Recent Posts

Apparently, I’m a 9/11 Truther (Al-Bahlul Revisited)

by Kevin Jon Heller

Only a “truther” who denies that al-Qaeda was responsible for 9/11 could doubt the international law basis for holding al Bahlul accountable for his role in this completed war crime.

So Peter Margulies argues in his latest attempt to defend the indefensible: al-Bahlul’s conviction for the non-existent war crime of conspiracy as an inchoate offence. To describe the accusation as offensive is an understatement, given that it accuses not only me and Steve Vladeck of being 9/11 truthers, but Judge Tatel and Judge Rogers, as well.

Even worse, though, Margulies’ arguments seem to have gotten even more problematic over time. Let’s take an in-depth look at his post. Here is how it opens:

Our amicus brief argued that upholding al Bahlul’s conviction would permit military commissions to try only a “narrow class” of cases outside commissions’ accepted jurisdiction…

Points for openly admitting that the military commissions’ “accepted jurisdiction” does not include jurisdiction over non-existent war crimes such as conspiracy. But no points for the claim that we shouldn’t hold courts to their actual jurisdiction as long as we are only letting them exceed their actual jurisdiction occasionally, in a “narrow class” of cases. You know, when it’s really, really important to let them exceed their actual jurisdiction. Last time I checked, jurisdiction wasn’t just a suggestion about the kind of cases a court can hear.


Al Bahlul challenged his conspiracy conviction on Article III grounds because international tribunals such as Nuremberg have generally declined to try defendants for engaging in an inchoate, stand-alone conspiracy (e.g., an agreement without a completed crime).

Note the fudge: “generally.” Not generally. Always. No international tribunal has ever convicted a defendant of conspiracy to commit a war crime. Not one…

Why Is the Lieber Prize Ageist?

by Kevin Jon Heller

Yesterday, my colleague Chris Borgen posted ASIL’s call for submissions for the 2016 Francis Lieber Prize, which is awarded annually to one monograph and one article “that the judges consider to be outstanding in the field of law and armed conflict.” I think it’s safe to say that the Lieber Prize is the most prestigious award of its kind.

But there’s a catch: you are not eligible for consideration if you are over 35. Which led Benjamin Davis to make the following comment:

For the record, the Lieber Prize criteria discriminates against persons like myself who at the ripe young age of 44 entered academia and was therefore nine years passed the upper limit in 2000. It particularly is galling when one realizes that Lieber WROTE his famous order at the age of 65.

If one wanted to correct this obvious and repugnant ageist requirement and one took the generous position that at 25 one could enter academia, then the criteria should suggest ten years maximum in academia. I still would be far passed the time-limit, but it would provide encouragement to those intrepid souls who decide later in life that being a legal academic is a noble calling for them and focusing on the laws of armed conflict is a wonderful arena in which to develop one’s research agenda.

I think Ben is absolutely right. The Lieber Prize’s hard age requirement obviously skews in favour of the kind of scholar who never spent considerable time outside of academia. Scholars who have had previous careers — whether in private practice, in government, in the military, or even working for organisations that do precisely the kind of law covered by the Prize, such as the ICRC — are simply out of luck if they worked for a number of years before becoming an academic.

If there was some sort of intellectual justification for limiting the Lieber Prize to academics under 35, the age limit might be okay. But, like Ben, I don’t see one. The most obvious rationale for some kind of limit is that ASIL wants to encourage and reward individuals who are newer to academia. But that rationale would suggest an eligibility requirement like the one that Ben suggests — a requirement that excludes submissions from individuals who have been in academia for a certain number of years, regardless of their chronological age. Some 34-year-olds have been in academia for nearly a decade! (I’m looking at you, Steve Vladeck.) And some 40-year-olds have been in academia only a few years. (Such as Chris Jenks, who was a JAG for many years before becoming a professor.) Yet only individuals in the latter category are excluded from the Lieber Prize — and they are excluded categorically.

Personally, I think Ben’s suggestion of 10 years from the time an individual entered academia is too long. I would still be eligible to submit with that limit! I would go with six years, like the Junior Faculty Forum for International Law. And also like the Junior Faculty Forum, I would permit the judges to wave the six-year requirement in exceptional circumstances — such as a woman or man who interrupted an academic career to take care of children.

