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Contextualizing the Debate on First Strikes

by Charles Kels

[Charles Kels is a major in the U.S. Air Force. His views do not reflect those of the Air Force or Department of Defense.]

The fascinating and edifying debate between Adil Haque (see here, here, here, and here) and, respectively, Deborah Pearlstein (see here), Jonathan Horowitz (see here and here), and Kevin Heller (see here and here) over the criteria for non-international armed conflict (NIAC) risks overlooking the proverbial elephant in the room: what to do about the phenomenon of states, notably the United States, invoking jus ad bellum principles to both justify and regulate the use of force?

One way of looking at Adil’s “first strike” proposal is as a solution to the problem of so-called “self-defense targeting” or “naked”/“robust” self-defense: it preserves the distinction between the jus belli branches by ensuring, in Daniel Bethlehem’s formulation, that “any use of force in self-defense [is] subject to applicable jus in bello principles governing the conduct of military operations.” Adil’s framework would, at least presumably, complicate the current White House’s efforts to distinguish between “the use of force in armed conflict or in the exercise of the nation’s inherent right of self-defense,” since the very fact of a military strike against certain non-state actors would automatically trigger a NIAC.

Of course, solving one problem can engender others. As Kevin notes, the lex lata is clearly on the side of Adil’s critics in insisting upon a substantive organization and intensity test for NIACs. Perhaps more to the point, the traditional critique of post-9/11 U.S. counterterrorism operations—particularly of the targeted killing variety—has been that a geographically unbounded conflict, whether framed as a war on terrorism or against specific terrorist groups, is essentially asserting the right to render the entire world a warzone. There is at least some (and maybe more than some) validity to this concern, as evidenced by the malleability of extralegal terms such as “areas of active hostilities” that the president can apparently turn on or off depending upon policy preferences.

This is the problem that Jonathan highlights with his Trojan horse analogy: lowering the NIAC threshold triggers humanitarian protections, but also invites wartime rules for targeting and detention. In this view, Adil’s proposal threatens to undo the hard work of those in academia and elsewhere who have persistently rejected the notion of a transnational NIAC without territorial limitations, or what they perceive as powerful states playing fast and loose with the concept of armed conflict in order to inflict lethal force with relative impunity.

Adil’s response to this critique is as brilliant as it is unsettling. Essentially (and to oversimplify), he maintains that the only real consequence of applying international humanitarian law (IHL) to first strikes is to create war crimes accountability for flagrant violations. Otherwise, the co-application of human rights law (IHRL) operates to negate deadly force as a first resort except where states have formally derogated from applicable treaties and such derogating conduct proves necessary (necessity here can only be understood in the IHRL, rather than IHL, sense). Central to Adil’s argument is the notion that IHL does not authorize conduct which it fails to prohibit: comportment with IHL is a necessary, but not sufficient, condition of lawful killing in armed conflict.

It probably comes as no surprise that as a military practitioner, I have deep misgivings about Adil’s cramped reading of IHL (or put another way, his rendering of IHL-IHRL co-application in a manner that appears to swallow IHL in seemingly every case but pitched battle on Napoleonic terrain). His conception of IHL as solely constraining, and never enabling, seems to cut against the way law in general works. To borrow Adil’s driving analogy, is a speed limit of 75 miles per hour not, at least in some way, permission to drive 70?

More specifically, while Adil astutely emphasizes that IHL does not confer “affirmative” legal authorities on states, it does privilege and immunize certain conduct that would otherwise be illegal. This is the point that Deborah made in her colloquy with Adil: IHL provides the legal framework for status-based targeting in armed conflict, not necessarily because it grants the power to kill, but because it removes the presumption that killing is unlawful in virtually all cases besides self-defense. “War,” as Telford Taylor famously wrote, “consists largely of acts that would be criminal if performed in time of peace.” (To Adil’s point that combatant immunity is inapplicable in NIACs anyway, I would only proffer that the convergence of IAC/NIAC norms may increasingly cut against this, and that better minds than mine—notably Ian Henderson and Jen Ohlin—have taken this issue head-on.)

