent case of Jam et al v International Finance Corporation (.pdf) is significant jurisprudence testing the boundaries of the express waiver of immunities granted to multilateral financial institutions. The 24 March 2016 decision of the US District Court for the District of Columbia can be found here (.pdf) (‘First Instance decision’); and the decision of the US Court of Appeals for the District of Columbia Circuit delivered recently on 23 June 2017 is here. Both those decisions are discussed below.

The First Instance decision– propagating the ‘1945’ approach to IO immunities

As discussed in my previous post, after being denied justice within the IFC’s institutional structures, the plaintiffs approached the national courts of the US to seek a remedy against the IFC for the injury caused due to the development and construction of the Tata Mundra Plant (the ‘Plant’).

Unsurprisingly, the IFC asserted its immunities under the US International Organisations Immunities Act of 1945 (‘IOIA’). The District Court upheld its immunity. Two matters are crucial for understanding the decision.

The first issue concerned the interpretation of the IOIA in terms of the standard of immunities that applies to international organisations such as the IFC. Specifically, does the IFC enjoy ‘absolute’ or ‘restricted’ immunity? Notably, the IOIA grants IOs immunities similar to those enjoyed by states. In 1945, states enjoyed virtually absolute immunity, and thus IOs enjoyed similar immunities. However, the evolution of the restrictive doctrine of State immunity culminating in the introduction of the Foreign Sovereign Immunities Act in 1976 (‘FSIA’) provided that states were only entitled to immunities in respect of their sovereign or governmental functions, not their commercial acts. The question then became whether this restricted view of state immunity was transposable to the immunities of IOs subject to the IOIA regime? Relying on precedent (Atkinson v Inter-American Development Bank, 156 F.3d 1335 (DC Cir 1998), the decision at First Instance (.pdf) concluded that under the IOIA, IOs continued to enjoy immunities  as envisaged in 1945. Thus, the restrictive doctrine did not apply  to IOs such as the IFC.

Second, there was the question of how the IFC’s broadly phrased express immunity waiver was to be interpreted. The court used the language of a ‘corresponding benefit’ to read the IFC’s express waiver provision narrowly, ‘with careful attention to “the interrelationship between the functions of the [IFC] set forth in the Articles of Agreement and the underlying purposes of international immunities.”’ (First Instance decision, p. 8). The language of a ‘corresponding benefit’ has been presumably developed by the courts to address the problematic drafting of the express immunity waivers included in the constituent instruments of several international financial institutions. In Mendaro, it was said that ‘most organizations would be unwilling to relinquish their immunity without receiving a corresponding benefit which would further the organization’s goals’. Immunity in that case was only restricted for ‘actions arising out of [an organisation’s] external commercial contracts and activities’. The rationale is that if external parties do not have an option to seek legal redress against an organisation concerning such actions, they might not be minded to do business with it. Hence, the corresponding benefit to the IO would demand a waiver in such circumstances.

In Jam v IFC, the plaintiffs argued that as the claims arose out of the IFC’s external activity, the express waiver of immunities was triggered. The Court rejected this argument, distinguishing the current case from other examples, and read the express waiver very narrowly as applying only when the claimant is an external party in a direct contractual or business-like relationship with the organisation (First Instance decision, p. 9). The Court went on to weigh the costs and benefits of any waiver. It is apparent that the more the Court is required to scrutinise the internal functioning of an organisation, the less likely a waiver would apply, with the court concluding  that ‘suits like the plaintiffs’ are likely to impose considerable costs upon IFC without providing commensurate benefits. Hence, IFC has not waived its immunity to this suit’ (First Instance decision, pp 11-12).

The Appeal decision: The disjunction of State and IO immunities

On 23 June 2017, in Jam et al v International Finance Corporation, the US Court of Appeals for the District of Columbia Circuit dismissed the plaintiffs’ appeal (‘Appeal Decision’). Despite noting that the IFC did not deny the harm caused to the plaintiffs, two out of the three judges endorsed the reasoning of the District Court (Appeal decision, p.1). Although concurring with the result, Judge Pillard’s reasons deserve a special focus for they demonstrate the need for a fundamental shift in approach. Judge Pillard observed: ‘I agree that Atkinson and Mendaro, which remain binding law in this circuit, control this case. I write separately to note that those decisions have left the law of international organizations’ immunity in a perplexing state. I believe both cases were wrongly decided, and our circuit may wish to revisit them.’ (Appeal decision, p. 11)

First, on the question whether the FSIA’s restrictive doctrine of State immunity should also apply to IOs, preferring the approach taken by the Third Circuit, in the Appeal Decision, Judge Pillard said:

We took a wrong turn in Atkinson when we read the IOIA to grant international organizations a static, absolute immunity that is, by now, not at all the same “as is enjoyed by foreign governments,” but substantially broader. Reading the IOIA to dynamically link organizations’ immunity to that of their member states makes sense. The contrary view we adopted in Atkinson appears to allow states, subject to suit under the commercial activity exception of the FSIA, to carry on commercial activities with immunity through international organizations…Were I not bound by Atkinson, I would hold that international organizations’ immunity under the IOIA is the same as the immunity enjoyed by foreign states. Accord OSS Nokalva, Inc. v. European Space Agency, 617 F.3d 756, 762¬64 (3d Cir. 2010) (declining to follow Atkinson and holding that restricted immunity as codified in the FSIA, including its commercial activity exception, applies to international organizations under the IOIA).

