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African Withdrawals Mask the Real Issue at the Assembly of States Parties 15

by Matt Brown

[Matt Brown holds an LL.M in Public International Law from Leiden University and is currently a Defence Intern for Jovica Stanišić before the MICT and worked as an intern for the Coalition for the International Criminal Court during the Assembly of States Parties. The views expressed here do not necessarily reflect those of the CICC, and he held no involvement in the budget negotiating process.]

The backdrop to the 15th Assembly of States Parties (ASP) has been dominated by the announced intent to withdraw from the International Criminal Court (ICC) by South Africa, Burundi and The Gambia. Prior to the ASP, there was almost exclusive attention on the withdrawal issue and whether discussion during the ASP would pave the way towards a reversal of these decisions to leave the Court. The importance of these withdrawals, and the need to evaluate the legitimacy of the arguments put forward by these States, cannot be underestimated, but almost under the radar, an issue of arguably equal importance has failed to garner the same detail of scrutiny and reaction. The financial strangulation of the Court by States Parties is if anything a far greater threat to the Court’s ability to fulfill its mandate than the withdrawals of three states.

To provide some context, the proposed budget put forward by the Court for 2016 was €153,328,200, (p187) which ultimately became an approved budget of €139,960,600* (p14). This demonstrates the gulf in stance, between the organs of the ICC and States, who although vocal in their support for the Court at the ASP podium, become remarkably restrained in contributing financially to the success of the institution. An initiative by eleven States, including Canada, Colombia France, Germany, Italy, Japan, and the United Kingdom to limit the Court’s budget, reflects how the Court’s biggest financial contributors are seeking to restrict the ability of the Court to expand its operations – cynically one might say into more politically sensitive situations, including Afghanistan.

This ‘dragging of the heels’ is likewise seen in comments by the Committee on Budget and Finance on 28 October who ‘noted with concern the large amount of outstanding contributions’ – €17.88 million (12.73 per cent) of the 2016 approved budget. In addition to that, outstanding contributions from previous years stood at €15.95 million, meaning ‘total outstanding contributions, including the regular budget, the Contingency Fund and interest on the host State loan, stood at €34.16 million as of 15 September 2016.’

A similar pattern has emerged this year, the Court for the 2017 budget proposed a figure of €150,238,000, (p7) but ultimately the approved budget came to only €144,587,300 (p1). Although this budget represents a rise of €4,626,700, (3.30 per cent) this overlooks the natural growth of the Court’s operations, and its increased operations as we move into 2017. Compared to 2016, the number of preliminary examinations rises to ten, with Honduras and Georgia being closed or moving to investigation, and new examinations opening in Burundi, the self-referral of the Gabonese Republic, and the reconsideration of The Comoros situation. The self-referral by the Gabon, falling after release of the proposed budget, highlights the strain that unexpected referrals can place upon the Court’s budget.

With respect to situations, in the proposed budget for 2016, the OTP outlined its expectation to be dealing with ‘twenty-two cases in eight situations’. For 2017, there is an increase to ten situations, (p10) which results in the continued increase in courtroom activity from 200 court hearings in 2015, to a projected 500 hearings for 2017 (p48). As the Court grows, the associated cost of its prior and current docket also creates a ‘snowball effect’. Time will be needed in 2017 for the progression of reparation proceedings in Lubanga and Katanga, alongside hearing the appeal in the Bemba trial, meaning that it is not just future investigations to consider in light of tightening resources, but also the progression of its existing caseload.

To provide some context on these figures and to illustrate the concern, the bi-annual budget for the ICTY in 2010-2011 was approximately €214,000,000 and the ICTR operated with a healthy bi-annual budget of €176,074,077 for the same period. Per year, these two institutions focusing on one ‘situation’ each worked with roughly two-thirds the budget of the ICC, an institution that from next year will be preoccupied with ten situations. International justice, however expensive it might be, was clearly not unaffordable to the major powers, who generously increased the ICTY budget from its humble beginnings of approximately €200,000.

A balanced assessment of the issue, of course reveals that for the 1,479,301,700 spent by the ICC since 2002, there have ‘only’ been four convictions (eight if we include the additional Article 70 convictions). Weighing in at €369,825,425 per core crimes conviction, if we were to transpose that figure to the ICTY, then the 83 convictions would have cost the ICTY €30.61 billion, a figure which is approximately €28 billion above the actual cost (p13). A few rebuttals can be advanced however, to illustrate that this ‘price per conviction’ comparison masks some of the institutional differences between the ICC, ad-hoc tribunals and domestic proceedings.