Indeed, what Adil terms the “mistaken view” of states is, in my estimation, the very key to IHL’s cogency and moral force as a self-contained system of licenses and limitations regulating armed conflict and “alleviating as much as possible the calamities of war.” In my own limited experience and understanding, it is hard to overstate the significance of IHL as not just a set of restrictions overlapping and complementing IHRL, but as a moral lodestar critical to defining what it means to be an honorable warrior. Military lawyers tend to perceive IHL less as a barrier or obstacle telling the client what it cannot do—although it serves this function as well—and more “as a prerequisite to the meaningful exercise of power” in the first place. As Geoffrey Corn recently reminded us, IHL “serves to mitigate the potential moral corrosion that is often produced by mortal combat,” in large part by “providing the warrior with a rational and morally grounded framework” undergirding their actions.

It is notable in this regard that many of the pivotal developments in IHL have “owed less to professors, statesmen, or humanitarians, than to soldiers” themselves, resulting in a set of rules both by and for warriors that reflects the accrued wisdom of history and hardship. Armed conflict denotes a specially-defined space wherein soldiers can act effectively, decisively, justly, and—yes—violently pursuant to a unique code of conduct.

This is why it was important to rebut Ryan Goodman when he admirably, but erroneously, argued for a duty to capture under IHL by offering novel conceptions of military necessity and humanity. Under Adil’s proposal, it is worth noting, whether or not IHL imposes a least-restrictive-means requirement wouldn’t terribly matter, since IHRL would sweep in to impose such a requirement in nearly all cases. The difference between Ryan and Adil’s contentions is mostly the locus of the duty to capture—IHL for Ryan and IHRL operating in parallel with IHL for Adil—but the practical effect of undermining clarity in status-based targeting would be similar.

Adil has done us a great service with his erudite discussion shaking up the sometimes stale debate over NIAC definitions. Personally, I find his proposal to lower the NIAC threshold preferable to any suggestion of raising or complicating the categorical IAC threshold, as erring on the side of some realistically effective regulation of violence seems preferable to the prospect of an enforcement vacuum. But we shouldn’t lose sight of the fact that IHL matters, and not just because it puts war crimes culpability on the table. Armed conflict brings into play both the aspects of IHL that human rights lawyers tend to like, and also those that they don’t. Eroding the boundaries between war and peace can’t help but yield this result.

Iran’s Nuclear Program and International Law: From Confrontation to Accord

by Dan Joyner

[Dan Joyner is Professor of Law and Director of International Programs at the University of Alabama School of Law.]

In July 2015 a historic diplomatic accord was reached among Iran, the E.U., and the P5+1 states (the U.S., U.K., France, Germany, Russia, China).  The Joint Comprehensive Plan of Action (JCPOA), as the accord was titled, consisted of 159 total pages of agreed text, addressing all of the issues that had been in dispute among the parties concerning Iran’s nuclear program for thirteen years –a dispute which had at times appeared likely to precipitate military conflict. I summarized the JCPOA in a blog post here at Opinio Juris at the time of its adoption.

My newly published book, Iran’s Nuclear Program and International Law: From Confrontation to Accord, provides an in-depth examination of the legal and diplomatic history that form the context for the JCPOA’s agreement, and sets out to describe and to answer the most important legal questions that were in dispute among the JCPOA’s parties.  The aim of the book is to clarify how the relevant sources of international law – including primarily the 1968 Nuclear Nonproliferation Treaty (NPT) and the law of the International Atomic Energy Agency (IAEA) – should be properly interpreted and applied to these questions.

In this post I’ll give a very brief summary of the questions the book addresses, and of my analysis and conclusions concerning them.

The first question addressed in the book is whether Iran has at any time in the history of its pursuance of a nuclear program violated the terms of the NPT.  Iran is, of course, a non-nuclear weapon state party to the NPT, and is therefore prohibited from inter alia the manufacture or other acquisition of a nuclear explosive device.

It has been long argued by Iran’s detractors in the West, and in December 2015 it was confirmed in a report by the IAEA, that through the decade of the 1990’s and essentially ending in 2003, Iran did pursue a nuclear weapon research and development program separate from its civilian nuclear program.  However, in the words of the IAEA report: “these activities did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities.” In other words, Iran did develop some understanding and technical capabilities that it would need were it to decide to build a nuclear weapon, but it did not ever actually construct a nuclear explosive device.  On the basis of these facts concerning Iran’s weaponization research program, I conclude that Iran did not at any time manufacture or otherwise acquire a nuclear explosive device, and that therefore Iran did not violate the NPT.