What do you think, readers?

2016 Lieber Prize: Call for Submissions

by Chris Borgen

Professor Laurie Blank of The American Society of International Law’s Lieber Society on the Law of Armed Conflict has sent along the request for submissions for the 2016 Francis Lieber Prize. The prize is awarded to:

the authors of publications that the judges consider to be outstanding in the field of law and armed conflict. Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.

Here are the details

Criteria: Any work in the English language published during 2015 or whose publication is in proof at the time of submission may be nominated for this prize. Works that have already been considered for this prize may not be re-submitted. Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.

Age Limit: Competitors must be 35 years old or younger on 31 December 2015. Membership in the American Society of International Law is not required. Multi-authored works may be submitted if all the authors are eligible to enter the competition. Submissions from outside the United States are welcomed.

Submission: Submissions, including a letter or message of nomination, must be received by 9 January 2016. Three copies of books must be submitted. Electronic submission of articles is encouraged. Authors may submit their own work. All submissions must include contact information (e mail, fax, phone, address). The Prize Committee will acknowledge receipt of the submission by e mail.

Printed submissions must be sent to:

Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia 30322

Electronic submissions must be sent to:

Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.

Prize: The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law. The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2016.

In 2015, the winners were:

Book prize:
— Gilles Giacca, “Economic, social, and cultural rights in armed conflict” (OUP:2014)

Essay prize:
— Tom Ruys, “The meaning of ‘force’ and the boundaries of the jus ad bellum: are ‘minimal’ uses of force excluded from UN Charter Article 2(4)?’, 108 AJIL 159 (2014).

Guest Post: The ICC intervenes in Georgia–When is a Peacekeeper a Peacekeeper?

by Patryk Labuda

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights.]

As Kevin noted last week, the ICC Prosecutor has officially requested authorization to proceed with an investigation into alleged crimes committed during the 2008 Russo-Georgian war. Anticipated by ICC observers for some time, the announcement has prompted speculation about the prospects of a full-blown investigation involving a P5 country (Russia), as well as the geopolitical ramifications of the ICC finally leaving Africa. In this post, I would like to focus on a discreet legal issue with ramifications that may turn out to be equally important in the long run: the Prosecutor’s charges relating to crimes against peacekeepers and why this matters for the future of peacekeeping operations.

In her submission to the Pre-Trial Chamber (PTC), the Prosecutor identifies two primary sets of war crimes and crimes against humanity that fall within her jurisdiction. In addition to the forcible displacement and persecution of ethnic Georgians, the Prosecutor plans to investigate “intentionally directing attacks against Georgian peacekeepers by South Ossetian forces; and against Russian peacekeepers by Georgian forces (Request PTC, para. 2).”

Under the ICC Statute, attacks on peacekeepers are criminalized directly as war crimes. The two relevant provisions are articles 8 (2) (b) (iii) and 8 (2) (e) (iii), which apply to international and non-international armed conflict respectively:

Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict (emphasis added).

If, as is expected, the Pre-Trial Chamber grants the request to open an investigation, the key question facing the Prosecutor will be whether the peacekeepers in the 2008 conflict were really just that – peacekeepers?

While this may seem like an unusual question, it should be emphasized that the facts are highly unusual, too. The Joint Peacekeeping Force (JPKF) in South Ossetia, which was established by the 1992 Sochi Agreement, comprised three battalions of 500 soldiers each provided by Russia, Georgia and North Ossetia. Though not formally a UN-mandated mission, it appears both the Security Council and the Organisation for Security and Cooperation in Europe recognized the JPFK as a peacekeeping operation (para. 149). However, the key point is that, unlike UN-mandated peacekeeping, the peacekeepers in South Ossetia were nationals of two of the three parties to the 2008 conflict: Russians and Georgians (South Ossetians were not allowed on the premises of the JPKF). In other words, the ICC Prosecutor’s charges relate to attacks against Russian and Georgian troops – deployed as part of a peacekeeping mission – in the context of an armed conflict where Russian, Georgian and South Ossetian troops fought against one another.

