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UN Ombudsperson Kimberly Prost to Leave Post in July

by Kristen Boon

Kimberly Prost, the current UN Ombudsperson, will be leaving her post in mid-July when her term expires.   However, no replacement has been appointed, nor has the UN implemented a transition plan for her eventual successor.   The issue of what will happen to the current cases before the office, or to individuals who are unlucky enough to apply for delisting after July 14 is significant.   It highlights the fragility of this important institution at the UN, and suggests that not all member states wish it to function effectively.

Despite the considerable progress the UN has made in developing the institution of the Ombudsperson, which addresses review and delisting requests for individuals on the Al Qaida sanctions regime, it has become apparent that the institution may soon be synonymous with its first occupant: Ms. Prost.   The institution has not been streamlined into the UN system, and despite its important work, her status has been that of a consultant.  While some UN Member States initiated demarches to try to have her term extended, they were unsuccessful. It is unclear what the future will hold for the institution now that she is departing, which is significant rule of law problem.

The issue was extensively discussed at a recent conference on UN Sanctions at Leiden University in the Netherlands.   The program is available under the committee documents tab here.    In addition to the fragility of this institution, its exclusivity was discussed in detail.   The Ombudsperson’s Office has jurisdiction to review and delist individuals on the Al Qaida sanctions lists, but individuals and entities on the 15 other sanctions lists do not have access to this process. Instead, they may request a review from the Focal Point, which has a far less developed procedure and does not have the characteristics of an independent institution.   A number of countries have argued that the Ombudsperson’s jurisdiction should be extended to other regimes, although politically, it is clear that that if that happens, it would be the various sanctions regimes involving situations in Africa that would benefit, but not in the short or medium term, those involving WMD sanctions.  Information on the focal point is available here. A helpful overview of the differences between the Focal Point and Ombudsperson and links to other documents is available here.

Guest Post: The Anders Kompass Case–A Moment of Opportunity for the UN Internal Justice System

by Rishi Gulati

[Rishi Gulati practices as a barrister in Melbourne. The author has not had any involvement with the Kompass case; and this post should not be construed as legal advice in any form whatsoever.]
Highlighting Mr Anders Kompass’s suspension from duties as a senior official at the UN, the Guardian recently reported that Mr Anders Kompass, a senior UN staff member:

“leaked an internal UN report on the alleged sexual abuse of children by French troops in Central African Republic to French prosecutors last summer. The French immediately mounted an investigation and revealed…they were investigating up to 14 soldiers for alleged abuse. The French authorities wrote to thank Kompass for passing on the internal report detailing the abuse”.

Notably, the UN suspended Mr Kompass from his job at the UN, arguing that Mr Kompass engaged in misconduct warranting his suspension from duties. It is apparent that the “misconduct” in question concerns allegations that Mr Kompass breached confidentiality by sharing with French authorities “confidential un-redacted preliminary investigative notes” about allegations of sexual abuse of children in the Central African Republic.

As is reported in the article in the Guardian cited above:

The confidential internal report leaked by Kompass contained interviews by a UN official and a member of Unicef with a number of children, aged between eight and 15, who say they were sexually abused at a camp for internally displaced people in Bangui, the capital of CAR, by French troops last year. The interim report identified about 10 children effected but the UN said it was possible many more children had been abused.

A procedural background to Mr Kompass’s suspension

The key facts are contained at paragraphs 1-12 of the judgment of the United Nations Dispute Tribunal (UNDT) in Kompass v Secretary General of the United Nations, Order on an Application for Suspension of Action, 5 May 2015. In summary (footnotes omitted):

  • Mr Kompass is employed at the Director level at the Office of the High Commissioner for Human Rights (OHCHR), Geneva,
  • In July 2014, another senior OHCHR official provided Mr Kompass a copy of a report containing serious allegations of paedophilia allegedly committed in the Central African Republic by French military. Mr Kompas says that “he brought the content of the report to the attention of the Deputy Ambassador of France”. Mr Kompass states that “he informed the Deputy High Commissioner (his supervisor at the OHCHR) that he had seen the report and had discussed the allegations with the Deputy Ambassador of France.
  • Mr Kompass said that in response to a request from the French Permanent Mission to the UN in Geneva, he shared the report with the Permanent Mission. Mr Kompass said that he shared this information with his supervisor at the OHCHR, the Deputy High Commissioner (a disputed fact).
  • On 6 March 2015, the High Commissioner for Human Rights (High Commissioner) became aware that Mr Kompass allegedly leaked confidential investigative notes concerning allegations of sexual abuse.
  • It is uncontested that on 12 March 2015 Mr Kompass was asked to resign by the Deputy High Commissioner who was ultimately relaying the request of the Under-Secretary-General for the Department of Peacekeeping Operations. Mr Kompass refused to resign.
  • Upon a request by the High Commissioner, the body at the UN that conducts investigations of internal staff misconduct, the Office of Internal Oversight Services (OIOS) was then asked to conduct an investigation into Mr Kompass’s actions.
  • Whilst the OIOS investigation was on foot, on 17 April 2015, Mr Kompass, under the internal rules of the UN, was placed on administrative leave with pay (ALWP).

