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Mark Kersten on the Terror Attacks in Canada

by Kevin Jon Heller

These days, I usually use Twitter to point readers to blog posts that deserve their attention. But Mark Kersten’s new post at Justice in Conflict is so good — and so important — that I want to highlight it here. The post achieves the near-impossible, passionately indicting Canada’s right-wing government for creating a political environment ripe for terrorism without in any way suggesting that Wednesday’s terror attacks were justified. It’s a truly brilliant post, from top to bottom. Here is a snippet, concerning the Harper government’s foreign-policy disasters:

The Canadian government has actively pursued a political philosophy of retribution and control that tarnishes the country’s image as an ‘honest international broker’. Harper’s record attests to an unyielding mission to reshape Canada’s international identity as a tough and hard-power state. The Harper government plays the part of destructive belligerent in climate change negotiations and tar-sands cheerleader. It is first in line to threaten Palestine with “consequences” if Ramallah pursues accountability for alleged crimes committed by Israeli forces in Gaza. While it isn’t usually described as such (many prefer terms like “militarily engaged”), the reality is that Canada has been at war, primarily in Afghanistan, for most of the last decade. And while we should judge each decision to engage in wars on their own terms, the government has positioned itself as a military – rather than diplomatic or humanitarian – middle power. The role of Canadian citizens in the Afghan detainee scandal has been swept under the rug. The government willfully left a child soldier, Omar Khadr, to rot in Guantanamo and were the only Western government not to request the repatriation of their citizens from that nefarious island prison. It left Abousfian Abdelrazik, a Canadian citizen wrongly accused of terrorism, stranded in Khartoum for years and threatened anyone who tried to help him return to Canada with aiding and abetting terrorism. In a country that takes pride in seeing Lester B. Pearson as the father of peacekeeping, the government prefers to count the number of fighter jets it will buy than the number of peacekeepers it deploys. And, making matters worse, those who disagree with the Harper government’s approach to being “hard on crime”, “tough on justice”, and “a military power” are too often portrayed as naive or betraying Canadian values.

Sadly, it’s not just Canada that has pursued the kind of right-wing policies that make horrific acts of terrorism more likely. Very similar posts could — and should — be written about the Key government in New Zealand, the Abbott government in Australia, and (yes) the Obama government in the US. These misguided policies have done next to nothing to prevent terrorism; they create the illusion of security, not its actuality. Indeed, insofar as they do little more than further radicalize the populations they affect, the policies have made us all that much less safe.

Read Kersten. And if you are on an academic committee that is looking to appoint a brilliant young lecturer, hire him.

How to Solve the MV Limburg Mess: A Brief Exegesis on ‘Jurisdictional Facts’

by Jens David Ohlin

The Al Nashiri case before the Guantanamo military commission is currently stuck in a quagmire over the bombing of the oil tanker MV Limburg on Oct. 6, 2002, which Al Nashiri is alleged to be complicit in. Before trial, the defendant, Al Nashiri, moved to dismiss the charges related to the MV Limburg (which is just one of many charges in the case) on the grounds that the government does not have jurisdiction over the MV Limburg bombing since it was not part of the armed conflict between the United States and al-Qaeda. The MV Limburg was a French vessel (not American).

Instead of interpreting the motion as dealing with Congress’ jurisdiction to prescribe (as the defense appeared to suggest), the judge interpreted the motion as one attacking the jurisdiction of the military commission to hear the case because the attack was not connected to the hostilities between the U.S. and al-Qaeda. Since the government had not presented evidence that the attack was connected to those hostilities, the judge eventually dismissed the charges.

The U.S. government is appealing the dismissal of the MV Limburg charges, and it filed its appeal brief on September 29, 2014 to the U.S. Court of Military Commission Review. The government’s position is that the existence of hostilities (or a connection between the attack and the hostilities) is a question that goes to the merits, not jurisdiction, and therefore the government should be permitted to proceed to trial where it will demonstrate this connection. The connection between the hostilities and the attack is a merits question because the existence of hostilities is a predicate element of any war crime.  No war, no war crime.

So it is clearly a question that goes to the merits that should be decided at trial.  On this point the government is clearly correct. However, Al Nashiri is also correct that the same fact — the connection to the hostilities — is an essential ingredient of the court’s jurisdiction under the law of war. The military commission does not, and should not, have jurisdiction over crimes unrelated or unconnected to the underlying military conflict. So it is a jurisdictional question too. It is both at the same time. What the court really needs to figure out is how to treat a fact that is both jurisdictional and an element of the offense (merits) at the same time. Should it be proved at trial or does the party need to show the court, prior to trial, that it has jurisdiction over the case?

