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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.

The Re-branding of the International Criminal Court (and Why African States Are Not Falling For It)

by Christine Schwobel

[Christine Schwobel-Patel is Senior Lecturer and co-Director of the Critical Approaches to International Criminal Law research cluster at the University of Liverpool.]

The International Criminal Court in The Hague, has been making the headlines in quick succession. In September it became evident that it is changing course, moving away from (protracted and politically sensitive) trials of heads of state and rebel leaders for physical injury and instead focusing on cultural and environmental crimes. In October, several African states, including South Africa, have dramatically announced that they are withdrawing from the Court. Although the changing of priorities appears to be diversifying the prosecution of grave crimes, the African states withdrawing from the Court are most likely under no illusions of the neo-colonial flavour of the ICC dissipating. In fact, it looks as though the re-brand of the ICC is likely to be a move which further stigmatises the global South while protecting the interests of the military and economic powers of the global North.

The failing of the brand

When the Rome Statute was signed in 1998 after negotiations between state delegates and civil society organisations, there was a sense of euphoria about the establishment of an International Criminal Court. Footage of diplomats with bouncy 90s hairstyles forgetting themselves with rhythmic clapping and the exchanging of teary embraces is a firmly entrenched imagery of international criminal justice. When, in 2002, the new court in The Hague opened its doors, then-United Nations secretary-general Kofi Annan, announced exuberantly that this was ‘a giant step forward in the march towards human rights and the rule of law’. The first Prosecutor of the Court, Luis Moreno-Ocampo, made sure that the ICC was never far from the public eye, even if there were no trials occupying the new courtrooms. He gave press conferences, contributed to institutional videos, gave guest talks, spoke to celebrities, and made appearances in several documentaries. The promise of the Court got loftier and loftier.

In a way, the ICC was always going to be an institution which thrives more on image than on concrete outcomes: Its promises were simply too ambitious. It proclaimed to end impunity for those most responsible for crimes that shock the conscience of mankind. On its website, it declares itself to be concerned with the gravest crimes of concern to the international community. Its President recently proclaimed that it has ‘become an integral part of the international system for promoting the rule of law, human rights, peace and security’.

However, with a meagre four completed trials since its opening 14 years ago, with eye watering budgets and the move into a new, bigger, better, budget-busting building, annual budgets in the hundreds of millions, and the discontent of its greatest ally – the African continent (all current charges are against individuals from the African continent), there was some salesmanship to be done for the ICC.

In light of its focus on Africa, there have been long-standing demands to try former US-President George W. Bush and former British Prime Minister Tony Blair in The Hague for war crimes.

Then there is the fact that observers of the ICC’s practices are becoming tired of the constant reference to the Court’s youth; with well over a decade of activity, the ICC is well and truly growing out of its baby steps.

Things were certainly looking grim for the Court in May 2016 when, at his inauguration ceremony, Ugandan President Museveni described the ICC as ‘a bunch of useless people’. Not only did this sting because Uganda was the first state to refer its own situation to the ICC, meaning that the first arrest warrants issued finally provided the court with its first cases; it was also an act of defiance to the Western diplomatic corps present because Sudanese President Omar al-Bashir, who has been issued with an arrest warrant by the ICC, was also in attendance.

The outspoken discontent about the ICC from African states has now, in mid October, come to a head with South Africa having given notice of withdrawal, Burundi and Gambia also announcing their decision to withdraw. Other African member states will no doubt follow.

Re-branding and its promises

One might wonder why this comes so shortly after the ICC made clear that it was going through what the marketing world would call a re-brand. After much-lamented drawn out (and therefore costly) trials, the ICC surprised observers with an exceedingly short trial this year: Opening on 22 August 2016 with an admission of guilt by the defendant and delivering its judgment on 27 September 2016, the ICC saw its first trial concerning the intentional destruction of cultural, religious and historic monuments. Ahmad Al-Faqi Al-Mahdi, a mid-level militiaman, pleaded guilty to the destruction of mausoleums in Timbuktu, Mali.

Then, in September 2016, the Chief Prosecutor Fatou Bensouda published a policy paper, which stated its new priorities for case selection, namely a ‘particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.’ Emphasis was specifically placed on land-grabbing. This new interest in environmental crimes has generally been received positively. For, although it is impossible for the ICC to do justice to the environmental harms caused, it is necessary for a high-profile institution such as the ICC to point the finger. With these cases, the ICC is not only re-branding its priorities, it is also clearly embracing its symbolic function (discussed here and here).

Rather than going after leaders of governments or rebel groups (who make a claim to governing) for crimes of genocide, ethnic cleansing, murder, rape, torture, enslavement and the like, the ICC is instead moving into the prosecution of non-physical violence, mid-level perpetrators, and gestures against corporate power. In this context it is significant that the Office of the Prosecutor decided to charge Al-Mahdi with the crime of the destruction of cultural heritage instead of the possible alternative case of murder and rape committed during The Northern Mali Conflict. With this, the ICC is aiming to send a message to terrorist groups such as ISIS. The destruction of cultural heritage has, of course, been one of the prime Islamist State terror tactics. And with its change of focus to environmental crimes such as land-grabbing, it is seemingly sending a message to private businesses and government officials who have allocated land to these businesses. This is, then, a turn to explicit symbolism: It is impossible to try ISIS for its crimes because the Islamic State is not a recognised state under international law; and it is impossible to criminalise all behaviour leading to environmental harms.

Not falling for the re-brand

However, this seeming rebrand of the ICC is not only to be understood as a welcome response to its critics and a welcome admission of its symbolic nature; it could also be an indication of a further bloating of the ICC’s staff, greater narcissism, and a continued sycophantism to Western economic and military powers.

The ICC has a history of a type of land-grabbing itself, concerning itself with what it deems are the current injustices of the world. From war crimes to terrorism to aggression, it has already swallowed large parts of other disciplines, technical discussions, and humanitarian concerns. It is therefore not surprising that the ICC claimed it will not be formally extending its jurisdiction; but that instead it would assess existing offences, such as the crime against humanity, in a broader context. For all the value to a naming and shaming on an international stage, this could be troubling. For where does the jurisdiction of the court then end? What crime is to be excluded from a list of crimes against humanity? How many experts need to be hired to mirror its growing self-proclaimed expertise?

