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Emerging Voices: The Right to a Remedy in Armed Conflict–International Humanitarian Law, Human Rights Law and the Principle of Systemic Integration

by Vito Todeschini

[Vito Todeschini (LL.M.(Ferrara University); E.MA (EIUC, Venice)) is a PhD Fellow at Aarhus University, Denmark.]

In 2013, the German Federal Constitutional Court and the Regional Court of Bonn issued their judgements in two cases ‒ Varvarin and Kunduz respectively ‒ concerning Germany’s participation in the NATO-led operations in Serbia/Kosovo and Afghanistan. These judgments confirm and exemplify a general trend in domestic case law, which denies that victims of violations of international humanitarian law (IHL) have a right to bring claims directly in the domestic courts of the allegedly responsible State (Gillard, pp. 37‒38). This finding is mainly based on the lack of an obligation on States under IHL to provide individuals with enforceable remedies against violations. Domestic courts, however, tend to overlook the complementary role that human rights law (HRL), the other legal framework governing armed conflicts, may play in this context.

This contribution explores this possibility, arguing that HRL may supplement IHL with regard to the right to a remedy. The analysis assumes the perspective that IHL and HRL are complementary legal frameworks. It further employs the principle of systemic integration, codified in Article 31(3)(c) VCLT, to interpret IHL in light of HRL. An alternative interpretation will be proposed, namely that victims of IHL violations should be allowed to bring claims in the allegedly responsible State’s courts on the basis of the right to a remedy under HRL.

The Right to a Remedy: HRL v. IHL

The right to a remedy is enshrined in several human rights treaties (inter alia, Articles 2(3) ICCPR; 13‒14 CAT; 13 ECHR; 25 ACHR; 7(1)(a) ACHPR), under which States Parties have an obligation to establish domestic remedies capable of finding and redressing human rights violations. The concept of remedy generally presents two dimensions: procedural and substantive. The procedural aspect regards the right to have access to a competent body, which may be judicial or administrative depending on the seriousness of the violation. The substantive dimension concerns the right to reparation, which includes restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition (Shelton, p. 7). Effectiveness is the distinctive element characterising a remedy. To be effective, a remedy must be accessible, enforceable, and provide redress if a violation is found (HRCtee GC31, paras. 15‒16). A final feature of remedies is their dependency on the previous infringement of another right.

The situation differs radically with regard to IHL. According to Articles 3 HC IV and 91 AP I, a State must provide compensation for the IHL violations it is responsible for. This rule is considered to be customary and applicable in both international and non-international armed conflicts. The drafting history of Article 3 HC IV shows that its objective is to provide victims of violations with the right to bring a claim directly against the responsible State (Kalshoven, pp. 830‒837). Yet, post-WWII domestic case law has generally departed from this original construction and interpreted such provision as conferring on States, not victims, the right to claim compensation (CIHL Study, pp. 544‒545; Zegveld, pp. 507‒512; Henn, pp. 617‒623). Additionally, there is no specific rule in IHL providing how a victim can enforce the right to reparation. It can be concluded that, at best, victims of IHL violations have a substantial right to reparation but not a procedural right to a remedy. In this respect, the question is whether HRL, which also applies in armed conflicts, may provide individuals with a procedural remedy for unlawful harm suffered in war time.

Systemic integration between IHL and HRL

The relationship between IHL and HRL may be considered from two perspectives: competition and complementarity. Generally, whenever two rules belonging to the different regimes are both applicable and in competition, human rights treaties are interpreted taking into account IHL rules (ICJ Nuclear Weapons, para. 25; HRCtee GC31, para. 11). For instance, the human rights to life and personal liberty in armed conflicts may be modified in light of IHL rules on targeting and internment (ICJ Nuclear Weapons, para. 25; ECtHR Hassan, paras. 102‒106). On the other hand, IHL and HRL rules are not always in competition. Despite being designed to pursue very different objectives ‒ conduct of warfare (IHL) and protection of individuals and groups (HRL) ‒ these bodies of law are also complementary and mutually reinforcing. They share certain common purposes, such as ensuring humane treatment of individuals at any time (HRCtee GC31, para. 11; IAComHR Abella, paras. 158‒160; Hampson and Salama, paras. 6‒8).

