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A Quick Bleg

by Kevin Jon Heller

Does anyone have an idea of what would be a fair hourly rate for someone to cite-check — both for substance and for accuracy of citation — a leading international law treatise published by a leading university press? Rates in pounds, dollars, or euros would be most appreciated!

St. John’s Law School Search: Assistant Dean for Graduate Studies

by Peggy McGuinness

St. John’s University School of Law in New York City is conducting a search for a new Assistant Dean for Graduate Studies to head up our LLM programs and other international non-JD programs and initiatives.  Here is the formal announcement with key contact information, but feel free to reach out to me directly if you are interested in learning more about it.

St. John’s Law School is now looking for an Assistant or Associate Dean for Graduate Studies, who will be the senior administrator responsible for the development and management of initiatives related to non-J.D. degrees and programs at the Law School. The ADGS will oversee four existing LL.M. programs: (1) U.S. Legal Studies for Foreign Trained Lawyers (which qualifies graduates to sit for the New York bar exam); (2) Transnational Legal Practice; (3) International Sports Law Practice; and (4) Bankruptcy.  We are looking for candidates with a strong entrepreneurial spirit and keen business sense to develop new degree programs and opportunities as market conditions permit. This is primarily a leadership/management position and will not lead to a tenure-track appointment. The ADGS will develop linkages and partnerships with foreign and domestic educational institutions, bar associations, law firms, and other institutions. The ADGS will also be the senior administrator in the graduate programs area and will manage an office that includes three directors (including one who spends significant time recruiting students in Asia), an office assistant, and a Europe-based consultant.

A J.D. (or J.D.-equivalent from a foreign jurisdiction) and admission to practice law in at least one U.S. jurisdiction and/or significant experience in higher education administration is required.

Interested candidates should submit letters of inquiry and CVs to lawfac [at] stjohns [dot] edu

One more time all together: Obama wants to close Gitmo

by Jens David Ohlin

Just a minute ago, President Obama announced yet again his intention and desire to close the detention facility at Guantanamo Bay. There are no particular surprises here. From what I heard listening to his comments, the plan is merely a renewed push to get Congress to cooperate on closing the prison. Specifically, Obama suggested that the detainees who cannot be released should be transferred to a domestic facility, though he declined to specify which one.

Obama made several points in defense of this plan. He conceded that some members of the public are scared about the possibility of detaining terrorists on US soil, though he noted that we already do that because several terrorists convicted in Article III courts are already housed in federal prisons. Moreover, the federal government has housed them in the US without incident, which demonstrates, according to Obama, that domestic detention is safe.

Furthermore, Obama also tried appealing to fiscal conservatives, noting that the transfers would save the government between $65 milliion to $85 million per year. Over a span of 20 years, that adds up to a $1.7 billion savings. So domestic detention is not only safe, it’s cheaper too.

Obama also announced that although military commissions would remain an option for detainees who are captured on the battlefield in active theaters, for all others, Article III courts are the preferred option for terrorism prosecutions.

There was little discussion of how to clear the political log jam that remains over the fate of Guantanamo, though the President said that he was “clear-eyed” about the challenges of achieving the result he wanted: “The politics of this are tough,” he said, but “this plan deserves a fair hearing.” He noted that even George W. Bush wanted to close the prison.

Of course, one solution, which he did not discuss, would be the use of an executive order to close the Guantanamo facility. I’m very curious to hear readers’ thoughts regarding this possibility. One, I’m interested in predictions about whether he might take such a drastic step in the last months of his presidency. Second, I’m interested in whether it would provoke a miniature constitutional crisis, with Obama using his executive power to close the facility but Congress using its spending power to prevent detainee transfers to domestic soil. What result then?

UPDATE: Transcript of the Background Press Call is here.

The ICC Is Not Shying Away from the Georgian Challenge

by Aaron Matta and Anca Iordache

[Dr. Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice, Rule of Law Program. Anca Iordache is an intern within the Rule of Law Program the Institute. With many thanks to Stephen Rapp, Danya Chaikel and Lyal S. Sunga for their helpful feedback on earlier drafts of this commentary. The views expressed here do not necessarily represent the views of the Hague Institute for Global Justice. ]

On Wednesday, 27 January 2016, the Pre-Trial Chamber I (PTCI) of the International Criminal Court (ICC) authorized the Office of the Prosecutor (OTP) to proceed with an investigation into the situation in Georgia. Specifically, the OTP will investigate crimes allegedly committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008. Not only is this the first investigation outside of Africa, but it is also the first proprio motu case involving a non-State party, the Russian Federation. This is striking given the current geopolitical tensions between Russia and the West, and the PTCI decision raises many procedural issues and political challenges for the ICC, while at the same time providing the Court with a number of unprecedented opportunities.