Why does this matter? Although it appears that peacekeeping involving parties to a conflict is not prohibited (e.g. the UN does not appear to have an explicit policy against it, even if peacekeeper nationality has, in the past, been a contentious issue in UN operations), the composition of the JPKF in South Ossetia raises important questions about the application of international law to peacekeeping, and in particular the applicability of international humanitarian law and international criminal law to the attacks that the ICC Prosecutor plans to investigate. Irrespective of whether such peacekeeping is allowed ‘on paper’, I argue that the unusual composition of the JPFK will likely negate some protections that peacekeepers normally enjoy.

The key legal issue that is likely to come before the ICC is who is entitled to peacekeeper status under international law? Although there is no international convention on peacekeeping (the UN Charter is silent on the matter as well), the rules applicable to peacekeeping are derived from over half a century of military practice, and it is generally accepted that three core principles apply: 1) consent of the parties, 2) impartiality and 3) non-use of force beyond self-defence. While there is much debate about the scope of these three principles, especially in recent peace operations, for the purpose of the Georgia investigation the important question will be whether the impartiality criterion was met. (more…)

Weekly News Wrap: Monday, October 19, 2015

by Jessica Dorsey

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


Middle East and Northern Africa






Events and Announcements: October 18, 2015

by Jessica Dorsey

Calls for Papers/Abstracts:

  • Call for Papers: Society of International Economic Law and University of Luxembourg, Fifth PEPA/SIEL Conference. SIEL’s Postgraduate and Early Professionals/Academics Network (PEPA/SIEL) and the Research Unit in Law of the University of Luxembourg are pleased to announce that the fifth PEPA/SIEL Conference will take place on 14-15 April 2016 in Luxembourg. We invite graduate students (enrolled in Master or PhD programmes) and early professionals/academics (generally within five years of graduating) to submit papers on any IEL topic. One or more senior practitioners and academics will comment on each paper after its presentation, followed by a general discussion. More information, including the process for submissions by 16 November 2015, can be found here.


  • On October 21 (from 10am-12pm) the Open Society Justice Initiative is co-sponsoring a side-event at the UNGA where the Special Rapporteur on Torture, Juan Mendez, will present his new report on the extraterritorial application of the prohibition of torture. The presentation will be followed by a panel discussion. It’s a strong report that deals with a broad range of very timely topics – including extraterritorial safeguards against torture, accountability for extraterritorial acts of torture, non-refoulement, and rules pertaining to the prohibition in times of armed conflict. A flyer is attached with additional information about the report and the side-event. The flyer is also available here.
  • On the occasion of the publication of the second edition of Helen Duffy’s book ”The War on Terror’ and the Framework of International Law’ the T.M.C. Asser Instituut, in cooperation with the International Centre for Counter-Terrorism – The Hague and the International Humanitarian and Criminal Law Platform, proudly present a high-level panel discussion on Thursday 22 October, entitled: ‘Accountability in the war on terror?’ Speakers are: Norman Farrell, Prosecutor of the Special Tribunal for Lebanon, Larissa van den Herik, Professor of International Law at the Grotius Centre for International Legal Studies of Leiden University and Helen Duffy, Director of ‘Human Rights in Practice’ and Professor Gieskes Chair of International Human Rights and Humanitarian Law at the Grotius Centre for International Legal Studies of Leiden University. The panel discussion will be moderated by Christophe Paulussen, Senior Researcher at the T.M.C. Asser Instituut, Research Fellow at the International Centre for Counter-Terrorism – The Hague and Coordinator of the International Humanitarian and Criminal Law Platform. The event will be followed by a reception, kindly offered by the International Centre for Counter-Terrorism – The Hague. For catering purposes, we would like to ask you to register for this event by sending an e-mail with subject “SCL panel discussion” and your name and affiliation to conferencemanager [at] asser [dot] nl.
  • Developing International Law at the Bar – A Growing Competition Among International Courts and Tribunals: On 5 November 2015 at 3:00 PM, The Law and Practice of International Courts and Tribunals (Brill/Nijhoff) will offer its second Seminar in a series devoted to contemporary developments in international judicial practice. The Seminar aims at discussing some salient aspects of a growing competition among ICTs in the development of international law. The program is organized by Pierre Bodeau-Livinec (University Paris 8) and Chiara Giorgetti (Richmond Law School) and is co-sponsored by European Affairs committee of the NYCBA. Panelists include Chester Brown (University of Sidney), Mathias Forteau (University of Paris Ouest-Nanterre), Makane Mbengue (University of Geneva), Eduardo Valencia-Ospina (Editor-in-Chief of The Law and Practice of International Courts and Tribunals), August Reinisch (University of Vienna), Attila Tanzi (University of Bologna) and Catherine Tinker (Seton Hall University, Chair of the European Affairs Committee of the NYC Bar Association). More information and to enroll here.
  • University of Luxembourg conference on the Settlement of Tax Disputes under International Law. On 12-13 November 2015, the Research Unit in Law at the University of Luxembourg, with the support of the Fonds National de la Recherche Luxembourg, is holding a conference on the settlement of tax disputes under international law. The conference will examine the settlement of tax disputes under international law with the aim of analysing taxation issues through the lens of international law and its dispute settlement procedures, bringing together academics and practitioners from tax and international law backgrounds in order to do so. Details about the conference and how to register can be found here.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.

