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Foreign Volunteers or Foreign Fighters? The Emerging Legal Framework Governing Foreign Fighters

by Daphne Richemond-Barak and Victoria Barber

[Dr. Daphné Richemond-Barak is an Assistant Professor at the Lauder School of Government, Diplomacy and Strategy at IDC Herzliya, and a Senior Researcher at the International Institute for Counter-Terrorism (ICT). Victoria Barber is a Master’s candidate at the Fletcher School of Law and Diplomacy, where she focuses on International Security Studies.]

The emerging legal framework governing foreign fighters, whose importance is set to grow, epitomizes assumptions we’ve made about the good, the bad, and the ugly in Syria. While the international community condemns the recruitment of “foreign fighters” by ISIS, it condones the recruitment of “foreign volunteers” by the Kurds.

That the international community has come together to condemn the recruitment of foreign “fighters” joining the Islamic State in Iraq and Syria (ISIS) is unsurprising: Since the late 1960’s, it has repeatedly opposed the involvement of foreign individuals in conflicts to which their state of nationality is not a party. After decades of condemnation by the United Nations General Assembly and Security Council, an entire (albeit-ineffective) regime outlawing mercenaries emerged, primarily to stop Westerners from fighting in African conflicts. It sent a clear signal as to the illegitimacy of participating in someone else’s war.

Though it could have built on this well-established framework, which is grounded in state sovereignty, the UN chose a more restrictive and case-specific approach. It addressed exclusively the case of foreign fighters travelling to aid ISIS and other designated foreign terrorist organizations (FTOs) operating in Syria, such as Jabhat al-Nusra. It purposefully did not mention mercenaries, which are covered by the broader anti-mercenary regime. Nor did it address the case of individuals who leave their home countries to join other groups fighting in Syria – or, for that matter, to fight alongside the Syrian government and its allies.

Quite the contrary: Western states have generally taken a permissive stance vis-à-vis individuals who join the ranks of the People’s Defense Units (YPG), the Kurdish militia in Syria. For more than two years, foreigners from Australia, Canada, the United States, the UK, and other countries have joined the ranks of the YPG as “volunteers” who are, more often than not, warmly and publicly received upon their return home. The UK maintains that there is a distinction between joining ISIS and joining the Kurds, pointing out that British law is designed to allow for different interpretations based on the nature of the conflict. Similarly, the Dutch government states that, while joining the YPG is not a crime in and of itself, foreign fighters can still be charged for crimes they committed in service of that membership, such as murder. Israel, too, declined to prosecute, or even reprimand, a Canadian-Israeli woman who traveled to Syria to fight as a volunteer with the YPG. This tacit acceptance of “foreign volunteers” also benefits a smaller number of Westerners travelling to Syria and Iraq to fight alongside Christian militias like the Dwekh Nawsha in Iraq.

The discrepancy between the treatment of the “good” auxiliaries combating ISIS and that of the “bad” ones ISIS recruits sets a dangerous precedent: Why classify the YPG as an acceptable group to join, but ISIS, Hezbollah or al-Nusra as an unacceptable one?

The nature of the group plays a role. The Kurds are viewed as defending their ethnic heartland in Syria against a barbaric movement known for wanton murder and enslavement. They are longstanding inhabitants of the region, and have a vaguely defined moral claim to the Syrian northeast, though not, if we go by most of the international community, a claim to sovereignty. The Kurdish Regional Government is slightly further along the continuum, with an effectively autonomous region and its own quasi-army, the Peshmerga, fighting to defend its homeland, ethnic kin, and other minorities.

But as beleaguered as the Kurdish community in Syria and Iraq is, the logic of extending blanket legitimacy to Kurdish militia, while categorically denying it to others, is difficult to sustain at the level of international policy. Hamas and Hezbollah, like the Kurdish PKK, effectively govern territory and have evolved into organized and recognized bodies. Yet foreign participation in one of these groups is unlikely to be regarded as acceptable.

Assuming we draw the line along the state/non-state divide, which is the simplest, we should feel comfortable with the involvement of foreigners on either side of the Russia/Ukraine conflict. Both can be regarded as joining forces with a sovereign government, whether Ukrainian nationalists from outside the country or Russian separatists and ethnic kin backed by the Russian government. Yet international condemnation came down against both sides as diaspora populations volunteered to fight. This suggests that the state/nonstate divide is not, in and of itself, sufficient to distinguish between legitimate and illegitimate forms of intervention.

The distinction could instead come from the conduct of the organizations, allowing volunteers to join groups that act within the bounds of international law and respect human rights. This distinction is appealing, particularly given ISIS’ ruthless violence, but it is a poor barometer. Most groups involved in the Syrian civil war have been shown to commit war crimes, even if ISIS is in a category of its own. The YPG has itself been accused of using child soldiers and carrying out ethnic cleansing in the areas it controls. Khorasan, al-Nusra, and the Sunni Islamic militias are generally viewed as non-compliant with the laws of war, as are Syrian government-allied auxiliaries such as Hezbollah and Iraqi Shia militia. But “volunteering” for these latter groups has not drawn similar condemnation.

Alternatively, we might be tempted to regard volunteering as acceptable when the volunteer shares some kind of ethnic, religious or ideological roots with the group. This, however, could justify virtually any foreign participation in any conflict – particularly in Syria, where neither foreign fighters nor foreign volunteers are thought to receive any meaningful monetary compensation. Clearly, they must be joining the fight because they share some kind of ethnic, religious, or ideological affinity with a party to the conflict. This rationale, moreover, could apply to ISIS as much as the YPG. Taking the Ukrainian conflict again as an example, the same considerations would apply: ethnic Russians and Ukrainians travelling to Ukraine identify with the separatists and nationalists, respectively. A criterion relating to shared ethnic, religious, or ideological roots is thus unhelpful in delineating the contours of legitimate foreign intervention.