As should be clear by now, this basic problem is not unique to a military commission. It happens any time that the same factual element goes to jurisdiction and merits in the very same case. A court confronted with the twin nature of such a fact needs to determine whether to treat it as it does other jurisdictional elements (determine prior to trial) or as a merits question (determine at the conclusion of the trial).

The very best article on this subject, by Kevin Clermont, is simply titled Jurisdictional Fact, 91 Cornell L. Rev. 973 (2006). As Clermont convincingly explains, judges faced with this quandary should adopt a bifurcated approach with two standards of decision, one for the jurisdictional analysis and a second for the merits analysis:

All courts, then, should apply the prima facie standard of proof whenever a jurisdictional fact overlaps the merits. “Overlapping” here means that a factual finding in establishing … jurisdiction would also go toward proving the merits of the claim, with “merits” broadly meaning those issues that arise other than in determining the forum’s authority.

 

So, at the pre-trial phase, the court should require that the party asserting jurisdiction (which in Al Nashiri’s case would be the government prosecutors) should make a prima facie demonstration of the jurisdictional fact, and then at trial should be required to demonstrate the same fact under the higher standard, which in a civil case would be preponderance of the evidence or in a criminal case beyond a reasonable doubt.

Most importantly, this basic scheme applies regardless of whether one interprets Al Nashiri’s motion as going to personal jurisdiction or subject matter jurisdiction. It does not matter which one we use to classify the motion. If there is a fact that is both jurisdictional and merits, the government must demonstrate it pre-trial with a prima facie case, and then at trial under the regular standard for the merits decision.  Here is how Clermont explains the basic point:

From a morass of confused cases on a procedural point of significance, there emerges a startlingly clear rule that covers jurisdictional fact, and much more. On any factual element or legal question of forum authority, from subject-matter jurisdiction to venue whenever properly challenged, the proponent of forum authority must make the usual showing of more-likely-than-not, subject to this exception: if that element or question overlaps the merits of the claim, the proponent need provide only prima facie proof to establish the forum’s authority. Depending on the particular threshold issue’s importance, “prima facie” might mean any of the standards below the more-likely-than-not standard, namely, slightest possibility, reasonable possibility, substantial possibility, or equipoise. That lower standard will allow the judge to decide efficiently but definitively whether the forum has authority to decide the merits–doing so without entailing or foreclosing any decision on the merits, a decision to which a higher standard would apply.

Applying this basic scheme to Al Nashiri’s case, here is the correct result for the U.S. Court of Military Commission Review to consider. The government is indeed required to make a factual showing of the hostilities connection prior to trial, though it need not be burdened with demonstrating it under the standard applicable at the merits phase. Instead, the government was only required to make a prima facie showing of this jurisdictional fact. That being said, the government would be wrong if it claims that it bears no burden at all until trial — that clearly is an exaggeration. The task for the appeals court is to recognize the appropriate standard for such jurisdictional facts — the prima facie showing — and then decide if the government met that burden. If the lower judge’s assessment is correct that the government made no showing whatsoever on the hostilities question, then the appeals court should conclude that the charges were properly dismissed. If, on the other hand, the appeals court concludes that the government did make this prima facie case, and can cite to particular facts in the record that are sufficient to meet the prima facie showing, then the charges should be reinstated.

One final point. The government brief seems to assert that the government’s prima facie showing is already met because Al Nashiri never contested his status as an alien unprivileged enemy belligerent (AUEB). But this goes to personal jurisdiction, not subject matter jurisdiction. The government then goes on to use personal jurisdiction to bootstrap its way into subject matter jurisdiction under the theory that subject matter jurisdiction is automatically established once the status of the individual is established. This might be the way that it works for a court martial under the UCMJ (where the status of the individual service-member is sufficient to trigger the authority of the military court), but this conflation of personal and subject matter jurisdiction is not appropriate for military commission cases trying enemy belligerents.