Reviewing Scott Shane’s New Book on Anwar Al-Awlaki

by Deborah Pearlstein

New York Times reporter Scott Shane recently published his book-length treatment of American Anwar Al-Awlaki – who he was, and what and why President Obama decided to order him targeted by drone strike in 2011. Not sure the book adds much for those who follow these things closely to what is already known from Shane’s own reporting and other sources, but it is certainly timely reading in light of the latest leaked administration documents regarding its process for drone strikes. My review of Shane’s book in the Washington Post is here. The leaked papers, published by The Intercept, are here.

Why “Following International Law” Won’t Necessary Solve the South China Sea Conflict Over Freedom of Navigation

by Julian Ku

As Chris notes below, it seems like there will be a showdown soon between the U.S. and China in the South China Sea over the right of freedom of navigation set out in the UN Convention on the Law of the Sea and customary international law. It is tempting to see this as a problem of one side ignoring international law, and the other trying to uphold it.  But the U.S. and China have a fundamentally different understanding of what international law requires and allows under the principle of “freedom of navigation”. So getting all sides  to “follow” international law is not necessarily going to solve the dispute here.

The U.S. definition of freedom of navigation means all ships (including warships) are allowed to traverse both the 200 nm exclusive economic zones (EEZ) and the 12 nm territorial seas without obtaining the permission of the coastal state.  In the 200 nm EEZ, the U.S. believes that military ships may conduct any activity, including surveillance of the coastal state (e.g. “spying”).  Within 12 nm, the U.S. believes military ships must abide by the rules of “innocent passage” which precludes any overt military-related activity.

The Chinese definition of freedom of navigation is quite different.  Essentially, the Chinese argue that military ships should have to follow rules of innocent passage even in the 200 nm EEZ, and that military ships must get permission to enter the 12 nm territorial sea, even if those ships are planning to make an innocent passage.

Why does this difference in the definition of freedom of navigation matter?  Because it allows both sides to say that they are abiding by the rules for freedom of navigation set forth in UNCLOS, while disagreeing dramatically on what each side is allowed to do.  From the U.S. perspective, its navy should be allowed to enter the 12 nm territorial seas around China’s “islands” as long as they abide by the rules of innocent passage.  But the Chinese will say that freedom of navigation doesn’t permit this activity.

Most states agree with the U.S. definition of freedom of navigation.  But some states (including neighboring South China Sea coastal states) do agree with the Chinese view on the EEZ (like Malaysia) and others follow the Chinese view on the 12 nm territorial sea (like Vietnam). So although I think the U.S. reading of UNCLOS is the correct one, the Chinese are not alone in their interpretation.  And as this editorial from China’s leading state-run English language paper indicates, the Chinese are going to emphasize this difference in legal interpretations in their response.

Of all foreign military activities in the special economic zones (especially those of China and the U.S.), the innocent passage of warships through territorial seas, have fueled the majority of clashes and disagreements, as the United Nations Convention on the Law of the Sea fails to provide explicit regulations on such activities.