The second question addressed is whether Iran was in violation of its IAEA safeguards treaty obligations in 2003, when international scrutiny of Iran’s nuclear program began following the revelation that Iran had clandestinely begun construction on two nuclear facilities at Natanz and Arak.  After a review of Iran’s safeguards obligations pursuant to its bilateral safeguards treaty with the IAEA, as well as the subsidiary arrangements agreed between Iran and the IAEA in implementation of the treaty, I conclude that the vari­ous failures by Iran to declare the existence and location of nuclear materials prior to 2003, and Iran’s several failures to declare experiments con­ducted using those nuclear materials, did constitute a violation by Iran of its safeguards treaty obligations.

I further conclude, however, that this internationally wrongful act by Iran was remedied through effective reparation in cooperation with the IAEA between 2003 and 2008, culminating in IAEA Director General ElBaradei’s February 22, 2008, report to the IAEA Board of Governors, in which he assessed that all declared nuclear material in Iran was in peaceful use, and that all prior concerns the IAEA had registered involving nuclear materials and related facilities in Iran had been resolved through dia­logue with Iranian authorities.

The third question addressed is whether Iran was, as Western states led by the United States claimed, in continuing violation of its safeguards treaty obligations in the several years leading up to the conclusion of the JCPOA in July 2015.  And further, whether during this time period the IAEA employed correct legal standards in assessing Iran’s compliance with its safeguards obligations.

I conclude that, according to the correct legal standards, contained in Iran’s safeguards agreement, from 2008 to 2015 Iran was in fact in full compliance with its safeguards treaty obligations.  This is the case even though during this period the IAEA made numerous allegations and findings concerning the possible existence of undeclared nuclear materials within Iran.  To be clear, the IAEA did not find any undeclared nuclear materials in Iran during this time, it only asserted its inability to determine satisfactorily that such materials did not exist.

I argue that throughout this period, the IAEA applied incorrect legal standards of investigation and assessment to Iran’s case.  Standards that were derived from erroneous legal interpretations of Iran’s safeguards treaty obligations.  I argue that due to the application of these incorrect standards, the IAEA during this time reached erroneous conclusions regarding Iran’s compliance with its safeguards agreement, and improperly withheld its determination that Iran was in fact in compliance with its safeguards obligations.  The IAEA’s withholding of its determination of Iran’s compliance had a significant influence on the diplomatic and security crisis surrounding the issue during this period, as states and the U.N. Security Council relied upon the IAEA’s technical determinations of Iran’s compliance.  This third set of questions is addressed in Chapter 5 of the book, which is publicly accessible here on my SSRN page.

The fourth question addressed is whether and to what extent the decisions of the United Nations Security Council on the subject of Iran’s nuclear program should be understood to impact on the analysis of the previous three questions.  After reviewing the Security Council’s decisions on Iran from 2002 through July 2015, I conclude that those decisions neither added to Iran’s safeguards-related obligations, nor enhanced the legal authority of the IAEA to investigate and assess Iran’s compliance with its safeguards obligations.  In Resolutions 1696 and 1737, both adopted in 2006, the Security Council did command Iran to suspend its uranium enrichment program.  Iran did not suspend its uranium enrichment program after the adoption of those decisions, and as such Iran can be at least prima facie considered to have been in noncompliance with those decisions of the Security Council, up until those resolutions of the Council were themselves terminated on JCPOA Implementation Day (January 16, 2016).  I do however argue that the legal validity of this specific command of the Security Council is doubtful.  I base this argument on the conflict between, on the one hand, the obligation of all U.N. member states pursuant to Article 25 of the U.N. Charter to “accept and carry out” the decisions of the Security Council, and on the other hand Iran’s “inalienable right” to peaceful nuclear energy as expressed in Article IV of the NPT.

The final chapter of the book provides a detailed explanation and consideration of the JCPOA itself. Essentially, Chapter 7 of the book (also publicly accessible here on my SSRN page) is a full chapter-length review and analysis of the legal implications of the JCPOA, on issues including Iran’s safeguards obligations, and the economic sanctions levied against Iran by the U.N. Security Council and by the U.S. and E.U. acting unilaterally.

The book thus follows the Iran case study through the period of confrontation between Iran and the West from 2002 through July 2015, setting this confrontation in its historical and diplomatic context, and examining key international legal questions that were raised during this period, and which played a significant role in the diplomatic crisis over Iran’s nuclear program.  It then explains the historic diplomatic accord which was painstakingly negotiated to resolve these various legal questions, and to bring the parties together on an agreed plan of action for building confidence in the peaceful nature of Iran’s nuclear program, and for the lifting of economic sanctions on Iran.