Judge Pillard’s preference for restricting IO immunity may yield some benefits for plaintiffs seeking justice against international organisations in the US. However, if eventually adopted, it should be limited to the specific context of the IOIA. Brief remarks on the issue are warranted here.

It is unfortunate that the IOIA links the immunities of IOs to that of states. The basis of state and IO immunity is different. It is well known that state immunity is a basic tenet of international law justified by sovereign equality, whereas IO immunities are treaty-based and functional. Equating state immunity with IO immunity confuses the regime. The immunity of an IO is to be determined with reference to its functions, which may be commercial in nature, as is the case with the multilateral development banks. That is perhaps the reason why the express waiver is written into the IFC’s Articles of Agreement. Thus, the scope of IO immunities ought to be determined by reference to their underlying rationale – functional necessity. Indeed, the problematic nature of using the commercial v non-commercial exception to assess the IFC’s immunity was pointed out by Judge Silberman (with Judge Edwards agreeing):

Ironically, the line of cases applying Mendaro ended up tying waiver to commercial transactions, so there is a superficial similarity to the commercial activities test that appellants would urge us to accept. But whatever the scope of the commercial activities exception to sovereign immunity, that standard is necessarily broader than the Mendaro test; if that exception applied to the IFC, the organization would never retain immunity since its operations are solely “commercial,” i.e., the IFC does not undertake any “sovereign” activities (Appeal Decision, p. 7).

Clearly, the linking of state immunity with IO immunity in the IOIA is a structural problem that remains. Be that as it may, the judiciary must work within the statutory framework. Judge Pillard’s views highlight the bizarre state of affairs where states, the creators of IOs, possess less immunities than IOs. When seen in that light, and taking into account the unsatisfactory structural framework of the IOIA, one can have much sympathy for Judge Pillard’s call for a new approach.

Importantly though, in the case at hand, it is the operation of the IFC’s express waiver provision that ought to be closely scrutinised. According to the criterion set out by the corresponding benefit test, the fundamental question is whether the IFC would receive a sufficient enough benefit should its immunity be restricted, and the plaintiffs’ claims be allowed to proceed to a hearing of the merits? Interestingly, while Judge Silberman (with Judge Edwards agreeing) acknowledged that ‘the term “benefit” is something of a misnomer’, it was concluded that the plaintiffs could not satisfy the substance of the corresponding benefit test set out in Mendaro (Appeal Decision, p. 9). However, Judge Pillard sought to demonstrate the arbitrariness of the corresponding benefit test, stating: ‘It is not entirely clear why we have drawn the particular line we have pursuant to Mendaro. Why are suits by a consultant, a potential investor, and a corporate borrower in an international organization’s interest, but suits by employees and their dependents not?’ (Decision of Judge Pillard in Appeal decision, p. 7)

Some brief conclusions

Ultimately, the concept of a ‘corresponding benefit’ is an attempt by a national judiciary to undo the consequences of problematic treaty language. The Court speculates whether or not a particular waiver will promote or restrict the goals or functions of an IO. It weighs the costs and benefits of any waiver of immunity to the IO. Overall, the more the courts are required to pass judgment on the internal operations and policies of an IO, the less likely it is that a waiver would apply. Critically though, the key problem with the corresponding benefit test is that costs and benefits can be perceived in different ways depending on the preferences of individual judges. Further, any suit against an IO will impact on the internal decision making of an IO in some way. The question will always be of degrees. So far, the courts seem to have addressed the risk of arbitrariness by reading the exception as narrowly as possible, with claims raising issues that would cause any intrusion into an IO’s policy sphere jurisdictionally barred. This narrow approach results in a denial of justice to already vulnerable plaintiffs.

As is demonstrated   by the case at hand, the IFC does not deny the harm caused to the plaintiffs by breach of the loan agreement. Further, it is apparent that the IFC disregarded the recommendations of the CAO, its very own accountability mechanism. In such circumstances, the effect of the decision of the national courts is that the plaintiffs, despite bringing a claim in the home forum of the IFC, have been denied justice and a fair hearing of their claims, which on all accounts appear to have significant merit. The plaintiffs have suffered grave injury, and their injury has now been compounded by denial of access to a remedy. The present case is another example of IO immunities prevailing over access to justice. Significantly, access to justice concerns have clearly seemed too impact Judge Pillard’s views:

Our cases seem to construe charter-document immunity waivers to allow suits only by commercial parties likely to be repeat players, or by parties with substantial bargaining power. But the opposite would make more sense: Entities doing regular business with international organizations can write waivers of immunity into their contracts with the organizations…Sophisticated commercial actors that fail to bargain for such terms are surely less entitled to benefit from broad immunity waivers than victims of torts or takings who lacked any bargaining opportunity, or unsophisticated parties unlikely to anticipate and bargain around an immunity bar (Decision of Judge Pillard in Appeal decision, p. 7).