First, tribunals including the ICTY, ICTR, SCSL and ECCC have the upfront and immediate outlay of establishing investigations for their respective situations, once established and having prosecuted those responsible for the alleged crimes, the costs of the institution can plateau and then recede, rather than increase, as seen in both the ICTY and ICTR and now their move to the MICT. In contrast, as the ICC has 124 States Parties, and is involved in ten different situations, the ‘start-up costs’ that these other Courts faced are borne by the ICC each time it begins work in a new situation, including field costs, interpretation and translation costs.

Second, neither the ICTY nor the ICTR provided any opportunity for victims to present their testimony before the Tribunal outside of serving as a witness. The much broader role for victims at the ICC, through the Legal Representative for Victims and the establishment of the Trust Fund for Victims which has itself seen a 15.3 per cent increase this year, illustrates that the ICC (for better or for worse) encompasses more than a narrow conception of the trial of the accused and their subsequent detention / acquittal.

Third, the ICC and the ICTY / ICTR emerged from two very different contexts, the 1990’s Tribunals were born with immediate jurisdiction granted by virtue of the Court’s establishment. The ICC, on the other hand, experiences a far more conservative approach to case selection, the processes of preliminary examination and complementarity means that the Court is not designed to have its success measured purely by the number of cases it completes, but also whether its presence can encourage effective domestic prosecutions, and some may argue serve as a deterrent. A simple data comparison of successful prosecutions to illustrate effectiveness therefore ignores that the ‘objective’ by which effectiveness is measured against, differs between the three organisations.

The budget issue is in essence not new, but it is vital to remind ourselves that the ‘colonial critique’ or so-called ‘African bias’ that received so much attention at the ASP is a multi-faceted issue. For the OTP to be able to expand the number and geographic spread of its investigations, there has to be the adequate funding to support it – thus it raises deep questions about the reluctance of certain States to increase the Court’s budget, at a time when the OTP appears to be preparing the ground for an investigation in Afghanistan. There is an available contingency fund, which allowed the OTP to open their 2016 investigation into Georgia (p10), a cost now incorporated into the 2017 budget; but at €7,000,000 (p169), the contingency fund is not designed to cover the costs of entire unplanned investigations.

In closing, and to use the United Kingdom as but just one example, the opening and closing lines of their general debate address highlights the point that States more than ever are unwilling to back up their rhetoric with adequate financial support.continued support for, and commitment to the International Criminal Court’, only to qualify this by expressing their commitment to ‘working with others to ensure the budget is as streamlined as possible.’

The withdrawals from the ICC were a set back for the Court’s desire to be universal, but for all the hyperbole of dialogue in the fight against impunity that dominated the ASP, the internal contradictions of States Parties own positions lays bare the fact, that whilst others might not be withdrawing, support for the Court is found not just at the ASP podium, but also in its financing. The wriggling away by States Parties from funding the Court raises even more interesting questions as to their justification – especially at a time when the Court appears destined to broaden its horizons.

*For clarity – all budget references include interest and the principal repayment (installments) for the host State loan for the permanent premises. – Other budget references may vary.

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

by Kevin Jon Heller

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

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

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

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

The Brexit Case and the Foreign Man on the Clapham Omnibus

by Mariam Kizilbash

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Håkan Friman

by Jens David Ohlin

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

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

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

He will be missed.

 

UPDATE: The International Criminal Court has issued this statement:

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

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

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

Still on that Syrian IAC

by Deborah Pearlstein

Thanks to Ryan Goodman for his thoughtful entry in our ongoing discussion about the existence of an international armed conflict (IAC) in Syria. For those just joining, I’d questioned Ryan’s analysis that an IAC exists in Syria as between Syria and the United States on the grounds that none of the three recent events Ryan cited in support for his conclusion – the putative existence of a U.S.-backed “no-fly” zone in country, the United States’ mistaken attack on Syrian forces (which the U.S. says it mistook for ISIL forces), and the U.S. support for Turkish operations in northern Syria – established that the United States was now a party to a conflict against Syria (any more than earlier U.S. operations had established as much). Ryan responds solely on the matter of U.S./Turkish operations in the north, arguing that an area of northern Syria is now subject to occupation by Turkey, and that the United States is a “co-belligerent” with Turkey in this occupation.

Let me begin with an area of agreement – that if one state occupies the territory of another state it triggers an IAC. Is that what’s happening in Syria? I suspect Turkey and the United States would quibble with that characterization of affairs – both Turkey and the United States have stated that the area of concern is in the control of the Free Syrian Army, who have the support of coalition and Turkish forces. But for these purposes let us assume the situation is simply a partial occupation of Syria by Turkey. The core question here with respect to the United States’ status is whether its involvement demonstrates its co-belligerency with Turkey (against Syria).