Unlike domestic court martial proceedings which retain plenary authority to prosecute all UCMJ offenses against service-members, military commission cases are jurisdictionally limited to offenses arising from the conflict between the parties — the very conflict that grounds the genesis of the military commission under international law. Simply put, military commissions cannot use the existence of an armed conflict as a pretext to assert plenary authority over all criminal behavior committed by the individuals who lawfully fall under their personal jurisdiction.

Can a U.S. Judge Hold the Government of Argentina in “Contempt”?

by Julian Ku

In the latest round in the never-ending battle between Argentina and its holdout bondholders, a U.S. court has found Argentina to be in “contempt” for trying to circumvent that US court’s orders. Argentina has been outraged by such an order, arguing that a  state cannot be held in “contempt” because it is an affront to its sovereign dignity (with Argentina’s president denouncing the U.S. judge as “senile“).   Indeed, the Argentine government on Monday sent a very interesting letter to U.S. Secretary of State John Kerry setting out why it believes it cannot be subject to a “contempt” order in a domestic U.S. court.

The Argentine Republic notes that it is completely absurd for plaintiffs to argue that a local judge can hold a foreign State “in contempt”. This position can only arise from ignorance or a distorted view of the fundamental rules of international law currently in force and the peaceful coexistence of global order.

The principles on which international coexistence rests are reflected in the Charter of the United Nations. One of these principles refers to sovereign equality of all States and is expressly embodied in Article 2(1) of that Charter. This is a fundamental principle when it comes to determining what a State can or cannot do in relation to other States.

When any branch of government of a State denies “equal” status to another State, it not only manifestly violates international law but it also risks setting a precedent for the commission of similar violations of international law to its own detriment.

I think that Argentina’s argument that contempt orders and other judicial sanctions against it are violations of international law (even thought it has consented to that domestic jurisdiction) can draw some support from the statements of the U.S. government itself (which is quoted extensively in the letter).  The problem for Argentina is that the U.S. judicial system has not agreed with the U.S. government’s views on many of these questions.  So US law is no help to Argentina here (for the most part). And the U.S. government has almost no legal mechanisms to change the district court’s actions here, so the letter is largely for public consumption.

The harder question is whether (as Argentina argues) there is a generally accepted rule of international law that a court cannot hold a sovereign in contempt where that sovereign has consented to the jurisdiction of that court.  This is a tricky question and one worth thinking about further. I hope to post on that when I have had more time to digest it.

Guest Post: Kenyatta (Finally) Has to Go Back to The Hague

by Abel Knottnerus

[Abel S. Knottnerus is a PhD Researcher in International Law and International Relations at the University of Groningen.]

The case against Kenyan President Uhuru Kenyatta has reached a critical juncture. Almost six months ago, Trial Chamber V(B) adjourned the commencement of his trial until 7 October “for the specific purpose of providing an opportunity for compliance by the Kenyan Government with outstanding cooperation requests” (para. 2). Three weeks ago, however, the Prosecution submitted that the start of Kenyatta’s trial should again be adjourned, because the Kenyan government would still not have fulfilled its cooperation requirements. In response, the Chamber decided on 19 September that it will hold two status conferences on 7 and 8 October to discuss “the status of cooperation between the Prosecution and the Kenyan government” (para. 11).

These conferences will determine the future, if any, of Kenyatta’s trial. Yet, before this ‘do-or-die’ moment, the Chamber first had to decide on another sensitive matter, namely whether Kenyatta would have to be physically present in The Hague for the second of the two status conferences. On Tuesday, the Chamber ruled, by Majority (Judge Ozaki partially dissenting), that Kenyatta indeed has to travel to The Hague. Assuming that Kenyatta will not disobey this direct order, this will be the first time that a sitting Head of State will appear before the ICC.

Kenyatta’s excusal request and the Prosecution’s response

In the initial decision announcing the status conferences, the Trial Chamber stated that “given the critical juncture of the proceedings and the matters to be considered, the accused is required to be present at the status conference on 8 October” (para. 12). Despite this clear language, Kenyatta’s defence requested the Chamber last Thursday to excuse Kenyatta from attending. Based on Rule 134quater of the Rules of Procedure and Evidence the defence argued that Kenyatta has to fulfil extraordinary public duties at the highest national level on the scheduled date, because he is due to attend the Northern Corridor Infrastructure Summit in Kampala, Uganda. The defence added that this meeting was arranged prior to the Chamber’s decision to convene the status conference and that Kenyatta would therefore also not be able to attend by video-link.