The upshot of this is that none of the suggested criteria provide a satisfactory justification for why states – and, for that matter, international law – view joining the YPG as acceptable, but joining ISIS (or al-Nusra) as reprehensible. This lack of regularity undermines existing policies, as it gives the impression that the distinction is based on ideology, which is a dangerous precedent to set. This development is especially alarming given that the Western-backed coalition (including Russia’s) objectives may not align with those of the YPG’s in the long-run. Kurdish territorial ambitions in a fragmented Iraq and Syria are likely to increase – not diminish – with battlefield success, pitting them against the US, Turkey, Russia, and Iran once the guns fall silent.

Should such a change of affinity occur in the fight against ISIS, it could undermine the legitimacy of the emerging regulatory framework governing foreign fighters and make for awkward moments. The UK government experienced some embarrassment when the prosecution of a Swedish national collapsed after it emerged that the group he had joined in Syria was receiving covert support from the British government itself.

Ultimately, the treatment of Western foreign fighters joining the YPG (while it may appeal to our present sympathies) is not as straightforward as many states have made it seem. In the absence of objective criteria, the Security Council’s strong and welcome measures against foreign fighters could be undermined. In the years to come, as Syria re-constitutes itself or further fragments into rump ethnic states, we may look back at today’s auxiliaries and ask ourselves with some confusion who were the “foreign volunteers” and who were the “foreign fighters” in Syria’s horrific civil war.

 

Events and Announcements: March 20, 2016

by Jessica Dorsey

Sponsored Announcements

  • Admissions to the Seminar “Public Health and Human Rights – Current Challenges and Possible Solutions” (19 May 2016), organised by the European Inter-University Centre for Human Rights and Democratisation (EIUC) are open until 25 April 2016, early bird 30 March 2016 with 10% discount. The issue of global health governance, which deals with the question how to regulate efficiently a panoply of actors in global health, such as international organisations, States, NGOs (including philanthropic foundations), private-public partnerships, pharmaceutical companies, individuals and others. The seminar on public health and human rights will host some of the world’s most renowned experts on health related human rights. Their presentations will be organized in three panels. Presentations in each panel will be followed by an interactive discussion with other participants. Target: the seminar is open to all the people with a strong interest in the study of the link between Human Rights and Public Health. It is especially conceived for professionals who work in fields where this link is particularly strong: employees of national Health Ministries in the European Union and beyond, representatives of Pharmaceutical Companies, functionaries and officials of International Organizations and members of NGOs working in the public health sector. It is also addressed to professional doctors having an interest in the Human Rights policies about public health and to scholars with a background in public health, philosophy and ethics, medical law and social sciences. Eligibility: lectures are conceived for participants with a general interest in Human Rights and some basic knowledge in Public Health. Seminar Language: all lectures will be held in English. Enrolment fee for the seminar amounts to € 260,00 with no accommodation, or € 360,00 with accommodation for 1night (night 18 May – departures 19 May 2016). If you choose the option with no accommodation, the enrolment fee will include: tuition fee and lunch on seminar day. If you choose the option with accommodation, the enrolment fee will include: tuition fee, lunch on seminar day and accommodation in a single room in a hotel on the Lido for 1 night. Interested candidates should register by compiling the online application form. For any query about the seminar please contact us at training [dot] publichealth [at] eiuc [dot] org
  • The University of Utrecht is offering two summer programs of interest to Opinio Juris readers. If you’d like to learn more about the regulation of the various uses of freshwater resources, then the Summer School on International, European and Domestic Water Law might be of interest to you. This course provides you with an introduction to selected issues of international, regional (EU) and domestic (comparative) water law. These issues include the organizational aspects of water management, water safety and flood protection, water quality and combating pollution, protection of drinking water resources and the sustainable use of water. If you are looking for a general introduction to the most important tenets of public international law, then we invite you to join the Summer School on Public International Law. This course will look at the role of international law in responding to today’s global challenges, such as the Russian activities in Ukraine, the legal aftermath of Srebrenica, the ongoing conflict in Syria and Iraq, and climate change negotiations. These issues will be used to examine the nature and function of international law, its sources and subjects, and questions of jurisdiction and immunities, state responsibility and the responsibility of international organizations. For more information, please contact the course leaders: Professor Marleen van Rijswick (water law) and Professor Cedric Ryngaert (International law), or the course coordinator: Otto Spijkers.

