- During their talks over the weekend, President Xi Jinping and President Obama reached agreement on North Korea and on curbing HFC emissions, but didn’t reach agreement on industrial cyber-espionage.
- Israel has accused Iran and its Palestinian and Lebanese allies of wide-scale cyber attacks on vital national infrastructure.
- Ed Snowden, the NSA/PRISM whistleblower has revealed his identity in an interview with The Guardian, which has live updates here. Meanwhile, Forbes and The Atlantic both whether he can be extradited to the US by Hong Kong where he is currently in hiding.
- Afghan security forces have fought off an attack by Taliban militants near Kabul airport.
- For the first time in over two years, North and South Korean diplomats have held marathon talks to prepare for ministerial talks.
- Australia’s Maritime Safety Authority has called off search operations for survivors after a boat carrying around 55 asylum seekers capsized near Christmas Island.
In my last post, I introduced my recent article rethinking the concept of responsibility to protect. Today, I consider how the discussion of R2P often obscures the reality of how states go about choosing to intervene by speaking of duties and responsibilities. Some commentators have expressed concern about the selective nature of R2P or about the disappointment of R2P in Syria. But this disappointment simply glosses over the real problem, which is that states simply have no responsibility or duty in these circumstances—rather, they have a choice, which they exercise selectively based on myriad factors.
R2P lumps together two distinct responsibilities that actually have very different foundations. First, the responsibility of a state to its own people; and second, the responsibility of all states to people victimized in other states.
The responsibility of a state for its own people reflects well-established understandings about the nation state—it is an essential aspect of the social contract that the state provides basic human security to the people within its borders. Although state practice often violates these principles (creating the asserted need for intervention), states have widely accepted the basic responsibility to their own people. For instance, no state contested this responsibility in the 2005 United Nations World Summit that affirmed certain principles of R2P.
A responsibility to protect between a state and its people primarily begins with the negative right to be left alone, the right to enjoy life without interference from the state. The social contract, however, includes more than this because within a political society individuals have a claim to be kept safe—for the state to ensure certain conditions of safety to individuals and their property. All governments provide some form of protection from private actors through their criminal justice systems. This demand, however, is inherently a political one within the state. It concerns the type of public resources that should be allocated to crime prevention, law enforcement, incarceration, and rehabilitation.
Importantly, even within the most liberal, rights-respecting countries, there are not enforceable rights to safety or protection from private actors. The United States Supreme Court has repeatedly affirmed that the government does not have an affirmative obligation to protect individuals, even though it may have an obligation to refrain from harmful activities. Instead, the political process determines what the state provides with respect to protection—increased security is balanced against civil liberties, not to mention costs.
The second responsibility between a state and people in other states lacks this political foundation. The claim of victims in other states to protection is essentially a positive claim for rescue from the harms inflicted by their government or by private actors while their government stands by. Consider that victims in Syria have no particular political claim to the assistance of France, England, or the United States. Their plight may present a moral demand for assistance and political pressure may mount through interest groups, the media, international organizations, and former Presidents. Yet the claims of foreigners will invariably present a different calculus than domestic claims and rightly so.
The responsibility to protect people in other states is a positive claim and positive claims require resources (diplomatic, humanitarian, and military). Although proponents of R2P often prefer to shift the language away from “rights,” at its foundation R2P depends on having some conception of the “rights” of people to protection from other states. It is not about leaving the Syrians alone, but rather protecting them from harm. Yet what precisely this right to assistance includes in Syria or elsewhere, no one is able to say.
Even accepting a basic moral responsibility, there remain difficult questions about what action best respects rights and what will serve to promote human rights and security overall. The responsibility will always be contingent on political, military, and other calculations and will be uncertain in any particular instance. Calling this choice a responsibility dilutes the meaning of rights and duties and obscures the actual mechanisms for promoting intervention.