Whatever else might be said about the concept of “co-belligerency,” a model of legal clarity it is not. Ryan cites to several useful posts on the topic (in a different context) by Just Security’s Nathalie Weizmann; and Rebecca Ingber has an indispensable article on the topic as well. Two points I think especially important for present purposes. First, as both Nathalie and Rebecca explain, co-belligerency is a concept from the (pre-UN Charter) law of neutrality that has been imported into the law of armed conflict; its scope and applicability in the modern law of even IAC remains the subject of much debate and little if any authoritative guidance. Nathalie and Rebecca thus rely mostly on arguments of various scholars to unearth its meaning. That said, second, as Nathalie describes it: “Under the law of neutrality, a State will become a co-belligerent when, in association, cooperation, assistance or common cause with another belligerent it participates in hostilities to a significant extent or it systematically or substantially violates its neutrality duties of impartiality and non-participation in the conflict.”

Is the United States (and for that matter, other air forces in the “coalition” it describes as participating in the north) “systematically or substantially violat[ing] its neutrality duties of impartiality and non-participation in the conflict” by supporting a Turkish occupation of Syria? I think it is certain that the United States would strongly contest that assessment. In the DOD press conference cited in Ryan’s original post regarding the fighting in northern Syria, the Pentagon spokesman was at pains to make clear that U.S. activities in the region were exclusively focused on attacking ISIL full stop: “When they [Turkish forces] began to focus on something other than ISIL then I think we had to withdraw our support for that. And so I think we are now trying to keep those elements separated and focused on the counter ISIL fight at this point….. [W]hat we have made clear is that our support is — our support to all parties is contingent upon the focus on ISIL. And that will be how we will continue to do this.” The news stories Ryan cites on the U.S. role in the region are consistent with this statement. From this I glean not only does the United States not share common cause with Turkey to the extent of any Syrian occupation, but that the United States does not cooperate, assist, or in any other way support Turkey to the extent that state is participating in any Syrian occupation.

While I think the public reports of activities in the region are all consistent with this view, my point here could hardly be to hope to settle definitively what exactly the United States and its allies are doing in northern Syria. The open sources speak for themselves, but undoubtedly do not contain the whole story. My point is rather, as I put it in response to Ryan’s original post, I think the claim that the United States is a co-belligerent in an IAC in Syria (based on these events) is hardly clear. Given that legal uncertainty, and given what I believe (and still believe) are significant negative policy consequences that would flow if the United States decided to publicly announce it was engaged in an IAC in Syria, I would not encourage the U.S. government to pursue such an announcement.

A Syrian IAC?

by Deborah Pearlstein

Like Gabor Rona, I, too, found Ryan Goodman’s post yesterday at Just Security intriguing. Further to our ongoing discussions here (e.g.) and there (e.g.) about the classification of armed conflicts, Ryan’s claim is that in light of three recent events (noted below), the armed conflict in which the United States is engaged in Syria (a conflict I think most have understood as a non-international armed conflict (NIAC) between the United States and certain non-state groups (including ISIL and Al Qaeda and associated forces)) is now international in nature – a conflict between (among others) the United States and Syria. He further argues that the ability to now classify the fighting as an international armed conflict (IAC) is a good thing for two main reasons: (1) the IAC designation triggers an obligation among all states (under the Geneva Conventions) to try or extradite those suspected of war crimes in that conflict, with the effect, he argues, of ratcheting up the diplomatic pressure on Syrian officials; and (2) it is possible for the United States (and presumably others) to reap the benefits that come with the legal classification “IAC” without also absorbing the burdens associated with (I take him to mean) the legally meaningless but politically weighty description, “war.” I disagree with Ryan’s analysis that the conflict is, for the reasons he gives, now an IAC. More, I tend to see the relative political and legal consequences of a U.S. recognition of such a conflict as having exactly the opposite effect he anticipates. Here’s my thinking. (more…)

New Article on SSRN

by Kevin Jon Heller

I have posted a short article on SSRN, entitled “Taking a Consenting Part: The Lost Mode of Participation.” Here is the abstract:

This short article, my contribution to a special issue of the Loyola International and Comparative Law Review commemorating the 70th anniversary of the Nuremberg Trial, critically examines “taking a consenting part” in an international crime – a mode of participation that was applied by the Nuremberg Military Tribunals but then disappeared into the ether of international criminal law, never to be seen again. The article is divided into three sections. Section I briefly explains how the NMTs understood the basic principles of individual criminal responsibility. Section II discusses the essential elements of “taking a consenting part” as a sui generis omission-based mode of participation. Finally, using Hadžihasanović at the ICTY as a case study, Section III asks whether international criminal law would be better off if it rediscovered “taking a consenting part” in an international crime.

As always, comments welcome!

15 Years Later: A History of the Forever War and the Laws of War (Part 2 of 2)

by Boyd Van Dijk

[Boyd van Dijk is a doctoral candidate at the European University Institute and a GTA at the War Studies Department of King’s College, London. He holds degrees in History and Political Science from the University of Amsterdam and Columbia University. He is currently working on a new international history of the Geneva Conventions of 1949. His first post can be found here.]

