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The Strategic Social Construction of Cybernorms

by Duncan Hollis

A few years back, I was lucky enough to be invited by research scientists at MIT’s Computer Science and Artificial Intelligence Lab — especially the late Roger Hurwitz — to participate in a Minerva Grant project studying norms and governance in cyberspace.  In the interim, norms have become one of the hot topics in cybersecurity discussions in international fora. Together with Martha Finnemore, I began to think more about the processes by which norms work, including the ways they relate to international law.

I’m pleased to report that after a couple of years of research and thinking, Marty and I have the results of our work forthcoming in the American Journal of International Law:  Constructing Norms for Global Cybersecurity.  You can get a preview of the article on SSRN here.  And, for those looking to learn more about our piece, here is the abstract:

Cybersecurity now stands at the top of the U.S. security agenda. As sources of cyber insecurity have proliferated, States and other stakeholders have increasingly turned to norms as the regulatory tool of choice, hoping to shape the behavior of diverse actors in this space. Proponents of cybernorms have so far focused on what the new norms should say and on what behaviors they should require or prohibit. They have paid little attention to how new norms would actually work—how they could successfully be constructed and the processes by which they would create desired effects. In other words, they have paid a lot of attention to the “cyber” component of cybernorms but very little attention to the “norms” component and the issues of how normativity actually works in the world.

In this Article, we offer an inter-disciplinary analysis of the processes by which cybernorms might be constructed and some of the choices and trade-offs involved in doing so. We first situate the current discourse in the varying contexts surrounding cybersecurity. We define the norm concept and examine the diverse array of norms currently populating the landscape of cyberspace. We next draw on the rich body of work in social science about norm construction in other policy areas to understand how norms can be cultivated successfully and how they create effects, both intended and otherwise. Of course, if cyberspace is unique, lessons from other policy domains might not be applicable but we assess these arguments and find them unconvincing.

Our paper then unpacks some of the strategic choices facing norm promoters in their decisions on which norms are needed, who should conform to them, not to mention where and how they should do so. We do not prescribe a particular path for norm promoters, but rather emphasize the need to recognize and accommodate the consequences and trade-offs these choices involve. Our paper thus offers lessons for States, industry, civil society, and others interested in promoting norms in cyberspace. By situating our work in both international law and international relations, this paper also provides a case study of the strategic social construction of norms that offers both political scientists and international lawyers more information on how non-legal mechanisms could regulate global problems like cybersecurity.

Comments and thoughts on the article are most welcome as Marty and I are continuing to do more research and writing in this space.  Next up, is a project that assesses various ways to institutionalize a norm such as the duty to assist idea that I first called for a few years back.

 

Call for Submissions: International Law Weekend New Scholars and Practitioners Panel

by Chris Borgen

The American Branch of the International Law Association has sent us the following call for submissions for an “Emerging Voices Panel” that they have added to this October’s International Law Weekend. (Not to be confused with Opinio Juris‘ Fourth Annual Emerging Voices Symposium, which will be starting later this month).

ILW is an excellent conference and I am sure this will be a great addition:

International Law Weekend 2016: International Law 5.0

Call for Proposals for Emerging Voices Panel

Introduction

International Law Weekend 2016 (ILW 2016) calls on scholars and practitioners to address the accelerating nature of change in international law. From technological advances to environmental transformations, international lawyers are forced to confront emerging forces and new scenarios. Even settled principles of law are no longer settled. These tectonic shifts have been felt throughout the geography of international law. Legal professionals at every level – local, national, regional, and international – must change their practice to meet a changing world. Innovation will become necessary for survival.

Emerging Voices Submissions

ABILA invites the submission of abstracts from emerging scholars and practitioners in the field of international law.  We will select several abstracts for presentation at ILW 2016 as part of a panel of new professionals. The abstracts may be based upon ongoing work. While all submissions are welcome, preference will be given to papers not already published. Eligibility is restricted to applicants working in the field of international law for five years or less. Applicants should be ABILA members at the time of the conference.  (To join ABILA, please visit: http://www.ila-americanbranch.org/Membership.aspx.)