The implementation of the JCPOA continues to the present to be controversial. Political forces within Iran opposed to the relatively moderate regime of President Rouhani are tapping into popular sentiment among Iranians, to the effect that the economic benefits of the nuclear deal have been too small and too slow in coming.  They argue that the West has not lived up to its commitments to meaningfully lift international economic sanctions on Iran.

In the U.S. as well, there are influential political forces arguing that the JCPOA gave Iran too much in the way of economic concessions, in return for relatively minor nonproliferation commitments that will mostly expire within ten years.  They are quick to jump on any perceived noncompliance by Iran with its technical commitments under the JCPOA – even though the IAEA itself has repeatedly determined that Iran has abided by its JCPOA commitments.

These domestic political movements, both in Iran and in the U.S., threaten to frustrate and ultimately to marginalize the JCPOA, and bring the world back to a state of active confrontation over Iran’s nuclear program. With the U.S. presidential election in November of this year and Iranian presidential elections in May of 2017, the question of the future of the JCPOA and the diplomatic path to resolution of the Iran nuclear dispute remain very much in question.

Weekly News Wrap: Monday, September 26, 2016

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

Re-Engaging on an ISIL AUMF

by Deborah Pearlstein

In the past few weeks, Jack Goldsmith and Matt Waxman on the one hand, and Marty Lederman on the other, have restarted a discussion about the significance of Congress’ ongoing failure to enact legislation expressly authorizing the United States’ expansive use of force against ISIL in Iraq, Syria, and now in Libya. In a piece for Time Magazine, Jack and Matt faulted the Obama Administration for failing to “return to the Congress and the American People and insist on a new authorization for this new war.” They argued that the Administration “took away every political incentive that the responsibility-shy Congress might have to debate and authorize the war” by advancing the dubious notion that the existing 2001 statute (the AUMF) (authorizing force against Al Qaeda and its associates) affords the President sufficient authority to attack ISIL as well. Responding at Just Security, Marty quite agrees (as do I) it would be better if Congress had enacted (or would enact) an ISIL-specific use of force. But Marty is skeptical there was much more President Obama could have done to secure congressional action, and also questions whether Congress’ failure to enact new authority really sets as worrisome a precedent for democratic governance or executive power as Jack and Matt think.

Jack and Matt are right to point out that Obama’s legal reliance on the 2001 AUMF to justify the use of force against in Iraq, Syria and Libya is more than a little suspect. (I’ve written previously about why I think so, e.g., here.) Marty is right to doubt whether blame for Congress’ failure to act on ISIL can fairly be placed, as Jack and Matt seem to suggest, at Obama’s doorstep. But there is plenty more to the story I think both pieces miss. (more…)

Haiti Cholera Update

by Kristen Boon

Today, on the opening of the GA, and in his final such speech as UN Secretary General Ban Ki-Moon indicated that a compensation package for victims of Cholera is forthcoming. Speaking in French (original here), he expressed regret over the recent peacekeeper sexual abuse scandals and the Cholera epidemic in Haiti, and promised a package of assistance and support for better sanitation and water systems to victims would be forthcoming.

His speech confirms a significant and welcome shift in the UN’s approach to the cholera epidemic in Haiti. Since the outbreak in 2010, the UN steadfastly denied the assertion that a causal connection existed between the cholera outbreak and a UN peacekeeper base wherein blackwater was funneled into one of the main tributaries in Haiti.  The UN also rejected claims for compensation by victims and their families stating, in a now infamous letter, that the claims were “not receivable” under the UN Convention on Privileges and Immunities. For my full assessment of the Cholera Claims and the UN’s response to this and other recent mass torts claims, see my recent article in the Chicago Journal of International Law here.

The first signs of a change in the UN’s approach came about in August, when Deputy Spokesperson Farhan Haq said in an email quoted in the New York Times that “over the past year, the U.N. has become convinced that it needs to do much more regarding its own involvement in the initial outbreak and the suffering of those affected by cholera.” The Times reported he also stated that a “new response will be presented publicly within the next two months, once it has been fully elaborated, agreed with the Haitian authorities and discussed with member states.”

Significantly, this communication was released days before a widely anticipated appeals decision  was  handed down by the Second Circuit.  In this decision, the judges rejected the claimants appeal for compensation from the UN, relying on principles of contract interpretation to uphold the key finding that the “UN’s fulfillment of its Section 29 obligation is not a condition precedent to its Section 2 immunity” under the Convention on Privileges and Immunities of the UN.