One aspect of the complementarity between IHL and HRL is that the provisions of one of these bodies of law may fill the gaps present in the other; for instance, as it is argued here, with respect to the right to a remedy. This operation is made possible by the principle of systemic integration codified in Article 31 VCLT, which provides that in the interpretation of an international norm “[t]here shall be taken into account, together with the context: [… ] (c) any relevant rules of international law applicable in the relations between the parties”. Systemic integration is a mandatory part of the interpretive process which demands that a rule of international law be construed taking into account all other international norms, deriving from any source, that are applicable in and relevant to a certain situation (ILC, paras. 413 ff.). The ICJ and human rights treaty bodies have, explicitly or implicitly, resorted to the principle of systemic integration when considering the concurrent application of IHL and HRL (d’Aspremont and Tranchez, pp. 238‒241). Since it allows to interpret one body of law in light of the other, the present analysis employs systemic integration as a legal-theoretical basis to provide remedies under HRL for violations of IHL.

Remedying violations in armed conflicts

In 2006, the German Federal Supreme Court (FSC) held in the Varvarin case that Articles 3 HC IV and 91 AP I do not grant individuals a right to claim reparation for IHL violations directly against a State, and that consequently victims must file any claims via their own government (paras. 10‒14). Although recognising the progressive acknowledgement of the international subjectivity of individuals that has occurred over time, the FSC denied that HRL had modified international law so as to grant individuals a general procedural right to bring claims for IHL violations in a foreign State’s domestic courts (paras. 7‒9, 14‒15). This interpretation has been confirmed in the aforementioned 2013 judgments by the German Federal Constitutional Court in the same case, and the Regional Court of Bonn in the Kunduz case.

It is submitted here that, while considering HRL as a relevant legal framework, the FSC failed to apply the principle of systemic integration in a satisfactory manner. The Court did not refer to the obligations to provided remedies contained in the treaties which Germany is party to, such as the ECHR or the ICCPR. A reasonable application of the principle would have at least required: a) taking into account the provisions on the right to a remedy included in the human rights treaties binding on Germany as well as relative treaty bodies’ jurisprudence; and b) considering whether these provisions have a bearing on the claims regarding IHL violations. Given that under IHL victims are entitled to reparation but have no procedural right to enforce it, it seems sensible for a domestic court to take into account the relevant provisions of HRL which oblige States to provide effective remedies against violations.

In this writer’s opinion, by resorting to the principle of systemic integration the FSC could have argued that the lack of an enforceable right to a remedy under IHL may be read in light of the obligation of States to provide an effective remedy under HRL. Accordingly, the Court could have filled such a gap by deciding that a victim of an IHL violation is entitled to bring a claim against the allegedly responsible State under the same procedures provided for to victims of human rights violations. In this perspective, whereas the breach of the norm would regard a substantive rule of IHL ‒ e.g., the prohibition to kill civilians ‒ the remedy, and therefore the enforcement of the right to reparation, would be exercised as provided for in HRL ‒ e.g., Article 2(3) ICCPR.

The principle of systemic integration is a mandatory part of the interpretive process. Its application to the relationship between IHL and HRL has marked the jurisprudence of several international bodies. This principle requires interpreting one body of law taking account of the other; hence, IHL may be read in light of HRL. Far from being a stretch of existing norms ‒ the reasoning draws on lex lata and not lex ferenda ‒ systemic integration may contribute to fill a major gap in IHL and give substance to the idea that IHL and HRL are, in certain respect, complementary. Besides, and most importantly, victims of IHL violations may be provided with a procedural remedy to enforce directly in domestic courts their right to reparation.

A Sad Farewell to Michael Lewis

by Kevin Jon Heller

As regular readers know, Mike and I often sparred on the virtual pages of Opinio Juris. By and large, we did so civilly. But on occasion — such as when we were debating whether the Bush admininstration’s “enhanced interrogation” regime qualified as torture — things became heated. I made him mad. He made me mad. I doubt either of us expected to like each other if we ever met in the brick-and-mortar world.

But like each other we did. Mike and I met only once, on the first day of a fascinating conference on ethics and the laws of war. We recognised each other from across the room as we were getting settled, and he quickly stomped toward me. I was a bit hesitant — but then Mike gave me a big hug and said how great it was to meet me and how much he had enjoyed our debates. It was a really wonderful moment.