To be sure, the Chinese may be shifting their own views since the Chinese Navy recently entered U.S. territorial seas on an “innocent passage”. But the official Chinese position still would require the U.S. to get permission before entering its 12 nm territorial seas.

One more note:  because several of China’s “artificial islands” are not islands but underwater features like shoals or reefs, the U.S. position ought to be that there is no “innocent passage” requirement for its naval ships even after entering within 12 nm miles.  Because China’s artificial island do not generate a 12 nm territorial sea, the U.S. should make clear it is NOT following the rules of innocent passage.

In any event, although international law is important, it cannot by itself resolve this festering US-China dispute until both sides agree on what international law actually requires.

Freedom of Navigation Operations and the South China Sea

by Chris Borgen

The BBC charts the latest back-and-forth between China, the U.S. over the Spratly Islands and, especially, navigation in the South China Sea. Much of the discussion of this issue has focused on the increased pace of China construction and land reclamation on series of islands and reefs, changing the “facts on the ground” to bolster its territorial and maritime claims. Other countries have also built on various islands and reefs, positioning for their own claims. But the scope of China’s activities had brought the issue back to the forefront.

The current flurry has been about the U.S.’s reaction and, in particular, whether the U.S. will use of “freedom of navigation” (FON) operations (previously discussed by Julian, here) in the midst of all this activity in the Spratlys.

According to the BBC, Hua Chunying, a spokesperson for China’s Foreign Ministry stated:

“We will never allow any country to violate China’s territorial waters and airspace in the Spratly Islands, in the name of protecting freedom of navigation and overflight.”

On Tuesday, US Defence Secretary Ash Carter expressed “strong concerns” over island-building, and defended Washington’s plans.

“Make no mistake, the United States will fly, sail and operate wherever international law allows, as we do around the world, and the South China Sea will not be an exception,” he said at a news conference with the Australian foreign and defence ministers.

“We will do that in the time and places of our choosing,” he added, according to Reuters news agency.

According to the U.S. Department of State, the U.S. has undertaken such freedom of navigation (FON) operations since 1983 to “exercise and assert its navigation and overflight rights and freedoms on a worldwide basis in a manner that is consistent with the balance of interests reflected in the Law of the Sea (LOS) Convention.” This is a topic where one can see the U.S. refer explicitly and repeatedly to international law:

The FON Program since 1979 has highlighted the navigation provisions of the LOS Convention to further the recognition of the vital national need to protect maritime rights throughout the world. The FON Program operates on a triple track, involving not only diplomatic representations and operational assertions by U.S. military units, but also bilateral and multilateral consultations with other governments in an effort to promote maritime stability and consistency with international law, stressing the need for and obligation of all States to adhere to the customary international law rules and practices reflected in the LOS Convention.

Emphases added.

A year-by-year summary of Freedom of Navigation operations by the U.S. can be found on the U.S. Department of Defense website, here.

However, the BBC notes that:

The US might have mounted sea patrols in this area, but not for several years, our analyst says – and not since China began its massive building programme in the South China Sea.

A US military plane that flew near one of the islands in May was warned off – eight times.

The US now has to decide whether to send in its ships and risk confrontation, or back down and look weak, our analyst says.

How the situation evolves from here will depend in part on the reactions of other states that border the South China Sea or use its sea lanes.  Stay tuned…

Guest Post: Air Strikes in Syria–Questions Surrounding the Necessity and Proportionality Requirements in the Exercise of Self-Defense

by Sina Etezazian

[Sina Etezazian serves as regional coordinator for the Digest of State Practice at the Journal on the Use of Force and International Law. He is also a PhD candidate at Monash Law School, where he is researching the necessity and proportionality criteria for the exercise of self-defense in international law.]

The lawfulness of conducting air strikes against the Islamic State Group (IS) in Syria is attracting increasing scrutiny from legal commentators. This scrutiny has intensified markedly (for example, see here, here, here, and here) since the UK’s targeting of alleged IS terrorists using drones and France’s joining the air campaign to bomb IS positions in Syrian territory. The extent to which air strikes would meet the necessity and proportionality requirements in the exercise of the right to self-defense under Article 51, however, remains less explored.