In the alternative, the defence requested to reschedule the status conference and that on this new date Kenyatta would be allowed to be present through video-link in accordance with Rule 134bis. Instead of travelling to The Hague, a ‘skype session’ would enable Kenyatta “to perform his extraordinary public duties as President of Kenya to the greatest extent possible while causing the least inconvenience to the Court” (para. 13).

In response to the defence’s request, the Prosecution submitted on Monday that Rules 134bis and quater are not applicable at this stage of the proceedings because Kenyatta’s trial has not yet commenced. According to the Prosecution, the Trial Chamber would have the (inherent) discretion to reschedule the status conference as well as to permit Kenyatta to attend by video-link. While not opposing the former option, the Prosecution as well as the Legal Representative for Victims (LRV) argued that the defence had given no clear reasons for attendance by video-link on a later date, other than the distance that the accused would have to travel and his status as Head of State.

The (in)applicability of Rules 134quater and bis

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To Debate or Not to Debate in a Time of War

by Kristen Boon

John Stewart’s Sept. 29 clip “Cameron – What are you Doing?” is a must see on comparative constitutional law.   Stewart contrasts the fulsome and spirited debate in the UK on whether to authorize airstrikes against ISIL, with the absence of congressional action in the US.   Well worth watching. And quite funny.   Here is the show.

 

 

Ground Troops & the Myth of Air Power

by Jens David Ohlin

House Speaker John Boehner said in an interview on Sunday that ground troops may be necessary in order to stop the threat of ISIS. Although his comments were interwoven with lots of unnecessary talk of ISIS being barbarians, which I don’t think is terribly helpful, I do agree with his bottom-line assessment: air power and proxy ground troops won’t be enough to win this war.

This points to a frequent mistake. Politicians think they can eliminate the cost of going to war by conducting an air war. That may work in some situations, but they are a distinct minority. The NATO bombing campaign against Serbia (led by General Clark) was frustratingly slow and borderline ineffective without the introduction of ground troops to make a real difference on the ground.

Air power is effective in some situations, especially when combined with a select number of well-trained, well-equipped, and highly motivated infantry on the ground. Air power might also be appropriate to punish an international wrongdoer and deter them from violating international law in the future, in very isolated ways.

In isolation, air power cannot win a war that is designed to deprive an enemy of governmental control over a territory. An enemy facing only air power can hunker down and wait out the air assault especially when, as in this case, the President at first announced that ground troops were off the table. Obama smartly reversed course and is now issuing more ambiguous statements so as not to motivate ISIS forces to wait out the air assault (which cannot go on forever).

True, grounds troops are not entirely absent from this conflict. It is just that they are from Iraq, Turkey, and the moderate Syrian opposition. But the Iraqi Army is incredibly weak at the moment and there is little incentive for troops to show up to fight. The Syrian opposition is also disorganized. And no amount of money and weapons is going to fix that.

Boehner is right that ground troops are necessary if the US is serious about defeating ISIS. But if that happens, I don’t think the Obama Administration will be able to hang on to the fiction that the intervention is covered by the 9/11 AUMF. A new authorization, and political buy-in from Congress, will be required.

 

Weekly News Wrap: Monday, September 29, 2014

by An Hertogen

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

  •  Ashraf Ghani Ahmadzai will be sworn in as the new President of Afghanistan later today.
  • Protestors in Hong Kong refuse to withdraw and the use of tear gas by the authorities has created new protests to spring up against Beijing’s new rules imposing strict controls on candidate selection for the next elections.

Europe

Americas

World

The Invention of the Khorasan Group and Non-Imminent Imminence

by Kevin Jon Heller

I will be back blogging regularly soon, but I want to call readers’ attention to a phenomenal new article at the Intercept by Glenn Greenwald and Murtaza Hussain about how the US government has cynically manipulated public fears of terrorism in order to justify its bombing campaign in Syria. Recall that Samantha Power — the UN Ambassador formerly known as a progressive — invoked the scary spectre of the Khorasan Group in her letter to the Security Council concerning the US’s supposed right to bomb terrorists in Syria in “self-defence.” As it turns out, not only is there literally no evidence that the Khorasan Group intends to launch an imminent attack on US interests — unless “imminent” is defined as “sometime before the Rapture” — there is also very little evidence that the Khorasan Group actually exists in a form that could threaten the US. Here is a snippet from the article on the latter point:

Even more remarkable, it turns out the very existence of an actual “Khorasan Group” was to some degree an invention of the American government. NBC’s Engel, the day after he reported on the U.S. Government’s claims about the group for Nightly News, seemed to have serious second thoughts about the group’s existence, tweeting “Syrian activists telling us they’ve never heard of Khorosan or its leader.”