But the bloating of the court’s jurisdiction is not the only concern. Of much greater concern is whether the ICC is capable of turning attention to the pressing issues of injustice in the global South while daring to enter the terrain of the complicity of the global North in its condition. And, unsurprisingly, the rebrand is a means by which to respond to critics while at the same time maintaining the status quo.

While cultural heritage across the world (and not just Western heritage) is at stake, ISIS is not only violently imposing its particular extremist Islamist ideology, it is of course also challenging the imperialist interventions (cultural and military) of the Western economic powers. The symbolism behind a criminalisation of the destruction of cultural heritage in the international sphere is then also an insistence on the protection of the neo-colonial practices of Western super-powers. For although international criminal law has a symbolic capacity to stigmatise violent behaviour, it does not have the capacity to explain the root causes of this behaviour. In other words, while extremists may be criminalised, there is no means to draw attention to questions of how these individuals became extremists, what motivates them, and the conditions which are allowing for them to act. International criminal law therefore remains blind to colonial histories and resource-motivated interventions which have caused chains of exploitation and attendant grievances.

The same concern about the status quo applies to environmental crimes, in particular land-grabbing. Various campaign groups have said that the new priority on land-grabbing would hold corporate executives to account for associated consequences of evictions, malnutrition, and environmental destruction. Under the Rome Statute regime, corporations themselves cannot be held criminally liable, and so far no corporate executives have been held to account. There is precedent for holding corporate managers to account in international criminal law: Prosecutor v Musema at the International Criminal Tribunal for Rwanda was a case against a tea factory director; the Nuremberg trials against Nazi industrialists are further precedents. However, these are chains of accountability in regard to exercising control over employees, and using concentration camp inmates as slave workers respectively in wartime. In comments, it is hoped that the Court’s new priorities may make executives accountable for environmental crimes committed in peacetime. In peacetime, however, there would likely be heightened murkiness in the relationships between contractors and sub-contractors involved; a cooperation of the relevant corporations would also be highly unlikely. Ultimately, it is much more likely that a land-grabbing case would instead criminalise the national government officials allocating the land to businesses. This focus on governmental action would again place the focus on criminality in the global South (which is most seriously affected by land-grabbing).

Maintaining the status quo

Despite the change of course of the ICC, the message under these conditions continues to be that international crimes are committed in the global South and are prosecuted in the global North. The global South is, in this understanding, the recipient of global justice – because it is also the place of global injustice – and the global North is the sponsor of global justice. And this remains the crux of the global justice brand.

Verdict

by Kevin Jon Heller

This is the first time a political ad has ever left me in tears. Enough said.

Vote. You know for whom.

Prosecutor v. Al Mahdi: A Positive New Direction for the ICC?

by Marina Lostal

[Marina Lostal is a Lecturer in International Law at The Hague University of Applied Sciences.]

On 27 September 2016, the International Criminal Court (ICC or the Court) entered a conviction and sentence that marked several firsts in the history of the Court. It found the Accused – Ahmad Al Faqi Al Mahdi, guilty of the war crime of intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments (in violation of Article 8(2)(e)(iv)of the Rome Statute). He was sentenced to 9 years of imprisonment. Al-Mahdi’s conviction is not only the first at the ICC arising from a guilty plea, but it is also the first for destruction of cultural heritage. In the latter respect, it raises an important conceptual question: is the adjudication of these crimes contingent on showing anthropocentric harm, or are they independently actionable before the Court?

Al Mahdi was accused of having been involved in the attacks in Timbuktu against nine mausoleums and the door of the mosque of Sidi Yahia during summer of 2012 in the context of the non-international conflict in Mali. Al Mahdi was a member of the Ansar Dine, a militant Islamist group involved in the armed conflict in Mali, and the head of the Hisbah, the body which acted as a form of morality police which mandate included deciding on the fate of the shrines, mosques and antiquities of Timbuktu. This was an important role in light of Timbuktu’s status as a UNESCO World Heritage List site, deemed to be of outstanding universal value for the whole of humanity.

Al Mahdi has received the lowest sentence to date at the ICC. This may be due to his guilty plea, but also to the fact that the attack was directed against property since, according to the Trial Chamber, “even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons”.

Underlying Al Mahdi’s conviction lies a conceptual question going to the essence of the Court’s substantive jurisdiction. During the confirmation of charges hearing, the prosecution consistently emphasized the human impact of Al Mahdi’s crimes saying, for instance, “[w]hat is at stake here is not just walls and stones”. In doing so the prosecution indicated that human suffering is an essential prerequisite for any substantive proceedings before the Court. Indeed, in the words of Fatou Bensouda:

“[T]he Rome Statute prohibits and punishes the most reprehensible criminal acts: Crimes of genocide, crimes against humanity and war crimes. These crimes can be perpetrated in various forms, but they all have one common denominator: They inflict irreparable damage to the human persons in his or her body, mind, soul and identity.

[…]

Such an attack against buildings dedicated to religion and historic monuments falls into the category of crimes that destroy the roots of an entire people and profoundly and irremediably affect its social practices and structures. This is precisely why such acts constitute a crime under Article 8(2)(e)(iv) of the Rome Statute.”