 Submission Guidelines

Applicants must submit: (1) a 500-700 word abstract of their paper; (2) a cover letter describing their professional development; and (3) a curriculum vitae. The submission deadline is July 31, 2016. Submissions should be sent to conferences [at] ilsa [dot] org with the subject line “Emerging Voices – ILW 2016.” Questions may also be submitted to: conferences [at] ilsa [dot] org.

Submissions will be competitively selected in a peer review process.  Applicants will be notified by August 31, 2016.

ILW 2016 is scheduled for October 27-29, 2016 in New York City and will be held at Fordham Law School. Accepted applicants will be invited to present their papers at the Emerging Voices panel, which will be chaired by a senior scholar or practitioner. Accepted applicants will be required to pay for their own travel and lodging. However, their registration fees for ILW 2016 will be waived.

The Chilcot Report and the Doctrine of Humanitarian Intervention

by Frederick Cowell

[Dr. Frederick Cowell is a Lecturer in Law at Birkbeck College, University of London School of Law.]

On the 6th of July the UK’s Iraq Enquiry report was finally published having taken almost seven years to complete. The process,  chaired by a leading former British civil servant, Sir John Chilcot, aimed to look at the causes and consequences of the 2003 Iraq War from the perspective of the British government. Since it was a public and not a judicial enquiry, it did not pronounce on the legality of the war but, as Sir John said in his press conference on the report, on “the circumstances under which the UK decided there was a legal basis for war were far from satisfactory.” The report raised a number of different legal issues but perhaps the most intriguing feature of the report is the implication for the doctrine of humanitarian intervention.

The 2003 Iraq war was not politically ‘sold’ on the basis of humanitarian intervention. UN Security Council Resolution 1441 (.pdf) spelt out the terms for further weapons inspections in Iraq following the weapons inspections that had been on and off since the 1991 Gulf War. The legal advice to invade Iraq that was presented to the British Cabinet on the 11th of March 2003 was based on the argument that earlier legal authority had been ‘revived’ (Vol. 6 paragraph 690 onwards [.pdf]).  This argument was somewhat overstretched and was criticised in an earlier section of the report which doubted the idea that states had a “residual right” to unilaterally enforce UN Security Council resolutions. As Dinos Kritsiotis (.pdf) argued, applying Nicaragua v US (.pdf) to the case for operation Iraqi freedom, it is important to distinguish the legality of the overt political justification for war and the legal basis for the use of force. In the 2003 Iraq War the overt legal basis for use of force under the UN Charter was highly flimsy and dependent on a stretched reading of the right to use military force under Article 42 of the UN Charter.

Though the Chilcot report did not expressly rule on the legality of the use of force the legality of regime change is a somewhat different question. As Gerry Simpson noted the notion of regime change is difficult to justify under the principles of self-defence, not least because the UK and US opinions on the validity of this argument radically diverged. The question of regime change on ideological grounds is prohibited, as the ICJ made clear in the Nicaragua judgment, but humanitarian intervention to remedy human rights abuses had, prior to Iraq, received some degree of acceptance not least when the Kosovo Commission concluded NATO’s 1999 air war was “illegal but legitimate.”  The concept of a Responsibility to Protect (R2P) was still two years away in 2003 and even when the doctrine was developed in the late 2000s it was careful not give outright support for intervention absent Security Council authorisation. The 2010 Secretary General’s report on the Responsibility to Protect was critical of humanitarian intervention saying that it “posed a false choice between two extremes: either standing by in the face of mounting civilian deaths or deploying coercive military force to protect the vulnerable” (UN SG Report 2010 Para 7). Two principles from the R2P doctrine which have often guided arguments about humanitarian intervention – is there a human rights abuse and would the intervention remedy that abuse – provide a prism through which to view the report’s findings and their relation to the doctrine of humanitarian intervention.