After nearly two months of border clashes between Georgia and its breakaway region of South Ossetia, Georgia launched, in the early days of August 2008, a major military offensive against South Ossetia which prompted Russia to intervene against Georgia. Despite a 12 August cease-fire brokered by the French-led EU presidency, crimes reportedly continued to be committed. Russia completed most its withdrawal of troops on 8 October, and it later recognized South Ossetia, as well as Georgia’s  second breakaway region of Abkhazia, as independent states. It was in this context that the OTP opened a preliminary investigation on 14 August, only two days after the cease-fire was agreed upon. Then on 13 October 2015, the Prosecutor requested authorization from the Court’s judges to proceed with an investigation into the Georgia situation. To quote Harvard professor Alex Whiting, “the Prosecutor is moving forward on Georgia not because she is necessarily eager to do so, but because after seven years the case demands it.”

The PTCI decision touches upon a number of issues. First, it concludes that there are reasonable grounds to believe that war crimes and crimes against humanity were committed during the 2008 Georgian war (PCTI authorization, paras. 26–31). These include alleged forcible displacement of ethnic Georgians from South Ossetia, and alleged Georgian attacks on Russian peacekeepers. Second, it is worth noting the issue of rationae loci jurisdiction of the Court over crimes committed in the region of South Ossetia (Art. 12 of the Rome Statute). Although South Ossetia claims independence and is still supposedly under Russian effective control, the region continues to be internationally recognized as part of Georgia – a state party to the Rome Statute – and therefore the Court concluded, that it falls within the jurisdiction of the Court (para. 6). This will inevitably be of concern in future Georgia cases, particularly when it comes to judicial cooperation issues, such as gathering of evidence, arrest of suspects, or witness protection, since Russia currently holds de facto effective control over South Ossetian territory.

Another contentious point the PTCI addresses concerns the issue of admissibility of the case under Article 17 of the Rome Statute. With regard to complementarity (Art. 53(1)(b) of the Statute), both Georgia and Russia have had sufficient time to undertake national investigations of conflict related crimes – more than 7 years. On the one hand, while the Russian Federation authorities have shown to be willing and able to conduct national proceedings (para. 50), the Court could not conclusively decide on the question regarding their inability to access crucial evidence (para. 46). On the other hand, the Georgian authorities seemed to have been unable to conduct investigative activities in South Ossetia (paras. 40–41). The Court agreed with the Prosecution’s position in that any proceedings undertaken by the de facto authorities of South Ossetia are not capable of meeting the requirements of article 17 of the Statute, due to South Ossetia not being a recognized State. In view of this, together with a lack of full cooperation between the parties involved, Georgia was considered to be unable, even if it seemed willing, to investigate effectively serious crimes committed during the 2008 war. PTCI ultimately found that potential cases arising from the situation were “largely admissible” as there was also sufficient gravity (Art. 17(1)(d) of the Statute) to warrant an OTP investigation (paras. 51–56).

The PTCI decision also addressed respective cooperation of Georgian and Russian authorities with the OTP’s investigation. Georgia, as a State Party to the Rome Statute since 2003, has an obligation to cooperate fully with the ICC (Art. 86, of the Statute) and it thus far declared its commitment to collaborating with the Court. After signing in 2000 but not ratifying the Rome Statute, the Russian Federation has not yet become a state party. However, the Court could investigate Russian nationals suspected of committing crimes on the territory of a State Party, as is the case of South Ossetia. The Russian Federation initially confirmed that it would cooperate with the ICC probe and thus far has done so, for example, by providing the Court with more than 30 volumes of material from its own criminal investigation. However, following the PCTI authorization to proceed with an investigation, Russia’s Ministry of Foreign Affairs criticized the Court for taking Georgia’s side, and also stated that “in the light of the latest decision, the Russian Federation will be forced to fundamentally review its attitude towards the ICC”. This criticism was followed by Alexander Bastrykin’s (Chair of Russia’s Investigative Committee) lengthy interview (in Russian) in the official newspaper Rossiyskaya Gazeta, during which he said that the Court “turned the circumstances of the case on its head” (‘с ног на голову’) by ignoring Georgian crimes. This would not be the first time the Russian Federation has criticized or has opposed an international court for seeming to display an ‘anti-Russian bias’. For example, Moscow has on several occasions criticized the European Court of Human Rights (ECtHR) as well as the Permanent Court of Arbitration, and more recently, it vetoed the establishment of a Tribunal to prosecute individuals in relation to the downing of the MH17 flight. Russia has gone as far as to adopt legislation that allows it, in certain cases, not to implement ECtHR rulings.