It is true that the tangible and intangible dimensions of cultural heritage are, usually, two sides of the same coin. According to the Committee for Economic, Social and Cultural Rights, the right of everyone to “take part in cultural life” enshrined in Article 15(1)(c) of the Covenant on Economic, Social and Cultural Rights is “associated with the use of cultural goods”. Former UN Special Rapporteur on Cultural Rights, Farida Shaheed, was of the view that “access to and enjoyment of cultural heritage as a human right is a necessary and complementary approach to the preservation/safeguard of cultural heritage.” In this line, UNESCO has adopted two treaties emphasizing the immaterial side of cultural heritage; the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, and the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

However, traditionally, the prohibition of attacking cultural heritage has not been associated with the impact it carries for individuals. In fact, the existence this prohibition predates the movement of human rights altogether. One of its first examples dates back to the Lieber Code of 1863 which declared that “classical works of art, libraries, scientific collections, or precious instruments . . . must be secured against all avoidable injury” (Art. 35). The 1899 Annex to the Hague Convention (II) with Respect to the Laws and Customs of War on Land contained provisions demanding respect for edifices dedicated to religion, art, science and charity, historical monuments, works of art or science without making their application contingent on human suffering (Arts. 27 and 56). Similarly, Article 27 of the 1907 IV Hague Regulations, which represents customary international law and the basis for Article 8(2)(e)(iv) of the Rome Statute, does not incorporate a requirement of human harm. Back in 1907, the concept of human rights still had to wait decades to take hold. Discourses on the intrinsic connection between the tangible and intangible sides of cultural heritage would only appear almost a century later.

There have been subsequent more complete instruments dedicated to the protection of cultural property in armed conflict, such as the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its 1999 Second Protocol. These treaties are founded on the idea that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind”. Yet, none of their articles specifically rely on establishing a link between the offences against cultural heritage (e.g. acts of hostility, military use) and harm caused to human beings, their social structures or religious practices.

There is nothing in the wording of Article 8(2)(e)(iv) (or (b)(ix)) of the Rome Statute nor the elements of crimes that requires demonstrating human harm to prove this crime. To the contrary, the elements are consistent with the historic reading of the provision and require, inter alia, that the perpetrator directed an attack against one or more protected buildings, which did not constitute military objectives; and that s/he intended to direct such attack. As such, suggesting that profoundly affecting a people’s social practices and structures “is precisely why such acts constitute a crime under Article 8(2)(e)(iv) of the Rome Statute” is a legal innovation, which may bear unforeseen consequences.

Insisting on the possible human consequences of attacks against cultural heritage may restrict the applicability of these provisions. For example, the Buddhas of Bamiyan dynamited in 2001 were not in active use as a cultural or religious site; indeed there is no record of Buddhism in Afghanistan after the 14th Century. Granted, this destruction predated the ICC era and it is generally accepted that these acts took place during peacetime. But, what if it happened today in the context of an armed conflict? There are important similarities with the case of Timbuktu: the sites had either tentative or declared world heritage status; their destruction occurred as a consequence of sheer iconoclasm; and, in both cases, the international community reacted with shock and outrage. However, the approach in Al Mahdi where harm to the human persons is paramount would potentially exclude such attacks from the coverage of the Rome Statute provisions on cultural heritage.

The Prosecutor’s declaration that the common denominator of all core Rome Statute crimes is that they inflict irreparable damage to the human persons may have a profound effect on the Court’s future activities. Recently, the prosecution indicated that it wishes to focus on acts harming the environment. Would such acts also require an anthropocentric impact in accordance with the Al Mahdi approach? If so, is there really any independent value in declaring a willingness to address environmental harm, or attacks on cultural heritage, for that matter?

Ultimately, all crimes have some anthropocentric rationale: it is humans who define them, and we inevitably choose to criminalise what we deem important to us. In the case of cultural heritage, it could be its time-capsule quality as a source of knowledge about our past, it could be its beauty, its symbolic relevance, or all of these things combined. In the case of the environment, it may be as simple as the fact that earth is our only home. However, stretching the anthropocentric emphasis in line with the prosecution’s approach in Al Mahdi entails the risk of turning a blind eye to the independent value of objects and entities in and of themselves.

Opinio Juris Live: The New American President and Crises in Global Order

by Chris Borgen

This Wednesday five of us from Opinio Juris will convene at St. John’s Law School for a roundtable discussion on The New American President and Crises in Global Order.

The program is sponsored by St. John’s Center for International and Comparative Law (which I co-direct with Peggy), together with the American Branch of the International Law Association and the New York State Bar Association, International Section Committee on Public International Law.

Julian, Peggy, Kristen, Deborah and I will have our hands full. Between Syria, Brexit, the Trans-Pacific Partnership, Crimea, Libya, allegations of Russian hacking, the global migration crisis and tensions in the South China Sea, among other topics, we will have no shortage of interesting and timely issues for our discussion. And we will open things up for comments and questions from the audience.

The discussion will be at 4:30 pm on Wednesday, October 26th.  I’ll post a summary afterwards.

Weekly News Wrap: Monday, October 24, 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

  • The siege and bombing of eastern Aleppo in Syria constitute “crimes of historic proportions” that have caused heavy civilian casualties amounting to “war crimes”, according to the top United Nations human rights official.

Asia

Europe

Americas

Oceania

UN/World

  • The United States is campaigning hard against proposed U.N. General Assembly resolution banning nuclear weapons, pressuring treaty allies like South Korea, Japan and NATO members to vote against the resolution, a new report said.; the resolution, led by Austria, Brazil, Mexico and South Africa, calls for the formal launch of negotiations on a nuclear ban in 2017 and the U.N. General Assembly is expected to vote on the resolution as early as next week and proponents expect it to pass easily, according to the Foreign Policy magazine.
  • More than 600 United Nations staff members have signed an online petition calling on Secretary General Ban Ki-moon, a professed feminist, to reconsider the appointment of the fictitious superhero as its ambassador for women’s empowerment.

Ecuador’s Disconnect of Assange: Politics or Principle?

by Steven Ratner

[Steven Ratner is the Bruno Simma Collegiate Professor of Law at the University of Michigan Law School.]

Ecuador’s announcement that it had severed Julian Assange’s internet connection in its London Embassy can be seen as a cynical manipulation of international law or a principled stance in favor of an important rule. Recall that Assange has been holed up in the embassy since June 2012, evading a Swedish warrant for questioning him, upheld by the UK Supreme Court. Ecuador justifies the move as an act of diplomatic asylum, which it argues is allowed under international law. The UK has rejected the claim, calling him little more than a fugitive from justice for a sexual assault charge in Sweden.