The human rights abuses committed by Saddam Hussein’s regime were, as the report details, a central part of the case being made by the British Government during late 2002 (see Volume 2, Section 3.4 paragraph 331). Crucially, however, this was largely secondary to the overall aim of regime change. Where the British were concerned about Saddam Hussein’s human rights abuses it was in connection to gathering evidence to prove the instability of the regime more generally (see Volume 2, Section 3.2 Paragraph 575). Kenneth Roth was fairly clear in his assessment in 2006 that human rights abuses, such as the 1988 massacre of Kurds, would not add up to a sufficiently immediate threat to justify the invasion of Iraq in 2003 in order to prevent such abuses occurring.  Indeed whilst it was clear in pre-war Cabinet meetings that Saddam was, in words of the former UK Foreign Secretary Robin Cook, “a tyrant” and a “shit,” this was not the motivation for invasion, nowhere in the Chilcot report is there a mention of a specific human rights abuse that the invasion is designed to stop. Michael Walzer in 2012 drew a distinction between intervention for purposes of relief (to stop a genocide) and purposes of repair (to change a regime) indicating that the former may still be defensible post-Iraq.

With regard to the second principle the Chilcot report was highly critical of all levels of post invasion planning noting systemic failures in several areas including the preparation of basic resources to provide security post invasion and any real plan for civil contingency in the aftermath of the invasion.  This was causally linked to the violence that broke out after the invasion leading to many thousands of civilian deaths. Kier Starmer, a former public prosecutor and now Labour Party Member Parliament, in a thoughtful piece reflecting on the Chilcot report’s findings suggested that a post-conflict plan ought to be a legal requirement for any future intervention. This helps resolve one tension at the heart of humanitarian intervention what JL Holzgrefe  described as ‘act utilitarianism’; the otherwise illegal act can be justified for its maximisation of welfare. But there is a need to actually deliver on this promise of welfare, otherwise the argument fails. This clearly was not the case in the 2003 Iraq War, as the report outlined.

Whilst not expressly commenting on the concept of humanitarian intervention the Chilcot reports findings leave little doubt that the 2003 Iraq War cannot be justified under this doctrine. The attempts by supporters of the war to frame the conflict in retrospect as a form of quasi-humanitarian intervention, examining Saddam’s appalling human rights record or the prospect of further abuses, are missing the point; the type of war launched in 2003 could not be justified under any reasonable understanding of the doctrine of humanitarian intervention, and the findings of fact in the Chilcot report support this interpretation.  The report’s finding will shape the understanding of the most contested conflict of the last half-century and the one that colours all subsequent debates on the doctrine of humanitarian intervention.

The Lawfare over South China Sea: Exceptional Rules vs. General Rules

by Liu Haiyang

[Liu Haiyang is a research fellow at the Collaborative Innovation Center of South China Sea Studies, Nanjing University, China. This post was submitted to Opinio Juris under the auspices of the Chinese Initiative on International Law, an NGO with a mandate of promoting a better understanding of international law, particularly international criminal law and justice.]

The ad hoc Arbitral Tribunal established under the request of Philippines issued its final award on 12 July 2016. The lawfare over the legal effect of the verdicts of the Tribunal between China, on one side, and the United States with its allies and partners behind the case, on the other, will change focus from the legality of jurisdiction concerning the preliminary award to the legal consequences of the final award.

Although the U.S. is not a party to the present case, it seemed well prepared for the decision. Besides a significant increase of military presence and operations, with more warships and aircraft in the South China Sea, the U.S. and its allies have also loudly raised their voices to urge China to respect the final decisions of the said arbitral tribunal. The general tone of the criticisms suggests that China’s non-compliance with the final ruling would amount to non-compliance with international law and as well as a show of contempt for the international rule of law. For its part, China has also stepped up its media campaign to defend its position of non-recognition of any ruling by the tribunal through more diplomatic efforts and academic symposiums.