Calls for Papers

  • The Vienna Journal on International Constitutional Law is dedicated to a wide range of subjects including in particular European Constitutional Law, Public International Law, the Constitutionalization of International Law, the Internationalization of Constitutional Law, the Migration of Constitutional Ideas, Legal Theory, and Comparative Constitutional Law. By linking these select perspectives, the Journal endorses an approach towards a coherent understanding of International Constitutional Law, thus preparing the ground for novel answers to the challenges of a changing global legal framework. For its 10 year anniversary the Journal will host a conference dedicated to its very scope: The one day event to be held on23 September 2016 at Vienna University of Economics and Business (WU) will focus on the concept of International Constitutional Law. Abstracts of no more than 300 words accompanied by your CV and inquiries may be directed to Maria Fegerl (maria [dot] fegerl [at] wu [dot] ac [dot] at) until May 15. All applicants will be notified by May 31. Accepted papers will be included in ICL Journal Vol 11. Please be advised that travel expenses cannot be covered.
  • Call for Papers, Asian Society of International Law Regional Conference on “International Law and a Dynamic Asia” Ha Noi, Vietnam, 14-15 June 2016 Deadline: 15 April 2016. The 2016 Regional Conference of the Asian Society of International Law will take place in Ha Noi, Viet Nam, hosted by the Diplomatic Academy of Vietnam. The Conference will consist of plenary sessions and a number of agorae. In addition, the Conference will feature two special agorae on the Trans-Pacific Partnership Agreement and the establishment of the ASEAN Community – two remarkable developments in 2015. The Conference provides an excellent forum for speakers to share innovative and original ideas in wide-ranging areas of international law with a view to stimulating debate and promoting further research; this is also an opportunity to foster contacts between participants. Papers presented in agorae should focus on the field of international law connected with the overarching conference theme. Papers should be unpublished at the moment of presentation and be at an advanced stage of completion. The deadline for submission of abstracts is 15 April 2016. Abstracts in no more than 500 words should be submitted via email to ilconference [dot] vn2016 [at] gmail [dot] comPlease click here for more information on the Call for Papers and the conference theme.
  • ILW 2016 – Call for Proposals: International Law Weekend 2016 (ILW 2016) is scheduled for October 27-29, 2016 in New York City.  The ILW Organizing Committee invites panel proposals for the conference to be submitted through the online ILW Panel Proposal Submission Form. All proposals for the conference must be received by April 9, 2016. Panel proposals may concern any aspect of contemporary international law and practice. For more information, please read the full Call for Proposals or visit the ILW webpage. ILW 2016 is sponsored and organized by the American Branch of the International Law Association (ABILA) and the International Law Students Association (ILSA). Questions about the ILW 2016 may be sent to conferences [at] ilsa [dot] org.

Events

  • Queen Mary University of London’s  Centre for Law and Society in a Global Context cordially invite you to its 2016 Annual Lecture. The lecture, entitled ‘Mare Nostrum: International Law, Spatial Order, and the Mediterranean’, will be delivered by Professor Anne Orford (Melbourne) on 31 March 2016 from 6:30 – 8:30pm at the ArtsOne Lecture Theatre, Queen Mary University of London. More details can be found here. The event is free and open to all, but please register online via Eventbrite.

Announcements

  • Trade, Law and Development (Vol. 7, No. 1) [TL&D] has been published. TL&D has been ranked as the best law journal in India (2011-1015) and the 10th best law journal in the field of international trade worldwide (2015, 2014, 2013, 2012) by the Washington and Lee University Law Library in its annual rankings of law journals. Since its establishment in 2009, the journal’s efforts have been recognized by the International Centre for Settlement of Investment Disputes and the World Trade Organization. The issue and its contents can be accessed online on the website here.

Our previous events and announcements post 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.

AJIL Unbound Symposium on Third World Approaches to International Law

by Kevin Jon Heller

AJIL Unbound has just published a fantastic symposium entitled “TWAIL Perspectives on ICL, IHL, and Intervention.” The symposium includes an introduction by James Gathii (Loyola-Chicago) and essays by Asad Kiyani (Western), Parvathi Menon (Max Planck), Ntina Tzouvala (Durham), and Corri Zoli (Syracuse). All of the essays are excellent and worth a read, but I want to call special attention to Ntina’s essay, which is entitled “TWAIL and the ‘Unwilling or Unable’ Doctrine: Continuities and Ruptures.” Here is a snippet that reflects her central thesis:

The similarities between this practice and the prominent role of nineteenth-century international legal scholars in the construction of the “civilizing” discourse of the time are striking, even if “[s]ubsequent generations of international lawyers have strenuously attempted to distance the discipline from that period.” Imperial aspirations tied to such arguments also form a “red thread” that connect “the standard of civilization” with the “unwilling or unable” doctrine. The unequal international legal structure promoted by these arguments is intimately linked to an unequal political structure, characterized by the dominance of the Global North over the Global South. More specifically, states of the Global North are enabled to use force against the sovereignty and—importantly—the life and security of the citizens of states of the Global South in pursuing the former’s “war on terror” and the political and economic agendas accompanying it. Moreover, pressure is exerted upon states of the Global South to transform themselves and adopt policies appealing to powerful states, if they want to avoid being branded “unwilling or unable.” A strong parallel can be detected between this transformative process and the pressure exerted upon peripheral states during the nineteenth century to introduce reforms that would render them “civilized” and, hence, equal to Western states.

Ntina makes a number of points in the essay that I’ve tried to make over the years — but she does so far better than I ever have or could. For anyone interested in the “unwilling or unable” doctrine, her essay is a must read.

Worried About Garland’s National Security Law Record? Don’t Be.

by Deborah Pearlstein

On the hopeful assumption the Senate will come to its senses and consider President Obama’s nomination of Merrick Garland to the U.S. Supreme Court on its merits, I wanted to respond to what appears to be some skepticism among progressives that Garland is indeed a good choice for the Court. The Huffington Post, for instance, published an article following the nomination headlined (ominously) that Garland once sided with the Bush Administration on Guantanamo. I was curious, so I decided to look up the cases.
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When A.I. Met R.O.I.

by Chris Borgen

Over the years a few of us have written issues concerning battlefield robots. (See, for example: 1, 2, 3, 4, 5.)  Sometimes, we had links to remarkable videos of quadruped robots stomping through forests. Those robots and videos were made by Boston Dynamics, a company that started from an MIT research group.

Besides its designing quadruped robots, Boston Dynamics gained further renown when, in 2013, it was acquired by Google as part of that company’s broad push into robotics. Just last month, one of Boston Dynamics’ new videos wen viral; it highlighted its two-legged Atlas robot walking indoors, on snowy hillsides, lifting and stacking boxes, and being pushed by a human (and righting itself). Yesterday, Google announced that it was selling Boston Dynamics. Why? And what does this say about all the prognostications about the rise of the robots, either on the battlefield or in the workplace?