Indeed, a NEXIS search for the group found almost no mentions of its name prior to the September 13 AP article based on anonymous officials. There was one oblique reference to it in a July 31 CNN op-ed by Peter Bergen. The other mention was an article in the LA Times from two weeks earlier about Pakistan which mentioned the group’s name as something quite different than how it’s being used now: as “the intelligence wing of the powerful Pakistani Taliban faction led by Hafiz Gul Bahadur.” Tim Shorrock noted that the name appears in a 2011 hacked Stratfor email published by WikiLeaks, referencing a Dawn article that depicts them as a Pakistan-based group which was fighting against and “expelled by” (not “led by”) Bahadur.

There are serious questions about whether the Khorasan Group even exists in any meaningful or identifiable manner. Aki Peritz, a CIA counterterrorism official until 2009, told Time: “I’d certainly never heard of this group while working at the agency,” while Obama’s former U.S. ambassador to Syria Robert Ford said: ”We used the term [Khorasan] inside the government, we don’t know where it came from…. All I know is that they don’t call themselves that.”

I don’t know for a fact that the Khorasan Group doesn’t exist. But it is profoundly troubling that the Obama administration has provided no evidence that it does — especially given that its case for the international legality of bombing Syria is based so heavily on the supposed threat the Khorasan Group poses to the “homeland.”

And let’s not forget that the Obama administration is doing everything it can to denude the concept of “self-defence” of all meaning. Here is the Intercept article on the “imminent” threat posed to the US by the maybe-existing Khorasan Group:

One senior American official on Wednesday described the Khorasan plotting as “aspirational” and said that there did not yet seem to be a concrete plan in the works.

Literally within a matter of days, we went from “perhaps in its final stages of planning its attack” (CNN) to “plotting as ‘aspirational’” and “there did not yet seem to be a concrete plan in the works” (NYT).

Late last week, Associated Press’ Ken Dilanian – the first to unveil the new Khorasan Product in mid-September – published a new story explaining that just days after bombing “Khorasan” targets in Syria, high-ranking U.S. officials seemingly backed off all their previous claims of an “imminent” threat from the group. Headlined “U.S. Officials Offer More Nuanced Take on Khorasan Threat,” it noted that “several U.S. officials told reporters this week that the group was in the final stages of planning an attack on the West, leaving the impression that such an attack was about to happen.” But now:

Senior U.S. officials offered a more nuanced picture Thursday of the threat they believe is posed by an al-Qaida cell in Syria targeted in military strikes this week, even as they defended the decision to attack the militants.

James Comey, the FBI director, and Rear Adm. John Kirby, the Pentagon spokesman, each acknowledged that the U.S. did not have precise intelligence about where or when the cell, known as the Khorasan Group, would attempt to strike a Western target. . . .

Kirby, briefing reporters at the Pentagon, said, “I don’t know that we can pin that down to a day or month or week or six months….We can have this debate about whether it was valid to hit them or not, or whether it was too soon or too late… We hit them. And I don’t think we need to throw up a dossier here to prove that these are bad dudes.”

Regarding claims that an attack was “imminent,” Comey said: “I don’t know exactly what that word means… ‘imminent’” — a rather consequential admission given that said imminence was used as the justification for launching military action in the first place.

According to the Obama administration, in short, the US is entitled to act in self-defence against “bad dudes” no matter when — or even if — those “bad dudes” might launch an armed attack against the US. This isn’t even the Bush administration’s “anticipatory self-defence.” This is, for lack of a better expression, “hypothetical self-defence.” Apparently, the US government believes it is entitled to use force against a non-state actor anywhere in the world as long as it can imagine a future state of affairs in which that actor would attack it.

The mind — and international law — reels.