ALWP, as the name suggest disallows the affected staff member from continuing in his or her duties. Being placed on ALWP obviously can cause professional and reputational damage, leaving aside the emotional distress it may cause to a staff member.

On 29 April 2015, Mr Kompass accessed the UNDT requesting relief that the ALWP be suspended, meaning that if Mr Kompass succeeded in his application, then he could return to his duties. To obtain relief, Mr Komposs amongst other things, needed to show that the decision to place him on ALWP was prima facie unlawful, and the decision would cause Mr Kompass irreparable damage.

Why did Mr Kompass have to access the UNDT as opposed to a domestic employment tribunal?

As the UN enjoys immunities before domestic courts, an aggrieved UN staff member cannot approach a domestic court. Employment disputes between the UN and its staff are heard by a tribunal set up by the UN, the United Nations Dispute Tribunal (UNDT), and an appeals tribunal, known as the United Nations Appeals Tribunal (UNAT). These tribunals apply a specialised body of law known as international administrative law (IAL). IAL governs the employment relationship between the UN and its staff. IAL is a specialised body of law that includes aspects of administrative, contract and international law. It is based on both, the common and civil law traditions. While links are discernible, strictly speaking, IAL should be distinguished from the broader notion of Global Administrative Law (GAL), which is an emerging body of law focusing on the “increasing use of administrative law-type mechanisms, in particular those related to transparency, participation, accountability and review, within the regulatory institutions of global governance.” See here for information on the GAL movement.

It is worth noting that in the past, serious criticisms have been levelled at the UN concerning the deficiencies in its internal justice system where cases often took years to resolve. In 2009, after decades of effort, the UN comprehensively redesigned its internal justice system, creating the UNDT and the UNAT. For a discussion, see an earlier article by the author here.

So, is the redesigned system working? The Kompass case is a prime example that while much more needs to be done, progress has been made.

What did the UNDT decide in the Kompass case?

Bearing in mind that the merits of the case have not yet been determined, on the issue of prima facie unlawfulness, the UNDT concluded at para 34 that the UN official who placed Mr Kompass on ALWP did not have the authority to do so; and critically, the decision did not comply with the internal rules of the UN:

39. The Tribunal finds that neither the interest of the Organization, nor the avoidance of any interference with the investigation are reasons in the exhaustive list …of the respective administrative instruction. Therefore, as such, they cannot be accepted as valid reasons for placing the Applicant on administrative leave.

On the issue of irreparable damage, the UNDT said:

49. Therefore, and since the Applicant is currently being prevented from carrying out his functions as a result of being on administrative leave, which is of public knowledge, the Tribunal finds that if the suspension is not granted, the harm done to the Applicant’s reputation will be irreparable and could not be adequately compensated at a later stage.

Mr Kompass has now been reinstated to his position. This decision of the UNDT is undoubtedly a decision consistent with the maintenance of UN accountability to its very own staff members: ensuring that UN management acts within the purview of its internal rules and procedures. This is especially critical as UN staff cannot approach domestic courts for remedies for breach of their terms of employment. Most critically, the fact that Ms Kompass could seek justice within a few days of being placed on ALWP is a testament to the initial success of the new internal justice system. Undoubtedly significant issues with whistle-blower protection exist at the UN, but the Kompass case provides an example that there is reason for cautious optimism regarding access to justice for aggrieved UN staff members.

It bears noting that as per the information in the UNDT’s judgment, Mr Kompass’s appointment at the UN expires on 8 July 2015. It can only be hoped that any renewal of Mr Kompass’s employment does not attract retaliatory action. This case could yet be subject to several more twists, and it is crucial to maintain a close watch.

Guest Post: The End of the Road for Ngudjolo and the Stacked Odds Against ICC Acquitted

by Emma Irving

[Emma Irving is a PhD Researcher at the University of Amsterdam School of Law, and a visiting researcher at Cornell University.]

Earlier this week was the final instalment of the story of the International Criminal Court’s (ICC) first acquittal, with the removal of Mathieu Ngjudjolo Chui from the Netherlands back to the Democratic Republic of Congo (DRC).

It was not altogether surprising when the Appeals Chamber of the ICC upheld the Ngjudjolo’s acquittal on the 27th February this year. What was surprising was the events that followed. Immediately following the judgment, Ngudjolo was escorted by Dutch police to Schiphol International Airport to be deported back to the Democratic Republic of Congo. The plane made it all the way to the runway before being dramatically called back: Ngudjolo was to have his asylum application heard a second time.

