Recent Posts

Political Pressure Succeeds! (Update on My Student)

by Kevin Jon Heller

I have happy news to report: after a groundswell of support, my student Tamara Tamimi has been granted a visa to attend her SOAS graduation. Apparently her Facebook post garnered more than 700 reactions, leading to letters and emails flooding into the Home Office. I want to thank each and every person who supported Tamara — whether through a letter, an email, or simply a retweet. And I want to give a specific shout-out to David Lammy MP, one of the brightest young stars in the Labour Party — and a graduate of SOAS law, I’m proud to say. His direct intervention on Tamara’s behalf was no doubt critical to Tamara receiving her visa.

Symposium on the Nuremberg Trials

by Kevin Jon Heller

The Loyola of Los Angeles International and Comparative Law Review has just published a special issue on the Nuremberg trials. It contains many excellent contributions, including articles by Hilary Earl, David Fraser, Greg Gordon, and Jonathan Bush. I have also contributed a short chapter, entitled “Taking a Consenting Part: The Lost Mode of Participation,” which discusses a mode of participation developed by the NMTs and then promptly forgotten — for better or for worse — by international criminal law.

All of the articles in the special issue are free to download here.

Remembering Martin Luther King, Jr. in the Age of “America First”

by Chris Borgen

Today, April 4, is the anniversary of the 1968 assassination of Dr. Martin Luther King, Jr. It is also the 50th anniversary of his speech “Beyond Vietnam,” delivered at Riverside Church in New York City on April 4, 1967.

I wrote a piece about Dr. King and international law over a decade ago on Opinio Juris.  I thought it would be interesting to revise and expand that earlier post and consider MLK’s views about world order once again, but now in the era of the Trump Administration (as well as the rise of nationalistic popular movements in many countries). What to make of “Beyond Vietnam” in the age of “America First?”

King’s voice was not the voice of an international lawyer, but of a pastor. He didn’t parse treaties; he invoked morality. Nonetheless, there is something in Dr. King’s rhetoric and in his argument that can inform and engage the work of international lawyers. This is not to fall into Utopianism but to see how moral and political rhetoric interacts with our practice.

Of course, part of the contrast is that President Trump tries to make everything sound like a real estate deal while Dr. King spoke with the voice of a pastor, which some would dismiss as prophetic rather than pragmatic. But this would miss, I think, how MLK’s words from fifty years ago apply to the challenges we have before us today.

Martin Luther King put himself in the shoes of others and spoke eloquently about their claims for justice.  This technique of looking at the world from the standpoint of others is all the more vital when we are discussing laws or norms that we claim should be applied across national and cultural borders. It is absolutely fundamental in any attempt to resolve a sectarian conflicts in the struggle to support human rights of under-represented communities around the world. Consider, for example, how Dr. King referred to the people of Vietnam in his “Beyond Vietnam” speech delivered on April 4th, 1967:

And as I ponder the madness of Vietnam and search within myself for ways to understand and respond in compassion, my mind goes constantly to the people of that peninsula. I speak now not of the soldiers of each side, not of the ideologoies of the Liberation Front, not of the junta in Saigon, but simply of the people who have been living under the curse of war for almost three continuous decades now. I think of them, too, because it is clear to me that there will be no meaningful solution there until some attempt is made to know them and hear their broken cries.

Not so much a battle for the hearts and minds, but an attempt to understand hearts and minds. He asks us to “appreciate the reciprocal”: think of how the world would look from the standpoint of the average man or woman living in Vietnam. Rather than demonizing the other, take time to understand why they do what they do. And that “why” is not answered by a  simple “they hate us,” but digging deeper, understanding motivations, and responding effectively. That is the real art of the deal.

Towards the end of his speech, Dr. King expands from the concerns of U.S. policy in Vietnam to the challenge of building not so much a “New World Order,” but a “Just World Order.” He argues that truly appreciating the reciprocal, this radical compassion on the individual level, leads to institutional transformation:

A true revolution of values will soon cause us to question the fairness and justice of many of our past and present policies. On the one hand we are called to play the good Samaritan on life’s roadside; but that will be only an initial act. One day we must come to see that the whole Jericho road must be transformed so that men and women will not be constantly beaten and robbed as they make their journey on life’s highway. True compassion is more than flinging a coin to a beggar; it is not haphazard and superficial. It comes to see that an edifice which produces beggars needs restructuring.