Jam et al v International Finance Corporation joins a long line of cases where individuals suffering grave harm have been denied justice both at the institutional and the national level. Had the IFC positively responded to the CAO’s recommendations, national proceedings would not have been needed. But where justice is denied within the institutional legal order, considerations around the perceived independence of an organisation continue to trump the individual right to access justice generally, and a fair trial specifically. It is most unfortunate that international organisations such as the IFC who purport to deliver ‘lasting solutions for development’ choose to engage in conduct that leads to grave denials of justice to already vulnerable people who ought to be the very beneficiaries of their development activity.

The Conundrum of International Organisations Immunities: Jam et al v International Finance Corporation  (Part 1 of 2)

by Rishi Gulati

[Rishi Gulati is a Barrister at the Victorian Bar, Australia; Dickson Poon Scholar of Law at King’s College London; and Academic Expert, Bretton Woods Law, London]

Following the conclusion of the much discussed Haiti Cholera Class Action in US courts, the immunities of international organisations (IOs) have again been tested in the courts of that country in claims filed against the International Finance Corporation (‘IFC’), a financial institution within the World Bank Group. This is the first of a two part post. In Part I, I canvass some general matters around the IFC’s immunities, and provide the context to the litigation. In Part II of this post, I will discuss the jurisprudence arising out of this litigation so far.

The IFC’s immunities under the IOIA

The provisions of the US International Organisations Immunities Act 1945 (‘IOIA’) provide the applicable immunities regime for the IFC. Pursuant to 22 USC § 288a(b) of the IOIA, ‘[i]nternational organizations, their property, and their assets, wherever located and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process as enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceeding or by the terms of any contract’.

With international financial institutions such as the IFC essentially operating in the commercial marketplace, their founding instruments expressly allow for waivers for immunities from suits brought by private litigants in certain types of claims. In the case of the IFC, Article VI, Section 1 of the IFC’s Articles of Agreement grants immunities in classical functional terms. However, Article VI, Section 3 contains an express waiver, stating:

Actions may be brought against the Corporation only in a court of competent jurisdiction in the territories of a member in which the Corporation has an office, has appointed an agent for the purpose of accepting service of process, or has issued or guaranteed securities. No actions shall, however, be brought by members or persons acting for or deriving claims from members…

On its face, the express waiver to the IFC’s immunity is broad. According to the plain meaning of the words, the functional immunities of the IFC or similarly situated organisations will have little work to do. Indeed, courts have referred to such treaty language as ‘somewhat clumsy and inartfully drafted’ (Mendaro v World Bank, 717 F2d 610 (DC Cir 1983) (‘Mendaro’). Such criticism is well justified. This is because the language used in the express waiver contained in Article VI, Section 3 seemingly provides for a blanket waiver of immunity in respect of all suits save for the ones expressly prohibited. Should the words used be given effect to in accordance with their plain meaning, the IFC, and similarly situated organisations, would lose  their immunities even in respect of claims arising out of their functional activity. Thus defeating the very grant of functional immunities in the first place. To deal with this anomaly, courts have employed creative but unsatisfactory ways of addressing the challenge presented. The recent case of Jam et al v International Finance Corporation (.pdf), considered below, is just one example where the limits of the express waiver of immunities has been tested. The 24 March 2016 decision of the US District Court for the District of Columbia is here (.pdf) (‘First Instance decision’); and the decision of the US Court of Appeals for the District of Columbia Circuit delivered recently on 23 June 2017 is here. Note again, I discuss both these decisions in Part II of this post.

Jam et al v International Finance Corporation – a background

The IFC loaned USD 450 million to Coastal Gujarat Power Limited (‘CGPL’), a subsidiary of Tata Power. The loan was towards the construction of the coal-fired Tata Mundra Power Plant in India (the ‘Plant’). Critically, though, the IFC remains responsible for the monitoring and supervision of CGPL. This is to ensure CGPL’s compliance with internal IFC policies, including those set out in its ‘Performance Standards on Environmental and Social Sustainability’ (‘IFC Standards’). Those Standards established a mechanism for ‘the assessment, avoidance, minimization, and mitigation of environmental and social risks’ (First Instance decision, p. 3). The detailed facts are set out in the First Instance decision here (.pdf).