Ngudjolo first applied for asylum in the Netherlands in 2012 after he was acquitted by the ICC Trial Chamber. In this case too he made it all the way to Schiphol Airport, but not quite onto a plane, before the Dutch authorities halted the deportation. Ngudjolo contended, and still does, that he would be at risk if returned to the DRC. The Dutch authorities responded to these claims by stating that Ngudjolo had not provided enough evidence of the risks he faced, and that in any event he was excluded from refugee protection as a suspected war criminal. The issue was appealed all the way to the Council of State, the highest administrative body in the Netherlands, which ultimately sided with the Dutch government. It held that Article 1F of the 1951 Refugee Convention, which disqualifies an individual from refugee status if they are suspected of having committed war crimes or crimes against humanity, could be applied despite an acquittal by the ICC. The Council deemed that the evidentiary standard for exclusion was lower than in criminal cases, and that Ngudjolo’s acquittal did not remove suspicion of his involvement in other crimes. The asylum application was denied.

Such is how matters stood up until the appeal judgment. Ngudjolo’s legal team secured a second asylum hearing after he was acquitted on appeal, stopping his immediate deportation. However, on the 23rd of April 2015, this application was also refused. While Ngudjolo can appeal this decision, an appeal will not have suspensive effect, and his deportation was scheduled for the 1st May. For a more detailed procedural history see here and here.

After an application for residence in Switzerland on humanitarian grounds was turned down, Ngudjolo reached the end of the road in terms of preventing his return to the DRC. And that road seemed to be a dead-end all along. The odds were stacked against Ngudjolo from the beginning: 1) he was in a catch-22 position as regards acting as a witness in his own defence, 2) the ICC did not act to assist him, and 3) he could not cast his asylum seeking net beyond the Netherlands.

To begin with Ngudjolo’s role as a witness, he was caught in a no-win situation. Although important in securing his acquittal, the content of Ngudjolo’s testimony prejudiced his position on release. It both prevented him from returning home, and prevented him from remaining in the Netherlands. As regards returning home, Ngudjolo made statements against the DRC government, and in particular, provided a letter that incriminated the DRC government in the attack on the village of Bogoro, for which he himself was standing trial. Speaking out against the powers-that-be in the DRC, Ngudjolo claims, has placed him at great risk. As to remaining in the Netherlands as a refugee, Ngudjolo’s testimony handed the Dutch authorities the evidence they needed to exclude him from refugee protection. In order to prove that he was not involved in the Bogoro attack, Ngudjolo provided details as to his position in the militia hierarchy. The Dutch authorities then used this information, combined with other reports about the conflict, to invoke Article 1F. For reasons that the ICC has kept confidential, Ngudjolo was also excluded from ICC witness protection. He was therefore stuck in a lose-lose situation: give evidence in his own defence but have nowhere to go if acquitted, or do not give evidence and increase the chance of conviction.

Then there was the inaction on the part of the ICC. The dilemma of acquitted persons who cannot return to their home countries is by no means new. The International Criminal Tribunal for Rwanda (ICTR) has been dealing with this thorny issue for years, and still has no firm resolution – while the Tribunal may have wrapped up at the end of last year, there are still acquitted persons living in a safehouse in Arusha. It is perhaps this legacy that has prompted the ICC to act the way it has: to simply open its doors and allow acquitted persons to walk out (and be arrested). Granted, when a person is cleared of all charges, the right to liberty requires their release, as does the Rome Statute (Article 81(3)(c)). However, as Ngudjolo’s case demonstrates, this is not always ideal. When it comes to acquitted persons, the Rules of Procedure and Evidence also have something to say. Rule 185 obliges the Court to make such arrangements as it considers appropriate for the transfer of an acquitted person, taking into account the person’s views, to a State. This can be a State that is obliged to receive the acquitted person, a State that has agreed to receive the person, or a State that has sought the acquitted person’s extradition.

From a reading of the text of Rule 185 alone, it would seem that the ICC can order a transfer to any State willing or obliged to receive the individual. But then there is Article 21(3) Rome Statute. This Article requires that all law applicable to the ICC be interpreted and applied in accordance with internationally recognised human rights norms, of which non-refoulement is one. It is argued that when Rule 185 is read with Article 21(3), it must mean that the ICC cannot order a transfer to a State where the individual would be at risk. This application of Rule 185 would require the creation of a procedure to decide where the acquitted person is to go before they are released. A comparable process is undertaken when an accused is considered eligible for interim release; a hearing must be held in which a State willing to host the accused is identified. Neither this approach to Rule 185, nor apparently any other, was taken in Ngudjolo’s case. His release and hand over to the Dutch police seems to have been done with no formal decision on where he would be taken, at least none that is transparent and publicly available.