In my first post I discussed the historical origins of the ideas underpinning the relationship between war and peace, and those rules regulating them – and demonstrated the risks that arise from prioritizing one field over another. This second post will bring the story forward to today.

The United Nations, ICRC, and IHL

The United Nations, like its predecessor the League of Nations, was initially also very skeptical about saying anything regarding the laws of war. Largely in line with the League’s Covenant, the UN Charter remained completely silent on this issue, mainly out of fear that it might undermine its wish to re-create stability between the Great Powers and lasting peace following the defeat of the Axis powers. In light of these attempts to ban most types of war (except of self defense), Jesús Yepes, the Colombian representative at the International Law Commission, said “it would certainly create an unfortunate impression on public opinion if the laws of war were included in the list of topics for codification.” Whereas some of its state representatives demanded the laws of war’s further development, the ILC as a whole finally removed the subject from its drafting agenda. This situation changed gradually only in the late 1950s – though arguably more so in the period directly afterwards.

At this time, certain prejudices or hostilities towards the laws of war started to slowly evolve, partly due to the UN Secretariat and the General Assembly’s progressive engagement with “reaffirming” and “developing” the Geneva Conventions, a terminology which had to prevent particular states from getting the impression they were trying to fundamentally revise the original treaties. This change in attention of the UN’s bureaucracy was a direct response to its most recent witnessing of violations and other legal defects that were exposed during the wars of the Cold War and decolonization, for instance in Algeria (see Fabian Klose’s article).

As a result of this change in attitudes towards the laws of war – a critical alteration which is badly in need of historical interpretation – there was a revival in interest, both intellectually as well as globally. The Carnegie Endowment for International Peace, originally skeptical about studying the topic, started to regularly publish reports about it. Similarly, the United Nations, like the ICRC, began preparing for the revision of the Geneva Conventions. In 1968, with the twenty years anniversary of its adoption of the Universal Declaration of Human Rights – and in light of its witnessing of forms of impunity in Vietnam and Palestine, the General Assembly accepted its so-called “Teheran Resolution,” demanding the recognition of human rights in wartime. Soon after, the UN Secretary-General published one of his famous reports, entitled “Respect for Human Rights in Armed Conflicts,” which helped to further stimulate the overall drafting process.

In other words, the UN, under the strong influence of its Human Rights Division led by the former wartime exile and Belgian jurist Marc Schreiber, broke almost completely with its original skepticism towards the idea of regulating warfare. Conversely, the ICRC, originally strictly limiting its focus to regulating war alone, gradually adopted certain elements of peace activism and universalism in its own rhetorical devices, mostly in light of pressures caused by the Cold War and decolonization.

While often neglected in the still booming human rights historiography, the Teheran Resolution constituted not just a major break in the UN’s own history, but it also showed the increasing overlap and cross-fertilization between originally quite separate – though far from distinct – initiatives and fields of international law. Around this period, Jean Pictet, one of the many influential drafters of the 1949 Geneva Conventions, coined the phrase of “international humanitarian law” (IHL), a term that incorporated different fields of law, including human rights law, “Geneva Law,” “Hague Law,” and possibly even the laws of peace, revealing the ever changing boundaries between these different legal realms. In 1970, he and others also helped to establish the International Institute of Humanitarian Law, in San Remo. At the same time, his organization, working closely together with (post-)colonial governments, felt forced to balance its humanitarian interests, which were informed by its fundamental principles of (Swiss) neutrality, independence, and impartiality (see Andrew Thompson’s article https://www.icrc.org/en/international-review/article/humanitarian-principles-put-test-challenges-humanitarian-action-during). Accordingly, it picked its battles strategically. Among other things, it expressed certain reservations when confronted with initiatives it saw as being ‘far too political’, for instance those demanding the end of ‘Western imperialism’, or certain racist regimes (Jim Crow laws, apartheid).

One example of this hesitant attitude of the ICRC can be seen in the fact that it kept a certain distance from particular peace movements, such as the World Peace Council that was under a strong Communist influence. In the 1950s, it attracted the attention of numerous activists, from Jean-Paul Sartre, Bertrand Russell to W.E.B. Du Bois, who sought to remove, as they claimed, the “causes” – e.g. colonialism, racism, marketism – rather than the “symptoms” of war – protecting hospitals in imperial wars. While being an observer at some of these Council’s meetings, the ICRC took a distance from the views at such gatherings, mainly out of fear they might potentially undermine its own (Swiss) humanitarian interests.