In summary, the complainants, a group of Indian nationals, who live, fish and farm within proximity of the Plant allege that the main legacy of the Plant has been ’environmental and social harm—to the marine ecosystem, to the quality of the air, to plaintiffs’ health, and to their way of life’ (First Instance decision, p. 1). Seeking justice within the IFC’s institutional structures, a group of Indian persons filed a complaint with the IFC’s Compliance Advisor Ombudsman (‘CAO’), the IFC’s ‘independent recourse and accountability mechanism’. Tellingly, with respect to the complaint of the affected individuals in the Plant, as was pointed out at First Instance, the CAO concluded that: ‘IFC had failed adequately to consider the environmental and social risks to which plaintiffs would be exposed as a result of the Plant’s development’; and that in ‘the CAO’s estimation, IFC then compounded that error by failing to perform an environmental and social impact assessment “commensurate with project risk,” and by failing to “address [subsequent] compliance issues during [project] supervision.”’

Ultimately, it is apparent that the CAO was not satisfied with the steps taken by the IFC to address the plaintiffs’ grievances. Nevertheless, as the CAO does not have enforcement powers, its views were not binding on the IFC, and the grievance remained unaddressed (First Instance decision, p. 4).

The plaintiffs finally resorted to the national courts, contending that the IFC was liable for the injuries caused by failing to comply with its own policies and standards, and failing to enforce the terms of its loan agreement with the CGPL. The plaintiffs sought equitable relief or, alternatively, compensatory and punitive damages before the US District Court for the District of Columbia (First Instance decision, p. 1). More specifically, the plaintiffs contended that ‘the irresponsible and negligent conduct of the International Finance Corporation in appraising, financing, advising, supervising and monitoring its significant loan to enable the development of the Tata Mundra Project in Gujarat, India’ caused them injury. The plaintiffs pursued claims in ‘negligence, negligent supervision, public nuisance, private nuisance, trespass, and breach of contract.’ (First Instance decision, p. 5).

More to follow in Part II of this entry.

Amicus Brief in Al Bahlul Military Commission Case

by Jens David Ohlin

I have filed an amicus brief in the Al Bahlul case.  Al Bahlul was charged and convicted before a military commission for multiple offenses including conspiracy. On appeal, several of the charges were thrown out, but the conspiracy conviction remains and is the subject of his cert petition before the U.S. Supreme Court. Although the government once held the position that conspiracy is an offense under the international law of war, the government eventually switched legal theories and argued that conspiracy is a domestic law offense triable before a military commission. As should be clear from the excerpt below, my own view is that the jurisdiction of military commissions is limited to international offenses under the law of war.

Here is a summary of the brief’s argument:

In this case, petitioner Al Bahlul was convicted of multiple offenses before a military commission, including conspiracy, solicitation, and material support for terrorism. See United States v. Al Bahlul, 820 F. Supp. 2d 1141, 1167, 1183 (U.S.C.M.C.R. 2011). On appeal, the U.S. Court of Appeals for the D.C. Circuit vacated the convictions for solicitation and material support. Al Bahlul v. United States, 767 F.3d 1, 5 (D.C. Cir. 2014). The sole remaining charge at issue in this litigation is Bahlul’s conviction for conspiracy.

In Hamdan, Justice Stevens’s four-vote plurality opinion concluded that a stand-alone conspiracy charge was not prosecutable at a military commission because it was not a violation of international law. Hamdan v. Rumsfeld, 548 U.S. 557, 604 (2006). In this case, however, the U.S. government has not relied on the classification of conspiracy as an international law offense. Instead, the government maintains that military commissions have jurisdiction to adjudicate the charge of inchoate conspiracy, despite the incongruity between that criminal offense and international law.

In proceedings below, counsel for the U.S. government has advanced various arguments for why military commissions have jurisdiction to try conspiracy – a domestic offense – even though the Supreme Court has made clear in prior decisions that the jurisdiction of military commissions is limited to the adjudication of violations of the law of war. These arguments all rely on the implausible suggestion that the “law of war” straddles the divide between international and domestic law, and that there exists a little-known domestic body of law called the American common law of war. According to the government, conspiracy is consistent with this newly re-discovered American law of war because the offence is entrenched in the common law, the legal culture of the United States, and Civil War commission practice.

This domestic “law of war” argument is problematic for multiple reasons. Although prior cases in this Court and elsewhere include references to something called the “common law of war,” see, e.g., Quirin, 317 U.S. 1, at 34, it would be legally and historically inaccurate to conclude that this phrase refers to a domestic body of law. Rather, an analysis of every mention of this phrase over the last 200 years demonstrates that the “common law of war” refers to international law – a law “common” to all mankind.

Determining the proper scope of the “law of war” in this context – i.e., whether it is international or domestic – has large implications for establishing the outer contours of the jurisdiction of military commissions. Given that military commissions operate outside of Article III, without the right to a jury trial protected by the Fifth and Sixth Amendments, the resolution of this case is essential for demarcating the proper boundaries between a civilian system of criminal justice and a military system for prosecuting detainees captured pursuant to the laws of war. For these reasons, it is imperative for this Court to grant certiorari to resolve this fundamental federal question pursuant to Rule 10(c).

The full amicus brief can be found here.