The final obstacle facing Ngudjolo was the fact that the Netherlands was his only option for seeking asylum. The construction of the Refugee Convention is such that no other State is obliged to hear an asylum application from him, as he is neither on their territory nor at their border. For this reason he is only able to make applications for humanitarian residence, or variations of, which are entirely discretionary (this limitation is what led to the chronic problem of acquitted persons at the ICTR). The consequence is the overburdening of The Netherlands with asylum claims from not only acquitted, but also witnesses. It is perhaps not surprising that the Netherlands has fought hard against such applications, for fear of establishing a precedent.

In the end it was May 11th, rather than May 1st, that saw Ngudjolo deported from the Netherlands. Interestingly, the website for the 1533 Sanctions Committee still lists Ngudjolo as being subject to a UN travel ban, although this does not seemed to have proven a hindrance. The Ngudjolo case is another instalment in the story of the ICC’s growing pains, and in The Netherlands’ fight to minimise the impact of it hosting the Court. This story will go on as the ICC continues its operations and more judgments are rendered, and it is hoped that in future the odds become a bit more evenly distributed.

The Fog of Technology and International Law

by Duncan Hollis

[Note: This piece is cross-posted to the SIDIblog, the blog of the Italian Society of International Law, which was kind enough to ask for my views on these topics; for those interested in their other posts (in multiple languages), see here.]

 

  • War is the realm of uncertainty; three quarters of the factors on which action in war is based are wrapped in a fog of greater or lesser uncertainty.

Carl von Clausewitz, Vom Kriege (1832), Bk. 1, Ch. 3.

  • It is a cruel and bitter truth that in the fog of war generally and our fight against terrorists specifically, mistakes — sometimes deadly mistakes — can occur.  But one of the things that sets America apart from many other nations, one of the things that makes us exceptional is our willingness to confront squarely our imperfections and to learn from our mistakes. 

U.S. President Barack Obama, April 23, 2015

I arrived in Rome for a month-long visit at LUISS Universita Guido Carli to find a country wrestling with the tragic news of the death of one of its own – Giovanni Lo Porto.  As President Obama himself announced, the United States inadvertently killed Lo Porto and Warren Weinstein, a USAID contractor, as part of a January drone strike targeting an al Qaeda compound in the Afghanistan-Pakistan border region.   Both aid workers were Al Qaeda hostages; Lo Porto had been kidnapped in 2012, while Weinstein was abducted in 2011.

The story made global headlines for Obama’s apology that the United States had not realized these hostages were hidden on-site, and thus their deaths were a tragic mistake:

As President and as Commander-in-Chief, I take full responsibility for all our counterterrorism operations, including the one that inadvertently took the lives of Warren and Giovanni.  I profoundly regret what happened.  On behalf of the United States government, I offer our deepest apologies to the families.

President Obama directed a “full review” of the strike, and there are calls for other investigations as well, including here in Italy.

Amidst this tragedy – and some of the apparent missteps by the U.S. (not to mention Pakistani) governments (painfully noted by Mr. Weinstein’s family) — there is something remarkable in the Obama statement.  Unlike so many other reports of U.S. errors or controversial programs in recent years (think Wikileaks or this guy), here was the U.S. Government, on its own, declassifying and disclosing the facts surrounding a drone strike that by all accounts appears to have included a major mistake in its execution.  For lawyers, moreover, such disclosures are critical – without them we are left with what I’d call the “fog of technology” which precludes the application of the rule of law in an open and transparent way.

Clausewitz’s concept of the “fog of war” is simple, and well known:  it describes the situational uncertainty that military actors face, their lack of perfect information about an adversaries’ intentions and capabilities (not to mention incomplete knowledge of their allies’ intentions and capabilities).   What looks good on paper before an armed conflict may prove unworkable as the conditions of war – physical hardship, the need for immediate decision-making, emotional strains, etc. – complicate decision-making, and with it, the achievement of military objectives.

I use the term “fog of technology” to identify a similar situational uncertainty that lawyers face when confronting the deployment of new technology.  Simply put, new technology can cloud how lawyers understand the content of law.  Of course, lawyers can assess new technology and find it analogous to prior cases, allowing for what I call “law by analogy”, where the nature or function of a new technology is regulated according to how an analogous technology or function has been regulated in the past.  But the more novel the technology – the more it can function in non-analogous ways, or with effects previously unimagined – the more lawyers may (or at least should) struggle with interpreting and applying the law to it.