Calls for Papers
- The American Society of International Law’s International Economic Law Interest Group (ASIL IEcLIG) is pleased to issue a Call for Proposals for its inaugural Junior Scholars Research Forum, to be held at the University of Pennsylvania’s Wharton School, in Philadelphia, on November 22, 2013. The deadline for receipt of proposals is June 25th, 2013 and more information can be found here.
- On November 14–15, 2013, the University of Michigan Law School will host the Second Annual ASIL–ESIL–Rechtskulturen Workshop on International Legal Theory. This year’s theme is ‘Politics and Principle in International Legal Theory’. The deadline for the submission for abstracts is July 21, 2013. More information is available here.
- The Faculty of Law, University of Ljubljana is organizing an international scientific conference entitled Second Contemporary Challenges of International Environmental Law Conference. The conference will be held on June 5-6, 2014. Abstracts are due by September 5, 2013. You can find the call for papers here.
- The Institute of Advanced Legal Studies (IALS), School of Advanced Study at the University of London is pleased to announce its inaugural IALS Student Law Review and invites applicants to submit their papers. The IALS Student Law Review will be an open-access journal publishing scholarly articles or developing work format and will focus on legal studies within the main expertise of IALS. Contributions from all areas of the law are welcomed. More information about the Journal and the call for papers can be found here.
- The New Journal of European Criminal Law has issued a call for papers on Fundamental Rights and Penal Law in the Wake of Lisbon. It welcomes contributions on all aspects of the protection of fundamental rights within the Lisbon framework, with a particular focus on criminal law. Contributions, of maximum 12000 words (footnotes included, abstract and five keywords excluded), should be sent to irene [dot] wieczorek [at] vub [dot] ac [dot] be by September 1, 2013.
On June 17, 2013 from 12.00pm – 2.00pm the American Society of International Law will host U.S. Department of State Assistant Secretary for International Security and Nonproliferation Thomas Countryman and other distinguished panelists for an educational event discussing domestic and international implications of the Arms Trade Treaty, challenges to the implementation of the treaty and its international humanitarian law aspects. More information is here.
- ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) Herzliya would like to invite you to the next session of the Joint International Humanitarian Law Forum, on June 19, 2013. This month they host Prof. Eugene Kontorovich to discuss his new article “Jurisdiction over Israeli Settlement Activity in the International Criminal Court” and Dr. Ben Clarke to present his new article “Arming drones for law enforcement: challenges and opportunities for the protection of human life”. More information is here.
- Our friends at OUPblog wanted to highlight a recent blog post by Gina Heathcote: Thinking gender and speaking international law.
Last week’s post can be found here. If you would like to post an announcement on Opinio Juris, please contact us.
This week on Opinio Juris, Kevin analyzed the ICC’s Pre-Trial Chamber’s rejection of Libya’s admissibility challenge. He examined the PTC’s analysis of Libya’s inability to prosecute, and expressed surprise that Libya’s failure to provide Saif with defence counsel was evidence of its “inability” instead of “unwillingness”. If you find yourself in Johannesburg next week, you can hear more from Kevin on the admissibility challenge during a lunchtime lecture at the Open Society Initiative for Southern Africa.
In other ICC news, Jennifer Trahan argued that Germany’s ratification of the Kampala Amendment on the Crime of Aggression was a significant step.
Peter was less impressed by the US’ excuse not to attend the signing ceremony of the UN Arms Trade Treaty.
Kevin discussed recent ICTY developments, and his arguments why the ICTY’s “specifically directed” requirement is justified attracted a lot of comments.
Chris pointed out that Geoff Corn, Laurie Blank, Christopher Jenks, and Eric Talbot Jensen have published their full length article on the question of whether a “least harmful means” rule exists in the Law of Armed Conflict. He also posted about the approaching deadline for AJIL‘s Agora on “Transnational Human Rights Litigation after Kiobel“. Other events and announcements can be found here. Finally, you can find our roundups of the daily news here.
Have a nice weekend!