In cutting off Assange’s internet combination, Ecuador suggests that Wikileaks’ publication of hacked Clinton emails constitutes unlawful intervention in the internal affairs of the United States, an act that Ecuador seeks to end. Marko Milanovic, over at EJILTalk!, finds this all too rich – that Ecuador has in fact been interfering in the UK’s internal affairs through the harboring of Assange, and that its latest act just makes matters worse by denying him his human right to free expression. I think Ecuador has a stronger case than that.

The legality of Ecuador’s shielding of Assange seems to go mostly against Ecuador. The right of a state to grant diplomatic asylum is not generally accepted as a matter of customary international law, and the ICJ rejected Colombia’s claim that it was a customary rule for Latin American states in the Asylum Case in 1950. Even if it is a rule of regional custom, it is certainly not opposable to the United Kingdom. As for the Caracas Convention on Diplomatic Asylum of 1954, although Ecuador is a party, the UK is not. Moreover, Assange does not seem, at least based on the evidence, to be bona fide political asylee, but merely a fugitive from justice for a non-political crime. The United States, for its part, does not recognize such a norm, though it has accepted that embassies can grant temporary humanitarian refuge to a foreign national facing imminent danger. This theory proved the basis for the U.S. secret harboring of Fang Lizhi in its Beijing Embassy for thirteen months after the June 1989 Tiananmen Square massacre, as well as its simultaneous rejection of any right of the Papal Nunciatura to hold Manuel Noriega after he sought refuge there after the US invasion of Panama the following December.

But what about the interference claims? Is Ecuador unlawfully interfering in UK domestic affairs, and was Assange unlawfully interfering in US domestic affairs? As an initial matter, the customary law norm of noninterference (or nonintervention) bars only coercive action, not all the run-in-the-mill ways that states try to influence run another. Thus, in the Nicaragua case, the ICJ wrote that coercion is “the very essence of prohibited intervention.” (para. 205) Broadcasts, diplomatic protest, withholding of foreign assistance, most prescription of domestic law to cover extraterritorial conduct, funding of foreign human rights NGOs, and other non-coercive acts, while sometimes unpleasant for the government on the receiving end, are not acts of unlawful interference or intervention, even if some global actors may claim that. If they were, much of routine international intercourse would be unlawful. Moreover, the interference must go to something core about the state, notably the way it organizes itself politically or economically.

So even if Ecuador has no ex ante right to deploy diplomatic asylum, it’s difficult to see it as unlawful interference in the UK’s internal affairs. It is not coercive and it does not go to core governance issues in the UK.   Nonetheless, it’s worth noting that the ICJ in the Asylum Case stated that “diplomatic asylum withdraws the offender from the jurisdiction of the territorial state and constitutes an intervention in matters which are exclusively within the competence of that State.” (p. 275). On that view, Ecuador’s act is analogous to kidnapping Assange off the streets of London insofar as Ecuador did put him beyond the reach of British police. Either way, we have a more precise and clear norm that is relevant here -– namely the Vienna Convention on Diplomatic Relations, where it seems clear that Ecuador has violated Article 3 through an impermissible use of the diplomatic premises. (Though that list is non-exhaustive, it probably does not include as a normal function the prevention of arrest by local authorities.)

As for Assange, he would not seem to have any duties under international law in his current situation. Individual duties are generally confined to the list of well-accepted crimes (and even then, some scholars insist the only duties are on the states to suppress them). So he’s not breaking international law rules on nonintervention or diplomatic law (though I suppose evading an international warrant directed at him could be seen as breach of international law). That does not, however, contra Marko, mean that he has a human right to disseminate private emails all over the world. This too is a complicated question. The ICCPR makes freedom of expression a “balanceable” right, and so it’s not at all clear that he has a human right to share such information, even if the US might grant him a constitutional right to do so. Demands of privacy and public order in a democratic society would cut toward allowing Ecuador, the UK, or the United States to interfere with his exercise of free expression.

Where does that leave Ecuador’s claim that it shut down Assange’s internet connection to avoid interference in the US elections? Perhaps Ecuador fears that its grant to him of an internet connection made it complicit in interference in the U.S. elections. This makes some sense given the way in which an internet connection presumably facilitates Assange’s actions. (The embassy did not say whether they severed his phone connection as well.) Yet the ILC Articles on State Responsibility (ASRs) do not attribute the acts of a private actor to the state merely because the latter has facilitated the acts of the former, so legally it seems a stretch to say that Ecuador is committing an illegal act by allowing Assange access to the internet. Perhaps it fears complicity with Russia, which the U.S. government sees as responsible for the original hacking. But under ASR Article 16, one state is only complicit if it does so “with knowledge of the circumstances” of the act, and it’s hard to say Ecuador knew about the Russian hacking.

Moreover, even if Ecuador fears complicity of some sort, the release of the documents does not seem to represent truly unlawful interference in the US elections, as seen from the legal elaboration above. It certainly can affect the outcome, but is it coercive and does it deny the United States voters a voice in charting the future course of their country? Again, governments routinely express their preferences in foreign elections, in some ways muted and other ways quite direct. According to the New York Times, Ecuador’s president has expressed the hope that Hillary Clinton will prevail. And, in the end, Wikileaks is merely releasing authentic communications. But while we may find these foreign preferences distasteful, or unwarranted, that does not make them illegal. A harder question concerns the illegality of the hacking itself, as Sean Watts points out over at JustSecurity. If it’s not illegal under current international law, there is a good argument from the perspective interstate order that it should be, and state attitudes might well change on this question.

All this suggests that international law does not require Ecuador to sever the internet connection. Nevertheless, Ecuador’s invocation of the principle of noninterference is not that surprising. Latin American countries have traditionally been among the strongest advocates of the norm of non-intervention, and so from Ecuador’s perspective their claim that Assange’s acts constitute such interference does not seem cynical, even if that claim has not been broadly accepted internationally. Quite ironically, it is Latin America’s sensitivity to historical heavy-handedness by the United States in some Latin American countries that serves as the ground for an Ecuadorian attempt to avoid interference in the U.S. elections.