A true revolution of values will soon look uneasily on the glaring contrast of poverty and wealth. With righteous indignation, it will look across the seas and see individual capitalists of the West investing huge sums of money in Asia, Africa and South America, only to take the profits out with no concern for the social betterment of the countries, and say: “This is not just.” It will look at our alliance with the landed gentry of Latin America and say: “This is not just.” The Western arrogance of feeling that it has everything to teach others and nothing to learn from them is not just.

A true revolution of values will lay hands on the world order and say of war: “This way of settling differences is not just.” This business of burning human beings with napalm, of filling our nation’s homes with orphans and widows, of injecting poisonous drugs of hate into veins of people normally humane, of sending men home from dark and bloody battlefields physically handicapped and psychologically deranged, cannot be reconciled with wisdom, justice and love. A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.

America, the richest and most powerful nation in the world, can well lead the way in this revolution of values…

This kind of positive revolution of values is our best defense against communism. War is not the answer. Communism will never be defeated by the use of atomic bombs or nuclear weapons. Let us not join those who shout war and, through their misguided passions, urge the United States to relinquish its participation in the United Nations. These are days which demand wise restraint and calm reasonableness. We must not call everyone a Communist or an appeaser who advocates the seating of Red China in the United Nations and who recognizes that hate and hysteria are not the final answers to the problem of these turbulent days. We must not engage in a negative anti-communism, but rather in a positive thrust for democracy, realizing that our greatest defense against communism is to take offensive action in behalf of justice. We must with positive action seek to remove those conditions of poverty, insecurity and injustice which are the fertile soil in which the seed of communism grows and develops.

While full of references to the problems of the day (the Communist threat; whether to seat “Red China” in the U.N.), Dr. King still gives us a lesson for our day. Keep in mind that he had spoken these words after the demise the previous “America First” movement. He argued that we should see ourselves in the other and that many rights are universal and not the preserve of Western societies. But, at the same time, he counseled humility in international discourse and an openness to learning from others, rather than on insisting that we in “the West” can only be teachers. He emphasized showing what a rights-based view of humanity had to offer, rather than simply criticizing the world-view of others.  While Trump’s rhetoric is that the world is a zero-sum game and we are losing, King framed interactions  across cultures as the possibility of using discussion as a way to enhance mutual understanding, transform relationships, and build norms.

Dr. King spoke in the voice of a preacher. There’s much good in what he said and some that may not seem practical to us today. But, at the very least, he provided a coherent world view that wasn’t so much within international law as encompassing it. And, ahem, MLK had the best words.

A genuine revolution of values means in the final analysis that our loyalties must become ecumenical rather than sectional. Every nation must now develop an overriding loyalty to mankind as a whole in order to preserve the best in their individual societies.

This call for a worldwide fellowship that lifts neighborly concern beyond one’s tribe, race, class, and nation is in reality a call for an all-embracing and unconditional love for all mankind. This oft misunderstood, this oft misinterpreted concept, so readily dismissed by the Nietzsches of the world as a weak and cowardly force, has now become an absolute necessity for the survival of man.

As an international lawyer, I read the words of Martin Luther King, Jr. in “Beyond Vietnam” and think not only about how far we’ve come, but about how far we have to go.

The Unattractive Question is Back: SCOTUS (Again) Considers Corporate Liability Under the Alien Tort Statute

by Julian Ku

Today, the U.S. Supreme Court agreed to hear the case of Jesner v. Arab Bank in order to resolve a single issue: “[w]hether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.” This post will briefly review the case and offer a quick assessment of the ATS corporate liability issue.  Longtime readers will not be surprised to read that I side with the Defendants on this issue, although I will also add that I think my side on this case will have an uphill battle to prevail in the high court. 

Should the Court have agreed to hear the case?