Now, the fog of technology can emerge in all sorts of legal systems and all sorts of contexts from 3D printing to nanotechnology to driverless cars.  But President Obama’s explicit reference to Clausewitz makes me think about it in the particular context of warfare itself.  We are very much in a fog of technology when it comes to applying law to modern conflicts, whether it’s the remotely-piloted drone that killed Lo Porto and Weinstein, Stuxnet, or rumors of truly autonomous weapon systems (or “killer robots”).  Which domestic and international legal frameworks regulate the deployment of these technologies?  Does international humanitarian law (IHL) govern these operations, and, if so, does it do so exclusively, or do other regimes like international human rights apply as well?  To the extent a specific regime applies – IHL – how do its rules on things like distinction or neutrality apply to technologies and operations that may have no prior analogues?  More specifically, how does the law treat specific cases – was the killing of Lo Porto and Weinstein, tragic but legal, or was it an internationally wrongful act?

Of course, technology is not the only reason we have such questions.  Indeed, several scholars (most notably Michael Glennon) have identified the idea of a “fog of law.”  The rise of new types of non-state actors such as Al Qaeda continue to generate legal uncertainty; more than a decade after September 11, debates persist over whether and when U.S. counter-terrorism operations fall within a criminal law framework, or, as the U.S. insists, within the laws of armed conflict.   Similarly, when the United States targets and kills a U.S. citizen abroad (such as Ahmed Farouq, the American affiliated with Al Qaeda, who died in the same strike that killed Lo Porto and Weinstein), the question is not so much how the technology did this, but whether the U.S. Constitution regulates such killing.

Still, I think there are features of technology itself that make lawyering in this context significantly more difficult.  My co-blogger Ken Anderson recently summarized a few of the most important aspects in a recent post at the Hoover Institution.  He identifies several commonalities among cyberweapons, drones, and killer robots:  (i) their ability to operate remotely; (ii) their capacity for extreme precision (at least when compared to earlier weapons); and (iii) the diminished ease of attribution.  Of these, I think the problem of attribution is foundational; law will have little to say if legal interpreters and decision-makers do not know how the technology has been deployed, let alone how it functions or even that it exists in the first place.   In such cases, the fog of technology is tangible.

Consider the story of drones and international law. (more…)

Emerging Voices 2015: Call for Abstracts

by Jessica Dorsey

This summer we will host our Third Annual Emerging Voices symposium, where we invite doctoral students and early-career academics or practicing attorneys to tell Opinio Juris readers about a research project or other international law topic of interest.

If you are a doctoral student or in the early stages of your career (e.g., post-docs, junior academics or early career practitioners within the first five years of finishing your final degree) and would like to participate in the symposium, please send a 200-word summary of your suggested post and your CV to opiniojurisblog [at] gmail [dot] com by May 31, 2015.

We’ll let you know by mid-June if you are invited to submit a full post. Submitted posts should be  between 1000-1500 words will then be reviewed by our editors. Final essays will be posted on Opinio Juris in July and August.

If you have any questions, feel free to ask them in the comments or send us an e-mail at the address above.

Wherein I Defend Jeb Bush (Really!)

by Kevin Jon Heller

Both the liberal media and the conservative media are pulling out the fainting couches over something Jeb Bush said to Megyn Kelly during an interview on Fox News. In response to a question about whether he would have invaded Iraq in 2003 if he knew what we know now about WMDs and the like, Jeb supposedly said yes — he would still invade. That’s how both Josh Marshall and Byron York (polar opposites, they!) read Jeb’s answer. (And Kevin Drum. And Ed Kilgore.)

But that’s not what Jeb said. Here is the exchange, taken from York’s post:

Fox News’ Megyn Kelly asked Bush a straightforward, concise question: “Knowing what we know now, would you have authorized the invasion?” Bush’s answer was an unhesitating yes.

“I would have, and so would have Hillary Clinton, just to remind everybody,” Bush said, “and so would have almost everybody that was confronted with the intelligence they got.”

“You don’t think it was a mistake?” asked Kelly.

“In retrospect, the intelligence that everybody saw, that the world saw, not just the United States, was faulty,” Bush answered.

Jeb now says that he misunderstood the question. And that does, in fact, seem to be the case. Note the verb tenses in his first answer: he “would have” invaded Iraq, as “would have” Hillary Clinton and anyone else who had seen the intelligence “they got.” He didn’t say he or Hillary or anyone else “would” invade Iraq given the intelligence “they have now.” The tenses thus clearly indicate that Jeb was answering a different question — namely, whether he would have invaded Iraq given what decision-makers knew at the time. That reading is then confirmed by his second answer, in which he acknowledges that “in retrospect” — ie, based on what we now know — the invasion was a mistake.

To be sure, Jeb deserves some criticism for his answer. A number of important people opposed the invasion of Iraq even in the face of the faulty intelligence George Bush and Hillary Clinton received. And, of course, if Jeb wants to be president, he should probably pay attention to the questions journalists ask him in televised interviews.