Guest Post: ‘New Battlefields, Old Laws’ – Debate on the Future of the 2001 AUMF

by Myriam Feinberg

[Myriam Feinberg is a Post-Doctoral Fellow of the GlobalTrust Project, Tel Aviv University (as of October 1, 2014)]

As part of the International Institute for Counter-Terrorism’s 14th Annual World Summit on Counter-Terrorism, a workshop was jointly organised by the ICT and the Institute for National Security and Counterterrorism of Syracuse University (INSCT), as part of the project ‘New Battlefields, Old Laws.’ Started in 2006 to adapt our understanding of laws of war, the NBOL Project brings together scholars and experts who aim to address the challenges for the future of armed conflict.

This year’s NBOL workshop dealt with the way we adapt to new threats and expanding battlefields in counterterrorism and culminated in an Oxford Union style debate on the future of the 2001 AUMF. A video of the debate can be found here.

The debate could not have been timelier as the blogosphere is abuzz following President Obama’s speech on the United States’ ‘Strategy to Counter the Islamic State of Iraq and the Levant (ISIL)’ delivered on the eve of the thirteenth anniversary of the attacks of 11 September 2001. In his speech, the President authorised further air strikes against ISIL militants in Iraq and appeared to authorise air strikes in Syria.   He stated that he secured bipartisan support and welcomed further congressional action, yet also made clear that he did not need further authorisation from Congress to launch the strike. Other official statements made clear that the administration was relying on the 2001 Authorization to Use Military Force, which authorized the use of force against those responsible for the September 11, 2001, as a justification for striking ISIL. This comes despite a national security address at the US Military Academy in May 2013, when Obama said he wanted to repeal the 2001 AUMF.

At the NBOL workshop, Professor Nathan A. Sales of Syracuse University College of Law and Professor Jennifer Daskal of American University Washington College of Law debated the following motion: ‘This House believes that the 2001 AUMF should be amended to authorize force against future terrorist threats’.

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Events and Announcements: September 28, 2014

by An Hertogen

Calls for Papers

  • The British Institute of International and Comparative Law (BIICL) is making a worldwide Call for Papers on British Influences on International Law 1915-2015. The Institute is publishing a series of books to commemorate the centenary of the establishment in London of the Grotius Society (a forerunner of BIICL) in 1915. One of these books is on British Influences on International Law in the period from 1915 until today. They invite anyone who has an interest in writing a chapter on an aspect of this topic to submit an abstract for consideration. This invitation extends to established academics, early career researchers, doctoral researchers, those with experience in government and other practice, and anyone else with relevant expertise, whether based in the UK or elsewhere. The authors of the selected papers may be chosen for presentation as part of a seminar series which is likely to be held in the first half of 2015. For further information, please visit their website or contact the project co-ordinator Dr Jean-Pierre Gauci on j [dot] gauci [at] biicl [dot] org.
  • The Refugee Law Initiative (RLI) invites submissions to its Working Paper Series. The series provides for the rapid dissemination of preliminary research results and other work in progress, reflecting cross and inter-disciplinary interests within refugee law and policy, broadly defined. Recent papers have considered integration, detention and smuggling of asylum-seekers, gender-related asylum claims and long-term encampment. RLI Working Papers are prominently displayed on the RLI website as a resource for scholars and practitioners worldwide. Papers must be based on original research, conform to the usual standard of academic publishing, be fully referenced and presented in the standard technical format employed by the series. Papers will be evaluated based on their contemporary relevance, contribution to the field, structure and analytical rigour (submission guide). Papers published in the series may subsequently be published in journals or books provided that an acknowledgement is given to the RLI Working Paper Series. Submissions are considered on a rolling basis. For further information, and to submit a paper please contact the Editor-in-Chief, Dr. Ruvi Ziegler, at r [dot] ziegler [at] reading [dot] ac [dot] uk or ruvi [dot] ziegler [at] law [dot] ox [dot] ac [dot] uk.
  • The Chinese (Taiwan) Society of International Law will hold the ILA-ASIL Asia-Pacific Research Forum on May 25-26, 2015 in Taipei, Taiwan. The theme of the Research Forum is “Integrating the Asia-Pacific: Why International Law Matters?” Paper proposals should be submitted by January 20, 2015 to ila [at] nccu [dot] edu [dot] tw. The call for papers is available online. Other inquiries can be directed to Pasha Hsieh, co-chair of the Research Forum (pashahsieh [at] smu [dot] edu [dot] sg)

Announcements

  • Hart Publishing is delighted to announce that the first issue, published in August, of the Journal on the Use of Force and International Law (JUFIL) is now available online. Please click here for the table of contents. JUFIL is the first peer-reviewed journal covering all aspects of the law governing the use of force (jus ad bellum), as distinct from other areas of international law relating to security issues, such as International Humanitarian Law or International Criminal Law. From the first issue, Hart Publishing is pleased to make the article by Claus Kreß Major Post-Westphalian Shifts and Some Important Neo-Westphalian Hesitations in the State Practice on the International Law on the Use of Force free to view online. To access this article please click on this link and follow the instructions shown (the introduction is also shown on the PDF download). For subscription rates and details on how to subscribe please click here.