I am currently in Durban, South Africa, co-teaching a fantastic ICL course with my friend (and War and Law blogger) Chris Gevers at the University of KwaZulu-Natal. Durban is a very nice city, with amazing coffee — high praise from someone who lives in Melbourne. I will be spending three days in Cape Town next week, then two days in Johannesburg. On June 13, I’ll be giving a lunchtime lecture at the Open Society Initiative for Southern Africa on Libya’s failed complementarity challenge; any Opinio Juris readers in Johannesburg/Pretoria are warmly invited to attend. RSVP is required; you can find information about the lecture here.
If you come to the event because of this post, please come say hello. There will be a light lunch provided after the lecture.
- South Korea has agreed to negotiate with North Korea on the reopening of a joint industrial park that was closed in April after rising tensions.
- The ICC Prosecutor has reported to the UN Security Council on the situation in Darfur.
- The EU Counter-Terrorism Co-ordinator wants member states to do more to restrict their citizens travelling to Syria to fight with extremist groups.
- Syrian rebels have seized the only border crossing between Syria and Israel on the Golan Heights.
- The IMF has issued a report admitting that it made mistakes in Greece, but also shifting some of the blame to other eurozone states.
- According to French Foreign Minister Laurent Fabius, forensic examination has shown that the Syrian regime used sarin gas against the rebels. He added that all options are now on the table regarding the response to the situation in Syria.
- Syrian troops, assisted by Hezbollah militia, have seized control of the strategic city of Qusair.
- The US International Trade Commission has sided with Samsung in its ongoing patent fight against Apple; this could see certain types of iPads and iPhones banned from import and sale in the US.
- An Egyptian court has handed out prison sentences of up to five years to 43 pro-democracy NGO workers, including 16 Americans.
- Environmental NGOs have released a report accusing Joseph Kony and his militia of poaching elephants for cash and have called upon governments, particularly in Asia, to do more to combat the illegal trade in ivory.
- The EU Trade Commissioner, Karel De Gucht, has imposed a 12% import duty on Chinese solar panel products that will increase to an average of 47% unless a solution is negotiated within 60 days. China has already responded by announcing an investigation into EU wine trading subsidies.
The indefatigable Benjamin Wittes at Lawfare has a short post describing a lively exchange between the Chinese and Filipino representatives at MILSOPS, an invitation-only off-the-record meeting of top military officials from the Asia-Pacific region, about China’s nine-dash-line claim to the South China Sea.
Apparently, this has been an ongoing debate at this annual conference. Last year, the Chinese representative presented this set of powerpoint slides usefully entitled: ”China has indisputable sovereignty over the islands in the South China Sea: Understanding the South China Sea issue from the angle of law”. (The title says it all). Ben says he is somewhat constrained in his reporting since the conference is off-the-record, but hopefully he can get participants to write more about their exchange.
The one thing that is a constant in these slides and from other articles from China is that Chinese officials are using their claim to sovereignty over the “Nansha” islands as the basis for their claims of “indisputable sovereignty.” And China does indeed have plausible sovereignty claims to many of the islands in the South China Sea, and those sovereignty claims are of course not subject to UNCLOS arbitration. But no one in China has really offered a particularly detailed explanation of how the sovereignty claims to the islands can justify the “nine-dash line” (see my earlier post here describing the nine-dash line claim) which goes well beyond a 12 mile territorial sea or the 200 mile exclusive economic zone. Thus, even if China had sovereignty over every random rock in the South China Sea, it can’t quite support the nine-dash line. I wish Chinese scholars would offer a more comprehensive explanation or defense of the nine-dash line, as oppose to muddying the issue by raising their island sovereignty claims. It is the nine-dash line that makes China’s claims unusual, and particularly dangerous. And, oddly, it overshadows and weakens China’s much better and more legally supportable claims to particular South China Sea islands.