Still, in the wake of increasing superpower tensions and heated debates surrounding the topics of Third World-ism, peace activism, anti-racism, human rights, and civil liberties, the ICRC felt obliged to bring some of these efforts into line with its own ‘mental maps’, as it saw itself as a promotor of peace, for instance, although – as A.J.P. Taylor once noted – it preferred to see itself as pacifistic, rather than pacifist.

Take for example the ICRC’s application for the Nobel Peace Prize of 1963, which was sent by Pictet to his intermediary. In this document, it admitted forthrightly that it was often criticized for being “an obstacle to attempts to outlaw war,” or that in rendering war less atrocious it had made it “less detested.” While admitting that its work was not “completely pacifist,” it said that it essentially constituted “acts of peace,” thereby referring to its calls upon parties to abolish atomic warfare, to make a truce, or to create “inviolable areas” for wounded and sick soldiers where “fire and the sword had no place.” In addition to these examples, the ICRC further suggested that it had helped to bring about a so-called “advent of ethical ideas,” leading to a situation in which the “political and military interests of states (…) [are] no longer the only ones concerned.” In connection to this, it claimed that “its existence, its work, its attitude, [were] a living protest against the unleashing of material forces” – a clear reference to the recent Cuba Crisis and its threat of a nuclear Holocaust.

To sum up, at a time when the anniversary of the post-September 11th AUMF and the commencement of the “forever war” continues to attract popular and scholarly attention, it is worth remembering three lessons about its complicated relationship with especially the laws of war. First, by moving beyond overly simplistic dichotomies or anachronistic suppositions, the laws of war are about far more than just making war more humane. Its history has been shaped by a mosaic of ideas, both progressive and deeply conservative, as well as states, armies, national liberation movements, international organizations to humanitarians, including the ICRC.

Second, instead of being legal comrades in arms, advocates of the laws of war and those fighting against injustice and for peace have frequently been uncomfortable bedfellows. And, lastly, it is vital to remember that this relationship, featuring a history of major contradictions, paradoxes, potentials, and limits, is far less teleological, or unitary, than what many have said so far. Sometimes they, the work of the laws of war and that of peacemaking, overlap and work cooperatively, whereas at other times they operate completely independently, or even work in ways going directly against each other, with occasionally potentially dangerous implications in light of relatively new technological (e.g. drones, autonomous weapons), legal (such as the 9/11 AUMF, the responsibility to protect), and certain ideological developments (the rise of emergency doctrines).

Despite Referendum Defeat, Colombian President Santos Wins Nobel Peace Prize

by Roger Alford

The Nobel Peace Prize for 2016 has been awarded to Colombian President Juan Manuel Santos. According to the Press Release, the award was given for his “resolute efforts to bring the country’s more than 50-year-long war to an end…. The award should also be seen as a tribute to the Colombian people who, despite great hardships and abuses, have not given up hope of a just peace, and to all the parties who have contributed to the peace process.” The Committee noted that peace in Colombia is now uncertain with the narrow defeat of the referendum on the peace deal. But “the referendum was not a vote for or against peace. What the ‘No’ side rejected was not the desire for peace, but a specific peace agreement.”

The award to President Santos is consistent with a long tradition of awarding the Nobel Peace Prize to architects of peace agreements. There are numerous examples. President Theodore Roosevelt won the prize in 1906 for mediating an end to the Russo-Japanese war. During the interwar period, the prize was awarded to Aristide Briand, Gustav Stresemann, and Sir Austen Chamberlain for the Locarno peace deal between France and Germany. In 1950, Ralph Bunche won the prize for negotiating an end to the Arab-Israeli war in the Middle East. Henry Kissinger and Le Duc Tho won the prize in 1973 for the ceasefire agreement in Vietnam. Anwar Sadat and Menachem Begin (and much later Jimmy Carter) won the prize for the Camp David Accord. Costa Rican President Oscar Arias won the prize in 1987 for negotiating peace in Central America. Yasser Arafat, Shimon Peres and Yitzhak Rabin won the prize in 1994 for the Oslo Peace Accords. And John Hume and David Trimble won the prize in 1998 for the Good Friday Agreement. In short, the award to President Santos is in recognition of one of the most common themes in the long history of the Nobel Peace Prize: those who have sought and achieved an end to conflict through negotiated peace.

There are two items worthy of note about the decision to award the prize to President Santos. First, it is notable that the award was not also granted to FARC leader Rodrigo Londono, better known as Timochenko. Typically following a peace deal, the prize is granted to leaders from both sides of the negotiating table. It is possible that Timochenko was not nominated in time to win the prize (as was the case with Jimmy Carter in 1978), or more likely, there are aspects of Timochenko’s background that the Committee considered disqualifying. Widely suspected of war crimes and drug trafficking, a shared prize between President Santos and the Marxist guerilla leader would have raised eyebrows. (Prizes to unsavory figures like Yasser Arafat and Henry Kissinger are among the most controversial in the history of the Nobel Peace Prize). By singling out Santos for the prize, the Committee maintained the integrity of the prize and lauded the chief architect of the peace deal.