This post does not aim to consider the issue of the permissibility of engaging in unilateral forcible measures against unattributable attacks by private groups. However, even assuming that the lawful exercise of the right of self-defense extends to action against irregular forces, it can be argued that the air campaign in Syria goes beyond the necessity and proportionality conditions of defensive force.

First, the operation in Syria would appear to act in direct contradiction to the legal obligations attached to the “no choice of means” criterion of necessity. As I have explained before (see here and here), “no choice of means” — or, as most legal writers have referred to it, the “last resort” — as a condition inherent in the necessity requirement, denotes that self-defense is available to the victim state only when measures not involving force are unlikely to be practicable and effective to cease an actual armed attack (or prevent an impending attack, supposing that one accepts the idea of anticipatory self-defense). This implies that if measures other than force are likely to be practicable in redressing the wrong caused by the attacker, the victim state may not be entitled to use force under Article 51.

An exploration of state practice since the establishment of the UN would suggest that, in several instances (see here, here, and here), the claimant state highlighted its alleged failed attempts to convince the territorial state to suppress the activities of the non-state entities acting from that state, so as to prove that its self-defense action against those entities had satisfied the necessary requirement. Therefore, whatever the legal merit of the actions themselves (and regardless of whether, in practice, the responding states authentically used force outside an inter-state context), adherence to the “no choice of means” requirement can be distilled from state practice during the UN-era.

Conversely, most states carrying out air strikes in Syria did not even consider cooperating with the Syrian government in suppressing the activities of IS militants in Syria. The United States, for example, explicitly rejected a request for such cooperation, maintaining that it is “not looking for the approval of the Syrian regime.” In its letter to the Security, Canada likewise stated that “in expanding our airstrikes into Syria, the government has now decided we will not seek the express consent of the Syrian government.” The approach taken by US and Canadian officials appears to be in clear violation of the necessity condition of defensive action, mainly because the US and Canada have not provided an explanation of why cooperating with the Syrian government seems impracticable to settle the problem. The use of force in Syria, accordingly, hardly seems compatible with the concept of “no choice of means” that states have shared during the UN-era.

As for proportionality, the air campaign in Syria may be seen to have contravened the geographical requirement inherent in proportionate self-defense. Under the contemporary jus ad bellum regime, defensive action must conform to three criteria to determine its proportionality with regard to a primary objective of halting the attack: effects on civilians, the geographical scope and temporal duration of the conflict (Judith Gardam, Necessity, Proportionality and the Use of Force by States (2004) 155–187). The second of these criteria, usually called the geographical criterion of proportionality, means that forcible self-defensive measures must be limited to the region of the attack that they are designed to repel. In other words, any coercive action that occurs far from the initial attack is likely to constitute a disproportionate use of force (Christopher Greenwood, ‘Self-Defence and the Conduct of International Armed Conflicts’ in International Law at a Time of Perplexity, Yoram Dinstein (ed) (1989) 276–278).

Observance of the geographical criterion of proportionality has been required by both state practice and ICJ jurisprudence (see examples from state practice in Gardam, Necessity, Proportionality and the Use of Force by States, 162–167). For example, in the Armed Activities case, the Court refuted Uganda’s claim of self-defense against attacks from the private groups based in the Eastern Democratic Republic of Congo (DRC). More concretely, Uganda asserted that a string of attacks that had been mounted by those private groups across its border had justified Uganda’s right to use force in self-defense. However, Uganda had taken airports and towns in the DRC, which were located “many hundred kilometers” from Uganda’s border. This extensive forcible response gave rise to the majority judgment observing that the measures undertaken by Ugandan forces were disproportionate to those alleged cross-border attacks (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (Judgment) [2005] ICJ Rep 223, 223).

However, some commentators have occasionally argued for the diminishing role of the geographical criterion in the assessment of proportionate self-defense, particularly when the situation encompasses the use of force against non-state actors. Thus, in the words of Tams and Devaney:

[R]ecent practice suggests that geographical factors that may be considered relevant to the proportionality of inter-state self-defence are of limited relevance: hence states hit by terrorist attacks on their home soil have asserted a right to respond against terrorists at their base – and even where their conduct was not generally accepted, the fact that the self-defence operation had carried the fight against terrorism into far-away, remote countries seemed to be a factor of limited relevance (Christian J Tams and James G Devaney, ‘Applying Necessity and Proportionality to Anti-Terrorist Self Defence’ (2012) Israel Law Review 94, 104).