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

Weekend Roundup: September 20-26, 2014

by An Hertogen

This week on Opinio Juris, JensJennifer Trahan and Julian discussed the international legal basis for the air strikes against ISIS. Jens also analysed why Khorasan is seen as a more immediate threat to the US than ISIS. For more on the US domestic legal basis, check out Deborah’s post with a snippet from her Daily Beast article on the perennial US War Powers fight.

A guest post by Anton Moiseienko gave some insights in Russian scholarship on the legality of Crimea’s annexation under international law.

Finally, Jessica wrapped up the news and I listed events and announcements.

Many thanks to our guest contributors and have a nice weekend

Guest Post: What do Russian Lawyers Say about Crimea?

by Anton Moiseienko

[Anton Moiseienko received his LL.M. from the University of Cambridge and is currently a Ph.D. candidate at Queen Mary, University of London. All translations from Russian in this piece are his own. He is a citizen of Ukraine.]

Few people with any background in international law would doubt that Russia’s annexation of Crimea raises serious questions of compliance with international law. This has certainly been the position of contributors to Opinio Juris, for instance of Kristin Hausler and Robert McCorquodale, Rhodri Williams, and Chris Borgen. Elsewhere, Anne Peters has written a thoughtful article about Crimea’s secession.

One would expect the annexation of Crimea to spark equally lively discussions among Russian experts in international law, as well as prompt them to voice their views before foreign audiences. Importantly, in accordance with Article 15(4) of the Russian Constitution both “universally recognized norms of international law and international treaties” prevail over domestic laws. Thus, the validity of Crimea’s absorption by Russia under international law ought to be of immediate practical concern to Russian lawyers.

However, so far Russian academics and practitioners have largely remained in the shade, at least on the international arena, while Russian state officials felt free to interpret international law up to the point of redesigning it. Yet – what do we know about Russian lawyers’ attitudes to the annexation of Crimea?

One of the rare English-language documents produced by Russian experts in international law is a June 2014 appeal to the ILA by the President of the Russian Association of International Law, Prof. Anatoliy Kapustin. Before that, in April 2014 the same Association held a conference on the international law aspects of Crimea’s integration into Russia together with the Russian Academy of Diplomacy (in Russian). This event, which brought together senior Russian academics and diplomats, reflects the very close connections between the international law profession and the state apparatus that exist in Russia. Taken together, Prof. Kapustin’s letter and the April 2014 conference seem to espouse the views of Russia’s international law elite on Crimea.

Two main issues occupied the minds of Russian lawyers. First, they mused over the deep “historical connections” between Crimea and Russia. Second, they condemned the “cruel lawlessness” and persecution of Russians by the “Kiev regime” (which fits uneasily with the UN Human Rights Commissioner’s observations on human rights abuse in Crimea and separatist-controlled areas). These two basic claims, strongly reminiscent of the official Russian rhetoric and never questioned, were then framed as various legal and quasi-legal arguments.

Interestingly, both Prof. Kapustin and the conference participants went beyond relying on Kosovo. For instance, Prof. Stanislav Chernichenko referred to the restoration of Russia’s “historic rights” rather than to Crimea’s self-determination (although he did not discard the latter either). Indeed, he noted that Russia’s reliance on Kosovo’s precedent was inconsistent with Russia’s own position on Kosovo. Instead, he drew attention to India’s annexation of Goa in 1961 and the USSR’s annexation of South Sakhalin in the aftermath of World War II. Prof. Kapustin went farther back in history and referred in his letter to Northern Schleswig’s 1920 plebiscites for reunion with Denmark.

The annexation of Crimea, however, defies comparison with either India’s decolonization or territorial reconfigurations brought about by the World War II, let alone the Schleswig plebiscites conducted some 25 years before the UN Charter. In recognition of that, Prof. Chernichenko and his colleagues fell back on the alleged transgressions of the “Kiev regime”. Whereas in other circumstances Russia could attempt to remedy the “historic injustice” of Crimea’s separation by negotiations with Kiev, they claim that the “reunion” with Russia was the only viable option in the circumstances.