The Court’s decision to hear the case is a bit surprising given that it had refused to hear at least two cases raising the same issue in the previous two terms.  On the other hand, the Court’s decision to hear the case is also quite understandable given the fairly sharp split between lower circuit courts on the question. Such an enduring split among the opinions of lower courts is always an important factor for the Court in deciding whether to hear a case. The rather dramatic divisions among judges on the Second Circuit Court of Appeals on this issue probably caught the Court’s attention as well.

Still, it is also worth noting that the Court granted cert on this exact same issue not six years ago when it first agreed to hear Kiobel v. Royal Dutch Petroleum in the fall of 2011.  The parties submitted briefs and held oral arguments on the corporate liability issue itself.  But during argument, the Court decided that the question of whether the Alien Tort Statute has extraterritorial reach needed to be resolved first, and sent the case back for re-argument the next term.  That re-argued case eventually became the 2013 Kiobel decision sharply limiting the extraterritorial scope of lawsuits brought under the ATS to cases that “touch and concern” the territory of the U.S.  The corporate liability issue was left fully argued and untouched.

To be sure, since 2013, several other circuit courts have issued opinions on the corporate liability issue and all have split from the original Second Circuit Kiobel decision denying corporate liability under the ATS. And the Court may have a new member by the time Jesner v. Arab Bank is decided.  So while that is a possible reason for reversing course and granting cert, it is still unusual for a Court to hear a case on the exact same issue it already heard in argument a few years ago.

What Law Should Determine Whether Corporations Should Be Liable Under the Alien Tort Statute?

One of the more annoying hard-to-explain legal issues in ATS cases is also one of my favorite law-nerd issues: what law should govern?  On its face, the ATS calls for the application of “the law of nations” but courts have long disagreed about whether international law also applies to questions such as standards for aiding and abetting liability and whether a corporation can be liable.  ATS plaintiffs have typically argued that these questions should be governed by domestic law, that is to say, federal common law. Under federal common law, corporations are typically liable for torts and application of this law would almost certainly favor the plaintiffs on this question.

But the Court has never fully resolved this issue.  To me, it has always seemed that any questions affecting the substance of a case against an ATS defendants should be governed by international law, as the ATS’ text seems to demand.  The temptation to fill in the many gaps left by international law with U.S. common law is strong, but the ATS clearly sought to ask US courts to apply international law.  Getting past that textual directive will be difficult for me, and I suspect the textualist-oriented justices on the Court.

Will Justice(?) Gorsuch’s Vote Matter?

The circumstances of this grant for cert, which occurred after several prior opportunities were rejected, does not bode well for respondents.  Nor is the fact that the cert grant adopts the petitioners’ phrasing of the issue word-for-word.  I would be particularly troubled by the Court’s decision to phrase the question as whether the ATS “categorically” forecloses corporate liability. This is plainly language structured to favor the plaintiffs’ case.

My views on the ATS corporate liability question should be well known to most OJ readers.  I think the issue of corporate liability should be governed by international law and that the strict standards for recognizing an actionable norm under the Court’s prior decision in Sosa precludes recognizing an ATS cause of action against corporations.  I joined a great amicus brief saying basically that in the original Kiobel case back in 2012.

I have also recognized, however, that this is pretty formalistic argument that is unusually unattractive to most observers. Still, the international norms haven’t really changed since 2012.  Plaintiffs will not be able to cite to many (or any) sources that hold corporations liable for violations of international law norms.  But they can still pound the table and simply say it is ridiculous to “immunize” corporations for torts, which I think still has quite a bit of force.  The response has got to be that corporations are often liable for torts, but not always.  Even under domestic law, the U.S. Supreme Court has foreclosed corporate liability for certain statutes (like the Torture Victim Protection Act) or for constitutional norms in the context of Bivens actions).