There are several factors that might explain the UN’s new response. One is a reputational concern.   The release of a very critical report by Phillip Alston, UN Special Rapporteur on Extreme Poverty and Human Rights in August, concluded: “[that] a new approach is desperately needed.   The starting point is that there should be an apology and acceptance of responsibility in the name of the Secretary-General. Consideration should then be given to constructing a policy package to address the need for compensation to the victims.”  Alston’s report  provides an instructive and poignant account of how the UN has mishandled this claim, while also illustrating how complex mass claims are for the Organization, given shrinking budgets, the sui generis legal position of the UN, and the lack of internal precedents on providing transparent process and remedies.

Another reason for the UN’s reconsideration of its stance clearly involves the upcoming elections for a new UN Secretary General.  Later this fall, Ban Ki Moon will step down, and some believe that he wants to ensure his legacy is not tarred by the perception that the Haiti case was mishandled. Another theory is that it is better for the Organization to address this case within the current SG’s mandate, rather than saddling a new SG with such an albatross.

The key issue at present is what a compensation package for victims would look like.  Alston’s report urges the UN to make use of other precedents for lump sum settlements, such as the 9/11 trust fund, the USA-France agreement to compensate Holocaust victims, and the Canadian Reparations Programme for the Indian Residential School System. He further notes: “it is clear that the United Nations could make use of these various precedents in order to shape an approach to compensation as part of a broader package that would provide justice to the victims and be affordable.”

While full details of the package will be released in October, advocates are hard at work at the UN, attempting to ensure a victim centered approach prevails.  A letter sent to the UN Secretary General yesterday, for example, argues that there are four necessary components of an effective remedy:

“An effective remedy requires: (1) issuing a formal, public apology to the victims of cholera in Haiti, (2) ensuring full funding of the previously announced but largely unfunded cholera elimination plan, (3) committing to providing victims of the epidemic with material compensation in a timely fashion, and (4) implementing a transparent and participatory process.”

What seems clear at this stage is that the UN is not acknowledging any legal responsibility for the introduction of Cholera into Haiti for fear of setting precedent.   Nonetheless, there is an opportunity here for the UN to improve the process of claims settlement, to adhere to its obligation to provide a remedy for damages incurred, and to demonstrate its commitment to the rule of law. Let’s hope the UN does the right thing. If it doesn’t, advocates in the Haiti Cholera litigation noted in a blast email today that they still have three months to appeal to the Supreme Court.

 

International Law Weekend 2016

by Chris Borgen

International Law Weekend, the annual conference of the American Branch of the International Law Association is fast approaching. See the following notice from ABILA:

International Law Weekend 2016

Registration is now open for International Law Weekend 2016.

International Law Weekend 2016 – the premiere international law event of the Fall season – will be held October 27-29, 2016, in New York City.  The Opening Panel will take place on Thursday evening at the New York City Bar Association.  The Friday and Saturday sessions will be held at Fordham Law School.

You can register for the conference here: http://www.ila-americanbranch.org

The unifying theme for ILW 2016 is International Law 5.0.

The world is changing at an accelerating rate. From technological advances to environmental transformations, international lawyers are forced to confront emerging forces and new scenarios. Even settled principles of law are no longer settled. These tectonic shifts have been felt throughout the geography of international law. Legal professionals at every level – local, national, regional, and international – must change their practice to meet a changing world. Innovation will become necessary for survival.

ILW 2016 will explore these issues through a collection of engaging and provocative panels. A broad array of both public international law and private international law topics will be offered.

We look forward to seeing you at ILW 2016.

By the way, as a Co-rapporteur for the ILA’s Committee on Recognition/Non-Recognition in International Law, I will be on the panel Recognition and Non-Recognition of States and Governments: Current Issues in U.S. Practice on Friday, October 28 at 4:45 pm, along with my Opinio Juris colleague Peggy McGuinness and Brad Roth, both of whom are committee members, and Wladyslaw Czaplinski, the committee’s chairperson. Here’s the panel description:

For over five years the International Law Association’s Committee on Recognition and Non-Recognition has studied how states do or do not recognize other regimes as states and governments. This panel will bring together members from the ILA Committee to discuss the findings of their reports, with a particular focus on emerging issues in U.S. practice, including responses to secessions and unilateral declarations of independence after Kosovo; the problem of two or more regimes claiming to be the government of a single state, and the U.S. domestic effects of non-recognition.
I hope to see you there!