UN faces a second Cholera Challenge in New York Courts

by Kristen Boon

Waiver of immunity is at the center of another cholera case against the UN, this time in the Eastern District of New York.  In LaVenture et al v. United Nations, the plaintiffs argue that they have two distinct questions on waiver that distinguish this litigation from the recent decision upholding the UN’s absolute immunity in Georges et al.  The questions for the court in this new case revolve around waiver, and specifically:

whether the fact that the UN has stated, repeatedly and unambiguously, that they would accept liability for damages caused by UN peacekeeping forces not in the service of operational necessity is an express waiver of immunity from legal process as required by Article II, Section 2 (“Section 2”) of the U.N. Convention on the Privileges and Immunities of the United Nations (“CPIUN”). Flowing from this is a second, related question: whether, under Section 2 of the CPIUN, an express waiver of immunity is only effective if given in each single, individual claim, at the time such claim is presented before a court.

 

The Plaintiff’s most recent filing is available here LaVenture et al v United Nation[recent].

The facts of the Haiti cholera litigation are well known:  Multinational peacekeepers, members of the United Nations Stabilization Mission in Haiti (“MINUSTAH”), have been stationed in Haiti since 2004.  Their ranks swelled significantly in the aftermath of the deadly earthquake of 2010.  Some of these peacekeepers were from Nepal, a country which has endured an outbreak of Cholera.  While stationed in their barracks, human waste from the latrines from the MINUSTAH peacekeepers seeped directly into the groundwater and the Artibonite River — a lifeline for tens of thousands of local residents, many of whom are reliant on the river for drinking water. Shortly thereafter, a significant cholera epidemic emerged among the Haitian population.

Several suits stemming from the Cholera epidemic were filed in United States Federal Courts — originating from affected parties who reside in both Haiti and the United States.  Some blogs and reporting on the Georges et al case are here, here and here.  A complete set of legal documents regarding Georges et al is available on the website of the IIDH.

Currently, the Eastern District of New York is considering an almost-identical case in LaVenture v. United Nations. In light of the ruling in Georges, the Court asked the Plaintiffs to provide a reason why the case should go on, in spite of the Second Circuit precedent. They did so on March 30, 2017, asserting that the case is not moot and can be distinguished from Georges because the United Nations allegedly waived its immunity when the General Assembly passed a resolution promising payment for injuries and deaths caused by peacekeepers in 1998.   That resolution, A/RES/52/247, established that the United Nations will pay no more than $50,000 per person in damages for personal injuries or deaths, provided the complaint is filed within six months of the occurrence or its discovery. The standard for waiver as defined in the CPIUN requires “express” action by the Secretary-General in most circumstances. According to August Reinisch in The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies: A Commentary, the wording “in any particular case” implies that advance waiver is generally impossible, and waiver by the executive must be in response to a case at hand.  If the court adopts this interpretation, the Plaintiffs’ argument  that a resolution passed more than a decade before the epidemic began can affirmatively waive immunity  is unlikely to succeed.

The United States submitted a statement of interest before the Court on May 24, 2017, arguing  the case should be dismissed. Although the Plaintiffs proposed an extensive scheduling order, the response of the Court, dated June 12, 2017, questioned the Plaintiffs’ legal reasoning and significantly limited the scope and time granted to the Plaintiffs to reply to the United States’ statement.  The documents filed are available here: LaVenture et al v United Nation~LaVenture_et_al_v._United_Nati_25LaVenture_et_al_v._United_Nati_24.

Thanks to my RA Chris Mrakovcic for his assistance with this blog post.

That Syria War Power Debate, Continued

by Deborah Pearlstein

Cross-posted at Balkinization

If, as I argued earlier this week, the 2001 AUMF passed by Congress cannot be read to authorize the growing set of U.S. military actions against Syrian and Iranian forces in Syria, does the President’s Article II power standing alone support these strikes? The best articulated argument I’ve seen that the President has the Article II power to attack Syrian aircraft (or Iranian drones or any non-ISIS force in Syria) in the interest of defending U.S.-allied Syrian government rebels goes something like this. The President surely has Article II authority to act in defense of U.S. facilities and troops overseas without first waiting for congressional authorization, a necessary extension of the President’s power (on which there is near uniform agreement) to “repel sudden attacks.” As relevant here, this authority should be understood to extend to the defense of certain organized third parties (whether a state like Britain or our allied non-state Syrian Democratic Forces) operating (as Bobby Chesney puts it) “in close coordination with the U.S. military in a combat setting.” In such a situation, I take the idea to be, our interests are closely enough aligned and our military forces closely enough entangled, that an attack (or threatened attack) on a third party ally is effectively the same as an attack on us.