Ironic, but also quite principled. For legal rules do not function merely as commands to states as to what they must or must not do. Law can also frame a policy decision by suggesting that that decision is grounded in, and consistent with, a legal norm. As Rosalyn Higgins wrote long ago about the Security Council, we are witnessing “political operation within the law, rather than decision making according to the law.”

We will probably never know Ecuador’s exact motivations for the latest move. Maybe the U.S., the UK, or one of Ecuador’s friends read the government the riot act. Maybe its leaders want Hillary Clinton to win. Maybe they and their diplomats are getting a little tired of their houseguest and are signaling that they want to end the standoff with the UK and Sweden. But whatever their motivations, they seem to have come up with a pretty sound legal grounding for their actions. Their hands may not be so tied that they were legally bound to cut off the connection, but they have deployed the law to give a principled reason for doing so.

Events and Announcements: October 23, 2016

by Jessica Dorsey

Calls for Papers

  • The Cambridge International Law Journal in conjunction with Monckton Chambers will be hosting the Cambridge International and European Law Conference in the Faculty of Law at the University of Cambridge on 23 and 24 of March 2017. More information can be found on the Facebook page here
  • Call for Papers: 2017 ILA-ASIL Asia-Pacific Research Forum, Taipei, Taiwan. The Chinese (Taiwan) Society of International Law will hold the ILA-ASIL Asia-Pacific Research Forum on May 19-20, 2017 in Taipei, Taiwan, ROC. The theme of the Research Forum is “The Geopolitics of International Law: Contemporary Challenges for the Asia-Pacific.” Paper proposals should be submitted by January 10, 2017 to ila [at] nccu [dot] edu [dot] tw. The call for papers is available here.
  • Volume XXVI (2016) of the Italian Yearbook of International Law (IYIL) will include a Focus on “International Law in Regional and Domestic Legal Systems”, which will be edited in cooperation with the Interest Group on “International Law in Domestic Legal Orders” of the Italian Society of International Law. More information about the call for papers can be found here (.pdf).
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Events

  • The Cambridge International Law Journal in conjunction with Monckton Chambers will be hosting the Cambridge International and European Law Conference in the Faculty of Law at the University of Cambridge on 23 and 24 of March 2017.
     
    Please find attached the Call for Papers in respect of this conference. We would be very grateful if you could circulate this information on your blog.
  • The New York City Bar Association presents: “International Criminal Justice and Transitional Justice: Tensions and Synergies?” on Thursday, October 27, from 3:30-5:30 pm at the New York City Bar Association (42 W 44th St, New York, NY 10036). After 20 years of international criminal trials, it is time to reassess the relationship between such trials and transitional justice. Do such trials promote the aims of transitional justice or thwart them? Are there synergies between rule of law initiatives and accountability measures or are they operating at cross-purposes? Our speakers will address these fundamental questions in the context of the latest developments in the field, such as the trial of Hissene Habré. More information can be found here.

Announcements

  • iCourts – Centre of Excellence for International Courts, University of Copenhagen, is currently looking for a new professor or associate professor of international law. The Associate Professor’s or Professor’s primary duties include research and teaching, supervision of graduate – and PhD students, participation in examinations, and administrative tasks in relation to bachelor -, graduate – and PhD studies. The Associate Professor or Professor is expected to publish results of their in/with internationally highly recognised journals/publishers, exchange knowledge with relevant parts of the surrounding society, and contribute to the academic development of the research area and related study programmes for the benefit of society and the legal profession. iCourts, the Danish National Research Foundation’s Centre of Excellence for International Courts, is a research centre dedicated to the study of international courts, their role in a globalising legal order and their impact on politics and society. If you are interested in the position, please feel free to read more and apply via the link here.
  • The University of Richmond School of law is looking for a Director of International Programs. The Director is responsible for leading Richmond Law’s international initiatives, including: the build-out of the LL.M., LL.M./M.B.A., and J.D. programs; the creation and implementation of a comprehensive strategy for increasing our international visibility, reputation, and attractiveness to international students; the initiation of co-curricular programming for international students within the law school; the development of academic and other support for international students, so as to maximize the quality of their experience at Richmond Law; and the oversight of other international opportunities within the law school for both students and faculty. The Director will be expected to travel as appropriate to meet personally with both prospective applicants and representatives from law firms, companies, and foreign universities, and will be a key partner with the Dean, the faculty, and senior leadership in identifying, assessing, and taking advantage of new international opportunities. Please apply online 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.

Don’t Blame IHL for Attacks on “Hospital Shields”

by Kevin Jon Heller

Just Security published a very interesting post yesterday entitled “Military Attacks on ‘Hospital Shields’: The Law Itself is Partly to Blame,” which seeks to explain why deliberate attacks on hospitals are becoming increasingly common — in Syria, in Yemen, and elsewhere. The authors acknowledge that deliberate attacks on hospitals are almost always unlawful under IHL, because they violate the principle of distinction. But they nevertheless insist that “[t]he tragic irony is that international humanitarian law itself offers the legal toolkit for these regimes to justify the bombing of hospitals.”

The argument is provocative, but it is also misguided. And the authors’ solution is, I think, worse than the problem.

Let’s take a look at the how the authors believe IHL itself helps justify the bombing of hospitals. They cite two interrelated rules. Here is the first:

First, the logic of the human shields clauses can, it seems, quite easily be transferred to medical facilities. International law prohibits the use of civilians as human shields to protect military targets, but it also permits the attacking forces to kill human shields as long as they abide by the principle of proportionality. In this instance, then, international law ceases to protect civilians and actually becomes a weapon of the strong, protecting those who kill non-combatants. By extension, if hospitals are used as shields, they too can be bombed provided the principle of proportionality is not breached.

This argument is absolutely correct. Yes, human shields can be killed as long as they are not directly targeted and as long as an attack on the legitimate military objective they are shielding does not kill them disproportionately. And yes, the same goes for civilians objects, including hospitals, that are being used to shield military targets. But it is not clear what is problematic about either of those IHL rules, which are straightforward expressions of distinction and proportionality — unless you think that combatants should be able to render themselves completely immune from attack by hiding in hospitals. (Which is precisely what the authors think, as discussed below.) You don’t have to be soft on the military to suggest that combatants should not be able to use the protection IHL offers hospitals to gain a military advantage over their enemy.