A major issue that could make its way to the ICC in this situation is what the European Parliament has termed Russia’s effective misinformation campaign during the Ukrainian conflict. This concern coupled with the apparent “lack of transparency” of the Russian Prokuratura, which “remains vulnerable to presidential and other political power” (see Council of Europe’s Venice Commission Opinion, para 75), could prove to be a major challenge to the Court. This criticism also applies to Georgia in the sense that proposed domestic reforms of the General Prosecutors Office “does not yet fully achieve the stated goal of depoliticizing the office of the Chief Prosecutor” (see Venice Commission opinion no. 811/2015 para 10). In addition, the OTP will have to remain vigilant about not relying on information that may be heavily biased from either side. It will not be the first time the Court has to show its ability to discern genuine evidence from biased reports. In the end, a positive result of the ICC’s involvement could be that the OTP’s investigation focuses on all sides to the conflict equally which has been a challenge for the Court in other cases such as the collapsed Kenyatta case and the recent blow to the Prosecution in the Ruto case.

It is also useful to compare the Georgian and Ukrainian circumstances as they deal with some similar issues. First, a UN Security Council referral was not an option for Ukraine or Georgia, due to the potential use of the veto power by Russia. Unlike Ukraine however, Georgia is a State Party to the Rome Statute. While Kiev’s only choice was to submit a declaration to the Court accepting jurisdiction under Article 12(3) of the Rome Statute, this was not the same for Tbilisi, which could have but did not refer its own situation to the Court. Unlike Ukraine, where the conflict was still ongoing, there were fears of Russian retaliation if Georgia had chosen to ‘poke the bear’ further after the conflict had ceased. Therefore, the proprio motu investigation could be seen as a blessing in disguise for the Georgians, in spite of the fact that it will target Georgians as well.

Another important point to consider with regard to the issue of Crimea and South Ossetia, is whether the Prosecutor has jurisdiction to lay charges for the crime of aggression. In view of this, the jurisdiction of the ICC may begin one year after the 30th ratification of the 2010 Kampala Amendments to the Rome Statute, but not before the Assembly of State Parties has approved the commencement of jurisdiction after 1 January 2017.  So far, only 26 states, including Georgia, have ratified the amendments and notably the Court’s jurisdiction will be limited only to those States Parties once jurisdiction over aggression kicks in. Even so, the Prosecutor could not lay charges for the crime of aggression with regard to the issue of South Ossetia due to the non-retroactive nature of the Court’s jurisdiction.

The ICC´s decision to open an investigation in Georgia is significant because it is the first investigation into a situation outside the African continent. The ICC focus on Africa has led to accusations that the Court has been biased. However, a majority of ICC investigations have been opened at the request of African governments, even if these investigations can be criticized as ‘low-hanging fruit’ the OTP can easily pluck for prosecutions. Ultimately, regional balance should not be a factor in deciding the direction of the Court’s prosecutions. Nonetheless, such a development is a small but positive step towards a truly global Court. The fact that the ICC is now focusing also outside Africa will certainly help diminish the alleged anti-African bias, particularly at a time when some African Union States have threatened to leave the ICC. However, a plausible scenario, judging from official reactions cited above, is Russia embracing anti-ICC rhetoric. In that event the main challenge will be to tackle the broader criticism of the Court as “a tool of Western Imperialism” not exclusively aimed at Africa.

In the end, the authorization on Georgia shows that the Court has not shied away from challenges even if they involve a non-state party or more importantly a UN Security Council permanent member. However, the potential cases emanating from the Georgian situation will no doubt prove to be particularly challenging if Russia’s shows less cooperation with the Court. Hopefully the Court will show itself to be up to the challenge and the next steps will set a positive tone for future potential and similarly challenging situations such as Afghanistan or Palestine.