It fills me with sadness to know there will be no such similar moments again. But I am very glad I had the opportunity to meet Mike — and I will remember our discussions, both virtual and real, for a long time.

Requiescat in pace, Mike.

Farewell to Professor Michael Lewis: A Tireless and Important Voice on the Law of Armed Conflict

by Julian Ku

I want to join the others in the legal blogosphere in expressing my shock and sadness at the loss of Professor Michael Lewis.  Mike and I were fellow travelers on many legal and political issues, and I learned long ago that I would learn more from him on the law of armed conflict than he could learn from me.

As Professor Tom Lee of Fordham notes in his comment to Chris’s post below, Mike was an experienced naval aviator who overlapped in his time of service in the Navy with Tom.  Mike brought operational insights to the law of armed conflict, as his article on aerial bombardment during the First Gulf War in the American Journal of International Law showed.  But his background in the Navy was only a part of his identity as a legal scholar.  Mike was steadfast in working to develop a workable approach to the law of armed conflict that would satisfy both operational concerns and also strategic policy goals.

Mike was truly indefatigable. He would go anywhere, or take to any venue, to debate or discuss his views on LOAC and drone strikes in particular. Of course, he did not find many folks who agreed with him, but he always treated his interlocuters with respect and dignity. He wanted to debate, argue, and continue to debate and discuss.  He would do this for even the most sensitive and controversial issues.

Indeed, I first met Michael when he recruited me to speak on a panel he organized at the annual meeting of the American Association of Law Professors on one of those topics:  U.S. interrogation policies and torture.  I was not exactly excited to be on the panel, given the reaction I was sure we would receive, but Michael worked hard to keep our discussion civil and useful.  I was impressed with his willingness to tackle this topic, and his willingness to take a controversial and unpopular approach.

Michael was an important and thoughtful academic voice on some of the most important legal questions facing us today.  I will miss him.

 

Remembering Mike Lewis

by Chris Borgen

We are very sorry to mark the passing of Professor Michael W. Lewis of Ohio Northern University.

Mike spoke and wrote with rare authority as someone who was not only a leading international law and national security scholar who engaged in broader public discourse (see his many debates, presentations, and interviews), but also as a former Naval aviator and TOPGUN graduate, who had flown F-14’s in Desert Shield and enforced no-fly zones over Iraq.

More than most, Mike appreciated how international law was actually operationalized.

We at Opinio Juris benefited from Mike’s frequent contributions to the discussion, with posts and comments on issues such as the relationship between Additional Protocols I and II,  on various aspects of drone warfare (see, for example, 1, 2, and 3), and on  “elongated imminence” and self-defenseBobby Chesney and Peter Margulies have also posted remembrances about Mike Lewis at Lawfare.

On a more personal note, I remember the first time I met Mike in person, perhaps ten years ago, at a dinner at a national security law conference. He was a great conversationalist, speaking about the need to crystallize key principles of international law in a manner that would be immediately usable by the pilots and flight crews who were actually flying sorties.

His voice was unique and it will be missed.

Weekly News Wrap: Monday, June 22nd, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

UN/World

  • Kakuma camp in northern Kenya is expanding by nearly a half, the U.N. refugee agency said on Saturday, to house refugees fleeing nearby South Sudan as hopes fade for peace in the world’s newest nation.
  • The UN refugee agency has said that the record number of refugees, asylum seekers and internally displaced people globally is “a reflection of a world in chaos“.

Events and Announcements: June 21, 2015

by Jessica Dorsey

Announcements

  • On 22 June 2015,  University Paris 8 Research Centre “Forces du droit” organizes a one-day conference entitled  “Forms of International Law – Insight into the Outcomes of the Work of the International Law Commission”. The conference, which will take place at the French Ministry of Foreign Affairs Conference Centre (27, rue de la Convention – 75015 Paris), intends to address the evolution of formal outcomes given to ILC legal products, from treaties to soft law instruments. Academics, experts of the Commission’s work but also practitioners – such as legal advisers from diplomatic services and members of international courts and tribunals – will gather to address this phenomenon, discuss its causes and potential consequences as to the current development of international law. The Conference will include, among its speakers and chairs, the President of the ICJ, Judge Ronny Abraham, ICJ Judge Giogio Gaja, the Legal Counsel of the United Nations, Mr. De Serpa Soares, the Legal Counsel of the French Ministry of Foreign Affairs and International Development, Mr. François Alabrune, and several prominent figures in the field of international law. More information and details for registration can be found here.
  • 7 PhD Fellowships within legal research are available at the Faculty of Law of the University of Oslo. The deadline for application is 1 September 2015. You can find more information here.