This leads me to Judge/Justice Gorsuch.  Since the case will be heard next term, Judge Gorsuch will have a chance to rule on the case if he is confirmed.  Will he be willing to sign on to a formalistic/textualist interpretation that is extremely normatively unattractive?  I don’t know enough about Judge Gorsuch to know, but I am not sure this will matter. My guess is that Justices Roberts and Kennedy were sufficiently repulsed by the idea of ruling against ATS corporate liability back in 2012 that they sought (and found) a different way of resolving the case.  I suspect (without having any inside information) that they would like to find an out again.  If they can’t, I can see a 6-3 opinion for the plaintiffs, with Chief Justice Roberts writing an opinion that he tries to make as narrow as possible.

So that’s my first take on Jesner v. Arab Bank.  I will no doubt be back for more. Stay tuned!

Examining Detention Authority in NIAC: A Response to Heller

by Daragh Murray

[Daragh Murray is a Lecturer at the University of Essex School of Law and Human Rights Centre.]

Thanks to Kevin for his post engaging with some of the issues discussed in my recent article on detention authority in non-international armed conflict. I would like to take this opportunity to provide a quick overview of my argument as relevant to this post, to discuss Kevin’s prohibition v. regulation argument and some of the other points he raised, and to highlight a key proposal developed in the article but not included in the original post.

Detention is a core activity in armed conflict, and one central to the conduct of military operations. The law of NIAC applicable to armed groups regulates detention when it occurs, but it does not establish an explicit legal basis for that detention. However, in the article I suggest that the fact that the law of armed conflict/international humanitarian law regulates detention means that it must be interpreted as establishing implicit detention authority.

This is because the prohibition of arbitrary detention is absolute, and this absolute prohibition remains applicable during non-international armed conflict. The right to liberty and security establishes that, to protect against arbitrariness, all detention must, amongst other requirements, have a legal basis. Accordingly, if IHL does not establish an implicit legal basis, then all detention by armed groups will be arbitrary and therefore prohibited, there being no other existing legal basis available to armed groups (see below). The law of treaty interpretation precludes this conclusion: it cannot be assumed that States intended to regulate that which is absolutely prohibited (arbitrary detention) as this would constitute an exercise in futility. CA3 must therefore be interpreted as establishing an implicit legal basis.

Importantly, if international law does not establish an implicit legal basis – and therefore prohibits all instances of armed group detention as arbitrary – international law will be of little relevance to armed groups, given the reality in which they exist. This will have significant practical consequences, and so clarity on this issue is essential.

Regulation v. prohibition

In his reply, Kevin raises an interesting question as to whether CA3 (etc.) regulates detention, or merely prohibits certain activities. In my view, NIAC’s detention-related provisions extend beyond mere negative prohibitions. The content of the obligations imposed require active (positive) measures. For instance, in order to fulfil the requirement that detainees ‘in all circumstances be treated humanely’, detaining authorities will be required not only to refrain from ill-treating detainees (i.e. through physical abuse) but also to actively address: conditions of detention, including quarters; provision of food, water, medicine; access to appropriate medical care; exercise, and so on. In my opinion, this active involvement indicates regulation, not just the imposition of prohibitions.

Different forms of regulation

The article discusses why international law cannot regulate that which is absolutely prohibited and I don’t want to repeat those arguments here. However, picking up on Kevin’s point regarding the regulation of torture, and the possibility of regulating impermissible activity, it is perhaps appropriate to make a distinction between two forms of regulation:

(A) regulations established to ensure compliance with an absolute prohibition, and

(B) regulations governing conduct that is absolutely prohibited.

(A)-type regulations are, of course, necessary. Indeed, this is exactly what UNCAT does. (B)-type regulation is, in my opinion, impermissible. Accordingly, while you may regulate the prohibition of torture (A), you cannot regulate torture itself (B). This was clearly stated by the ICTY in Furundzija (para 155). As such, international law would prohibit a doctor’s involvement in torture, as torture. This is distinct from the requirement that medical attention be given to detainees, irrespective of the cause of the harm. Returning to detention, international law clearly and absolutely prohibits arbitrary detention. It cannot therefore be assumed that States established rules to regulate detention by armed groups knowing that all instances of armed group detention will be arbitrary and therefore prohibited.