At its most basic level, the story here seems to be as much about the difficulties of post-acquisition integration of business cultures and goals as it is about robotics. An article in Bloomberg Business notes:

Executives at Google parent Alphabet Inc., absorbed with making sure all the various companies under its corporate umbrella have plans to generate real revenue, concluded that Boston Dynamics isn’t likely to produce a marketable product in the next few years and have put the unit up for sale, according to two people familiar with the company’s plans.

After Boston Dynamics’ 2013 acquisition, it was made part of Google’s broader robotics initiative, called Replicant. (Query whether naming the division after the murderous androids of Philip K.Dick’s dystopian classic Do Androids Dream of Electric Sheep, which became the movie Blade Runner, was a good idea.) Bloomberg Business explains:

At the heart of Replicant’s trouble, said a person familiar with the group, was a reluctance by Boston Dynamics executives to work with Google’s other robot engineers in California and Tokyo and the unit’s failure to come up with products that could be released in the near term.

While the issue inside of Google was less about the technology of artificial intelligence (AI) than about the return on the investment (ROI) of the robotics company acquisitions, according to Bloomberg Business the Atlas video did cause concern among some of the public relations folks at Google over whether humanoid robots  would be perceived as taking jobs from real human. Plus, as one PR person put it, some people found the robot “terrifying.” (Yeah, that “Replicant” name-choice seems increasingly like a bad idea. At least they didn’t call the business unit the “Terminator Division.”)

Many  have spent time writing and talking about the legal issues related to the use of remotely controlled or autonomous battlefield robots. The immediate issues stemmed from the use aerial drones, of course, but on the horizon has been the possibility of robots being deployed in ground combat (as opposed to in bomb demolition, or other areas where remotely controlled units are already deployed). I am all for lawyers anticipating issues caused by technological change. But before we get there, there are a host of legal issues concerning the transactions that will support the R&D that will develop this technology. With the potential sale of Boston Dynamics to Toyota, it bears noting that the immediate legal issues may have to do more with international business transactions than international humanitarian law.

An Obama-Trudeau Agreement Conceding Canada’s Claim to the Waters of the Northwest Passage?

by Craig H. Allen

[Craig H. Allen is the Judson Falknor Professor of Law at the University of Washington, where he directs the university’s Arctic Law and Policy Institute.]

In a March 10, 2016, op-ed in the Wall Street Journal, Canadian professor Michael Byers (along with U.S. co-author Scott Borgerson), reprises an earlier suggestion aimed at bringing legitimacy to Canada’s claim of sovereignty over the waters of the Northwest Passage through a bilateral agreement between Canada and the United States. The article, titled The Arctic Front in the Battle to Contain Russia, leads with a photograph of Russian President Vladimir Putin and closes with the warning that the United States and Canada must reach agreement on the status of the waters “before it is too late,” because “there is little to stop an increasingly assertive Russia from sending a warship through” the passage. To Professor Byer’s disappointment, the suggestion is unlikely to attract any support in Washington, D.C.

The “Northwest Passage” refers to the sea route that connects the Atlantic and Pacific Oceans across the top of North America, via waterways through the islands lying between Canada’s northern continental coastline and the Arctic Ocean (displayed in red below). The Canadian government asserts that the Northwest Passage is part of Canada’s internal waters, and subject to the nation’s full sovereignty. In fact, in 2009 the Canadian Parliament renamed the waterways the “Canadian Northwest Passage.” Under Canada’s view, no other nation has the right to navigate in or fly over those waters unless Canada consents.

Arctic

[Image courtesy of geology.com]

Canada’s Claim: In contrast to the conflicting maritime claims in the South China Sea, there is no dispute regarding Canada’s sovereignty over the principal islands along the Northwest Passage (the only exception is Hans Island, a tiny uninhabited knoll in upper Baffin Bay near Greenland, which is claimed by both Canada and Denmark). The dispute concerns the status of some of the waterways surrounding the Canadian islands, and whether other nations enjoy navigation rights in those waters. Over the years, Canadian officials and commentators have relied on a variety of theories to support Canada’s claim that the waters of the Northwest Passage are internal waters. They include a claim to historic title over the waters, announced in 1973; a claim based on straight baselines, first established in 1986 (soon after the U.S. Coast Guard Cutter Polar Sea transited the passage); and occupation of the covering ice by Canada’s Inuit people “from time immemorial.”

In a paper prepared by Canada’s Library of Parliament, the Canadian government author cited Donat Pharand, whom the Library’s author describes as “perhaps the most authoritative Canadian legal expert on the question,” for the conclusion that Canada’s historical title argument is weak. By contrast, the author continues, Pharand concluded that the claim based on straight baselines around the offshore islands (a move that Pharand himself advocated in a 1984 article) is Canada’s “best” claim, and “strong enough” in international law. Other states disagree. The United States protested Canada’s claim to straight baselines in the Arctic immediately after the claim was to go into effect on January 1, 1986 (U.S. Department of State, Limits in the Seas: United States Responses to Excessive Maritime Claims, No. 112). That same year, the member-states of what was then the European Community similarly protested that they could not “acknowledge the legality” of Canada’s straight baseline claim (Id.).

In his most recent attempt to provide a legal basis for Canada’s claim to the waters of the Northwest Passage, Byers sidesteps weaknesses in Canada’s claims under existing international law, and advocates instead that President Obama and Canadian Prime Minister Trudeau negotiate a bilateral agreement by which the United States would acquiesce in Canada’s claims, in order to address the two nations’ “shared vulnerability to naval vessels from Russia and other unfriendly nations.”

Byers’ use of a Russian threat to encourage U.S. acquiescence is curious, given his recent statements elsewhere that dismiss, as “hypothetical,” security concerns about Russia raised by others. For example, in a late February 2016 interview by Radio Canada International, Professor Byers argued that Russia has “shown no sign of any inclination towards aggression in the Arctic”; a far cry from the “battle front” posed by an “increasingly assertive Russia” characterization he now offers to spook the U.S. into an agreement.