Sixth Annual Junior Faculty Forum for International Law

by Kevin Jon Heller

UNIVERSITY OF NOTTINGHAM: MAY 8, 9 and 10, 2017

Earlier today, Dino Kritsiotis (Univ. of Nottingham), Anne Orford (Univ. of Melbourne) and JHH Weiler (NYU) launched the Sixth Annual Junior Faculty Forum for International Law, which will be held at the University of Nottingham in May 2017. All details regarding the Forum procedure and process are available here: http://annualjuniorfacultyforumil.org/

Israel Shows Its Contempt for Academic Freedom

by Kevin Jon Heller

The headline is almost a generic one, applicable to dozens of Israeli actions. I’m using it now specifically in connection with Israel denying entrance to my SOAS colleague Dr. Adam Hanieh, who was scheduled to give a series of lectures at Birzeit University:

Dr. Hanieh, a Senior Lecturer in the Department of Development Studies at the School of Oriental and African Studies at the University of London, was deported back to London on the morning of September 13, 2016. He was held for questioning for 10 hours at Ben Gurion airport, and then taken overnight to a detention centre outside the airport. In addition to being refused entry, Dr. Hanieh was banned from entering the country for ten years.

Dr. Hanieh was scheduled to share his vast knowledge of global and Middle East political economy with students in the Ph.D. program as well as the university community in a series of lectures scheduled in the coming two weeks. Hanieh is an accomplished scholar, the author of Lineages of Revolt: Issues of Contemporary Capitalism in the Middle East (Haymarket Books, 2013) and Capitalism and Class in the Gulf Arab States (Palgrave Macmillan, 2011), as well as numerous academic articles.

This act of denial of entry and deportation by the Israeli state and its agencies is part of a systematic policy of denial of entry to international academics, professionals and activists intending to visit Palestine. This policy represents an attack on Palestinian academic freedom, and is routinely practiced at the two entry points, the airport in Tel Aviv and the Jordan valley crossing from Jordan.

Israel is truly the Donald Trump of repressive states — unable to tolerate any criticism that doesn’t stay within the bounds of what it considers “legitimate.” Confident states address critics. Israel prefers to harass and silence them.

Business as usual in the Middle East’s supposed great democracy. Keep Hanieh’s treatment in mind the next time Israel complains about mean BDS-ers “silencing” (ie, protesting) Israeli academics.

Ukraine’s UNCLOS Arbitration Claim Against Russia May Depend Upon Philippines-China Precedent

by Julian Ku

After months (or even years) of threats, Ukraine finally filed an arbitration claim against Russia under Annex VII of the UN Convention of the Law of the Sea.  According to this statement from the Ukrainian Ministry of Foreign of Affairs, the claim will focus on Russia’s actions in the maritime zones bordering Crimea.

Since the Russian Federation’s illegal acts of aggression in Crimea, Russia has usurped and interfered with Ukraine’s maritime rights in these zones.  Ukraine seeks to end the Russian Federation’s violations of UNCLOS and vindicate Ukraine’s rights in the Black Sea, Sea of Azov, and Kerch Strait, including Ukraine’s rights to the natural resources offshore Crimea which belong to the Ukrainian people.

I discussed Ukraine’s claim back in February here, as well as Russia’s likely response.  I can’t find a copy of the Ukrainian statement of claim online, but the MFA description sounds like it will be pretty similar to the approach pioneered by the Philippines in its claim against China.  Ukraine will seek to avoid Russia’s Article 298 declaration excluding jurisdiction relating to sea boundary delimitations by not asking the tribunal to rule on sea boundaries. Ukraine will not seek to have the arbitral tribunal declare that the annexation of Crimea is illegal. Rather, the focus will be on specific actions Russia has taken in the Crimea maritime zones, which Ukraine is going to assume is part of Ukraine.

It will be interesting to see if Russia responds at all to this arbitration, or whether they follow China’s example and simply boycott the arbitration process completely.  I am not sure Russia’s jurisdictional defense is as strong as China’s (which lost anyway), so I am betting Russia simply declares it will not even show up, while loudly declaiming the legality of their actions.  Stay tuned.