But Jeb didn’t say he would have invaded Iraq knowing what we know now. He just didn’t.

Guest Post: Iran’s Relief Ship and the Blockade of Yemen 

by Eugene Kontorovich

[Eugene Kontorovich is Professor of Law at Northwestern University School of Law.]

Iran has announced that it will be sending a ship with humanitarian supplies to Yemen, departing the evening of May 10th. Many parts of the Yemeni conflict raise law of war questions, from the legality of the pan-Arab intervention to questions about the use of force and civilian casualties. The Iranian relief ship puts into focus the blockade maintained by Saudi Arabia and its allies, with logistical and intelligence support from the United States.

Saudi Arabia imposed a blockade of Yemen’s ports from the start of the campaign. Since then, the humanitarian situation has become dire, according to many reports, with significant shortages of medicine, food and water.  (Saudi Arabia also bombed the Sanaa airport to prevent Iranian relief planes from landing.) According to Oxfam, “there is no exit” for Yemen’s 10 million people, half of whom are already going hungry.

Blockade is an entirely valid military tactic, which necessarily puts pressure on the civilian economy and well-being. However, there is a theory, which in recent years has attracted considerable support, that international law prohibits blockades in a non-international armed conflict (NIAC). This limitation on blockade has been discussed almost exclusively in connection with Israel’s blockade of Gaza. Assuming that the Yemeni conflict is a NIAC, as most observers seem to view it (a civil war with foreign assistance to both sides), the Saudi blockade raises the same questions as the Gaza blockade, as Tehran has gleefully noted.

To be sure, considerable authority concludes that blockade is entirely permitted in NIACs. The Saudi blockade gives a good occasion to revisit the debate, which has thus far proceeded with an incomplete account of state practice.

Israel’s blockade of Gaza appears to be the first one where said to be illegal because of the nature of the conflict. In the Gaza context, the illegality argument was based largely on what was said to be scanty affirmative precedent for such actions in such contexts, though a lack of precedents does not normally create a prohibition in international law.

Though it was not mentioned in the extensive discussions of Israel’s Gaza policy, there is not only historical precedent, but also contemporary practice supporting NIAC blockades. In particular, Georgia’s blockade of the separatist Abkhazia region, which has been in effect since 2008. The details of the blockade are murky, in part because it has generated not only no international protest, but also no international interest. It is clear that the blockade has been used to interdict neutral vessels carrying non-military supplies. Indeed, the blockade is so well accepted, that the commentators on the legality of the Gaza blockade appear to have been entirely unaware of it.

Then there is Sri Lanka’s blockade of Tamil-held areas during their decades-long civil war. Douglas Guilfoyle, the author of one of the major analyses of the legality of the Gaza blockade, dismissed the relevance of the Sri Lankan precedent:

Most reported maritime interceptions appear to have occurred with Sri Lanka’s territorial sea or contiguous zone, ostensibly on suspicion the vessels were engaged in smuggling weapons or supplies… The practice certainly involved no assertion of rights against neutral vessels on the high seas.

Unfortunately, this account appears to be mistaken on all major points. The blockade certainly applied to neutral ships carrying food and relief supplies, even under Red Cross emblem. Indeed, the blockade resulted in major shortages of basic necessities. The seizure Guilfoyle points to as being within the contiguous zone was, according to all other news accounts, well outside it (and was in any case after the cessation of hostilities and defeat of the Tamils). Nonetheless, the international community does not appear to even have questioned the legality of this blockade.

In another precedent that has not factored into the NIAC-blockade discussion, Indonesia imposed a naval blockade on East Timor when it invaded the territory in 1975, according to accounts of the conflict. Despite fairly strong international condemnation of the invasion itself, I have not found specific criticism of the legality of the blockade.

Incidentally, in 1992, a  “peace ship” carrying activists, Western politicians, and a slew of journalists was turned back by the Indonesian navy after attempting to symbolically challenge that blockade. In that incident, the ship turned back of its own accord after Indonesian threats to open fire; despite the strong international focus on the incident at the time, no one suggested the illegality of such actions in a NIAC.

There may be other recent state practice that has gone unnoticed as well. The episodes discussed here generated relatively little legal controversy – ironically, permissive precedent is most likely to go unnoticed. (The discussion’s of Israel’s blockade dwelt mostly on the United States blockade of Confederate ports in the Civil War and the France’s blockade of Algeria, rather than more current ones, no doubt because they attracted more attention, and better sourced in English and French publications than the Indonesian, Georgian and Sri Lankan measures.)

The blockades discussed here, including the Saudi one, all appear to proceed without all of the formality of the a traditional international armed conflict blockade; for example, it is not clear that there were formal declarations, and the blockaded enemy does not seem to have been always been recognized as a belligerent. This suggests state practice supports a less legally restrictive blockade regime for NIACs.