A legal basis for armed group detention could be established outside international law

 As Kevin notes, States may provide a domestic legal basis for armed group detention, although they do not typically do so. However, in creating CA3 (etc.) States chose to regulate armed group detention. This act of regulation necessitates the establishment of a legal basis in order to ensure consistency with the prohibition of arbitrary detention. As States have not provided a legal basis under domestic law, the required legal basis must be regarded as implicitly established under IHL.

Consequences of armed group detention authority

If armed groups party to a NIAC are recognised as having authority to detain, this does not suggest that all armed group detention is permissible. The scope of detention authority must be determined, and established procedures (such as judicial supervision) must be adhered to; this is something I have examined elsewhere (chapter 7). Issues also arise with respect to State sovereignty. However, it should be recalled that the authority under discussion is restricted to armed groups party to a NIAC, and is circumscribed by the law applicable in NIAC. That is, it applies only in exceptional situations, where State authority has been displaced. In such volatile situations, it is important that law applies, and that this law is appropriate to the situation. If we accept that detention is a necessary activity during armed conflict, then recognising, regulating and circumscribing the scope of that activity is arguably appropriate. Importantly, this also provides an opportunity to engage with armed groups in an effort to encourage legal compliance. At the same time, States can continue to criminalise armed group activity, from membership related offences, to violations of international law.

Moving forward

Acceptance of armed groups’ authority to detain will raise a number of legitimate concerns. Nonetheless, I do believe that this is an accurate reflection of the law as it stands. That is not to say, however, that this is necessarily ideal or the end of the story. The conclusion that IHL must be interpreted as establishing an implicit legal basis for detention is based on the application of the prohibition of arbitrary detention, as that prohibition applies to States. Understood in the State context, human rights law’s protection against arbitrariness requires a legal basis. It is possible, however, that the content of this prohibition as applied to armed groups might need to be re-evaluated.

Given the non-State status of armed groups, and the consequent difficulties vis-à-vis the creation of law, perhaps other protections against arbitrariness should be prioritised ahead of the legal basis criterion. Human rights law establishes a number of requirements in this regard, and these – and the possible re-consideration of the content of the prohibition of arbitrary detention – are discussed in greater detail in the article. Focusing on the ‘essence’ of human rights protections in this manner could be a possible ‘way forward’ both in relation to the specific issue of detention in NIAC, and to legal engagement with armed groups and other non-State actors more generally. This would facilitate coherence within international law, without necessitating that international law authorise elements of armed group activity.

Events and Announcements: April 2, 2017

by Jessica Dorsey

Sponsored Announcement

  • The Academy on Human Rights and Humanitarian Law is pleased to share with you today the newly released brochure for the 2017 Program of Advanced Studies on Human Rights and Humanitarian Law. The Program will take place from May 30 to June 16, 2017 and offers 20 courses in English and Spanish taught by more than 40 world-renowned scholars in the field of human rights and humanitarian law. Professors include Special Rapporteurs from the United Nations, Commissioners, Judges and other members of the Inter-American Commission and Court of Human Rights, Judges from International Tribunals like the ICC, ICJ and ICTY and professors from all over the world. The program provides a unique opportunity to interact directly with these high profile officials who are rarely available in such a personal setting. We also welcome over 150 participants from more than 25 countries around the world, all with varying levels and areas of professional experience in human rights, providing an excellent networking opportunity. The application can be found here: https://goo.gl/WcRh0J, and the deadline to apply is May 1. We would be happy to speak to anyone who may be interested in attending the Program at our new Tenley Campus by email at hracademy [at] wcl [dot] american [dot] edu or by phone at 202-274-4295.