 

The Guardian’s Remarkable Lack of Concern for Accuracy

by Kevin Jon Heller

I love the Guardian. It’s generally a great paper. But its unwillingness to correct even the most basic mistakes constantly amazes me. In an otherwise interesting article about the ICC and environmental crimes, John Vidal and Owen Bowcott — the Guardian‘s environment editor and legal affairs correspondent, respectively — say this (emphasis mine):

The ICC can take action if the crime happens in any of the 139 countries that have signed up to the Rome Statute, if the perpetrator originates from one of these countries, or if the UN security council refers a case to it. Crimes must have taken place after the Rome statue came into force on 1 July 2002.

This is just wrong. Unequivocally wrong. 139 states have signed the Rome Statute, but only 124 have ratified or acceded to it. The ICC has territorial and active-nationality jurisdiction only over the latter.

I tweeted the correction to John Vidal. He’s ignored it — for reasons that are beyond me, given that it would take a web editor 10 seconds to correct. But perhaps Owen Bowcott is to blame: a few years ago he not only refused to correct his blatant mistake concerning the ICTY’s holding in Perisic regarding specific direction, he repeated his mistake in a later article on Charles Taylor.

New Essay: What Is an International Crime? (A Revisionist History)

by Kevin Jon Heller

I have posted the essay on SSRN. Here is the abstract:

The question “what is an international crime?” has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime – what makes an international crime different from a transnational crime or an ordinary domestic crime.

Considerable disagreement exists concerning the first issue, particularly with regard to whether torture and terrorism should be considered international crimes. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue: an act qualifies as an international crime if – and only if – that act is universally criminal under international law. The international-law aspect of the definition distinguishes an international crime from a domestic crime: although some acts that qualify as domestic crimes are universally criminal – murder, for example – their universality derives not from international law, but from the fact that every state in the world has independently decided to criminalize them. The universality aspect of the definition, in turn, distinguishes an international crime from a transnational crime: although a transnational crime such as drug trafficking involves an act that international law deems criminal through a suppression convention, international law does not deem the prohibited act universally criminal, because a suppression convention does not bind states that decline to ratify it.

This definition of an international crime, however, leads to an obvious question: how exactly does an act become universally criminal under international law? Two very different answers are possible – and the goal of this article is to adjudicate between them. The first answer, what I call the “direct criminalization thesis” (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself, regardless of whether states criminalize them. Nearly every modern ICL scholar takes this position, as does the ILC.

The second answer, what I call the “national criminalization thesis” (NCT), rejects the idea that international law bypasses domestic law by directly criminalizing particular acts. According to the NCT, certain acts are universally criminal under international law – and thus qualify as true international crimes – because international law obligates every state in the world to criminalize and prosecute them. No modern ICL scholar has taken this approach, although intimations of it date back to Grotius.

Which thesis is correct? This article argues that it depends on whether we adopt a naturalist or positivist approach to international law. Although every international criminal tribunal has insisted that international crimes are positivist, not naturalist, phenomena, no extant theory of positivism – not even so-called “instant custom” – is capable of justifying the idea that certain acts are directly criminalized by international law. On the contrary: if we take positivism seriously, the NCT provides the only coherent explanation of how international law can deem certain acts to be universally criminal. Maintaining fidelity to the DCT, therefore, requires rejecting positivism in favour of naturalism – with all of naturalism’s inherent limitations.

I have given a number of talks on this topic over the past couple of years, and my positivist critique of direct criminalisation has always proved controversial. The argument in the essay has evolved substantially, but I doubt it will be any more popular. I still continue to be surprised that, with the exception of a somewhat skeptical Roger O’Keefe, no scholar and no court has ever attempted to provide a comprehensive defence of the idea that certain acts (international crimes) are directly criminalised by international law. The idea is simply taken for granted based on a single statement in the IMT judgment and on the work of the International Law Commission. Indeed, as I try to show, direct criminalisation seems to be little more than an article of faith — a naturalist artifact that has proven very useful for the ICL project, which is predicated on the superiority of international law over domestic law. Indeed, my suspicion, merely noted in the essay, is that ICL is inherently naturalist, at least in the form that has the kind of sovereignty-limiting muscle its acolytes believe it should have.

The essay is very long — 30,000 words, nearly 400 footnotes. I’ve submitted it for consideration by AJIL, but I am sure I will revise it substantially before it is ultimately published there or somewhere else. So comments and criticisms are, as always, most welcome.