Thus if Riyadh and its allies are inclined to maintain the blockade, and intercept the Iranian relief ship, it has a strong legal basis. Of course, the Saudi blockade itself becomes part of the state practice on this issue, and on other blockade issues such as proportionality.  One may have thought that, prior state practice to the contrary, Gaza suggested an interest by some states in changing the rules about blockade in NIACs. The Yemen blockade, in force since late March, has not been denounced as illegal, suggesting that no new rule is taking shape.

In regards to the conduct of the blockade, it is interesting to note that Human Rights Watch today criticized the coalitions conduct of the blockade, in particular urging for allowing in fuel. The report, which is well worth reading for more detail on the naval blockade, paints an absolutely catastrophic picture of the situation in Yemen, with much of the population facing death by hunger, water shortage and associated diseases.

Interestingly, HRW does not challenge the legality of the blockade, or its apparently very narrow list of “free goods” (those permitted to pass the blockade after being subject to inspection). In particular, HRW does not call for the US or the UN to condemn the operation, as it has for other blockades. While HRW interestingly reports that the Saudi’s contraband list is not public (generally a legal problem for blockade), it also does not protest what appear to be its fairly comprehensive scope.

Weekly News Wrap: Monday, May 11, 2015

by Jessica Dorsey

Africa

Middle East and Northern Africa

Asia

Europe

Americas

  • The United States on Friday described as horrifying accusations of sexual abuse of children by French and African troops in Central African Republic, and called for a separate inquiry into how the United Nations handled the allegations.
  • The European Union and the United States are close to completing negotiations on a deal protecting personal data shared for law enforcement purposes such as terrorism investigations, three people familiar with the matter said.
  • Omar Khadr, a Canadian who was once the youngest prisoner held on terror charges at Guantanamo Bay, was released on bail from an Alberta prison Thursday while he appeals a murder conviction by a U.S. military tribunal.

Oceania

  • Australian police said on Saturday they had thwarted an imminent terror attack after discovering explosives at a Melbourne home and arresting a 17-year-old boy, in the latest example of the threat posed by radicalized teenagers in the country.

UN/World

Events and Announcements: May 10, 2015

by Jessica Dorsey

Events

  • On May 14, 2014, the British Institute of International and Comparative Law is hosting: Interpretation in International Law: The Object, the Players, the Rules, and the Strategies. Interpretation in international law is usually referred to as an art or a science. These perspectives imply that interpretation is a static exercise, tied to the rules in the Vienna Convention on the Law of Treaties (VCLT). However, in today’s international legal reality, characterised by the proliferation of international judicial bodies and a variety of participants before them, such understandings have become too narrow. Although the VCLT remains the primary legal source, there is no doubt that interpretation in international law has become a complex and purposeful process, which involves numerous players (litigators, judges, academics, NGO counsels, legal advisers) who devise various strategies to bring a case to a persuasive conclusion. This event will explore the dynamic understanding of interpretation of international law before international and English courts. A drinks reception will follow. Please register here.
  • On May 17-18, 2015, the Benjamin Cardozo School of Law is hosting Constitutional Conflicts and the Judicial Role in Comparative Perspective. This conference, which marks the launch of the Israeli Supreme Court Project at Cardozo Law, will explore the Court’s jurisprudence on complex and challenging questions facing open and multi-cultural societies everywhere. Because these issues are salient in, but by no means peculiar to, Israel, a comparative perspective will enrich our understanding of how such issues are, and might be, dealt with in other democratic societies. Panels will address the general question of the value and challenges of comparative legal study, differing conceptions of the role of the judiciary and doctrines of justiciability, and substantive areas of current controversy, including the role of the courts in overseeing national security and intelligence gathering; immigration, asylum, and treatment and status of refugees; and religion in the modern nation-state. The conference is free and open to the public, but registration is required. Please email ISCP [at] yu [dot] edu with your name, affiliation, and contact information. More information found here.

Announcements

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.

Weekend Roundup: April 25-May 9, 2015

by Jessica Dorsey

The blog saw quite some discussion over the last two weeks.

As Julian was avoiding grading exams, he posted about Helmerich & Payne v. Venezuela, where the U.S. Court of Appeals for the D.C. Circuit held that “domestic takings” can violate international law. He also covered the Sea Shepherd petition for certiorari with the U.S. Supreme Court and how Russia, in lecturing the EU in international law, threatened to veto the EU’s attempt for authorization of force against traffickers in Libya from the Security Council. Additionally, Julian posed the question of whether investor-State arbitration weakens the rule of law in reference to the ongoing discussion about the TPP and TTIP and urged us to listen to President Obama rather than candidate Obama when it comes to unilateral presidential war powers, in light of a panel on which he was recently a speaker.