Moreover, the authors fail to note that even though IHL permits “hospital shields” to be attacked, it imposes significant restrictions on such attacks. Most importantly, Art.19 of the Fourth Geneva Convention provides that hospitals being misused lose their protection against attack “only after due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded.” Assuming that the attacking military complies with Art. 19 (and it is hardly IHL’s fault if it doesn’t), no hospital will be attacked that has not had an opportunity to expel the military objective it is shielding. IHL thus puts so much emphasis on protecting hospitals that it would rather require an attacker to let the enemy escape unharmed rather than apply the normal targeting regime of distinction and proportionality.

A similar problem undermines the authors’ argument concerning the second rule:

Second, international law affirms that the protection to which hospitals are entitled is revoked when they are “used to commit, outside their humanitarian duties, acts harmful to the enemy.” This extremely vague formulation lends itself to those who target hospitals. Unlike IHL clauses prohibiting torture, which are absolute, applying at all times and in all circumstances, the articles relating to the bombardment of hospitals are conditional. Therefore, in certain “exceptional” situations medical facilities do lose their protected status.

This argument is vastly overstated. Is the “acts harmful to the enemy” formulation “extremely vague”? Sometimes, perhaps. But certainly not always. Art. 19 makes clear, for example, that “[t]he fact that sick or wounded members of the armed forces are nursed in these hospitals, or the presence of small arms and ammunition taken from such combatants and not yet been handed to the proper service, shall not be considered to be acts harmful to the enemy.” IHL can thus hardly be blamed when a military justifies attacking a hospital by claiming that the hospital was treating enemy soldiers. (A claim made by Afghanistan regarding the MSF hospital in Kunduz.)  Any such attack categorically violates IHL.

There is also widespread agreement about what kinds of acts do qualify as “acts harmful to the enemy.”  The ICRC’s commentary to Art. 21 of the First Geneva Convention is typical:

Such harmful acts would, for example, include the use of a hospital as a shelter for able-bodied combatants or fugitives, as an arms or ammunition dump, or as a military observation post; another instance would be the deliberate siting of a medical unit in a position where it would impede an enemy attack.

It is possible to criticise this understanding of harmful acts as being overbroad and in need of revision. I, for one, have a problem with the idea that a hospital can be attacked simply because combatants are using it as “an arms or ammunition dump.” Given the importance IHL puts on protecting medical units, that doesn’t strike me as enough to justify a hospital forfeiting its protected status. I might even be convinced that the mere presence of unwounded combatants in a hospital shouldn’t justify a deliberate attack.

But the authors are not arguing for a tightening of the rules that govern when hospitals can be deliberately attacked. No: because they believe it is too easy for an attacker to claim that a hospital is shielding a military objective (permitting attack after a warning), they want a categorical rule that prohibits attacking hospitals no matter how they are being used:

The only way to overcome this travesty is if IHL clauses pertaining to the protection of hospitals are reformulated in a way that categorically prohibits the use of lethal force against them. Currently, IHL provides the necessary protections for hospitals, and all that is really needed is to erase the clauses stipulating exceptions since these in essence hand out militaries a license to bomb medical facilities.

In other words, the authors believe that a hospital should be immune from attack even when combatants are using it to attack the enemy. What the attacked forces are supposed to do in such a situation, the authors never explain. Apparently, they are simply supposed to either tolerate casualties or somehow avoid coming within the hospital’s field of fire. (Which may well be impossible, depending on the kinds of weapons the holed-up combatants possess.)

That will never happen, of course. Not even the most professional military will tolerate being fired upon from a civilian hospital — or at least it won’t tolerate it indefinitely, which is what the authors expect. IHL recognises this basic reality of combat, which is why it attempts to strike a balance between humanitarian concerns and military necessity by permitting a hospital that is being used as a shield to be deliberately attacked, but requiring a warning and a reasonable time to comply.

As with the definition of “acts harmful to the enemy,” it is possible to quibble with the procedural requirements for attacking a hospital that is being used as a shield. Perhaps IHL should avoid using a mushy “reasonableness” test for the length of the warning a military must give before attacking a hospital, imposing a minimum amount of time instead. I’d be open to that. But again: the authors are not trying to strike an appropriate balance between humanity and necessity. They simply want a categorical ban on attacking hospitals — even those that are genuinely being used to shield military objectives.

I understand (and am sympathetic to) the reasoning behind the authors’ position. They don’t want innocent civilians, especially medical personnel and the wounded, to pay the price for the actions of combatants who have no respect for IHL. Hospitals don’t choose to be misused by combatants, and there will almost certainly be situations where combatants simply refuse to leave a hospital that has been warned of an impending attack. So hospitals may well find themselves in an impossible situation: subject to attack because their premises are being misused, but unable to do anything about it.

The answer, however, is not to categorically prohibit attacking hospitals. As noted, militaries would never comply with such a prohibition. And, of course, such a prohibition would ensure that combatants who don’t respect IHL will use hospitals as a shield as often as possible. The authors begrudgingly acknowledge that possibility, writing that “[s]ome might argue that such norms will produce the perverse incentive among certain belligerents to use hospitals as shields.” But that is a serious understatement. Some might argue? What IHL scholar wouldn’t? Why would a military that doesn’t respect IHL not use a well-placed hospital as a shield if doing so renders its forces absolutely immune from attack?

The authors are correct that anything short of a categorical prohibition on attacking hospitals will leave open the possibility of militaries inventing facts to justify attacks. That is the nature of IHL rules that are not categorical — and a reflection of the fact that IHL is neither purely humanitarian nor purely war-enabling. The authors’ solution, however, is worse than the problem. A categorical prohibition will not prevent IHL from being misused; it will simply ensure that IHL is ignored — resulting in far more “incidental” deaths than under the current IHL rules. The better solution (absent a tightening of the rules as discussed above) is to searchingly examine the legitimacy of each and every attack on a hospital and hold militaries to account when they use the concept of the “hospital shield” to justify an unlawful attack.