Call for Papers

  • The Asian Society of International Law was established in 2007. Following four successful biennial conferences, the Fifth Biennial Conference of the Asian Society of International Law will be held in Bangkok, Thailand on Thursday and Friday, 26 and 27 November 2015. Theme of the Conference: Nowadays governments, scholars and civil society in Asia are engaged enthusiastically in the development of international law in the region. Asian countries today witness more regional cooperation and economic integration, for instance, through the launch of the ASEAN Economic Community (AEC) and the Asia Infrastructure Investment Bank (AIIB), etc. The conference will confront the changes that will ensue from these developments in the region, and provide a forum to share perspectives on legal issues from around Asia and from beyond. To this end, proposals for papers are now being invited. Please click here for more information.

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.

 

Fourth Annual Junior Faculty Forum for International Law

by Kevin Jon Heller

The forum is being held this week in Florence, Italy. Here is the description:

The Annual Junior Faculty Forum for International Law was launched in the summer of 2011. It held its inaugural event at the New York University School of Law in May 2012; the second Forum was held at the University of Nottingham in May 2013 and the third (and most recent) Forum occurred at the University of Melbourne in July 2014. The Forum is designed as a regular addition to the international law calendar; its founding co-convenors are Dino Kritsiotis, Professor of Public International Law in the University of Nottingham, Anne Orford, Michael D. Kirby Professor of International Law in the University of Melbourne, and J.H.H. Weiler, President of the European University Institute in Florence. The Forum will allow international legal scholars, in the first six years of their academic career, a unique opportunity to present their research work by being paired with a senior scholar in the field of international law or related fields, who will lead a discussion of their presentation within the Forum.

The fourth Forum will convene at the European University Institute in June 2015, and selected presentations from the Forum will be published in the European Journal of International Law (Oxford University Press), a practice established from the inaugural Forum.

The young scholars invited to participate this year are: Rohini Sen (O.P. Jindal Global), Kristina Daugirdas (Michigan), Ingo Venzke (Amsterdam), Anne-Charlotte Martineau (Max Planck), Oisin Suttle (Sheffield), Nicolas M. Perrone (Universidad Externado de Colombia), Deborah Whitehall (Monash), Anna Dolidze (Western), Mieke van der Linden (Max Planck), Arman Sarvarian (Surrey), Surabhi Ranganathan (Warwick), Philippa Webb (King’s College), and Maria Varaki (Kadir Has).

It should be an excellent forum. I hope readers who are young academics will consider applying for the fifth one!

Guest Post: Exploring Legal Rationales for South Africa’s Failure to Arrest al-Bashir

by Asad Kiyani

[Asad Kiyani (LL.B (Osgoode); LL.M (Cambridge) is a PhD Candidate at the University of British Columbia (UBC).]

While social and traditional media have been flooded with complaints about South Africa’s recent failure to arrest Omar al-Bashir, legal analysis of the situation has been lacking. Many have insisted that the reluctance to arrest al-Bashir is  ‘the impunity club’ disregarding legal principle and undermining the rule of law.

Yet, given the widespread insistence that the ICC has jurisdiction over Bashir and he must be arrested by anyone who can do so, there is a remarkable lack of agreement on exactly how the treaty-based ICC has jurisdiction over the sitting head of state of a country that has not ratified said treaty, and when that head of state is protected by customary law immunities (see Gaeta vs Akande, which inspired my article on the same).

For reasons of space, this post does not address the claim that there is already a rule of customary international law that provides an exception to head of state immunity. That position frequently involves the same errors: conflating the immunities of former heads of state (such as Pinochet) with incumbent heads of state, and conflating the elimination of the substantive defence of official capacity with elimination of the procedural bar of immunities. Nor does it deal with peace versus justice arguments, the specificities of South African constitutional law, or perhaps the more promising, genocide-based arguments in favour of arresting al-Bashir highlighted by Göran Sluiter. Instead, this post problematises the assertion that states refusing to arrest al-Bashir have no legal legs to stand on by highlighting four interrelated public international law issues raised by the legal pursuit of al-Bashir.