Dr. Elena Konnova, a guest participant from Belarus, questioned whether either the 1954 transfer of Crimea from Russia to Ukraine within the USSR or arrangements made after Ukraine’s independence in 1991 were incompatible with the jus cogens rule of self-determination. If yes, then in her opinion, international recognition of Ukraine’s borders could not remedy that defect. While a sensible attempt to rationalize her Russian colleagues’ sentiments, I wonder how far this argument would bring them. First, it is not obvious that self-determination of the Crimea’s “nation” (if at all existent) would require Russia and Ukraine to permit them to choose their new homeland upon the breakdown of the USSR, as opposed to granting Crimea autonomy within Ukraine. Second, one might think that allowing past violations of jus cogens to subvert modern borders would be destructive and would potentially nullify the restrictive approach of international law to remedial secession.

Some scholars attempted to assess the validity of the 2014 Crimea’s referendum under Ukrainian constitutional law. For example, Prof. Oleg Khlestov – an experienced diplomat who headed the Soviet delegation at the negotiations leading to the VCLT 1969 – suggested that the Constitution of Ukraine “was not in force” at the time of the referendum because of the “coup d’etat” in Kiev.

In his turn, Prof. Georgiy Velyaminov tried to “drop” from the Ukrainian Constitution Article 73 that only allows territorial changes to be approved by a statewide referendum: he thought it was inconsistent with the right to self-determination under international law and therefore invalid. Even if that inconsistency existed, such “rectification” of Ukraine’s Constitution is flawed. Ukraine is a dualist state and, pursuant to Article 9 of Ukraine’s Constitution, the Constitution prevails over any rules contained in international treaties that Ukraine may ratify.

With regard to international law, several participants of the April 2014 conference grappled with the issue of whether Crimea’s population is a “nation” for the purposes of the right to self-determination. In their view, the predominantly Russian population of the peninsula ought to qualify as a separate “nation”. As to the requirements for remedial secession, naturally they argued that no internal self-determination was possible for the residents of Crimea in “pro-fascist” Ukraine.

Apart from the more formal statements or events such as those described previously, some Russian lawyers chose to express their private opinions on Crimea in the Internet or in print. Grigoriy Vaypan (PhD Candidate at Moscow State University) wrote a piece for the Cambridge Journal of International and Comparative Law’s blog about the “highly doubtful” validity of Ukraine’s ousted ex-President’s invitation for Russia to invade Crimea before the referendum.

Yet other lawyers prefer Russian-language media and apparently address their concerns to domestic lay audience. Private practitioners Marat Davletbaev and Maria Isaeva regret (in Russian) the “archaic language of Russian diplomacy”:

“In Crimea’s case, Russia – regardless of whether it is right or wrong – communicates with the world in a hopelessly archaic language, as if it were unaware either of the criteria for establishing aggression, or of the serious tensions between the right to self-determination guaranteed by the UN Charter and territorial integrity, or of the rules on non-interference with internal affairs of states, or of the basic requirements for application of the R2P (responsibility to protect) doctrine, or of the definition of “annexation”.

This contrasts with the views of senior academics. Thus, Prof. Ivan Kotlyarov of the Academy of Internal Affairs is another proponent (in Russian) of the “imagine a fascist regime in Ukraine” approach to international law. He somewhat enigmatically argues that the right to self-determination is being denied to citizens of Ukraine (apparently by the government of Ukraine) and that a “genocide” is being perpetrated against the population of the Eastern Ukraine. Ria Novosti, a Russian news agency, quotes (in Russian) Prof. Tatyana Neshataeva of the Academy of Justice claiming that the right to self-determination trumps territorial integrity and, therefore, Crimea’s integration into Russia is lawful.

In conclusion, it would also be fair to note that any criticism of Russia’s annexation of Crimea largely remains a marginal idea in Russian legal media. For example, a well-known website Pravo.ru omits any references whatsoever to potential unlawfulness of the annexation when reporting legal developments in Crimea, e.g. introduction of Russian legislation and judicial reforms (both in Russian). As mentioned previously, this is particularly surprising in view of Article 15(4) of the Russian Constitution.