[Jennifer Trahan is associate clinical professor at NYU’s Center for Global Affairs (NYU-SCPS). She is also chair of the American Branch of the International Law Association International Criminal Court Committee and was a member of the American Bar Association’s 2010 International Criminal Court Task Force.]
Yesterday, June 3, 2013, Germany deposited its instrument of ratification of the Kampala Amendment on the crime of aggression. The ratification is the 6th to date, and one step closer to the thirty ratifications needed to activate the International Criminal Court’s crime of aggression. The amendment, negotiated at the ICC’s Review Conference in Kampala, Uganda, requires 30 ratifications and one more vote at the ICC’s Assembly of States Parties in order for activation. The amendment provides both a definition of the ICC crime of aggression and sets forth conditions for the ICC’s exercise of jurisdiction over the crime. The definition also facilitates states in implementing the crime into their national laws – something considered controversial by some countries.
Germany ’s ratification is historic, because it was at the Nuremberg Tribunal that the Allies prosecuted key Nazi leaders for “crimes against the peace,” now termed the crime of aggression. Yet, the definition used at Nuremberg—and the International Tribunal for the Far East (Tokyo)—was rather minimal, and somewhat circular, necessitating the drafting work that led to the adoption of the crime of aggression amendment at the 2010 Review Conference. The text of the amendment rests on a sound historical foundation, incorporating language from Nuremberg ’s London Charter, U.N. Charter article 2(4) and U.N. General Assembly resolution 3314. Still, some countries, including the United States , remain wary of the ICC’s activating the crime of aggression. Under the complex jurisdictional agreement reached in Kampala , the U.S. , as a non-State Party to the Rome Statute, will be exempt from the ICC’s crime of aggression jurisdiction even once it activates.
Germany ’s ratification is important because it is the most significant country to date, and a significant NATO member, to have ratified the amendment. States appear to have various motivations in ratifying, with some countries clearly seeing the amendment as a step to further protect their national boundaries. While aggressive use of force by a state is already prohibited under the U.N. Charter, the crime of aggression amendment is hoped to provide added deterrence against aggressive use of force (that is, force that is not exercise in self-defence, authorized by the U.N. Security Council under Chapter VII, or humanitarian in nature). That the crime of aggression amendment does not criminalize humanitarian intervention is something that this author would prefer to have seen added clarity on; the U.S. had proposed an “Understanding” to this effect in Kampala , but it was not ultimately adopted.
Germany ’s step today should be applauded as a significant move that advances the rule of law, the work of the International Criminal Court, and a commitment to international peace and security.
“the modern law of armed conflict supports the following maxim: if enemy combatants can be put out of action by capturing them, they should not be injured; if they can be put out of action by injury, they should not be killed; and if they can be put out of action by light injury, grave injury should be avoided.”
Whether an obligation under the law of armed conflict (LOAC) to use the least harmful means possible against enemy belligerents exists has been the subject of much debate on this blog (1, 2, 3) and at Lawfare (see, for example, this) and Jens Ohlin has also explored similar issues in his scholarship on the duty to capture. I want to give readers a “heads-up” that Geoff Corn, Laurie Blank, Christopher Jenks, and Eric Talbot Jensen, who participated in the Lawfare discussion of Ryan’s piece (go to this link for a list that includes their posts, or go directly to their first post), have just posted to SSRN a full length article being published in the U.S. Naval War College’s International Law Studies on the question of whether a “least harmful means” rule exists. Their short answer is in the title: “Belligerent Targeting and the Invalidity of the Least Harmful Means Rule.” Here’s the abstract:
The law of armed conflict provides the authority to use lethal force as a first resort against identified enemy belligerent operatives. There is virtually no disagreement with the rule that once an enemy belligerent becomes hors de combat — what a soldier would recognizes as “combat ineffective” — this authority to employ deadly force terminates. Recently, however, some have forcefully asserted that the LOAC includes an obligation to capture in lieu of employing deadly force whenever doing so presents no meaningful risk to attacking forces, even when the enemy belligerent is neither physically disabled or manifesting surrender. Proponents of this obligation to capture rather than kill, or use the least harmful means to incapacitate enemy belligerents, do not contest the general authority to employ deadly force derived from belligerent status determinations. Instead, they insist that the conditions that rebut this presumptive attack authority are broader than the traditional understanding of the meaning of hors de combat embraced by military experts, and include any situation where an enemy belligerent who has yet to be rendered physically incapable of engaging in hostilities may be subdued without subjecting friendly forces to significant risk of harm.