Protection of Civilians Symposium: A Multiplicity of Legal Frameworks and Practical Challenges

by Ralph Mamiya

[Ralph Mamiya is team leader for the Protection of Civilians Team in the UN Department of Peacekeeping Operations but writes here in a purely personal capacity, and the views expressed do not represent official positions of his Department or the United Nations. This post is the concluding post of the Protection of Civilians Symposium.]

This week’s symposium on the protection of civilians highlighted the range of legal and practical issues facing UN peacekeepers. Featuring posts from two contributors to the new volume, Protection of Civilians from Oxford University Press, former Senior UN Legal Officer Mona Khalil and University of Ulster law professor Siobhan Wills, as well as responses from distinguished colleagues Professor Ray Murphy, Legal Counsel Marten Zwanenburg and Professor Kjetil Mujezinović Larsen, the symposium has covered both very familiar ground for me and issues that I rarely have the opportunity to wrestle with.

Taken together, Mona’s and Siobhan’s discussions of peacekeepers’ authority and responsibility to use that authority to use force to protect civilians highlight the complexity of the issue. As Marten notes, we can read Mona as putting forward a strong but narrow concept of the protection of civilians mandate, rooted firmly in Security Council resolutions and Chapter VII of the UN Charter. The simplicity of this argument is its strength: the Council provides a strategic directive to protect (not merely an authorization), and this directive creates some form of responsibility. The challenge of this argument is, as those who deal regularly with UN bodies know, that determining the content and intent of Council resolutions is no simple matter, particularly in an era of political divisions in the Council. The “protection mandate” itself is often brief, providing a general direction with little detail. Generating meaningful positive obligations from such basic material is supremely difficult and gives rise, in part, to many of the practical peacekeeping challenges that Mona points out.

Professor Wills, on the other hand, searches beyond the mandate itself for sources of an obligation to protect that are, perhaps, more susceptible to legal analysis, and, also perhaps, more binding. She returns, however, to the UN’s own Human Rights Up Front  initiative, which she interprets as a potential acknowledgement by the UN of its own protection obligation. Whether this is a stronger or weaker foundation than Mona’s implicit presumption that peacekeeping mandates create a responsibility to act is somewhat uncertain in my mind (particularly as elections for the next Secretary-General are upon us). Her approach to filling in the content of the UNPKO’s responsibility to protect, however, seems a practical, procedural approach.

Professor Murphy takes up Siobhan’s appeal to the UN’s own commitment to human rights norms and raises her, proposing a Secretary-General’s bulletin on the application of human rights law to peacekeepers, analogous to the Secretary-General’s bulletin on international humanitarian law. The IHL purist, and the IHRL purist, may not give a great deal of weight to what the Secretary-General thinks about the application of international law to blue-helmeted troops, but such bulletins can be highly influential for the legal and policy architecture of peacekeeping and, ultimately, the way mandates are implemented.

Professor Larsen also follows Professor Wills, but in the direction of “hard law,” looking to treaty law as potential sources for an obligation to protect with regard to de-mining. This is a particularly interesting area. Professor Larsen’s discussion highlights not only how important protection issues are becoming to militaries around the world (not just UN peacekeepers) and further clarifies, in case there was any doubt, that protecting civilians is not only a matter of using force. The obligation that he argues for echoes the human rights-based norms that Professor Murphy raised.

Marten, in addition to providing wonderful summaries of Mona’s and Siobhan’s chapters in the book (going beyond just their posts), raises two points that I find particularly fascinating. First, with regard to the accountability of peacekeepers: despite the importance of UN privileges and immunities for so much of the UN’s work, if the international public perceives those privileges as being abused they may be whittled away. Second, with regard to Mona’s very interesting discussion of consent: the legal concept of consent and what host states permit missions to do at a practical level, particularly when it involves supporting or substituting for state functions (such as protection).

There is a common refrain that protecting civilians is simple in concept but difficult in practice. In one sense this is true—we tend to agree that protecting civilians is a good thing but we, as the international community, seem to disappoint ourselves on a regular basis—but in another sense simplifies what is a complex issue. One thing that I hope that this week’s symposium has highlighted is that practical challenges, and these are legion, are often tied to legal questions that we are still struggling to answer.

Many thanks to the distinguished panelists for contributing, and to Opinio Juris for hosting this symposium for Protection of Civilians, now available, with a foreword from Deputy Secretary-General Jan Eliasson, and contributions from Jean-Marie Guéhenno, Andrew Clapham, Hugo Slim, Mona Khalil and Siobhan Wills and many others.