And that, of course, is exactly what IHL requires.

Kim Priemel, “The Betrayal: The Nuremberg Trials and German Divergence”

by Kevin Jon Heller

I want to call readers’ attention to Oxford University Press’s publication of my friend Kim Priemel‘s new book, The Betrayal: The Nuremberg Trials and German Divergence. Here is the publisher’s description:

At the end of World War II the Allies faced a threefold challenge: how to punish perpetrators of appalling crimes for which the categories of ‘genocide’ and ‘crimes against humanity’ had to be coined; how to explain that these had been committed by Germany, of all nations; and how to reform Germans. The Allied answer to this conundrum was the application of historical reasoning to legal procedure. In the thirteen Nuremberg trials held between 1945 and 1949, and in corresponding cases elsewhere, a concerted effort was made to punish key perpetrators while at the same time providing a complex analysis of the Nazi state and German history. Building on a long debate about Germany’s divergence from a presumed Western path of development, Allied prosecutors sketched a historical trajectory which had led Germany to betray the Western model. Historical reasoning both accounted for the moral breakdown of a ‘civilised’ nation and rendered plausible arguments that this had indeed been a collective failure rather than one of a small criminal clique. The prosecutors therefore carefully laid out how institutions such as private enterprise, academic science, the military, or bureaucracy, which looked ostensibly similar to their opposite numbers in the Allied nations, had been corrupted in Germany even before Hitler’s rise to power. While the argument, depending on individual protagonists, subject matters, and contexts, met with uneven success in court, it offered a final twist which was of obvious appeal in the Cold War to come: if Germany had lost its way, it could still be brought back into the Western fold. The first comprehensive study of the Nuremberg trials, The Betrayal thus also explores how history underpins transitional trials as we encounter them in today’s courtrooms from Arusha to The Hague.

I cannot recommend the book highly enough. It’s a remarkable piece of scholarship, weaving together legal history, political history, and intellectual history into a seamless and compelling whole. Kim is a superb historian — and one who writes about law as well as most legal scholars. The book also does something almost unprecedented: tell the story of the IMT and NMTs together, which is necessary for understanding both. The book’s only competitor in that regard is Telford Taylor’s wonderful book The Anatomy of the Nuremberg Trials: A Personal Memoir — but Taylor’s book is, as the title indicates, a memoir, not an “objective” legal history.

Anyone interested in Nuremberg, international criminal law, or transitional justice will want to pick up a copy of The Betrayal. To appropriate Larry Solum: read Priemel!

The Brexit Case and the Foreign Man on the Clapham Omnibus

by Mariam Kizilbash

[Mariam Kizilbash read for her LLM in Public International Law from UCL, has worked as a legal officer with charities in London and Islamabad on areas such as death-row offences, US drone strikes and large-scale corporate corruption. She now works now as a freelance writer.]

An Englishman of Bangladeshi origin, an Irishman, two Scotsmen resident in France, a Welshman and and a Gibraltarian, whose wife is Spanish, with family resident in Spain.

Miss Mountfield does not narrate these individuals as the start to a colourful joke, but as an introduction to the parties she is representing in her submissions in the ongoing case, The Queen on the Application of Santos & Miller v Secretary of State for Exiting the European Union 2016, which concerns, as she points out, the nature of the EU citizenship rights which her clients enjoy and seek to enjoy.

The UK High Court through this case is presently considering whether ministers can invoke Article 50 of the Lisbon Treaty, the trigger for formal talks for the UK to leave the European Union, without Members of Parliament passing a new law which allows them to do so. It may be interesting especially for the people affected by Brexit, to try and make sense of what points were raised by the first hearing on Thursday.

While the UK Government feels a need to argue that the European Union will, by no means, be re-joined by the UK via a “back door” being unbolted through the bringing of this case against them, for the claimants, perhaps it is just about the pertinent legal point; only Parliament, they argue, can remove or reduce rights granted under law and Article 50 must have the consent of the House of Commons and the House of Lords.

If the Government intends to give simple effect to the outcome of the EU referendum without this step, royal prerogative- a collection of executive powers held by the Crown-will be seen to trump parliamentary sovereignty, something which just cannot be legally done as the claimants are arguing.

Till now some of the claimants in this case have had their arguments heard. Some of the most cogent arguments I feel made by Lord Pannick on behalf of Ms. Gina Miller, the lead claimant in this case last Thursday were these:

Firstly, that notification of withdrawal from the EU via Article 50(2) of the Lisbon Treaty, has a “dramatic impact” in UK domestic law. This removes certain rights conferred by Parliament through the European Communities Act 1972. This is why these rights cannot be simply removed by a minister through his prerogative powers.

Secondly the EU Referendum Act 2015 itself, lacks a provision specifying what consequences, if any, should follow from the referendum result. The Act, said Lord Pannik, does not provide statutory authorization for the trigger notification. Neither does it suggest common law legal limits on the use of the prerogative are in any way limited by the Act.

Thirdly, the European Communities Act 1972, confers rights at international law which take effect it national law. These rights also take priority over inconsistent national law. For example the Van Gend & Loos case, pointed out the direct applicability of European community law which renders inapplicable any conflicting national law. This is a case about the limits of executive power where the Parliament has itself conferred those fundamental rights to the citizens of the country. Presumably this means, the Parliament must inevitably now have a say in the change or discarding of those rights.

Fourthly, the defendant cannot lawfully use the prerogative to make the notification under Article 50 because this has the intended consequence of depriving individuals of rights they currently enjoy under the 1972 Act as well as other legislation. The Case of Proclamations from 1610 narrated by Lord Pannick, amongst others, stated “The King, by his proclamations or other ways, cannot change any part of the common law or statute law or the customs of the realm.” A common law restriction on the use of prerogative powers can only be removed or altered by an express statutory provision. Lord Pannick stated: “The fact that Parliament has not addressed the common law use on the limits of prerogative powers simply means in my submission, and elementarily means, that Parliament is content for the common law limits to continue to be applied by the courts.” This argument may be a reverse form of the Lotus principle i.e. the Lotus principle would result in the thinking that it is permissible to assume there is executive prerogative to make the Brexit notification in absence of Parliament not expressly forbidding this, but here it is being said executive prerogative cannot be said to prevail over Parliamentary sovereignty because the latter has not expressly overruled the common law restriction of it doing so.