While both sides may hype up or downplay the legal consequences of the ruling, the heart of the question is the legal effect of the arbitral ruling in international law. To be more specific, is the award legally binding? How could the decision of an arbitral tribunal be implemented in international law? Is the non-recognition and non-implementation of the decision of an arbitral tribunal equivalent to non-compliance with international law? These are questions that need to be addressed.

In general, once an arbitral award has been made, it is final and binding upon the parties. That is the reason why the mainstream international understanding, misdirected by the U.S., is that the South China Sea arbitral award is binding upon China. However, there is an exception to the rule. In certain circumstances the award itself may be regarded as a nullity. It is fairly generally accepted under international law that the excess of power may be treated as a nullity. That’s exactly the position taken by China: that the arbitral tribunal exercised jurisdiction ultra vires and any of its decisions have no legal effects. In particular, the disputes between China and Philippines are either sovereignty disputes over islands, which are not governed by the UNCLOS, or disputes concerning maritime delimitation, which are excluded by China through a 2006 declaration based on Article 298 of the Convention. However, those exceptional rules are fully understood only by a small group of legal experts, and the general public only knows general rules. This put the U.S. in a good position to hype up the binding force of the award as a general rule, while China has an uphill battle to explain to the international community why the award has no legal effects as an exceptional rule. The U.S. and its allies will surely make full use of this advantage to put consistent international pressure on China to abide by the award.

Even supposing an arbitral award is binding on both parties, how to enforce it is another issue. In general, the success of arbitration depends on the goodwill between the parties in actually enforcing the award. Unlike in a domestic legal system, which has a central government to enforce the law, there is no such world government above states to enforce international law. The only exceptional case lies with the International Court of Justice (ICJ). Under article 94 of the UN Charter, one party may have recourse to the Security Council, which may enforce the decisions. However, the present case was decided by a 1982 UNCLOS Annex VII arbitral tribunal and the decision could in no way be enforced by third parties. Under article 12 of the UNCLOS Annex VII, “Any controversy which may arise between the parties to the dispute as regards the interpretation or manner of implementation of the award may be submitted by either party for decision to the arbitral tribunal which made the award.” Also, “[a]ny such controversy may be submitted to another court or tribunal under article 287 by agreement of all the parties to the dispute.”

Finally, does the arbitration award per se amount to international law, so that the non-recognition and non-implementation of the award is equivalent to non-compliance with international law? It is common sense among international lawyers that, under article 38 of the Statute of the ICJ, the sources of international law are composed of international treaties, international customs, and general principles of law and judicial decisions can only be utilized as a subsidiary means for the determination of rules of law rather than as an actual source of law. However, the U.S. may again make use of the gap between the understanding shared by small group of legal experts and the general public’s misunderstanding of international law so as to label China’s non-recognition of the award as non-compliance with international law.

In fact, neither the U.S. nor the Philippines has much credibility in this regard. The U.S. is the least qualified state to criticize China on this point, as the U.S. is the only country that used veto power in the UN Security Council to prevent the enforcement of the ICJ decision in Nicaragua case. Notwithstanding this clear defiance of international judicial decisions, many U.S. politicians and scholars are echoing the same voice that China would dishonor international rule of law in the sense that China does not recognize the award. Even the Philippines has been inconsistent in its respect for international arbitration, holding in the present case that a arbitral tribunal’s decision in Southern Bluefin Tuna case was wrongly decided. It is questionable whether the Philippines’ dishonoring of an arbitral decision amounts to non-compliance of international law. While it is not meant to make a tu quoque argument here, the position of the U.S. shows a clear sign of a double standard.

For its part, the best approach for China to win this lawfare is to tell its side of the story regarding the general rule versus exceptional rule. There is still a long way to go for China to pierce the legal veil covering American political trickery.