This ‘third party self-defense’ theory of the scope of Article II power is in one sense quite a bit narrower the currently prevailing position of the Justice Department Office of Legal Counsel – which, under President Obama, took the view that the President has constitutional authority to use military force on his own so long as an important U.S. interest was at stake, and so long as the quantum or nature of contemplated force didn’t actually amount to “war” within the meaning of the Constitution’s “declare war” clause. Under this OLC view – based in part on OLC’s assessment of post-World War II presidential practice – one need not develop any specialized theory of third party self-defense to justify the use of executive power here; the current President could surely assert one of several U.S. concerns in Syria as the important interest at stake (say, protecting the interest of regional stability), and so long as the strikes were limited in scope and duration (i.e. less than “war”), all of these actions could be said to fall within the scope of Article II, whether defense of battlefield allies was among the expressly named interests or not.

Yet there are at least three ways in which this ‘third party defense’ notion may be said to go beyond even the broad 2011 OLC conception of presidential power: (1) I am not aware of any previous practice in which the President has asserted the particular national interest of defending battlefield allies as such as a justification for authorizing the use of force abroad. Now it is surely one of the difficulties with the 2011 OLC opinion that it leaves so open-ended the question of what counts as an national interest sufficiently important for the President to use force, but if we are to take seriously the notion that past practice matters here, it would seem important to identify some at least analogous illustration on which to rely. (2) To the extent past examples of “important” national interests matter, the case for using force to protect a zone in a foreign country within which our own military might train opposition forces strikes me as vastly less impressive than the interest in, say, ridding the world of the scourge of chemical weapons. Indeed, the “de-confliction” zone we are now using force to protect is geographically just over the border from a country (Iraq) in which we have every right (thanks to that nation’s consent) to be operating militarily and, presumably, training anti-ISIL forces all we like. Above all, (3) in the 2011 Libya strike (and almost all previous post-World War II operations), unilateral executive uses of force abroad were taken in concert with UN authorities. For reasons I alluded to briefly in my previous post, both our downing of the Syrian jet and the recent U.S. strikes to preserve its non-state allies’ right to operate in the “de-confliction” zone appear to be in violation of the UN Charter (a treaty we are obligated to observe as supreme law of the land under our own Constitution’s Article VI). Whether one considers that an Article II problem, an Article VI problem, or simply a violation of international law – the United States’ legal position here is as precarious as it gets.

OJ Bloggers in Salim v Mitchell

by Kevin Jon Heller

As many readers are probably aware, the ACLU is currently bringing an ATS action against the two psychologists, James Mitchell and John Jessen, who allegedly designed and administered the CIA’s torture program. Here is the ACLU’s summary of the case, Salim v. Mitchell:

The CIA paid the two men and the company they later formed tens of millions of dollars over the next eight years [since 2002] to implement and refine the resulting program. Mitchell and Jessen designed the abusive procedures, conditions, and cruel treatment imposed on captives during their rendition and subsequent detention, devised the torture instruments and protocols, personally tortured detainees, and trained CIA personnel in administering torture techniques. In a clear conflict of interest later acknowledged by the CIA, the two men were also tasked with evaluating the “effectiveness” of the program from which they reaped enormous profits.

The plaintiffs in the case are Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and the estate of the late Gul Rahman, who died as a result of his torture. They are three of 119 victims and survivors of the CIA program named in the Senate torture report. All three were experimented on and tortured in accordance with Mitchell and Jessen’s specifications. All were subjected to severe physical and psychological abuse including prolonged sleep deprivation and nudity, starvation, beating, water dousing, and extreme forms of sensory deprivation – methodically administered with the aim of psychologically breaking their will.

The plaintiffs are suing Mitchell and Jessen under the Alien Tort Statute for their commission of torture; cruel, inhuman, and degrading treatment; non-consensual human experimentation; and war crimes.

I am not going to comment on the merits of the case. Instead, I want to let readers know that Opinio Juris bloggers are involved on both sides of it. I am the expert witness for the plaintiffs concerning the human-experimentation claim; Julian is the expert witness for the defendants on both the human-experimentation claim and the torture claim. You can find my declaration here, and Julian’s response here. We have also each submitted rebuttal declarations. Mine is here (scroll down to p. 48); Julian’s is here.

The New York Times published a long article about the case last weekend. It’s well worth a read.

The ICC Appeals Chamber Was Not Wrong (But Could Have Been More Right) in Ntaganda

by Luigi Prosperi

[Luigi Prosperi received his PhD in “International legal order and human rights” from Sapienza University of Rome, honorary fellow in International Law at Sapienza University, formerly Associate Legal Officer at ICTY.]

Last week, the Appeals Chamber (AC) of the ICC unanimously rejected Bosco Ntaganda’s Defence appeal against the 4 January decision of the Trial Chamber VI (TC), which had found that the Court has jurisdiction over the war crimes of rape and sexual slavery (provided for in Article 8(2)(b)(xxii) and 8(2)(e)(vi) of the Statute) when the perpetrators and the victims are members of the same armed force or group.

The decision caused a stir among several prominent ICL experts, and was harshly criticized in this post by Professor Heller. The aim of this post is not so much to respond to their criticisms, but to shed some light on a fundamental step in the AC’s reasoning, which I will refer to as the “systematic argument”. Since the AC’s systematic approach reverberates throughout the decision, in this blog post I will present the arguments in the same order as the judges.