Guest Post: UN Peacekeepers and Sexual Exploitation and Abuse

by Melanie O'Brien

[Dr Melanie O’Brien, TC Beirne School of Law & Asia-Pacific Centre for the Responsibility to Protect, University of Queensland.]
Since December, there have been multiple announcements of new allegations of sexual exploitation and abuse (SEA) by peacekeepers, and criticism of the UN for the handling of these allegations. These allegations all relate to SEA committed by peacekeepers in the Central African Republic, usually by soldiers who are part of the UN’s Multidimensional Integrated
Stabilization Mission in the Central African Republic (MINUSCA). Allegations of peacekeeper SEA are not new. In fact, I have been researching on this topic for almost 13 years. Thirteen years of begging for accountability, and still the SEA continues. I have even written on how the ICC should not shy away from holding peacekeepers accountable for SEA when it occurs in the context of armed conflict and/or crimes against humanity, based on the seriousness of the offence. That is, the role of peacekeepers as protectors of civilians means that they are a special category of offender that should be held accountable. My call for the ICC to step up stems from the fact that sending states, which hold exclusive jurisdiction over their military and police personnel serving in peace operations, are not investigating or prosecuting SEA offences.
The UN’s Conduct and Discipline Unit (CDU), developed a decade ago in response to allegations of sexual abuse by peacekeepers, is not fully transparent. UN annual reporting of statistics on SEA does not ‘name and shame’ states involved, which means that the UN’s follow-ups to states involved go unheeded. Why should states bother if nobody knows it’s them? Last year Ban Ki-Moon finally announced that he would ’name and shame.” Months have dragged by, but it seems that perhaps this is actually happening, with the most recent allegations naming the Republic of Congo and the Democratic Republic of Congo as sending states, and the UN announcing that Burundi peacekeepers have been repatriated from MINUSCA. ”Naming and shaming” means greater transparency. It also enables the international community and a sending state’s nationals to pressure that sending state to take action with investigation and prosecution. Since reporting began, from a high of almost 400 allegations, we have dropped to under 100 allegations per year. Yet this is still far too many. The UN has been unwilling to rock the boat of sending states’ generosity, in case the UN is no longer able to procure enough personnel for missions. Missions are already understaffed (and under resourced). However, without proper vetting from sending states, the UN tendency to take whoever they can get it is jeopardising mission success. SEA breaches the trust between host communities and peacekeepers, which creates insecurity and uncertainty in which a peace operation cannot successfully operate. The conduct also damages the reputation of the UN.

There are also entrenched problems within the UN.l. The recent scandal has revealed a disregard for human rights, evidence by inaction to sexual abuse allegations.It also exemplified the ongoing targeting and condemnation of whistleblowers. The most recent whistleblower has been vindicated, but his time in the spotlight has brought many people forward who have likewise been attacked for reporting in-house human rights violations. In this way, the UN needs to clean house and maintain only employees of integrity. This is not to say that there are not people in the UN working hard and ethically: I met a Samoan police officer working with the UN Mission in the Republic of South Sudan (UNMISS) CDU who took great pride in her work and championed the importance of the standards set by her team. Clearly, we need more people like her in the UN (not to mention a greater gender balance in missions). What we should be doing is empowering UN Civilian Police (CivPol) to act like police in relation to criminal allegations against mission personnel. CivPol are trained police officers who have the ability to conduct proper investigations, including taking on-site witness statements and safeguarding secure chains of evidence.

However it is not the UN who has sole responsibility here; it is time sending states step up to the plate. There is an inherent human rights component to the SEA. Peacekeeper SEA is derived from entrenched gender inequality and patriarchal attitudes where women are perceived as unimportant and as chattel of men to be used when and how men see fit. There is also an element of bigotry and discrimination involved in the SEA, where peacekeepers are committing crimes they may not necessarily commit at home, both out of opportunity (a common reason for the commission of crime and enhanced by conflict/post-conflict circumstances and the powerful position of peacekeepers), but also out of a perception that the local community are lower in social standing than they are. In addition, the number of allegations relating to SEA of children is substantial. Does this indicate an issue of paedophilia that states need to be specifically dealing with? There is definitely a need for criminological, especially psychology, studies of this ‘phenomenon’. Sending states need to be addressing these social issues as a root cause, targeting education and social structures.

SEA by peacekeepers is a human rights violation (or rather, it violates many human rights). It is termed ‘misconduct’, but let’s stop calling it that and minimising the behaviour. It is criminal conduct, and states must take action to eliminate these crimes. Punishment of criminal conduct is a crucial component of preventive justice. Firstly, States must ensure they have the legislative means to prosecute their personnel. This means having the substantive law that covers this particular conduct; many states lack the specific provisions to prosecute sexual exploitation of adults. States must enact such legislative provisions, which reflect the imbalance in power dynamic between the peacekeeper and victims, and the exchange in goods/services/money that takes place. These provisions must include appropriate and proportionate punishment. In memoranda of understanding to contribute personnel, states must guarantee they will carry out investigation and prosecution using the proper provisions (as opposed to minor offences). States also need to establish extra-territorial application of the substantive law. Once these capabilities are in place, the sending state must make very clear to its personnel that commission of crimes will not be allowed to take place with impunity. A demonstration of action by states will contribute to prevention of peacekeeper SEA.

The UN and its member states champion the rule of law and human rights in states in the midst of conflict or in post-conflict disarray. We need the UN and its member states to practice what they preach.

Weekly News Wrap: Tuesday, February 16, 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

  • The U.N. Syria envoy held talks with Syria’s foreign minister on Tuesday aimed at securing a cessation of hostilities and “unhindered” delivery of humanitarian aid to areas besieged by all parties, a U.N. spokesman said.
  • Around 5,700 structures in the western Iraqi city of Ramadi and its outskirts have incurred some level of damage since mid-2014, and almost 2,000 buildings have been destroyed, the United Nations said on Monday, citing satellite images.