(1) There has been no reconciliation of the apparent internal contradictions in the Rome Statute: that states are obligated to carry out ICC decisions while also respecting the customary duties they owe to other states, particularly third-party states. Article 27(2) of the Rome Statute waives states’ customary protections of immunities. At the same time, Article 98(1) states that persons clothed in immunity can only be arrested by or surrendered to the Court if “the Court can first obtain the cooperation of that third State for the waiver of the immunity.”

Sudan has clearly not consented to this waiver, and is not cooperating with the Court to waive al-Bashir’s immunity. At the same time, the Court insists that al-Bashir is to be arrested. Thus States Parties to the ICC are faced with competing obligations written into the Statute itself: to arrest al-Bashir while also observing his immunity from arrest. Arguments that there is no contradiction nullify these important provisions of the Rome Statute, and ignore the treaty-law implications of doing so.

(2) Importantly, the Article 98(1) provision is not just a treaty-based rule; it is the assertion of pre-existing principles of public international law that (a) preclude placing treaty obligations on third-party states, and (b) recognize customary law immunities. Thus, even if the Court were to interpret Article 98(1) differently, or the Assembly of State Parties were to delete it from the Rome Statute (a virtual impossibility), the same restrictions would still apply to states such as South Africa because those rules exist in international law independent of the Rome Statute.

These restrictions also apply to the Security Council, even when acting under Chapter VII. While the Security Council has extensive powers in international law, the general scholarship (see, e.g., herehereherehere, and here) and jurisprudence makes clear that – contrary to Jens Ohlin’s interpretation of Article 103 of the UN Charter – the Council is restrained by the norms of customary international law. Thus, as far as al-Bashir goes, it makes no difference that the Council referred Darfur to the ICC through a Chapter VII resolution. Insisting that Chapter VII can override customary international law – no matter how awful the person protected by it may be – collapses the agreement/custom distinction first made in Article 103 of the Charter and preserved in Article 98 of the Rome Statute. Additionally, it raises the question of what legal limitations do exist on the Council, and how this interpretation fits with the Tadić court’s view (here at para. 28).

Of course, this does not render Security Council referrals null – it simply restricts the pool of situations that the Council may refer to the Court. (more…)

More thoughts on al-Bashir, Sudan, and South Africa

by Jens David Ohlin

I wanted to follow up on my previous post about the inter-branch dispute in the South African government over executing an international arrest warrant against President al-Bashir of Sudan. A South African court issued an order preventing al-Bashir from leaving South Africa, but notwithstanding this decision, the South Africa government appears to have let him escape anyway. It appears to be a case of executive branch defiance of a binding judicial order.

Several readers have suggested that South Africa is not under a legal obligation to arrest al-Bashir because doing so would violate their obligations to Sudan to respect either head of state or diplomatic immunity under either customary international law or the Vienna Convention. Furthermore, article 98 of the Rome Statute specifically says that a party to the Statute need not arrest someone if doing so would conflict with its other international obligations. Some have suggested that either South Africa or the ICC can request a waiver from Sudan, but if no waiver is forthcoming, then South Africa need not execute the arrest warrant pursuant to article 98, which reads:

Article 98: Cooperation with respect to waiver of immunity and consent to surrender
1. The Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
2. The Court may not proceed with a request for surrender which would require the requested State to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the sending State for the giving of consent for the surrender.

This is an old debate, with important and excellent contributions from scholars such as Paola Gaeta and Dapo Akande. I want to make a quick point here and just broadly sketch out my view on this matter.

Regardless of the correct view on this matter in general, there are specific aspects to this particular dispute with Sudan that are relevant to the legal analysis. It is not just a question of analyzing the Rome Statute, customary international law, and the Vienna Convention. There are other sources of law to consider.

The charges against al-Bashir include genocide. Although the legal obligations regarding the prevention and punishment of genocide originally emerged from the Genocide Convention, they have now risen to customary international law and represent erga omnes obligations. Furthermore, one of those obligations is the duty to prosecute or extradite any individual accused of genocide. This is a jus cogens obligation that prevails over any supposed legal obligation under the law of diplomatic relations. In this case, then, Sudan is under a legal obligation to either prosecute al-Bashir or turn him over to a competent court for trial. Because of this obligation, South Africa would not be violating any duty to Sudan by arresting al-Bashir and sending him to The Hague.