First of all, the AC identifies the scope of the appeal:

  1. The principal issue arising in this appeal is whether the Trial Chamber erred in law when it held that victims of the war crimes of rape and sexual slavery listed in article 8(2)(b) and (e) do not have to be “protected persons” in the sense of the Geneva Conventions of 1949 (“Geneva Conventions”) or “[p]ersons taking no active part in the hostilities” in the sense of Common Article 3 to the 1949 Geneva Conventions (“Common Article 3”) (…).

Interestingly, the first argument wielded by the TC against this conclusion had been a systematic one. According to the judges, provided that “the Statute is first and foremost a multilateral treaty which acts as an international criminal code for the parties to it”, in order to determine if the crimes of rape and sexual slavery provided for in Article 8(2)(b)(xxii) and 8(2)(e)(vi) are limited to acts constituting grave breaches of the Geneva Conventions or serious violations of Common Article 3, they have first to consider the “statutory framework”, and then eventually turn to the laws and customs of international and non-international armed conflicts (TC decision, paras. 35-39).

Even though it upholds this systematic argument, the AC does not refer to the TC’s interpretation of the law in this regard, but proposes a different reading. On the one hand, the AC subscribes to the TC’s findings that neither the chapeaux of Article 8(2)(b) or (e), nor the two provisions criminalizing rape and sexual slavery expressly circumscribe the group of potential victims (para. 46), and that only in relation to “other form[s] of sexual violence” the Statute makes an express reference to grave breaches of Geneva Conventions or serious violations of Common Article 3, with the aim of requiring that the unenumerated conducts meet a “gravity threshold” (para. 49). On the other hand, the AC rejects the theory that including the “Status Requirements” would run contrary to the structure of Article 8, and render the world “other” in the chapeaux of Article 8(2)(b) and (e) meaningless (para. 47). It also finds no indications that the drafters intended to avoid any potential overlaps between the different categories of war crimes listed in the sub-paragraphs of Article 8(2) (para. 48).

However, at para. 48 the AC supports one of the TC’s main findings in relation to the structure of Article 8, and holds that:

while the drafting history is silent as to whether the drafters intended the war crimes of rape and sexual slavery under article 8(2)(b)(xxii) and (e)(vi) to be subject to the Status Requirements, it is clear that the drafters intended these crimes to be “distinct war crimes”, as opposed to merely illustrations of grave breaches of the Geneva Conventions or violations of Common Article 3.

Accordingly, the AC concludes that it is not possible to infer that the drafters intended to circumscribe the protection afforded under Article 8(2)(b)(xxii) and (e)(vi) to a particular group of potential victims. Therefore, the TC did not err in law in finding that, based the ordinary meaning, context and drafting history of the above-mentioned provisions, the statutory framework does not require the victims of the crimes of rape and sexual slavery to be “protected persons” in terms of the Geneva Conventions or “persons taking no active part in the hostilities” in terms of Common Article 3 (paras. 50-51).

In other words: given that the Statute is a multilateral treaty which acts as an international criminal code for its parties, the judges are bound to apply its provisions in light of Article 21 and of the rules of treaty interpretation before turning to secondary sources. It is in fact the ordinary meaning to be given to the terms of Article 8(2)(b) and (e) in their context, together with the drafting history of these provisions, that militate in favour of the view that under the Rome Statute, rape and sexual slavery may amount to war crimes when committed against members of the same armed group as their perpetrator.

According to this very principle, the AC has to consider whether any limitations in relation to the Status Requirements may arise from the broader international legal framework.

Pursuant to Article 21 of the Statute, in the absence of any indication to the contrary, the AC considers that the reference to “the established framework of international law” permits recourse to customary and conventional international law “regardless of whether any lacuna exists” in that provisions (para. 53). It is because of this reference (and not in light of a duty to apply Article 8 consistently with pre-existing norms of customary or conventional international humanitarian law) that the Court may introduce additional elements in respect of a given war crime listed in its sub-paragraphs, if required under customary or conventional international law (para. 54).

In relation to the Status Requirements, it should therefore be demonstrated that as a general rule, international humanitarian law circumscribes the group of potential victims of war crimes to persons protected under the Geneva Conventions or persons not taking active part in hostilities under Common Article 3, or that a specific exclusionary rule exists in relation to the war crimes of rape and sexual slavery. In other words, the AC finds that in order to determine that the Court has no jurisdiction over such crimes, it has to be demonstrated that Geneva Conventions and Common Article 3 categorically exclude the members of the same armed group from protection, either in general or in relation to the crimes of rape and sexual slavery.

In this regard, the AC argues that on the one hand, Geneva Conventions I and II respectively afford protection to the wounded and sick on land, and the wounded, sick and shipwrecked at sea, irrespective of their belonging to enemy armed forces or to a party’s own armed forces (para. 59); and on the other, Common Article 3 “provides for unqualified protection against inhumane treatment irrespective of a person’s affiliation” – unless (s)he is taking active part in the hostilities (para. 60).