Announcements

  • Duke Law seeks to fill a Clinical Fellow/Supervising Attorney position in its International Human Rights Clinic beginning in the Summer of 2017. The Clinical Fellow/Supervising Attorney will work closely with the Director of the International Human Rights Clinic. She or he will primarily help supervise student fieldwork in Clinic projects and participate in the planning and teaching of the Clinic advocacy seminar. The Clinical Fellow/Supervising Attorney will also work closely with the Director and other faculty to expand Duke Law’s experiential learning opportunities in international law, including through student placements in competitive summer and semester fellowships and externships in human rights and related fields. The individual appointed to the position will receive mentorship in teaching, scholarship, and human rights lawyering and will have an opportunity to work with the faculty affiliated with the Center for International and Comparative Law. Applicants should have a minimum of two to five years of relevant experience. In addition to a record of, or demonstrated potential for, clinical teaching, advocacy, and intellectual engagement, the ideal candidate will have experience: as practicing lawyers or human rights advocates, developing practice- oriented courses, supervising students in fellowships or externships, working collaboratively with faculty, and other evidence of in-depth knowledge of and practical engagement in international human rights law and mechanisms. The initial term of the appointment is expected to be two years. Salary and benefits will be commensurate with experience and competitive with similar fellowship positions at other top U.S. law schools. Applicants should send a statement of interest and CV to Ali Prince at ali [dot] prince [at] law [dot] duke [dot] edu by April 16, 2017. For more information, see here.

Bad Criminal Law in the Alexander Blackman Case (With Addendum)

by Kevin Jon Heller

In September 2011, Alexander Blackman, a Sergeant in the Royal Marines serving in Afghanistan, executed a Taliban fighter who had been incapacitated by his wounds.This was no spur-of-the-moment killing, as video recovered one year later makes clear. Here is the Court Martial’s summary of Blackman’s actions, as shown on the video:

[The insurgent] had been seriously wounded having been engaged lawfully by an Apache helicopter and when [Blackman] found him he was no longer a threat. Having removed his AK47, magazines and a grenade, [Blackman] caused him to be moved [because Blackman] wanted to be out of sight of [the] operational headquarters at Shahzad so that, to quote what [Blackman] said: ‘PGSS can’t see what we are doing to him.

He was handled in a robust manner by those under [Blackman’s] command clearly causing him additional pain and [Blackman] did nothing to stop them from treating him in that way. When out of view of the PGSS [Blackman] failed to ensure he was given appropriate medical treatment quickly and then ordered those giving him some first aid to stop.

When [Blackman was] sure the Apache helicopter was out of sight, [Blackman] calmly discharged a nine millimetre round into his chest from close range. [Blackman’s] suggestion that [he] thought the insurgent was dead when [he] discharged the firearms lacks any credibility and was clearly made up after [he] had been charged with murder in an effort to concoct a defence. It was rejected by the Board.

Although the insurgent may have died from his wounds sustained in the engagement by the Apache [Blackman] gave him no chance of survival. [Blackman] intended to kill him and that shot certainly hastened his death.

[Blackman] then told [his] patrol they were not to say anything about what had just happened and [Blackman] acknowledged what [he] had done by saying [he] had just broken the Geneva Convention. The tone of calmness of [his] voice as [he] commented after [he] had shot him were matter of fact and in that respect they were chilling.”

Not surprisingly, the Court Martial convicted Blackman of murder and sentenced him to life imprisonment. All of his fellow soldiers were acquitted.

Fast forward to last week — when the Court Martial Appeal Court (CMAC) allowed Blackman’s appeal, substituted a verdict of manslaughter for murder on the ground of diminished responsibility, and reduced his sentence to seven years imprisonment. Blackman will be a free man, with an honourable discharge from the Royal Marines, in a couple of weeks.

From a criminal law perspective, I find CMAC’s judgment profoundly unconvincing. I will explain why in this post.

CMAC’s reasoning proceeded in three steps. First, it found that Blackman had suffered from an “adjustment disorder” at the time of the killing…

Can’t Britain Exit Brexit?

by Edward Swaine

Yesterday, Prime Minister Theresa May had hand-delivered to Brussels—via a black Jaguar, taking a secret route!—a notice “in accordance with Article 50(2) of the Treaty on European Union of the United Kingdom’s intention to withdraw from the European Union.”  Brexit is happening, even if, pending negotiations, it has not yet happened. Must it?  Most Brexit questions are political, or raise questions of UK or EU law, but one interesting international law issue is the stickiness of notice under Article 50—whether (legally speaking) the UK’s notice of withdrawal is irrevocable. This issue has grown steadily murkier, but now it’s more relevant than ever, and the UK should make its views clearer. (more…)

IHL Does Not Authorise Detention in NIAC: A Response to Murray

by Kevin Jon Heller

Over the past couple of years, a number of scholars — including me — have debated whether IHL implicitly authorises detention in non-international armed conflict (NIAC.) The latest intervention in the debate comes courtesy of Daragh Murray in the Leiden Journal of International Law. As the article’s abstract makes clear, Murray is firmly in the “IHL authorises” camp:

On the basis of current understandings of international law – and the prohibition of arbitrary detention in particular – it is concluded that international humanitarian law must be interpreted as establishing implicit detention authority, in order to ensure the continued regulation of armed groups.