Guest Post: Do All Roads Lead to Rome? Why Ukraine Resorts to Declarations Rather than Ratification of the Rome Statute

by Aaron Matta and Tom Buitelaar

[Dr. Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Tom Buitelaar is a Researcher with the Global Governance Program at the Institute. With many thanks to Thomas Koerner, Rod Rastan, Dan Saxon and Eamon Aloyo for their helpful feedback on earlier drafts of this commentary. The views expressed here do not represent the views of the Hague Institute for Global Justice. ]

Ukraine is engulfed in a complex and bloody conflict that has cost nearly 8,000 lives and generated over 1.4 million internally displaced persons. The conflict has erupted in different areas of the country and in different forms, from civil unrest and revolution to alleged Russian aggression and illegal annexation of Crimea. The MH17 incident is of particular importance now due to the recent release of the Dutch Safety Board Report on the causes of the crash, which concluded that the plane was hit by a BUK-missile, ruling out other options. Moreover, the UNSC resolution 2166 stipulates that those directly or indirectly responsible for the downing of MH17 must be held accountable and brought to justice. But how can the International Community respond to these challenges and bring those responsible of international crimes and serious human rights violations to justice?

In this regard, on September 8, Ukrainian Foreign Minister Klimkin lodged a second ad hoc Declaration (.pdf) under article 12(3) of the Rome Statute accepting the jurisdiction of the International Criminal Court (ICC) for crimes committed on Ukraine’s territory since 20 February 2014. This provision can be used by non-state parties to the Rome Statute – Ukraine signed the Statute, but has not ratified it. This declaration was preceded by the declaration lodged (.pdf) on 17 April 2014, which triggered the Court’s jurisdiction over crimes committed during the events on Maidan square between November 2013 and February 2014, and prompted Prosecutor Ms. Fatou Bensouda to open a preliminary investigation.

With the second declaration, the Ukrainian government postpones the ratification of the Rome Statute, choosing to involve the ICC in a more ad-hoc manner. This approach can be explained by looking both at the legal and political obstacles to ratification.

The main legal obstacle for ratification arises from certain incompatibilities (.pdf) between the Rome Statute and the Ukrainian Constitution. In July 2001, the Ukrainian Constitutional Court (Case N.1-35/2001 [.pdf]) ruled that “some of the Rome Statute provisions were in conflict with the Constitution of Ukraine”. Article 124 of the Ukrainian Constitution states that the administration of justice is the exclusive competence of the national courts and that judicial functions cannot be delegated to other bodies or officials. Therefore, Ukraine would have to amend its constitution in order to ratify the Rome Statute – as required by Article 9 of the Ukrainian Constitution (.pdf). While for example some countries like Brazil ratified the Rome Statute first on 2002 and amended their constitution later in 2004 – as provided by Article 5(3) of the Brazilian Constitution (.pdf) – this option is not viable for Ukraine.

An interesting question is whether the declarations would also be incompatible with the Ukrainian Constitution. On the one hand, this issue would not affect the legal obligation of a state to a Treaty, pursuant to article 27 of the Vienna Convention on the Law of Treaties (.pdf) (which states that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”), or the ICC’s competence per se. On the other hand, this might have legal or practical unintended consequences in the domestic legal order if the Court’s potential decisions, warrants of arrest or requests for judicial cooperation cannot be given effect, or if their lawfulness is challenged at the domestic level.