Moreover, the AC relies upon the updated commentary of the ICRC, which observes that Common Article 3 “protects members of armed forces against violations committed by the armed force to which they belong”, referring as supporting practice to paras. 78-80 of the PTC II decision on the confirmation of charges issued in this very case (para. 61).

Accordingly, the AC finds that “international humanitarian law does not contain a general rule that categorically excludes members of an armed group from protection against crimes committed by members of the same armed group” (para. 63).

As to the argument that an exclusionary rule would be specifically applicable to the war crimes of rape and sexual slavery, the AC upholds the TC’s finding that despite most of the express prohibitions appear in contexts protecting civilians and hors de combat in the power of a party to the conflict, the prohibitions of rape and sexual slavery in armed conflict are well established under conventional (see Article 75 of AP I and Article 4(2)(f) of AP II) and customary international humanitarian law (see Rules 93 and 94 of the ICRC Study on Customary IHL). The AC also agrees that “there is never a justification to engage in sexual violence against any person” in the context of armed conflicts (para. 65). Therefore, the AC concludes that there is “no reason to introduce Status Requirements” to Article 8(2)(b)(xxii) and 8(2)(e)(vi) of the Statute “on the basis of the ‘established framework of international law’ ” (para. 66).

This is indeed the only part of the decision which I find slightly disappointing, since it could have been based on a more solid reasoning.

In particular, having taken a strong stance on the Rome Statute’s nature, I would expect the AC to thoroughly apply the rules on interpretation, as provided for in Article 21. Pursuant to Article 21(3) of the Rome Statute and Article 31(1) of the Vienna Convention on the Law of Treaties, Article 8 shall in fact be interpreted also in light of “internationally recognized human rights” and of the object and purpose of the Rome Statute – or, as the Prosecution had put it before the PTC, pursuant to “a purposive or teleological interpretation of article 8(2)(e)(vi), consistent with the protective rules applicable to children during warfare” (Prosecution submissions, para. 183).

Indeed, I find it somehow disappointing that the AC did not refer to the Statute’s object and scope (to fight impunity “for the sake of present and future generations”), nor to the “internationally recognized human rights” – including everybody’s right not to be victim of rape and sexual slavery. In this spirit, it is of the utmost relevance the fact that under international human rights law, there is never a justification to engage in sexual violence against any person, irrespective of this person’s status.

Moreover, the AC may have held that the Court should especially exercise its jurisdiction over rape and sexual slavery committed against members of the same armed group, when such status had been determined by the perpetrator’s unlawful conduct. In this regard, the AC could have enhanced the TC’s references to the duty not to recognise situations created by certain serious breaches of international law, and to the principle that one cannot benefit from one own’s unlawful conduct (TC decision, para. 53). These considerations may in fact contribute to defining, in the specific circumstances of the case, the “purpose” of fighting against impunity (of individuals that had enlisted the same underage kids they would abuse of).

In other words: provided that international humanitarian law does not generally and categorically prohibit the prosecution of those conducts, it is the evolutionary nature of the Rome Statute, which should at any time be interpreted in light of international human rights law, to justify the adoption of the broadest possible interpretation of Article 8(2)(b)(xxii) and 8(2)(e)(vi).

In order to prevent a likely objection in relation to the (unwanted) effects of this decision, in the final paragraphs the AC underlines that it does not blur in any way the distinction between war crimes and ordinary crimes:

  1. The Appeals Chamber emphasises in this context that the Elements of Crime for each war crime contain an express nexus requirement which must be established in each particular instance. Thus, it must be established that the conduct in question “took place in the context of and was associated with an armed conflict” of either international or non-international character. In the view of the Appeals Chamber, it is this nexus requirement, and not the purported Status Requirement, that sufficiently and appropriately delineates war crimes from ordinary crimes. To that end, as rightly observed in the Impugned Decision with reference to the judgment of the ICTY Appeals Chamber in Kunarac, the Trial Chamber may have regard, inter alia, to “the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.” The Appeals Chamber considers that any undue expansion of the reach of the law of war crimes can be effectively prevented by a rigorous application of the nexus requirement.

According to the AC, any undue expansion of the reach of the law of war crimes may in fact be prevented by a rigorous application of the principles concerning the nexus requirement. It is in fact the absence of a link to the armed conflict situation (which according to the same Kuranac AC consists in the fact that the crime “is shaped by or dependent upon” the armed conflict) that would put hundreds of potential war crimes (of rape and sexual slavery) back into Pandora’s box.

Finally, a further consideration has to be made in relation to the impact of this decision.

Considering that it is jurisdictional in nature, and that the ICC judges are not bound by a principle of precedent, it is foreseeable that the saga is far from over. In the meantime, it is noteworthy that Prosecution witnesses have testified about the child soldiers’ status and their participation to the UPC military operations.