Dear Taiwan: The PCA Ruling Does Not Threaten Your Control Over Taiping Island

by Julian Ku

Itu Aba Island, also known as Taiping Island, is one of many disputed islands in the South China Sea. The island is administered and occupied by the Republic of China, but other countries, including Vietnam, the Philippines and the People’s Republic of China, also claim sovereignty. The site for the naval frigate terminal will likely be the area of the existing harbor, which is notably the only section with shipping access to the island through the coral reef.Much to many observers’ surprise, the first country to take aggressive action in response to the UN Convention for the Law of the Sea tribunal’s award this week was Taiwan.  New Taiwanese President Tsai Ing-wen’s government issued a blistering statement stating that the arbitral award was unacceptable and that it has no “legally binding force on the ROC.” It noted that the tribunal ruled that Taiping Island and other Spratly land features were rocks rather than islands.   “This decision severely jeopardizes the legal status of the South China Sea Islands, over which the ROC exercises sovereignty, and their relevant maritime rights.”

More significantly, President Tsai moved up the departure date of an ROC naval ship that was scheduled to conduct a patrol in that region.  In a speech made before the departure of the ship, she announced that the frigate was being dispatched to display Taiwan’s resolve in defending its national interests.  She further warned that the arbitral award had “gravely harmed” Taiwan’s rights in the South China Sea.

Tsai’s remarks were disappointing for those looking for the new president to moderate Taiwan’s expansive South China Sea claims. In fact, her statement was usefully trumpeted by the Chinese government and media as a sign of cross-strait Chinese solidarity.

I have never understood the Taiwanese government’s obsession with maintaining its expansive claims in the South China Sea.  It is a waste of government resources to protect a fishing industry that doesn’t really deserve so much protection.  I am particularly surprised that the current Taiwan president is acting so aggressively to protect Taiping Island’s status as an “island” under UNCLOS entitled to an exclusive economic zone.  As far as I understand it, Taiwan has not actually tried to enforce an EEZ around Taiping Island, nor has it tried to exploit any hydrocarbons or minerals in the EEZ.  So as a practical matter, the award will not require the Taiwanese government to change its policy much at all.  There is no “grave harm” to Taiwan’s national interests here.  In fact, the award should have almost no meaningful practical effect on Taiwan at all.

So why the big fuss? It is possible that Tsai is using the South China Sea issue to build a little goodwill in China.  It is also possible that Tsai is feeling pressure from legislators in Taiwan who have been accusing her of failing to adequately protect Taiwan’s interests in the South China Sea.  One former legislature even accused her of planning to lease Taiping Island to the U.S.

All of this is a missed opportunity.  Tsai could have issued a statement saying that Taiwan “respects” the ruling even though Taiwan is not bound by it. She could have then said that Taiwan will act in conformity with the award.  This would have required Taiwan to do nothing new, give up nothing at all. It would have curried favor for Taiwan in the international community, a place it desperately wants to be part of and needs the support of. Being the only country (?) in the world that sides unequivocally with China on this award is not a good look for Taiwan.  One hopes the Tsai government will re-think its approach.

Will Today’s Blockbuster South China Sea Award Save or Destroy UNCLOS Dispute Settlement?

by Julian Ku

I have been mildly obsessed with the dispute between the Philippines and China for over three years now. It touches on so many areas of my research interest: international courts, China, and the UN Convention of the Law of the Sea. So I am almost sad that the dispute, at least for legal purposes, finally ended today with the arbitral tribunal’s sweeping award in favor of the Philippines.

Since the beginning of the arbitration process, I have wondered what the impact of China’s boycott would be on the future viability of the UNCLOS system of dispute settlement. For the first two years of the dispute, I was skeptical that China would suffer any meaningful damage from defying the UNCLOS arbitral system. Thus, I wondered if, combined with Russia’s almost cavalier defiance of an ITLOS proceeding involving Greenpeace, the end result in this process would be a toothless UNCLOS dispute settlement process of little value or significance. This was one of the reasons I sharply criticized the Philippines for adopting a fruitless “lawfare” strategy.