The Consistent U.S. Position: Recent White House statements make clear that the United States is not going to acquiesce in Canada’s claims to sovereignty over the waters of the Northwest Passage. As reaffirmed in the 2009 U.S. Arctic Region Policy presidential directive, the United States’ position vis-à-vis the status of the Northwest Passage has been clear:

Freedom of the seas is a top national priority. The Northwest Passage is a strait used for international navigation…; the regime of transit passage applies to passage through those straits. Preserving the rights and duties relating to navigation and overflight in the Arctic region supports our ability to exercise these rights throughout the world, including through strategic straits.

Far from signaling a willingness to retreat from its objection to Canada’s excessive maritime claims in the Arctic, U.S. objections to the claims were recently reiterated. Just last week, the Obama White House expressed what might be seen as impatience with excessive maritime claims in the Arctic. In the March 2016 Implementation Framework for the National Strategy for the Arctic Region, the Obama Administration laid out a plan to “promote international law and the freedom of the seas” in the Arctic. The Framework asserts that in the Arctic “the United States will exercise internationally recognized navigation and overflight rights, including transit passage through international straits, innocent passage through territorial seas, and conduct routine operations on, over, and under foreign exclusive economic zones, as reflected in the Law of the Sea Convention” (emphasis added). The Obama Framework goes on to pledge specific steps in the coming years that will include conducting routine Arctic maritime exercises, operations and transits consistent with international law; documenting related U.S. diplomatic communications and Department of Defense freedom of navigation operations; and delivering strategic communications at appropriate opportunities “to reflect U.S. objections to unlawful restrictions in the Arctic on the rights, freedoms, and uses of the sea and airspace recognized under international law; and to promote the global mobility of vessels and aircraft throughout the Arctic region consistent with international law.”

It should also be noted that the kind of bilateral agreement between the U.S. and Canada Byers advocates would have no effect the legal status of the waters under UN Convention on the Law of the Sea (UNCLOS). As a party to UNCLOS, Canada is strictly limited by Article 311 of the Convention in the extent to which it can attempt to alter the effect of UNCLOS by bilateral treaties. Any attempt to do so would have no effect on the navigation rights of Russia, the EU member-states, or any other state. Moreover, any such bilateral agreement would likely be viewed by the other coastal state members of the Arctic Council as inconsistent with the spirit of the 2008 Ilulissat Declaration, in which both Canada and the United States agreed that the “law of the sea,” not bilateral side agreements, provides the relevant rules regarding freedom of navigation in the Arctic.

Ironically, in arguing that a bilateral agreement between the U.S. and Canada is needed to bring legitimacy to Canada’s Northwest Passage claims and provide a legal basis for preventing Russia from sending warships through the passage, Professor Byers has implicitly acknowledged the weakness in Canada’s claim absent such an agreement, while at the same time undermining his otherwise consistent position that Russia poses no threat to security in the Arctic.

Article 87(5) of the Rome Statute – It’s Complicated…But Not Bizarre

by Patricia Jimenez Kwast

[Patricia Jimenez Kwast is completing her doctoral research on wrongful non-cooperation in international law at the University of Oxford, where she also co-convenes the Oxford Public International Law Discussion Group.]

In a recent post on Russia’s announcement that it will not cooperate with the ICC’s investigation into the Georgia situation, Kevin Jon Heller noted his puzzlement as to why Russia did not simply “milk a little goodwill by at least pretending to cooperate with the ICC” and simply “stop cooperating” if incriminating evidence was found. In response, I suggested that “[o]nce Russia agrees to cooperate with the Court, it can face decisions of non-cooperation if it would simply stop cooperating and might lead to steps under Article 87(5)(b) of the Statute.” I commented that “pretending to cooperate or stopping cooperation after agreeing to cooperate does carry legal consequences.”

Article 87(5)(b) of the Rome Statute provides:

Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

I should admit that I posted my comment without giving the precise implications of Article 87(5)(b) much thought at this point (I planned to consider them in a later journal article). I simply recalled Article 87(5) from writing an earlier post on a non-cooperation finding against Sudan. Like Sudan, Russia is a non-party, but the situation in Darfur was referred to the ICC by the SC whereas the Georgia situation is not. So the SC option in 87(5)(b) is irrelevant to questions of Russian non-cooperation. As Heller points out, “the most the Court can do is complain about Russian non-cooperation to the Assembly of States Parties.”

But what about my suggestion that Russia can face other steps under Article 87(5)(b) for its non-cooperation if it fails to cooperate after agreeing to do so? In the follow-up post Article 87(5) of the Rome Statute – Bizarre and Possibly Counterproductive, Heller comments:

I am much less sure than Kwast that Art. 87(5) would apply if Russia cooperated with the ICC and then stopped cooperating. The article seems to contemplate some kind of formal relationship between the Court and a non-party State — an “arrangement” or an “agreement” or something similar (ejusdem generis). After all, Art. 87(5)(b) addresses non-cooperation when a State “enters into” such an arrangement or agreement with the Court, language that we would normally associate with the law of contract. So I think the best reading of Art. 87(5) is that it applies only when a non-party State makes a formal commitment to cooperate with the Court and then breaks that commitment. I don’t think it applies any time a non-party State voluntarily provides the Court with information and then decides to stop providing it. After all, if Art. 87(5) does apply in such situations, it is profoundly counterproductive. Why would any non-party State ever voluntarily cooperate with the Court if doing so means that it cannot stop cooperating? I think the drafters of the Rome Statute were smart enough not to provide non-party States with such a powerful incentive to avoid the Court like the plague.