This essay offers our collective and — we hope — comprehensive rebuttal of this least harmful means LOAC interpretation. First, Section I reviews the fundamental principles of the LOAC that permit status-based attacks against enemy belligerents with combat power highly likely to cause death unless and until the enemy is rendered physically incapable of participating in hostilities. Section II thoroughly analyzes the affirmative prohibitions on the use of force that the LOAC — and specifically Additional Protocol I — does require, and also highlights what Additional Protocol I does not require. In particular, the fact that Additional Protocol I — by any account the most humanitarian-oriented LOAC treaty ever developed — did not impose any affirmative least harmful means obligation vis à vis belligerents undermines any assertion that such an obligation may be derived from the positive LOAC. Finally, and perhaps most importantly, Section III emphasizes how this least harmful means concept, especially when derived from an expanded interpretation of the meaning of the concept of hors de combat, is fundamentally inconsistent with the tactical, operational, and strategic objectives that dictate employment of military power.
The LOAC must, as it has historically, remain rationally grounded in the realities of warfare. We are confident that anyone grappling with this issue understands that decisions related to the employment of combat power are not resolved in the quiet and safe confines of law libraries, academic conferences, or even courtrooms; they are resolved in the intensely demanding situations into which our nation thrusts our armed forces. The law must, as it always has, remain animated by the realities of warfare in the effort to strike a continuing credible balance between the authority to prevail on the battlefield and humanitarian objective of limiting unnecessary suffering. The clarity of the existing paradigm achieves that goal and does not include any legal obligation to use the least harmful means in targeting enemy belligerent personnel.
Here’s the official explanation: the US had yet to “satisfactorily complete” the “process of conforming the official translations” of the agreement. Via Twitter, FP’s David Bosco sees a back-up excuse once the analysts at State finish reading the French version:
Bosco is almost certainly on the money predicting that when the US does sign on, it will be late on a Friday afternoon in summer.
I don’t understand this. The treaty wouldn’t require any changes in US law, much less trample on any Second Amendment rights. Can’t the Administration stand up to the NRA on this front, at least for the purely symbolic exercise of the treaty signing?
If Obama wanted to put his recently aggressive interpretations of executive branch power to work, he might even think of acceding to the convention as a sole executive agreement. (Before you laugh, remember that he has that in mind for the more consequential Anti-Counterfeiting Agreement, as Oona Hathaway describes here.) The US absence yesterday at the UN bodes ill for any second-term progress on any of the human rights treaty fronts.
- Sixty-three states have signed the UN Arms Trade Treaty on the first day that is was open for signature, and at least three more are expected to do so in the next few days. The US will ratify once all official translations have been completed.
- The head of the IAEA has expressed his frustration about the lack of progress in nuclear talks with Iran.
- Ecuador’s Foreign Minister has announced on Twitter that he will meet with his UK counterpart in a fortnight to discuss the situation of Julian Assange.
- The Trial Chamber of the ICC has set September 10 as the new start date for the trial of William Samoei Ruto and Joshua Arap Sang.
- The European Commission will recommend Latvia for admission to the euro zone from the start of 2014.
- Today marks the 24th anniversary of the crackdown on the Tien An Men square. The NYTimes analyzes the impact it had on the careers of the current group of Chinese leaders.
- IATA, the International Air Transport Association, has passed a resolution calling on governments to regulate greenhouse gas emissions from aviation from 2020 onwards, but environmental groups are not convinced.