Time will tell, but early reviews point to me being wrong. China is much more vulnerable to “shamefare” than I had imagined. The evidence for China’s vulnerability lies, I think, in the extraordinary over-the-top global public relations campaign to denigrate and delegitimize the award before it was even issued. If China thought the award would have little impact, it would not have dragooned its diplomatic service, its state-run media, and even its civil society into a huge, sometimes nasty PR effort against the award.

Still, the game must run its course. The key is how other nations not named the Philippines or the U.S. react to the award. If most key nations, including China’s regional neighbors, follow the line set out by the U.S. and call upon China to comply with the award, then China’s isolation on this issue will be significant.   The G-7 is expected to follow this path, and it is possible that Vietnam, Malaysia, Singapore, and Indonesia will do so as well. If South Korea, Australia, and India can also be brought on board, then China will have suffered a diplomatic as well as a legal defeat. Why? Because any aggressive Chinese action to respond to the award, such as by militarizing its artificial islands or even building new ones, will be framed as a further violation of China’s international obligations. China will have its own mini-Crimea crisis, and it will be hard for it to gain legitimacy for its actions.

On the other hand, no matter how many government press releases denounce China, it is hard to imagine China ever complying with the award. It can’t, even if it wanted to, since it has locked itself into a rigid public position against the award in front of the world and its own people. So the arbitral award will go unenforced and unimplemented for the foreseeable future. No matter how you slice it, an unenforced award is not a sign of a strong and effective legal system. UNCLOS dispute settlement can be ignored, not without cost, but certainly it can be ignored.

On balance, however, the UNCLOS system seems to have been strengthened by today’s ruling. The U.S. and other key countries seem to have rallied in support of it, and the tribunal’s findings seem to carry a fair amount of credibility with most governments. Indeed, the U.S. now seems to endorse the UNCLOS dispute settlement system with more vigor than one might expect for a non-party. It seems that UNCLOS dispute settlement will survive in a post-Philippines v. China world after all.

The South China Sea Arbitration is Here! And China Will Not Be Happy

by Julian Ku

The much-anticipated long awaited South China Sea Arbitration award on the merits is here!  It is a slam-dunk, complete, utter, massive, total legal victory for the Philippines on all counts (lots of metaphors here, none are quite sufficient). Essentially, the tribunal ruled in favor of almost all of the Philippines’ claims in the arbitration.  Perhaps the most headline friendly result: The Nine Dash Line has been ruled inconsistent with China’s obligations under the UN Convention on the Law of the Sea.

I have been mostly reacting on twitter this morning, and I am working on some related posts here and elsewhere. This case brings to an end the long process initiated by the Philippines back in 2013 (links to my discussion of them are below).  We will be discussing and debating the impact of this award for a while.

Weekly News Wrap: Monday, July 11, 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 Overseas Development Institute (ODI) warned in a report that slow implementation of the U.N.’s global goals, the Sustainable Development Goals (SDGs), would stall advances against rising global inequality.
  • Candidates for the United Nation’s top job will for the first time in the organisation’s history hold a live debate, which will be broadcast live to audiences worldwide on television and digital platforms.

Multi-Blog Series: The Role of the ICRC Commentaries in Understanding International Humanitarian Law

by Jessica Dorsey

In the second installment of episode 1 in this multi-blog series on the updated Commentaries, Professor Sean Murphy responds to Jean-Marie Henckaerts first post on locating the commentaries in the international legal landscape.

Sean D. Murphy, Professor of International Law at George Washington University and Member of the U.N. International Law Commission, considers the role of the ICRC commentaries as a matter of treaty law, customary international law, and practical lawyering.

Taiz, Yemen - Two men drive through the area, where snipers have been present since the intense hostilities started there. ©Wael Al Absi/ICRC

Taiz, Yemen–Two men drive through the area where snipers have been present since the intense hostilities started there. ©Wael al Absi/ICRC

Read the full post on the Intercross Blog and stay tuned for the third installment, coming soon.

This series is brought to you by ICRC’s Humanitarian Law and Policy Blog, Intercross and Opinio Juris.