My first impulse is to agree entirely with the suggestion that Article 87(5)(b) should be read to apply “only when a non-party-State makes a formal commitment to cooperate with the Court and then breaks that commitment.” A formal commitment was the scenario of initial Russian cooperation that I had in mind, at least in so far as the phrase “or any other appropriate basis” – i.e. other than agreements and ad hoc arrangements – of 87(5)(a) is omitted from 87(5)(b).

However, (more…)

Seeking the Regulatory High Ground: the International Civil Aviation Organization and Commercial Spaceflight

by Chris Borgen

In 1958, Air Force Chief of Staff Thomas D. White wrote: “For all practical purposes air and space merge, form a continuous and indivisible field of operations.” White later coined the term “aerospace” and used it in a Congressional hearing. Later it was used in policy papers to explain why the U.S. Air Force would also have the responsibility for space issues. (William Burrows, The New Ocean, 248.)

The International Civil Aviation Organization, a specialized agency of the UN, has just made a similar giant leap from air into space. Agence France Press reports that in a March 15 speech at the Second Annual Aerospace Symposium (there’s that word again) co-sponsored by ICAO and the UN Office on Outer Space Affairs (UNOOSA), ICAO Council President Olumuyiwa Benard Aliu said:

The International Civil Aviation Organization “recognizes that sub-orbital and outer space flights will foster new tourism and transport markets, and that investments in related research and development remain at a very healthy level,”…

“Personally, as an engineer, I am very excited to see the dream and theory of normalized space flight now becoming such a tangible reality,” he told an aerospace symposium in Abu Dhabi.

In making its case, the agency noted an uptick in the number of spacecraft designs that have made the leap from concept to reality, saying more will follow.

As SpaceNews put it: ICAO is “spreading its wings into commercial spaceflight.” Thinking holistically about the continuum of air and space activities does make sense. Virgin Galactic’s space planes and SpaceX’s and Blue Origin’s returnable, reusable rockets will have significant activities within the atmosphere as well as in space. And, so, we see domestic and international organizations adapting.

That adaptation is itself an interesting story. ICAO’s mandate is focused on aviation. Its vision statement is to “[a]chieve the sustainable growth of the global civil aviation system.” Even its 2014- 2016 strategic objectives make no mention on of space– or aerospace. However, Agence France Press reports that at the ICAO/ UNOOSA conference, the ICAO leadership stated that:

Rules must be put in place soon to ensure safety and security in space, as well as prevent the creation of a patchwork of regulations by individual states..

The agency suggested adapting the existing regulatory framework for aviation, for which the ICAO and national governments are responsible.

ICAO, as it stands, does not have enforcement authority. It studies,  fosters coordination and  develops policies and standards.

While there has been a focus on certain potential future space activities, such as asteroid mining, and their relation to the Outer Space Treaty, is there a need for a new treaty covering launches and activities such as space tourism? In the U.S., there seems to be a concern that too much regulation of the space tourism and orbital launch services could stifle the nascent industry. According to R&D:

Both the Federal Aviation Administration and the recently passed commercial-space competitiveness legislation from the U.S. Congress keep their distance from regulating space tourism, “as long as passengers receive explicit warnings about the hazards and the vehicles have basic safeguards,” the Wall Street Journal reported.

And so there are likely two discussions that will be taking place in the coming months. The first will concern the an institutional question: should ICAO become a norm-setter in regards to space activities? The second will address a set of regulatory issues: do we need a new treaty on aerospace activities, space tourism, and launch activities? Could consultation and coordination among national regulators be enough?

Stay tuned…

Torturing and Raping ‘Brothers in Arms’: International Law and Intra-Party Violence

by Tilman Rodenhauser

[Tilman Rodenhäuser is a PhD candidate at the Graduate Institute in Geneva. He worked with different international and non-governmental organizations on the implementation of international humanitarian and human rights law.]

It is uncontroversial that international law prohibits and criminalizes appalling crimes such as summary executions, torture, or rape and other forms of sexual violence. An understudied but increasingly relevant issue is to what extent these international law prohibitions also apply to intra-party violence, meaning if fighters commit such crimes against their brothers or sisters in arms. As I discuss in more detail elsewhere, this question has been raised – but not decided upon – in the ICC’s decision on the confirmation of charges in the Ntaganda case. In this case, Ntaganda is charged with the war crimes of rape and sexual slavery committed by members of the Forces Patriotiques pour la Liberation du Congo against child soldiers in their own ranks. If child soldiers were considered members of armed groups and not civilians, one result could be that violence against these children by their ‘own forces’ falls outside the scope of IHL (the status of child soldiers under IHL has recently been discussed here and here). Likewise, US president Obama reports that Daesh (IS, ISIL, ISIS) summarily executes defectors, and testimony of a German former Daesh member – who recently stood trial in Germany for membership in a terrorist group – confirms that Daesh has a intelligence unit torturing and executing dissidents or deserters in Daesh’s ranks. This post raises the question of whether intra-party violence by armed groups amounts to international human rights law (IHRL) and international humanitarian law (IHL) violations, and should be considered a war crime.