Even if one does not accept this argument, there is a second reason why Sudan is under a legal obligation to turn over al-Bashir, and by extension why South Africa owes no legal obligation to Sudan in this regard. The UN Security Council, in referring the case to the ICC, invoked its Chapter VII powers and directed Sudan to cooperate with the court. As such, Sudan is under an international legal obligation to cooperate with the court. Since this legal obligation is binding and stems from the Security Council’s Chapter VII authority, it prevails over any conflicting legal obligation. This principle is embodied in Article 103 of the Charter but is also customary law and part of the necessary architecture of our modern Charter-based collective security regime.

(Just to be clear, the details of this analysis need to be flushed out; for purposes of blogging brevity, this was the outline of the argument.)

Weekly News Wrap: Monday, June 15, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

  • A teenage North Korean soldier has walked across the world’s most heavily militarised border in a bid to defect to South Korea, South Korean defence ministry officials said.
  • Britain has pulled out agents from operations in “hostile countries” after Russia and China cracked top-secret information contained in files leaked by former US National Security Agency contractor Edward Snowden, according to the UK’s Sunday Times newspaper.

Europe

Americas

Oceania

UN/World

  • UN-sponsored negotiations on the Yemen crisis have started in Geneva, with the aim of ending the bloody conflict in the country.These talks aimed at ending the war in Yemen have however been thrown into doubt amid uncertainty over whether rebel Houthi negotiators will attend, with reports saying the Shia rebels missed a flight to Geneva.

Bashir Leaves South Africa

by Jens David Ohlin

I’m not one to get hysterical over ICC news, but this recent development today strikes me as deeply problematic, and perhaps a tipping point. But perhaps not the tipping point that the ICC detractors have in mind.

Sudanese President al-Bashir was attending a conference in South Africa this weekend with other heads of state and officials from several African nations. The government of South Africa took the position that Bashir was entitled to immunity and could not be arrested; apparently, this was Bashir’s assumption as well, otherwise I doubt he would have traveled to South Africa in the first place.

However, a South African court ruled that Bashir should be arrested, since South Africa voluntarily signed the Rome Statute and has a legal obligation as a member of the court to execute its arrest warrants. You will recall that the Sudan case began as a Chapter VII referral from the UN Security Council.

In response, the South African government whisked Bashir out of the country, apparently in open defiance of a judicial order preventing them from letting him leave, and just hours before the Supreme Court of South Africa ruled that the government was under a legal obligation to arrest him and explicitly finding that the government’s failure to arrest him would be contrary to the South African Constitution.

From the outside looking in, this looks awfully close to being on the precipice of a constitutional crisis in South Africa. Although one would expect inter-branch disputes in any divided government, such open defiance of a binding judicial order strikes me as deeply harmful to the rule of law. From news reports, I see no evidence that the original judicial order was suspended or otherwise not operative in the hours preceding the Supreme Court’s decision. (But if a reader from South Africa knows the specifics on this question, and the news reports are wrong, please educate us in the comments section.)

What will the ICC do? It strikes me that this level of open defiance — not just of the ICC but also of one’s own judiciary — takes the failure to arrest Bashir to a whole new level. Some will no doubt suggest that this entails that the ICC is a sham with no real power or authority. I take the opposite conclusion. I wonder if this brazenness will now force either the ICC Assembly of State Parties or the Security Council to finally engage in some enforcement actions against states who are not cooperating with the ICC on this matter. Indeed, I would think that the Assembly of State Parties is the appropriate body to take decisive action on this matter. Not only has the ICC concluded that Bashir must be arrested, head of state immunity notwithstanding, but apparently the South African Supreme Court agreed as well. So what excuse can the South African government muster? It would seem that neither international nor even domestic law supports their position, thus weakening the rhetorical power of their arguments. They cannot even suggest that they were caught between their international and domestic obligations.