Kevin pointed out Darryl Robinson’s must-read new article on the ICC–“Inescapable Dyads: Why the ICC Cannot Win,” which Cambridge University Press has made available to our readers for free until the end of October 2015. He also continued the discussion on Harold Koh’s appointment at NYU by highlighting Human Rights First’s Elisa Massimino’s position (with which he agrees) defending Koh and highlighted Breaking the Silence’s recent report on Operation Protective Edge.

We had three guest posts. The first, from Sondre Torp Helmersen and Niccolò Ridi, discussed whether there was a case for destroying the smugglers’ boats in the crisis in the Mediterranean and the second, from Elisa Freiburg, analyzed Stephen Preston’s recent speech on “The Legal Framework for the United States’ Use of Military Force since 9/11″ at the ASIL Annual Meeting, calling it old wine in new bottles. Finally, Stuart Ford made the case that the complexity of international trials is necessary.

To round it all off, I wrapped up the news here and here, and listed a few events and announcements here. Have a great weekend!

Whale Wars Seeks a New Forum: The U.S. Supreme Court

by Julian Ku

Sea Shepherd, the activist group that has been aggressively protesting Japanese whaling practices, has filed a very interesting petition for certiorari with the U.S. Supreme Court.  Readers may recall that Sea Shepherd was sued by a group representing Japanese whalers under the Alien Tort Statute (ATS).  The Court of Appeals for the Ninth Circuit held that Sea Shepherd’s actions of boarding the Japanese whalers and obstructing them could fall within the definition of “piracy” for the purposes of jurisdiction under the ATS.

The best argument for Sea Shepherd is that the definition of piracy adopted by the Ninth Circuit cannot meet the Supreme Court’s “Sosa” standard for requiring ATS claims to be “universal” and “specific” under international law.  I think there is some force to this argument, although I find their disparagement of the UN Convention of the Law of the Sea’s definition of piracy a little odd.  In any event, the question may turn on the definition of “private ends” that UNCLOS requires as an element of piracy.  I don’t have a strong view on this, but I refer our readers to Kevin’s critique of the Ninth Circuit conclusion that private ends can include political activism, and Eugene Kontorovich’s contrary view in support of the Ninth Circuit. The petition for certiorari smartly frames this as a “Sosa” issue, which would ordinarily mean that the uncertainty as to the applicability of “private ends” here should defeat ATS jurisdiction.  I am not sure the petitioners will get much traction, given the unusual and narrow facts of this case, but no doubt this case is worth watching.

U.S. Appeals Court Holds that “Domestic Takings” Can Violate International Law

by Julian Ku

As I continue to avoid grading my exams, I ran across this interesting recent case (Helmerich & Payne v. Venezuela) from the U.S. Court of Appeals for the D.C. Circuit which considered whether Venezuela’s expropriation of a Venezuelan subsidiary of a U.S. corporation is a “taking in violation of international law” under Section 1605(a)(3) of the U.S. Foreign Sovereign Immunities Act. Helmerich & Payne, a U.S. based company, alleges that the government of Venezuela expropriated its Venezuelan subsidiary and sued Venezuela in U.S. court.  Ven

Helmerich & Payne, a U.S. based company, alleges that the government of Venezuela expropriated its Venezuelan subsidiary and sued Venezuela in U.S. court.  Venezuela argued that it is immune under the U.S. Foreign Sovereign Immunities Act because, among other reasons, its expropriation fo the subsidiary is not a “taking in violation of international law” for the purposes of the FSIA.  The FSIA does contain an exception for such claims in the so-called “Hickenlooper Amendment” to the FSIA enacted in the wake of the well-known Sabbatino case from the early 1960s.

What I find fascinating is the Court’s rejection of Venezuela’s argument that as a “domestic takings”, its expropriation of a Venezuelan company cannot violate international law, even if (as in this case) the sole shareholder of that Venezuelan company was a U.S. national and that there is plenty of evidence of anti-U.S. animus motivating the expropriation.      This is indeed a difficult question, and I am struck that the D.C. Circuit held that such a taking “could” violate international law but it relied solely on other U.S. court precedents (the 1962 Second Circuit decision in Sabbatino) and Section 712 of the Restatement of U.S. Foreign Relations Law.  This is pretty thin precedent, as the dissenting judge in this case points out.  I am not ordinarily one to yell for citation of international and foreign sources, but given the clear language of the FSIA (a “taking in violation of international law”), it is odd that no international or foreign sources were consulted.

In any event, I am curious whether any of our readers could help out by pointing to other precedents on the question of “domestic takings” under international law.  I have a feeling the DC Circuit reached the right conclusion here, but I am troubled by the lack of authority for its holding.