Intra-party violence under international human rights law

If state actors rape, torture, or summarily execute subordinates in their own armed forces, these acts normally constitute crimes under national law as well as IHRL violations. Likewise, similar acts by members of non-state armed groups violate national criminal law. However, it remains somewhat controversial to what extent they also violate IHRL. It is widely agreed that armed groups with quasi-state capacities, such as Daesh, have at least some human rights obligations (for example, the Committee against Torture condemned Daesh’s ‘severe human rights violations’ (para. 11), and UN Special Rapporteur Emmerson considers Daesh ‘bound under international law to respect core human rights obligations’ (para. 30)). In contrast, it is less clear whether at least some norms of IHRL also apply to armed groups that are not ‘state-like’. Some UN expert commissions argued that any non-state armed group must, at a minimum, respect peremptory human rights law obligations (for discussion, see here). Recognizing that armed groups acting beyond state control commit severe human rights violations and not only national crimes or moral wrongs would first be important to reaffirm fundamental rights of all human beings, including those in the hands of armed groups. Second, it may also have legal consequences. While at present regional human rights courts or UN treaty mechanisms do not have jurisdiction over non-state groups, if human rights violations such as torture or extrajudicial executions were considered ‘in violation of the law of nation’, they may fall under national civil or criminal jurisdiction in some states, such as the US Alien Tort Statute (for discussion on non-state actors under the ATS, see here). Yet, at present armed groups’ IHRL obligations remain debated, and condemnations by states in the UN Human Rights or Security Council, human rights experts, or non-governmental organizations are primarily politically significant.

Intra-party violence: an international crime?

While rape, torture, or arbitrary killings could, in certain circumstances, form part of crimes against humanity or genocide, it is difficult to see that intra-party violence alone constitutes an attack against a civilian population or be committed with the intend to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. In contrast, the mentioned acts arguably all violate article 3 common to the four Geneva Conventions and could amount to a war crime under article 8(2)(c) and/or (e) of the Rome Statute of the International Criminal Court.

The Special Court for Sierra Leone (SCSL) discussed the question of whether intra-party violence violates IHL and constitutes a war crime. In the Sesay case, the SCSL argued that ‘the law of armed conflict does not protect members of armed groups from acts of violence directed against them by their own forces’ (para. 1451) because IHL was never intended to criminalize intra-party violence (para. 1453). Prima facie, this approach seems convincing: most IHL rules were developed to regulate hostilities between opposing forces and to protect persons that do not or no longer participate in hostilities against a party to which they do not belong. Upon closer examination, however, Kleffner criticized the Court for ‘rather cursory reasoning’, and Sivakumaran suggested that ‘things are not quite as self-evident as the traditional position suggests’.

Indeed, in my view at least three arguments – especially if considered together – could be raised for arguing that intra-party violence could violate IHL and be prosecuted as a war crime.

First, IHL’s personal scope of application is not as clearly restricted to the relation between adversaries as one may think. Since its early codifications, IHL contains certain rules applicable amongst brothers in arms. Notably, the obligation to respect and to protect the wounded and sick under article 12 and 13 of the First Geneva Convention applies to all ‘[m]embers of the armed forces of a Party to the conflict’. As Pictet pointed out, this obligation applies to ‘friend or foe’. This interpretation is confirmed in article 10(1) of Additional Protocol I.

Second, in light of changing conflict patterns, overly strict textual interpretations should be avoided. As the ICTY has repeatedly argued, IHL should not only be interpreted in accordance with its text and drafting history, but its object and purpose must be considered. Based on this argument, the Tribunal famously suggested that a protected person under the Fourth Geneva Convention is not only defined by nationality but also by ‘allegiance’. More recently, in the Prlic case Trial Camber III applied a similar reasoning to conclude that members of the Croatian Defence Council, who were detained by their own forces because they were perceived as loyal to the enemy, were protected under IHL (paras 608-611).

Third, article 3 common to the four Geneva Conventions, which prohibits all above-mentioned acts, applies to persons who do not, or no longer, take an active part in hostilities. As Kleffner asserts in a recent commentary on the article: ‘No requirement, other than that the person concerned abstains from actively participating in hostilities, conditions the protection under Common Article 3.’ Indeed, the imperative that such persons ‘shall in all circumstance be treated humanely, without any adverse distinction’, suggests that any member of an armed force who is hors de combat falls under the article’s protective scope, no matter which force he or she belongs to. Under this provision, reasons for being hors de combat may include ‘sickness, wounds, detention, or any other cause’. In line with the plain meaning of being hors de combat, it is generally understood that persons only fall under this category if they no longer pose a threat to the adversary and harming them no longer provides a military advantage.

Returning to the cases of torture and summary executions of dissidents and deserters, or rape against child soldiers in an armed group’s own ranks, it can be argued that a person detained and ill-treated by his or her own forces is hors de combat. Likewise, at least during the act of rape, a child soldier is in the hands of the perpetrator and not posing a threat to anyone. As a result, these forms of intra-party arguably fall under the scope of Common Article 3 and could constitute war crimes.

Letter Criticising the UK’s Snooper’s Charter

by Kevin Jon Heller

Along with more than 200 other lawyers and academics, I have signed an open letter to the UK government criticising the UK’s investigatory powers bill — aka the “Snooper’s Charter.” Here is the text of the letter:

The UK’s investigatory powers bill receives its second reading on Tuesday. At present the draft law fails to meet international standards for surveillance powers. It requires significant revisions to do so.

First, a law that gives public authorities generalised access to electronic communications contents compromises the essence of the fundamental right to privacy and may be illegal. The investigatory powers bill does this with its “bulk interception warrants” and “bulk equipment interference warrants”.

Second, international standards require that interception authorisations identify a specific target – a person or premises – for surveillance. The investigatory powers bill also fails this standard because it allows “targeted interception warrants” to apply to groups or persons, organisations, or premises.

Third, those who authorise interceptions should be able to verify a “reasonable suspicion” on the basis of a factual case. The investigatory powers bill does not mention “reasonable suspicion” – or even suspects – and there is no need to demonstrate criminal involvement or a threat to national security.

These are international standards found in judgments of the European court of justice and the European court of human rights, and in the recent opinion of the UN special rapporteur for the right to privacy. At present the bill fails to meet these standards – the law is unfit for purpose.