Meanwhile, Mr. Chambers on behalf of the claimant Santos, stated this case can simply be resolved by a direct application of parliamentary sovereignty- the “most fundamental legal doctrine of the British constitution.” No person or body is recognised by the law as having the right to override or set aside the legislation of Parliament. Indeed, the Bill of Rights 1688 states: “The pretended power of suspending of laws, or the execution of laws by a legal authority without consent of Parliament, is illegal.”   Chambers also reminded us of an interesting point. The philosopher, John Austin, in his lectures Province of Jurisprudence Determined, spoke about a “sovereign” as being the electorate; in this case, indeed can the “sovereign” be seen as majority of UK people who voted for Brexit in the 2015 Referendum instead of the UK Parliament? However Chambers goes on to say that the electorate may be the political sovereign and not the legal sovereign even in Austin’s terminology- the latter which remains the UK Parliament.

There have been a string of other legal cases of course in the past which have examined the dance between Parliament sovereignty and the opposing, executive prerogative. For instance, in Attorney General v De Keyser (1920), the House of Lords had to decide whether the Government could use a broad prerogative power to requisition property, rather than using a statutory power which allowed the same but also imported an obligation to pay compensation. Lord Parmoor said: “The growth of constitutional liberties has largely consisted in the reduction of the discretionary power of the executive, and in the extension of Parliamentary protection in favour of the subject, under a series of statutory enactments.” In R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995], the question was whether the prerogative could be used to establish a criminal injuries compensation scheme, given that such a scheme was already granted by statute while not yet in force. In that particular case Lord Browne-Wilkinson said “it would be most surprising if, at the present day, prerogative powers could be validly exercised by the executive so as to frustrate the will of Parliament.” In both cases the prerogative was curtailed. In BBC v Johns ( HM Inspector of Taxes) 1964, LJ Diplock had stated: “It is 350 years and a civil war too late for the Queen’s courts to broaden the prerogative…”

However, these cases by no means give a clear cut answer the Brexit conundrum. De Keyser established if legislation grants the Government a power to do something which the Government is also empowered to do under the prerogative, then the statutory power displaces the prerogative power if the statutory power is subject to conditions to which the prerogative power is not. The Fire Brigades Union case examined the manner in which the Government must act. The BBC case was more concerned with which institution can claim the prerogative and in doing so, be subject to judicial review.

In the Brexit case before us today however there is no conflict between statute and prerogative. Instead the tension is between the relationship with the European Union both the Parliament and the Executive individually hold and who can effectively now dissolve this relationship.

The Queen on the Application of Santos & Miller is also not the only “Brexit” case. The United Nations Commission might be hearing a petition by World War 2 veteran who argues that British citizens abroad were denied the right to vote in the referendum. Barrister Eskander may assist clients against individuals who lead the exit campaign on the interesting legal premise of “broken promises”. But Santos & Miller, which will surely go up to the Supreme Court may be the most decisive case by a UK court.

What arguments the defence presents next week will be beyond interesting. After all, we are far from the days where the execution of the royal Charles 1 was brought on by his altercations with Parliament. One also cannot forget Lord Steyn’s words in Jackson v Attorney General 2005 when he said: “Parliamentary sovereignty is no longer, if it ever was, absolute….”

The EU’s other 27 members have said negotiations about the terms of the UK’s exit cannot begin until Article 50 has been invoked. All eyes and ears will be on the case as it continues and the following Supreme Court appeal which will be leapfrogged to the end of this year. Already being hailed as the Queen Mary of all constitutional cases, this affair after an already controversial Brexit, questions the relationship between state organs, the result of a national referendum as well as the rippling effects on devolved governments- as arguments next week will reveal.

Håkan Friman

by Jens David Ohlin

I am very sorry to report the shocking news, that many have already seen on Twitter, that Håkan Friman has passed away, much too young.

Anyone involved in international criminal justice surely knows Håkan’s name, and more likely than not, knew Håkan personally. In addition to his many many academic publications on international criminal law (including the well-known Introduction to International Criminal Law and Procedure by him, Robert Cryer, Darryl Robinson, and Elizabeth Wilmshurst), Håkan was a Judge on the Solna District Court in Sweden, and also held several academic appointments along the way.  Håkan also had a distinguished career with Sweden’s ministry of justice and was a key member of Sweden’s ICC delegation to the Rome Diplomatic Conference, where it all began.  He was a mainstay of academic conferences on multiple continents.  I hosted him at Cornell once for my course called the Jurisprudence of War, where he led a masterful session on the crime of aggression and the Kampala amendments. On more than one occasion, his name came up in conversations I had with others when we discussed ideal candidates to be a judge on the ICC some day.

More importantly, Håkan was an absolute gentleman to every person in the profession.  It didn’t matter whether you were the most junior of doctoral researchers or the most senior jurist at an international tribunal. He was equally kind and generous to everyone.

He will be missed.

 

UPDATE: The International Criminal Court has issued this statement:

It is with great sadness that the International Criminal Court learnt of the sudden passing of Senior Judge Håkan Friman, Head of Division at Solna District Court (Sweden) on Monday, 17 October 2016.

As a former member of the Swedish Delegation on the ICC, a magistrate and the author of many international criminal law publications, Mr Friman made an invaluable and lasting contribution to international criminal justice. Mr Friman had a prominent role in the drafting and adoption of the Rome Statute, as well as in the development of the Rules of Procedure and Evidence and Regulations of the Court. He was also called upon on numerous occasions in an expert capacity to assist in initiatives to enhance the efficiency and effectiveness of the Court’s operations. His commitment, expertise and warm personality earned him countless friends in the field of international criminal justice.

The Court presents its sincere condolences to Håkan Friman’s family and friends in these difficult moments.