Of course, I am not an expert on South African law. In the US it is very difficult to get a court to issue an order demanding that the executive arrest someone. (A writ of mandamus in that context would be highly unusual.) Usually the judiciary does the opposite: tells the executive to release someone they have arrested. But South African law might be different in that respect, as indeed are civil law jurisdictions that allow for the triggering of the criminal process in ways other than the discretionary arrest of the suspect by the police. Again, I’d appreciate any information on South African procedure that readers might have.

UPDATE: The name of the court that issued the ruling was the North Gauteng High Court in Pretoria.

Will Al-Bahlul’s Appeal of his Conspiracy Conviction go to the Supreme Court?

by Jens David Ohlin

On Friday, the DC Circuit vacated al-Bahlul’s military commission conviction for conspiracy. There has been, and will be, much coverage of this decision, especially since the decision is a great candidate for a successful Supreme Court cert petition. Assuming that the federal government wants to appeal, which I can’t imagine it would not, the case would allow the Supreme Court to return to an issue — conspiracy as a substantive offense — that it has not addressed since Hamdan (which left many crucial questions unanswered due to the fractured nature of the majority opinion and Justice Kennedy’s unwillingness to take a position on the conspiracy issue). So Bahlul is ripe for SCOTUS consideration.

There are many aspects of the lengthy DC circuit opinion, and others have discussed the Article III issues in greater depth and detail, including Steve Vladeck, Peter Margulies, Steve Vladeck again, and others.  Some are more interested in the constitutional question about what constraints exist on military commission jurisdiction as an exception to the usual constitutional requirements of an Article III court (a judge with life tenure, etc.).

But what interests me more is the government’s argument that although conspiracy is not a violation of the international law of war, there is still sufficient evidence that conspiracy is triable before military commissions as a matter of domestic “common law of war,” something akin to the precedent of military commissions.  In the past I have wondered aloud about the details of this bizarre argument. So what I found most interesting in the DC Circuit’s opinion is that they do not push back as strongly as I would have liked on the government’s methodological framing of this argument, and instead push back on the paucity of evidence for its conclusion. Here is the specific paragraph that interests me:

The history of inchoate conspiracy being tried by law of war military tribunals is thin by comparison and equivocal at best. The government has identified only a handful of ambiguous examples, and none in which an inchoate conspiracy conviction was affirmed by the Judicial Branch. The examples are unpersuasive in themselves and insufficient to establish a longstanding historical practice (page 18).

The opinion then goes on to note the problematic precedent of the Lincoln assassination case, which was prosecuted before a military commission. Although conspiracy was one of the charges, the decision notes that the relationship between conspiracy and the completed offense was totally unclear in the case. (Whatever one thinks of the Lincoln assassination case as a precedent, it was clearly not a case of pure inchoate conspiracy, since the conspiracy was not frustrated and it succeeded in killing Lincoln).) Furthermore, while the Quirin conspirators during World War II were charged with conspiracy, the Supreme Court made no mention of the conspiracy charges when it upheld their convictions from the military commission, preferring instead to rest its analysis on the sabotage charge.

Finally, the majority notes that although Thomas’ dissent in Hamdan clearly relied on inchoate conspiracy as a part of the domestic common law of war, the majority contends that at most there were only three votes for this position at the time of Hamdan. To the extent that other justices referred to the common law of war in Hamdan (the Stevens opinion), it was used as a source of constraint, rather than expansion, for the jurisdiction of the military commissions.

(One problem I noted in reading the opinion is that on page 37 of the opinion the majority refers to JCE and aiding and abetting as “offenses against the law of war,” instead of referring to them as modes of liability or legal doctrines. Not sure why they would say that.)

Of course, I’ve left out  a host of other constitutional issues that are important in this case, in part because what concerns me is the fate of conspiracy under the law of war, and how courts should understand the “law of war” as a body of law. Part of what makes this case so fascinating is that the government and the defense have radically different ideas of what the law of war is. Although the majority opinion in Bahlul does not explicitly resolve this question, it does say on multiple occasions that both the Quirin and Hamdan holdings were based on the international law of war.

Will the Supreme Court grant cert in this case? I am inclined to say yes, simply because hearing this case will help clarify the jurisdiction of military commissions in both a general and specific sense. The general element is that the Supreme Court will have the opportunity to clarify how and why military commissions operate as exceptions to the Article III requirement. The specific element is that the Supreme Court can clarify its position on the crime of conspiracy, which continues to be at issue in terrorism prosecutions.