New Edition International Law Frameworks

by Kristen Boon

Chimene Keitner has revised and updated David Bederman’s 2006 treatise on International Law Frameworks. This highly readable (and short) text addresses key cases, core disputes, and essential treaties in international law. Following Professor Bederman’s passing in 2011, Keitner was asked to step in and take over the production of a new edition.   In the preface to this 4th edition, Chimene describes how she has updated and adapted the book:

The approach of this edition is consistent with that of previous editions, but I have modified the structure in places and added substantial discussion of recent developments. The volume is still divided into four parts. The first part provides an overview of the international legal system and discusses the nature, history, and sources of international legal rules, including treaties and custom. It also introduces mechanisms for the peaceful resolution of international disputes, including the role of the World Court (previously saved for the end of the book).

The second part focuses on the subjects of international law, including but not limited to States. Although somewhat exaggerated, there is much truth to the view that the “old” law of nations considered only States to be worthy of legal attention. Today, individuals, juridical persons (including business associations), and organizations may also be considered “subjects” of international law that can bear both rights and responsibilities.

The third part canvasses substantive areas of international legal regulation, including human rights (with a new discussion of global migration), as well as “objects” of international control such as land and maritime boundaries, the international environment, and the global economy. It also considers the law of countermeasures and the laws governing the resort to, and use of, armed force. The chapters on the use of force and armed conflict include new reflections on the role of government lawyers and consider new developments in substantive law in an era of drones and “cyberwarfare.”

The fourth and final part considers the relationship between domestic law and international law. This is the portion of the book most closely geared to the demands of U.S. law practice. At the same time, it introduces readers to other countries’ views on issues such as jurisdiction, immunities, and related considerations in the conduct of foreign policy. A new concluding chapter reflects on key challenges and opportunities for today’s international lawyers, including managing global pandemics, regulating cyberspace, and addressing global inequality.

Many of us have used this book as a supplement, a primer, or even as a core textbook to be read in conjunction with primary source materials.  If you would like to pre-order or request a complementary copy of the book, here is the link.

Guest Post: Do Child Soldiers Remain Civilians?

by Joanna Nicholson

[Dr. Joanna Nicholson is a Researcher at PluriCourts – Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order at the University of Oslo.]

If you were to ask most International Humanitarian Law (IHL) experts whether the fact that a fighter is a child under the age of fifteen affects when they constitute a military target under IHL, their answer would most likely be ‘no’. The traditional view is that while international law prohibits the recruitment and use of children under fifteen to participate actively in hostilities, this has no bearing upon the status of the children involved and their targetability under IHL. Although there may be moral reasons for treating child soldiers differently to their adult counterparts in matters of targeting, from a legal standpoint they have no such entitlement.

I would like to propose that this issue may not be as cut and dried as most people may imagine. The basis for my argument is the reasoning employed by the Pre-Trial Chamber in the Ntaganda Decision on the Confirmation of Charges (‘the Decision’) from the International Criminal Court (‘ICC’).

Bosco Ntaganda is currently standing trial before the ICC accused of war crimes and crimes against humanity. Two of the charges he faces concern the rape and sexual slavery of child soldiers as a war crime under Article 8(2)(e)(vi) of the ICC Statute. In the Decision, Pre-Trial Chamber II found the conflict to be a non-international armed conflict, meaning that Common Article 3 to the Geneva Conventions and Additional Protocol II applied. Accordingly, in order to determine whether the child soldiers in question were entitled to protection under these provisions, the Chamber needed to establish whether they had been directly/actively participating in hostilities at the time that they were victims of the acts of rape and/or sexual slavery. The Chamber found that this must be assessed in the light of the prohibition against the recruitment and use of children under 15 to take an active part in hostilities. It held:

The mere membership of children under the age of 15 years in an armed group cannot be considered as determinative proof of direct/active participation in hostilities, considering that their presence in the armed group is specifically proscribed under international law in the first place. Indeed, to hold that children under the age of 15 years lose the protection afforded to them by IHL merely by joining an armed group, whether as a result of coercion or other circumstances, would contradict the very rationale underlying the protection afforded to such children against recruitment and use in hostilities (para. 78)

The Chamber concluded that ‘children under the age of 15 years lose their protection afforded by IHL only during their direct/active participation in hostilities’ (para 79). The children who were victims of rape and/or sexual slavery could not be considered to be actively/directly participating during the time that they were subject to acts of a sexual nature.

To summarise the Chamber’s reasoning, as it is prohibited under international law to recruit children under the age of 15 into armed groups and use them to participate actively in hostilities, such children do not lose their protection under IHL simply by becoming members of an armed group.