I disagree that IHL cannot regulate non-state actor (NSA) detention in NIAC unless it authorises that detention, for reasons I will explain in this post. Before we get to Murray’s argument, however, it is important to remind ourselves of what is at stake in the debate. Put simply, if Murray is right and IHL authorises NSAs to detain, two significant consequences follow: (1) states have no right to prosecute NSAs who detain government soldiers, even if such detention would qualify as kidnapping or wrongful imprisonment under domestic criminal law; and (2) NSAs have the right to detain government soldiers for as long as they pose a “security threat” to the NSA — ie, essentially forever. In other words, FARC could detain a Colombian soldier for five decades and Colombia couldn’t prosecute the commander responsible for that detention as long as FARC complied with NIAC’s procedural restrictions on detention.

Now let’s turn to Murray’s argument. Here are the critical paragraphs in the article:

[I]nternational law cannot regulate activity that is subject to an absolute prohibition. For example, instances of torture cannot be regulated as torture is subject to an absolute prohibition. The same is true with respect to armed group detention in non-international armed conflict: the absolute prohibition of arbitrary detention precludes the possibility of regulating arbitrary detention (p. 9)

Two possibilities are open: either international humanitarian law establishes an implicit legal basis for detention, or it does not and the authority to detain must be established elsewhere. If international humanitarian law does not establish an implicit legal basis for detention then all instances of detention by armed groups will necessarily violate the prohibition of arbitrary detention as a legal basis for armed group detention does not exist under domestic law or elsewhere in international law. Yet, to interpret Common Article 3 and Article 5 Additional Protocol II in this way is to conclude that states have developed international treaty law to regulate detention operations by armed groups, despite the fact that all instances of armed group detention are illegal. This interpretation is incapable of giving effect to states’ intentions, and to the object and purpose of the provisions themselves. As discussed above, states cannot regulate that which is absolutely prohibited, and so the only means by which Common Article 3 and Article 5 Additional Protocol II can regulate detention by armed groups is if these provisions establish an implicit legal basis for that detention  (p. 14)

The first thing to note is that the torture analogy is misplaced. International law does indeed absolutely prohibit torture. But it does not absolutely prohibit detention — not even in NIAC. On the contrary, a state is free to detain as long as it adopts the necessary domestic legislation. It is even free to domestically authorise an NSA to detain, as well. (Which is not absurd. A state may well conclude that an NSA is more likely to treat captured government soldiers humanely if it does not prohibit the very act of detention.) So what Murray is actually arguing is that because most states choose not to authorise NSAs to detain, international humanitarian law (IHL) necessarily authorises it for them so they can regulate that detention. That’s a very puzzling claim, given that states are the authors of IHL.

The fundamental problem with Murray’s position, however, is that it is simply not the case that IHL can’t regulate a practice that international law absolutely prohibits. I will discuss in a minute the situation regarding detention in NIAC, in which the regulation and the prohibition come from different legal regimes — regulation from IHL, prohibition from international human rights law (IHRL). But before doing so, it is worth noting that Murray’s argument does not work even when the regulation and the prohibition come from the same legal regime — a situation in which you would think Murray’s argument would be even stronger…

So . . . What do you think should be in your international law textbook?

by Duncan Hollis

I’m honored to have been invited by Allen Weiner to join him in the forthcoming 7th edition of the textbook, International Law, which he previously edited with the late Professor Barry Carter. We’re just beginning the effort of pulling together the new edition for Aspen this Spring and Summer.