Besides the legal obstacles there are also several political challenges to ratification. First of all, rule of law reforms—such as those required by ratification of the Statute and the implementation of its cooperation requirements—have shown to be a serious challenge in post-Soviet states. Because of these difficulties, ratification of the Rome Statute was not necessarily seen as a political priority. Secondly, until 2014, there had been no imminent threat of serious civil or international military conflict. Most importantly, armed conflict with potential Russian ‘involvement’ was unthinkable due to the historical, cultural and economic ties between the two countries. Moreover, Ukraine’s government is being increasingly overwhelmed with numerous urgent challenges, particularly since the conflict erupted. These include securing financial resources to avoid economic collapse and fighting corruption as a prerequisite for obtaining international financial aid. Currently, the main reform priorities have been tax reform, anti-corruption, and decentralization (the latter as part of the Minsk Agreements package). Therefore, amendments to Article 124 of the Constitution are only foreseen for the second phase of reforms planned for next year.

In addition to these legal and political challenges (more…)

OTP Formally Requests First Non-African Investigation

by Kevin Jon Heller

Fatou Bensouda has just formally asked the Pre-Trial Chamber to authorise an investigation into war crimes and crimes against humanity committed by South Ossetian and Georgian forces between 1 July 2008 and 10 October 2008. Here are the relevant paragraphs from the ICC’s press release:

The Situation in Georgia has been under preliminary examination by the Office of the Prosecutor since August 2008, when armed clashes between the breakaway region of South Ossetia and Georgia degenerated into an armed conflict, which also involved the Russian Federation.

The Prosecutor finds a reasonable basis to believe that war crimes and crimes against humanity were committed during in the context of the armed conflict. This includes alleged crimes committed in the context of a campaign to expel ethnic Georgians from South Ossetia as well as attacks on peacekeepers by Georgian forces, on the one hand, and South Ossetian forces, on the other.

The information available to the Office of the Prosecutor indicates that between 51 and 113 ethnic Georgian civilians were killed as part of a forcible displacement campaign conducted by South Ossetia’s de facto authorities, with the possible participation of members of the Russian armed forces. Between 13,400 and 18,500 ethnic Georgians were forcibly displaced and more than 5,000 dwellings belonging to ethnic Georgians were reportedly destroyed as part of this campaign. The Office of the Prosecutor alleges, based on the information in its possession, that these offences, together with attendant crimes of looting and destruction of civilian property, were committed on a large scale as part of a plan and in furtherance of a policy to expel ethnic Georgians from the territory in South Ossetia. As a result, the Prosecutor estimates that the ethnic Georgian population living in the conflict zone was reduced by at least 75 per cent.

The Prosecutor also finds a reasonable basis to believe that both South Ossetian and Georgian armed forces committed the war crime of attacking personnel or objects involved in a peacekeeping mission.  Georgian peacekeepers were reportedly heavily shelled from South Ossetian positions, killing two Georgian peacekeepers and injuring five more.  In a separate incident, ten Russian peacekeepers were reportedly killed and 30 wounded as a result of the attack against their facility by Georgian forces. The Russian peacekeeping force’s base was reportedly destroyed, including a medical facility.

The OTP’s formal request is 162 pages long, not counting the numerous annexes, so I won’t have substantive thoughts on the investigation for a while. I will just note that the request, as summarised by the Court’s media office, generally tracks the OTP’s 2014 Preliminary Examination Report, with one notable exception: the Georgian attack on the Russian peacekeepers. Given that the 2014 Report concluded that information about the attack was “inconclusive,” the OTP’s preliminary examination must have uncovered enough additional evidence of Georgian responsibility that Bensouda felt comfortable including it in her request for a formal investigation.

Assuming that the PTC approves Bensouda’s request, which seems highly likely, Georgia will obviously become the first non-African situation to be formally investigated by the ICC. The timing of the request is, of course, more than a little propitious, given that the ANC has been threatening to withdraw South Africa from the ICC because of its supposed anti-African bias. I doubt that the mere act of opening a non-African investigation will mollify the ANC and other African leaders; I imagine nothing short of actual charges against a suspect will have much impact. But the Georgia investigation is clearly a step in the right direction.

More soon!

PS: It’s worth noting that the Georgia request is almost four times as long as the request the OTP filed in 2009 with regard to Kenya — and that isn’t counting the numerous annexes in the Georgia request. It would seem that the OTP has learned its lesson from the Kenya fiasco. Recall that, with regard to Kenya, the PTC immediately asked the OTP to provide it with a great deal of supporting information. That kind of information appears to already be included in the Georgia request, which is smart prosecutorial practice.