The concept of membership within an armed group is important in IHL, affecting when an individual constitutes a legitimate target. Thus, combatants are defined as being ‘members of the armed forces of a Party to the conflict’ (Article 43(2), Additional Protocol I). Combatants are entitled to privileges- the right to directly participate in hostilities and to prisoner of war status if captured. However, their combatant status also means that they constitute legitimate military targets at all times unless hors de combat.

The consequences of membership within an armed group for fighters who do not qualify for combatant status is less clear. Different approaches can be taken: all members of an armed group can be viewed as being legitimate military targets. Alternatively, one can look at the function of a member of an armed group, as the International Committee of the Red Cross recommend in their Guidance, meaning only those with a continuous combat function may be viewed as being legitimate targets at all times. A third possibility is that they retain their civilian status and may only targeted if they are directly participating in hostilities. Regardless, the fact of an individual’s membership within the armed group is often key to when they constitute military targets.

The Ntaganda Decision suggests that, as international law prohibits the recruitment of children under fifteen into armed groups, the consequences of such membership may be different for child soldiers, who remain under the protection of IHL unless they are in fact directly/actively participating in hostilities. In other words, they retain their civilian status, regardless of their membership within an armed group.

Should this approach be correct, it would give rise to questions: what happens regarding child soldiers who would otherwise qualify for combatant status, are they nevertheless entitled to combatant privileges? Are these child soldiers to be seen as having a kind of hybrid status, entitled to the advantages of both combatant and civilian status? This would be an unprecedented situation.

It remains to be seen whether the Trial Chamber will follow the lead of the Pre-Trial Chamber in this case, and, of course, even if they do, it is but one case, and does not necessarily set a precedent for IHL. However, the reasoning employed by Pre-Trial Chamber II seems sound- as recruiting child soldiers is prohibited under international law, then it is arguable that the children continue to have civilian status despite their membership within an armed group. Furthermore, it coincides with the general trend within international law towards protecting child soldiers, and may be indicative of an emerging rule of customary law. It would seem that this issue is not as black and white as it may first have appeared.

This post is based on my recent article, Is Targeting Naked Child Soldiers a War Crime?

Justice Scalia’s Rule of Law Efforts

by Duncan Hollis

Scalia photo

Justice Scalia’s passing comes as a shock and is generating tributes across ideological lines. Indeed, whether you agreed with his opinions or not (and I was not a fan of his thinking on cases like Sosa or Bond), Justice Scalia’s opinions deserved to be read.  Lines like “never-say-never jurisprudence” and “oh-so-close-to-relevant cases” are some of my personal favorites.  Readers should feel free to add their own in the comment section.

In the meantime, I wanted to pay tribute to a side of Justice Scalia that has garnered relatively little attention — his dedication to promoting the rule of law.  For the last sixteen years, Temple Law has run a rule of law program in Beijing hosted at Tsinghua University’s School of Law.  We offer an LLM to classes of 50 Chinese judges, prosecutors and lawyers, in an effort to acquaint them with the U.S. legal system and the rule of law more generally.  As part of the program, the Chinese students visit Philadelphia for the summer, which includes a day trip to D.C.  And nearly every year the highlight of that D.C. trip was an hour long private audience with Justice Scalia.  Justice Scalia would speak for a few minutes but most of the time was devoted to answering student questions. We conducted the sessions off the record, so I do not feel comfortable opining on who said what, but I always came away impressed by the honesty, vigor and intellectual quality of the exchange. I was universally impressed with Justice Scalia’s wit and candor.  He offered the students a true model of free speech in the U.S. legal tradition.  I don’t know if Temple’s China program was the only time he did this, or if this effort was one of many to expand the rule of law.  But I can say it was a highly effective one.  And so, as the nation mourns the passing of one of its most opinionated justices, I wanted to offer my own small tribute of appreciation to a man who, for whatever else he believed, was committed to the idea of democracy and the values of liberty and equality on which it stood.

RIP Justice Antonin Scalia: The Misunderstood Internationalist

by Julian Ku

Like many lawyers who study constitutional law, I was saddened when I heard last night of the unexpected death of U.S. Supreme Court Justice Antonin Scalia. The internet being what it is, commentators have already offered their quick takes on Scalia’s substantial and multifaceted jurisprudential legacy (indeed, I think we’ve already moved on to debating his replacement). Most of these analyses have been fair, but I have been a little irritated with the glib and mostly inaccurate descriptions of Justice Scalia’s attitude toward international law.

For instance, Rosa Brooks writes at Foreign Policy that while many in the U.S. will mourn Justice Scalia’s passing,

The global legal and judicial communities, however, will mostly be indulging in joyful private choruses of “Ding, Dong, the Witch is Dead.” Or maybe not so private.