Before we get too far along, I wanted to invite feedback from readers who have used the textbook on what they think of the text.  In particular, we’re interested in hearing about areas that we should be focusing on more closely or areas that we need to avoid cutting as we try to keep the text to a manageable length.  That said, I’d welcome more general feedback on what you like or don’t like about the textbook as well.  Moreover, for those of you who haven’t read it, I’d be interested in suggestions for cases or materials you’ve always wanted to see included in a basic introductory text for international law that have yet to receive sufficient attention.

Of course, I can’t guarantee that we’ll be able to respond to any and all suggestions, let alone adjust the next edition too dramatically from its roots.  Still, I know I speak for Allen in saying that we want to have an open door to new ideas and concepts.  So, feel free to comment below or e-mail me directly if you have suggestions, criticisms, or other thoughts to offer.  Thanks!

 

The Disappearing UN Report on Israeli “Apartheid”

by Kevin Jon Heller

Last week, the UN Economic and Social Commission for Western Asia (ESCWA) sent shockwaves through the international community by issuing a report that — for the first time in UN history — claims Israel’s treatment of Palestinians amounts to the crime of apartheid. Here is ESCWA’s description of the report, entitled “Israeli Practices towards the Palestinian People and the Question of Apartheid,” which was officially commissioned by ESCWA but does not purport to represent the official opinion of the UN:

This report examines, based on key instruments of international law, whether Israel has established an apartheid regime that oppresses and dominates the Palestinian people as a whole. Having established that the crime of apartheid has universal application, that the question of the status of the Palestinians as a people is settled in law, and that the crime of apartheid should be considered at the level of the State, the report sets out to demonstrate how Israel has imposed such a system on the Palestinians in order to maintain the domination of one racial group over others.

A history of war, annexation and expulsions, as well as a series of practices, has left the Palestinian people fragmented into four distinct population groups, three of them (citizens of Israel, residents of East Jerusalem and the populace under occupation in the West Bank and Gaza) living under direct Israeli rule and the remainder, refugees and involuntary exiles, living beyond. This fragmentation, coupled with the application of discrete bodies of law to those groups, lie at the heart of the apartheid regime. They serve to enfeeble opposition to it and to veil its very existence. This report concludes, on the basis of overwhelming evidence, that Israel is guilty of the crime of apartheid, and urges swift action to oppose and end it.

Predictably, the ESCWA report enraged Israel and the United States. Both states pressured the UN to withdraw the report — and to his lasting shame, the Secretary General, António Guterres, quickly folded. (Claiming, truly beggaring belief, that the decision had nothing to do with the report’s content.) Although you can still find the press release on ESCWA’s website, the report has been scrubbed from the webpage containing all of ESCWA’s reports. Only the Executive Summary remains — and it can only be found by entering the title of the report into Google and looking for the ESCWA link.

As critical as I am of Israel’s unconscionable oppression of and violence toward Palestinians, I have never accused Israel of practicing apartheid. But there is absolutely no justification for the UN suppressing an official report issued by one of the regional offices of the Economic and Social Council — particularly in response to pressure from the object of that report (and its chief enabler). Nor is this the first time the UN has bowed to Israeli pressure: recall Ban Ki-moon’s indefensible decision in 2015 to remove Israel from the UN’s “list of shame” of children’s rights violators. Unfortunately, it appears his successor will be no less craven.

That said, at least one UN official has the courage of her convictions. Rima Khalaf, the UN Under-Secretary General and Executive Secretary of ESCWA, reacted to Guterres’ decision to scrub the report by immediately resigning.

You can find a copy of the 74-page report here. Do what the Israel, the US, and the UN don’t want you to do — read the report and decide the apartheid question for yourself.

NATO, in Nine Tweets

by Chris Borgen

This morning President Trump tweeted that “Germany owes vast sums of money to NATO & the United States must be paid more for the powerful, and very expensive, defense it provides to Germany!”

But that’s not how NATO commitments work. And so this afternoon, former US Ambassador to NATO Ivo Daalder gave President Trump a tutorial in nine tweets.

Maybe we can get someone to read the tweets aloud on Fox & Friends.