If the law is not fit for purpose, unnecessary and expensive litigation will follow, and further reform will be required. We urge members of the Commons and the Lords to ensure that the future investigatory powers legislation meets these international standards. Such a law could lead the world.

Here is a Guardian article on the letter. It’s pathetic that Labour intends to abstain on the bill, instead of opposing it. To their credit, both the Lib Dems and the SNP will oppose the bill.

Weekly News Wrap: Monday, March 14, 2016

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Events and Announcements: March 13, 2016

by Jessica Dorsey

Calls for Papers

  • The Utrecht Journal of International and European Law is issuing a Call for Papers on ‘General Issues’ within International and European law. The Board of Editors invites submissions addressing any aspect of International and/or European law. All types of manuscripts, from socio-legal to legal technical to comparative, will be considered for publication. The Board of Editors will select articles based on quality of research and writing, diversity and relevance of topic. The novelty of the academic contribution is also an essential requirement. Prospective articles should be submitted online and should conform to the journal style guide on our website. Utrecht Journal has a word limit of 15,000 words including footnotes. For further information, or for consultation on a potential submission, you can email the Editor-in-Chief at utrechtjournal [at] urios [dot] org. Deadline for submissions is 18 April 2016.
  • The Journal of International Peace and Organisation (“Die Friedens-Warte”) is calling for papers for its upcoming issue of volume 91 (2016). The Journal adapts an interdisciplinary approach to all matters relating to peace research, with international law and political science as lead disciplines. All submissions are assessed through double-blind peer review by two experts in the field. The topic of the upcoming issue’s focus section is ‘Flight and Refuge’. Abstracts may be submitted until 24 April 2016. For more detailed information, please see the Call for Papers or the Journal’s website.
  • It is with great pleasure that the International Society for Military Law and the Law of War and Exeter Law School invite subject matter experts to submit their proposals for presenting a paper at the conference: “The International Law of Military Operations: Mapping the Field” from 21–23 June 2016, Exeter, United Kingdom. Proposals addressing the following topics are particularly welcome: the concept, meaning and scope of the international law of military operations;the place of the international law of military operations within the system of public international law as a potential lex specialis regime; the relevance and impact of particular branches of public international law—such as the law of the sea, air law, the law of international responsibility, international human rights law, the law of State jurisdiction and immunity—on the conduct of overseas military operations and vice versa; the legal framework of information and influence operations, both during and outside of armed conflict; current legal developments and legal challenges facing the conduct of overseas military operations, such as the emergence of hybrid threats; training needs in the area of the international law of military operations and how best to address them. Please submit proposals for papers by 8 April 2016 to opslaw-conference [at] exeter [dot] ac [dot] uk. Proposals should contain the name and contact details of the applicant, the title of the paper to be presented and an abstract not exceeding 600 words. Applicants should also attach a brief CV.
  • The SMU Dedman School of Law’s Tsai Center for Law, Science, and Innovation invites junior scholar submissions of 10,000 – 25,000 words for a workshop on the legal, policy, and ethical aspects of emerging military technology to be held in Dallas, Texas May 27-28.  Junior scholars will receive detailed commentary on their work from established scholars, including Professors R.E. Burnett of National Defense University, Eric Talbot Jensen of BYU Law, Tim McCormack of Melbourne Law School/US Navy War College and Sean Watts of Creighton Law.  For more information, please see the Tsai Center Call for Papers.
  • The Editorial Board of the EtYIL, a peer-reviewed academic journal, is pleased to make a call for papers for the 2017 Edition of the Yearbook. The deadline for article submissions is November 30, 2016. If you have ideas, abstracts or a work in progress that you would like to share with the editorial team please get in touch at ethiopianyearbook [at] gmail [dot] com. For more information about the EtYIL and for submission guidelines please consult the Springer website here.

Announcements

Events

  • The School of Law of the University of Buenos Aires holds a colloquium entitled “Emotions & International Law” in Buenos Aires, Argentina, from 25-26 August 2016. The event is organized by the Permanent Seminar on the Theory and History of International Law and the DECyT Research Project “The feelings in the history of ius gentium”, under the direction of Prof. Emiliano J. Buis. Registration for the conference is now open. For more information please visit the colloquium website or email emocionesDI [at] gmail [dot] com or ebuis [at] derecho [dot] uba [dot] ar. The colloquium is intended to create an opportunity to reflect and debate the conceptual discussion on feelings such as hatred, resentment, compassion, nostalgia, fear, empathy/sympathy, jealously, shame, humiliation, affectation/love, among others, which are considered as possible keys of interpreting international law on a broad sense, involving States and non-State actors, as well as the generation of rules regulating them.
  • ALMA – Association for the Promotion of International Humanitarian Law and the Radzyner Law School of the Interdisciplinary Center (IDC) would like to invite you to a upcoming session of the Joint International Humanitarian Law Forum. The session will be held on Wednesday, March 30, 2016, 18:30,  in room C110, Arazi-Ofer Building, IDC Campus, Kanfei Nesharim St., Herzliya, Israel. In this session we will focus on: Autonomous Systems and Autonomous Weapons. Dr. Eliav Lieblich, Assistant Professor in the Radzyner Law School, Interdisciplinary Center, Herzliya (IDC) will discuss his article (Written with Eyal Benvenisti): “Robot Warfare and the Problem of Bound Discretion.” Dr. Liran Antebi, Research Fellow at the The Institute for National Security Studies (INSS) will discuss: “Autonomous systems- will destroy mankind, or save us from ourselves?” Following the presentation, there will be an open round-table discussion. Please note that the session will be conducted in Hebrew. The meeting is free and open to the public. If you wish to attend the meetings of the Joint IHL Forum please register in advance via forum [at] alma-ihl [dot] org.

Our previous events and announcements post 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.