There was no love lost between Justice Scalia and foreign jurists. Scalia was famously dismissive of foreign and international law, which he considered good enough for, well, foreigners — but not for the great United States. “I doubt whether anybody [in the United States] would say, ‘Yes, we want to be governed by the views of foreigners,’” he scoffed in 2005.

Brooks’ piece highlights one of Scalia’s more famous intellectual crusades: to reject the use of foreign and international law in the interpretation of the U.S. Constitution. Scalia was the leading critic of using foreign and international law to interpret the Constitution and, in due course, he has often been derided as a judicial sovereigntist or even as a know-nothing contemptuous of all foreign or international law.

I have always felt this criticism of Justice Scalia was unfair for at least two reasons.

First, Justice Scalia was an “originalist” with respect to constitutional interpretation. To him, this meant that interpreters should privilege the original meaning of the Constitution’s text over any other sources of interpretation. Scalia was famously skeptical of legislative history in statutory interpretation, and he was fairly skeptical of even of using the Constitution’s drafting history in constitutional interpretation. He wanted judges to look at the text, standing alone, as much as possible.

Given these jurisprudential commitments, it is odd to criticize Scalia for rejecting the use of foreign and international law in constitutional interpretation. Unless one could show that foreign and international law was relevant to determining the original meaning of the constitution’s text, Scalia believed it was irrelevant. And so he criticized judges who relied upon such sources, just as he criticized them for relying upon their own personal preferences or on what he thought were simply the latest intellectual or social fads.

Secondly, Scalia was actually one of the most cosmopolitan members of the Supreme Court. Few justices enjoyed foreign travel more, and he was always willing to go abroad to lecture at foreign law schools or in front of foreign bar associations. Indeed, he was in Hong Kong just last week giving lectures and he had planned to teach in France this summer.

More importantly, Scalia was not afraid or contemptuous of international law when that was the governing law in a case before him. Indeed, when he started law teaching at the University of Virginia, comparative law and private international law were his primary research and teaching interests. And as Duncan pointed out in a post back in 2007, Justice Scalia was not unwilling to interpret statutes to conform to international law or treaties, nor was he unwilling to rely upon foreign judicial opinions interpreting international treaties. He did not think foreign judicial decisions or international law was irrelevant or meaningless. He simply objected, on grounds of intellectual consistency, to using those sources when interpreting the U.S. Constitution.

I did not agree with Scalia on every constitutional question. And no doubt he should take his lumps for mistakes he may have made. But he was not a judicial sovereigntist or a constitutional know-nothing. And contra Rosa, I rather think many foreign jurists and academics (especially those he met personally) will miss this remarkably effective and important representative of American jurisprudence in the world.  I certainly will.

Events and Announcements: February 14, 2016

by Jessica Dorsey

Announcements

  • Conflict Dynamics International presents a new tool for national judicial actors and others working on accountability for children in armed conflict: Anti-Impunity Tool: Guidance for investigating and prosecuting serious violations against children in armed conflict. This user-friendly tool provides concrete guidance and tips for investigating and prosecuting serious violations against children in armed conflict, such as recruitment and use of children by armed actors and attacks on schools. In addition, the Tool includes guidance on outreach to affected children and communities and on involving child protection actors and child victims/survivors in judicial processes. An annex features an example of a domestic legal and procedural framework, using the Democratic Republic of the Congo as a case study. The Tool is available in English and French hereConflict Dynamics International’s Children and Armed Conflict (CAC) Accountability Initiative promotes timely and effective accountability for serious violations of international law committed against children in armed conflict. For more information about the Initiative, please visit the website here.
  • The ICRC is offering an upcoming IHL course that will take place in April on the island of Gorée, Senegal. For more information (in French) please see the website here
  • Max Planck Group Leader in Bogotá, Colombia: The Max Planck Institute for Comparative Public Law and International Law (Heidelberg) and Universidad de Los Andes (Bogotá, Colombia) are looking to hire a Principal Investigator to lead a newly established Max Planck Tandem Group in Transformations of Public Law. Other than research, responsibilities include supervision of two doctoral students at Universidad de Los Andes. There is no mandatory teaching load. The Group will be located in Bogotá, and the Leader will be expected to reside in that city. The initiative will provide funding for at least one extended research stay per year of the Group at the Max Planck Institute for Comparative Public Law and International Law. Additional information may be found here. The deadline for applications is May 15th, 2016.