Second, the decision to award the prize to Santos despite the peace deal’s narrow defeat in the October 2 referendum came as a surprise to many. But the Nobel Committee has frequently used the prize to not only honor past achievements, but also spur parties to redouble their efforts to secure peace. No one considered that the Oslo Accords had achieved peace in the Middle East, but it was a high water mark for what was possible in the region. Likewise, the award to Betty Williams and Mairead Corrigan in 1976 was solely about the hope of future peace in Northern Ireland. By awarding the prize only to Santos, it strengthens his hand in the negotiations. It is widely suspected that the principal reason the Colombian people rejected the peace deal was because the amnesty deal was too favorable to FARC, and now Santos will have enhanced moral authority to strike a harder bargain. It also should embolden Santos to continue his efforts to find a peace deal that is acceptable to both the FARC guerillas and the Colombian people.

The awarding of the prize recognizes the tireless efforts of Santos and his mediation team (including my friend and Notre Dame colleague Doug Cassel) to end the longest ongoing civil war in modern history. It is cause for celebration and hope that peace will someday come to the long-suffering people of Colombia.

15 Years Later: A History of the Forever War and the Laws of War (Part 1 of 2)

by Boyd Van Dijk

[Boyd van Dijk is a doctoral candidate at the European University Institute and a GTA at the War Studies Department of King’s College, London. He holds degrees in History and Political Science from the University of Amsterdam and Columbia University. He is currently working on a new international history of the Geneva Conventions of 1949.]

Fifteen years ago, the longest war in American history began. Following the 9/11 attacks the United States Congress passed an Authorization to Use Military Force (AUMF). Shortly after, the Bush Administration decided to question the relevance of the 1949 Geneva Conventions, a position recently re-endorsed by the Republican presidential candidate. Since then, consecutive US governments have used that AUMF to justify their effective continuation of the so-called “War on Terror.” Armed operations, from drone strikes to special operations, have taken place in areas across the globe, most recently in Syria and Iraq as to fight ISIS, a terrorist organization originating in a period long after 9/11. Some have, therefore, spoken of a ”forever war.”

In two provocative and historically-rich contributions for Dissent and Just Security, Harvard Law professor Samuel Moyn asked whether our preoccupation with making war more humane (“hygienic”) has perhaps led to this outcome of endless fighting. By contrast, constitutional lawyer David Cole has (rightfully) pointed out that most civil liberties activists have actually done both: they have criticized Washington’s track record of endless war and its violations of the laws of war. There is “little evidence,” he notes, which could show that their concerns about making wars less inhumane have led to a softening of their criticisms towards the US government’s continuing effort to wage war. Clearly, this debate has a certain resonance with the ongoing controversies surrounding the tension between retribution and peace – think of the ICC’s intervention in Sudan, or that of Human Rights Watch in Colombia most recently.

Strikingly, however, both experts seem to have a very selective – and problematic – understanding of the historically ambiguous, yet constantly changing relationship between the two fields of international law in wartime – jus in bello and jus ad bellum. In this post, adhering to Moyn’s call for a new history of this forever war and its relationship with those laws and principles regulating its conduct, I will shed light on this often misunderstood history by arguing that it is far more contradictory, if not paradoxical, and definitely less uniform than what is commonly assumed.

Lieber and Belligerent Equality

While referring to the genesis of the Red Cross movement in the 1860s and seeking to challenge particularly certain triumphalist accounts, Moyn defines the laws of war as essentially a tradition that seeks to make war more humane. However, to quote the Austrian-American jurist Joseph Kunz, this movement owed less to professors, statesmen, or humanitarians, than to soldiers, such as Francis Lieber. A war veteran, first, and a legal scholar at Columbia College, second, Lieber prepared the well-known and influential code governing the conduct of Union soldiers during the US Civil War. In contrast to those narratives built upon the founding fathers of the Red Cross seeking to alleviate the suffering of (certain) victims of war, Lieber, another early advocate of the laws of war in the nineteenth century, held the view that one could allow for forms of suffering to occur so as to end wars and injustice – slavery, for instance – quickly. In line with this maxim, President Lincoln, trying to increase pressure on the South’s slave regime, decided to halt the exchanges of prisoners of war with his enemy, causing a major inflation of the death toll in the war’s already overcrowded POW-camps.

It is important not to forget that Lieber’s idea, instrumentalizing the laws of war by making them dependent upon a just – or unjust – cause, combined with a comparatively strong if not distinct notion of military necessity, has been subsequently endorsed by many other jurists. In the 1940s, the Allied prosecutors at the Tokyo War Crimes Trials – as well as those in Nuremberg, were focused less on crimes in war than on war itself as crime (see this piece by Moyn). They argued that, since aggressive war was prohibited by the 1928 Kellogg-Briand Pact, the death of any soldier by the invader was a murder, rather than a legal act of war. Similarly, a few years later, when discussing the revision of the Hague and Geneva Conventions, an Israeli delegate, a survivor of the Shoah, and a soldier too, noted that:

“Up to the last war combatants alone were involved in the event of conflict. That was no longer the case during the Second World War [when] a belligerent power [i.e. Nazi Germany] was manifestly bent on exterminating a whole people, massacring women and children in cold bold. What should a people do in such circumstances? Should it not rightly and dutifully seek to defend itself?”

Like many members of certain national liberation movements, later Communist states, or other Jewish survivors, including Raphael Lemkin, the godfather of the Genocide Convention, the Israeli delegate demanded lowering the law’s threshold for those acting against genocidal and/or racist rule. In doing so, he questioned the doctrine of so-called ‘belligerent equality’, which means that the laws of war apply equally to everyone regardless of the (in-)justice of his or her cause. If accepted, the denial of this principle might give, for instance, irregulars having a just cause (e.g. fighting occupation, or a war of national liberation) the right to target civilians with enemy ties indiscriminately, to take them hostage, or to use ‘human shields’ when fighting in an asymmetrical war.

Ironically, as a typical example of the Arendt-ian boomerang effect, this very same principle was re-addressed in the 1970s, when the Additional Protocols were being discussed, by certain delegates who criticized the Israeli occupation of Palestine – and wished to let go of this belligerent equality principle. Around the same period, the Communist North Vietnamese even argued, loosely based upon Lenin’s revolutionary ideas of just and unjust wars, that, as they considered themselves as victims of aggression by the United States, they were not bound to give POW rights to captured US personnel (‘war criminals’), a radical position they (unsuccessfully) defended at the Protocols’ negotiating table. Since then, a similar critique – though originating from a very different legal-intellectual starting point – has been raised by certain revisionist political theorists, such as Jeff McMahan and Cécile Fabre of All Souls College, who have questioned Michael Walzer’s embrace of belligerent equality and/or legitimate authority. Again, it shows the great diversity and constantly changing set of ideas underpinning the relationship between these two legal domains in wartime – jus ad bellum and jus in bello.

The Great War

Like the 1970s, the period up to the Great War witnessed a great deal of interest in the laws of war, a discipline then still highly Eurocentric, very strictly defined, or consciously left vague in light of certain dominant state interests (see the then ratified law’s silence on blockading).

During these years, the laws of war received extensive study by jurists and soldiers alike. Established by the “men of 1873” [http://www.cambridge.org/jo/academic/subjects/law/public-international-law/gentle-civilizer-nations-rise-and-fall-international-law-18701960] following an initiative supported by Lieber, the Institut de Droit International promoted the development of the laws of war. Numerous publications in various languages were published on this topic. Exemplary of this growing interest in the laws of war were the Hague Conventions of 1899 and 1907: the majority of their provisions do not affect the field of peacemaking – aggressive war was still considered lawful, but rather with the regulation of warmaking. As some would complain later, the “moral forces” of this era were “diverted” from the former to the latter – a Moyn-ian criticism avant la lettre.

With the outbreak of savagery on the “civilized” European continent in August 1914 (see my contribution https://muse.jhu.edu/article/627404), the tide slowly turned in favor of those critics. At the end of World War I, many (and especially jurists themselves) claimed that rules for warfare were useless because they will be broken; war can only be abolished, not regulated. Their attention then shifted to alternative plans in order to “end all wars,” such as collective security and “peace through justice,” culminating in the League of Nations’ Covenant and the 1928 Kellogg-Briand Pact (see here), even though neither of these instruments banned war, nor reprisals, altogether – an element which is often forgotten in anthologies describing their history.

By banning certain types of war, the study of the laws regulating the conduct of war lost its appeal almost entirely. Various law schools removed the subject from their curricula; the Institut de Droit International and l’Académie de droit international de La Haye banned it too, although only for a brief period of time. Neither did the legal specialists of the League of Nations put much interest in it, except with regard to regulating gas warfare – framed as part of the still far more popular project of disarmament – that was finally covered by the Geneva Protocol, signed in 1925. As a result of this lack of interest, contrasting with contemporaries’ growing appetite for the effort to taboo war itself by means of codifying law, the ICRC faced increasing criticisms as well as competition (e.g. from the American-dominated League of Red Cross Societies working exclusively in peacetime) in the interwar period. Or, as the Cambridge legal scholar Hersch Lauterpacht would later note, “if international law [was], in some ways, at the vanishing point of law, the law of war [was], perhaps even more conspicuously, at the vanishing point of international law.”