Calls for Papers

  • The faculty of Law, University of Turku, is organizing a workshop on changing notions of international legal personality in Turku, Finland on 12-13 May 2016. Deployed from a theoretical perspective, the Persons/Things workshop asks why our moral and legal commitment to persons differs greatly from that towards things. In recent years, this bifurcation has been called into question in many instances, whether by religious corporations or copyright owning apes. It is in this changed world the Persons/Things workshop seeks to explore the present and the past of classic Roman law persona/res distinction. Are challenges of the present world unheard of are they simple re-enactments of the past debates held over slaves and women? Or could there be something genuinely new in the seeming porosity of the border between things and persons? Abstracts are to be submitted by 1 March 2016. Further details of the call can be found on the Faculty’s website. PhD candidates and junior faculty are particularly encouraged to apply.

Events

  • “The Future of Arbitration in Africa” will be the subject of a daylong conference to be held in Washington, DC on Friday, March 11, 2016.  The conference is cosponsored by the American Society of International Law, Penn State University, and Greenberg Traurig LLP.  The program brings together expert practitioners and law professors from around the world to discuss recent developments and the important trends and challenges that will animate the future of international arbitration in Africa.  The daylong program will include four panel discussions: The Legacy of the Eritrea-Ethiopia Claims Commission; The Institutions and Practice of International Commercial Arbitration in Africa; Structural Challenges for Dispute Resolution in Africa: Culture, Diversity, and Development; and Foreign Investment and Investment Arbitration in Africa.  Registration is required.  Seats are limited so early registration is suggested. For more details, or to register, visit this website.
  • On 11 March 2016 the FRAME workshop ´A global force for human rights? Assessing the EU´s comprehensive approach to human rights in crisis management and conflict´ will take place at the Law School of the University of Seville, in Seville (Spain), from 9 am to 7 pm. The workshop will consist of a keynote speech and two panels. The keynote speech is entitled “A Global Force for Human Rights? Preliminary Findings from the FRAME Project” by Prof. Dr. Jan Wouters. The first panel will deal with the applicable regulatory frameworks regarding human rights violations in conflicts and the protection of vulnerable groups. The second panel will discuss the integration of human rights and international Humanitarian Law (IHL) and democracy/rule of law principles and tools into the Common Security and Defence  Policy (CSDP) and missions and evaluating their impact on vulnerable groups. Speakers include Prof. Dr. Gerd Oberleitner, University of Graz/ETC Graz; Prof. Dr. Francesco Seatzu, University of Cagliari; Dr. Mikaela Heikkilä, Åbo Akademi University; Prof. Dr. Elisabeth Salmón, Pontificia Universidad Católica del Perú; Prof. Dr. Cristina Churruca, University of Deusto; Ms. Ines Thevarajah, Human Rights Focal Point at the CPCC (EEAS); and Mr. Gabino Regalado de los Cobos, Colonel, EUTM Mali. The provisional programme is here. It takes place 11 March 2016, from 9 am to 7 pm at the Law School, University of Sevilla, Av. Enramadilla 18-20, Seville (Spain). If you would like to attend the workshop, please register with Laura Iñigo via linigo [at] us [dot] es

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.

Russia’s Short-Sighted Approach to the Georgia Investigation

by Kevin Jon Heller

According to a recent article in Agenda.ge, Russia has announced that it will not cooperate with the ICC’s formal investigation into the situation in Georgia:

Russia’s Ministry of Justice issued a statement confirming it would not cooperate with the investigation, reported Russian media today.

Tbilisi was not surprised by Moscow’s decision. The Georgian side believed it would not be in Russia’s best interests for this case to be investigated.

Russian officials stated it would not collaborate with The Hague Court since the Russian parliament had not ratified the Rome Statue, which Russia signed in 2000.

“As of February 1, 2016, the Russia Federation has not ratified the Rome Statute of the International Criminal Court and the document has not come into power,” Russia’s Justice Ministry said.

[snip]

Earlier, spokesperson for Russia’s Foreign Ministry Maria Zakharova said Moscow was disappointed with ICC’s recent activities and would be forced to “fundamentally review its attitude towards the ICC”.

Zakharova said ICC prosecutor Fatou Bensouda had taken Georgia’s side and started an investigation aimed against Russia and South Ossetia.

“Such actions hardly reflect the ideals of justice,” she said.

Assuming the article is correct — and Agenda.ge is, of course, a Georgian news organization — the statement represents a rather baffling shift in Russia’s approach to the Georgia investigation. According to the OTP’s request for authorization to open the investigation, Russia generally cooperated with the ICC during the preliminary examination, including providing the OTP with 28 volumes of evidence concerning Georgian attacks on Russian peacekeepers in South Ossetia. Given that the Pre-Trial Chamber has authorized the OTP to investigate those attacks (para. 29), Russia’s cooperation seems to have paid off, at least to some extent.

More fundamentally, though, Russia doesn’t seem to have much to fear from the ICC. The OTP’s most sensational allegation is probably that Russia had “overall control” of South Ossetia’s forces during the 2008 conflict…