So what? Most importantly, it forced the ICRC, as well as its partners like the Belgian military physician Jules Voncken, of the International Committee of Military Medicine and Pharmacy, to pick its battles very carefully – with sometimes devastating results. For example, in the 1920s, it chose to first solve the allegedly “easier” question of regulating military imprisonment, which led to the acceptance of the POW Convention in 1929, as opposed to that of civilians in occupied territory, a matter which was for the first time seriously addressed only in the 1930s when the international system was breaking down rapidly.

What was the effect of this legal lacuna? Above all, it left civilians during the Second World War extremely vulnerable. In turn, this, a lack of comprehensive but strong codified protections for civilians, made it more challenging for Allied war crimes tribunals after 1945 to condemn those atrocities perpetrated against this group of victims. Particularly telling in this regard was the verdict of the (in-)famous Hostages Trial, held from 1947 to 1948. Its judges had to admit that the Nazis’ vicious counterinsurgency policies, featuring the taking of hostages, reprisal killings, and the summary executions of partisans, were mostly lawful considering the existing law’s permissiveness on these points – a warning from history especially for those wishing to prioritize one field over another. As important, the verdict revealed too how jurists’ perceptions of the idea of military necessity, or that of the boundaries between what is considered humane or savage, changed quite radically over time, both materially as well as in scope.

Monday, my second post will further reflect upon these and other questions, such as how the ICRC, as the guardian and promoter of the Geneva Conventions, struggled during the Cold War with questions of peace and injustice.

The NIAC Threshold

by Deborah Pearlstein

At least three things trouble me about Adil Haque’s recent post over at Just Security about how to determine when armed violence crosses the threshold from ordinary criminality or the like to non-international armed conflict (NIAC), such that the law of armed conflict applies. As Adil rightly notes, much rides on the question. On one hand, recognition of a NIAC imposes on all parties to the conflict an obligation to comply with, at a minimum, the humanitarian provisions of Common Article 3 to the Geneva Conventions (prohibiting torture, cruelty, and much else). On the other hand, under the law of armed conflict (LOAC), a state party can use force anytime and against any member of an opposing force. In armed conflict, and in no other circumstance, killing is lawful as a first resort. For this reason, among others, Adil’s suggestion that we should lower the threshold for recognizing the existence of a NIAC, i.e. apply the law of armed conflict even for nominal levels of violence involving non-state actors, merits careful attention. So here are some initial concerns… (more…)

Vacancy: Director of the Irish Centre for Human Rights

by Kevin Jon Heller

The National University of Ireland Galway seeks to appoint a Professor of Human Rights Law and Director of the Irish Centre for Human Rights, within the School of Law.

The Irish Centre for Human Rights has developed a global reputation for excellence in the field of human rights teaching, research and advocacy, which has enabled it to attract high quality students to its acclaimed postgraduate and undergraduate programmes. Its success is reflected in the calibre and diversity of its doctoral and masters students in particular.

[snip]

In filling the Established Professorship in Human Rights Law, NUI Galway is seeking a person with an international reputation for academic excellence in Human Rights Law combined with strong leadership skills who will complement the existing strengths of the Centre and enable it to develop new areas of activity in line with its future strategic priorities. S/he will normally have a doctoral- level degree in Human Rights Law and a substantial record of teaching and research, the later evidenced by substantial publications in the broad field of human rights. The post-holder will also be the Director of the Irish Centre for Human Rights at a critical time in its development having enjoyed tremendous success, nationally and internationally, particularly since 2000.

[snip]

The post-holder, as the recognised leader of the sub-discipline of Human Rights in the School of Law, will contribute to the development of the education and research programmes of the School. The Established Professor of Human Rights Law, in his or her role as Director of the Irish Centre for Human Rights, will also contribute positively and proactively to the collective leadership of the School of Law. S/he will be expected to work with colleagues in the Irish Centre for Human Rights, the School of Law and other stakeholders to develop an ambitious Strategic Plan for the Centre reflecting the most relevant emphases of the University’s current strategic plan, Vision 2020.

[snip]

For informal enquiries, please contact Professor Donncha O’Connell, Head of the School of Law, NUI Galway, Email donncha [dot] oconnell [at] nuigalway [dot] ie or telephone: +353 (0)91 492388.

Additional information on the Irish Centre for Human Rights, NUI Galway is available at:http://www.nuigalway.ie/irish-centre-human-rights/.
Information on the University’s Strategic Plan is available at: www.nuigalway.ie/vision2020

Salary:
€106,515 to €136,275

(This appointment will be made on the Established Professor scale in line with current Government pay policy)

(For pre 1995 public sector entrants in Ireland, the D class Salary rates will apply)

Closing date for receipt of applications is 17:00 (Irish Time) on Thursday, 20th October 2016. It will not be possible to consider applications received after the closing date.