How Not to Lie Convincingly About the ICC

by Kevin Jon Heller

Did you hear the one about Judge de Gurmendi, the President of the ICC, taking bribes for from 2004 on to ensure Omar al-Bashir’s indictment?

The president of the International Criminal Court (ICC) is facing calls to resign after it emerged that she may have received financial rewards said to be in millions of dollars to ensure the indictment of Sudanese President Omar al Bashir.

Information reaching The London Evening Post here say that between 2004 and 2015, Argentinian-born ICC President Judge Silvia Alejandra Fernández de Gurmendi allegedly received into her private bank accounts at Banco Popular in the Virgin Islands, the First Caribbean Bank in the Bahamas and the Congregation B’nai Israel unexplained funds mounting to over US$17million that was allegedly used to bribe witnesses that enabled the ICC to indict the Sudanese leader.

The funds are alleged to have been channelled through Judge de Gurmendi’s accounts by Barting Holding Ltd, Atlantic Corporation, Genesis International Holdings and Napex International, all of which are offshore financial companies, who allegedly made wire transfers ranging from US$150,000-US$250,000 to the judge’s bank accounts. It is alleged that these funds were made available to Judge de Gurmendi during the time that President Bashir was under investigation and the ICC was looking for evidence to indict him.

It has been further alleged that funds channelled through Judge de Gurmendi’s accounts were allegedly distributed by her to groups in Darfur including the Sudan Liberation Movement, formerly the Darfur Liberation Front founded by Abdul Wahid al Nur and others in 2002. Appointed ICC President in March last year, de Gurmendi is alleged to have used the funds to ‘recruit, coach and fake evidence and witnesses to testify against President Bashir’.

You have to admire the skill of the bribers. Judge de Gurmendi didn’t become a judge at the ICC until 2010 — long after the first arrest warrant for al-Bashir was issued.

NOTE: Judge de Gurmendi was the head of the Jurisdiction, Complementarity, and Cooperation Division in the OTP from 2003-2006. But nearly four years passed from the end of her tenure to the issuance of the first arrest warrant for Bashir. So my sarcasm above stands.

Is the Requirement That Crimes Against Humanity Be Committed Against a “Civilian Population” Really Necessary?

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.]

For a crime to amount to a crime against humanity, it must be shown to have been part of a bigger picture, namely part of a widespread or systematic attack against a civilian population. The requirement that an attack be against a “civilian population” has created some uncertainty as to whether persons who are hors de combat can be victims of the crime.

Case law is peppered with discussion as to whether those who are hors de combat are “civilians” or constitute members of the “civilian population” for the purposes of crimes against humanity. Careful examination of this jurisprudence reveals that international criminal courts and tribunals, particularly the ad hoc tribunals, have taken different approaches to this issue.

The International Criminal Tribunal for the former Yugoslavia’s (ICTY) case law has taken a meandering path. Some cases have endeavoured to include those who are hors de combat within the notion of “civilian” (see for example, Kordić and Čerkez (.pdf), para. 421), whereas others have sought to include them within the notion of “civilian population” (see, for example, Naletilić and Martinović(.pdf), para. 235). The issue was ultimately resolved by the ICTY Appeals Chamber in two cases: Martić (.pdf) and Mrškić (.pdf). The Trial Chambers in both cases (rightly) held that persons hors de combat are not civilian for the purposes of Article 5 of the ICTY Statute (the provision of the Statute concerning crimes against humanity). This was confirmed on appeal. However, both Appeals Chambers held that the chapeau requirement of Article 5 does not require that the individual criminal acts be committed against civilians, but rather that it serves to emphasise the collective nature of the crime. Thus, providing the chapeau requirement is fulfilled, and that there has been a widespread and systematic attack against a civilian population, individual victims who are hors de combat can be victims of the crime (Martić Appeal Judgment paras 303-314; Mrškić Appeal Judgment, para. 33).

The International Criminal Tribunal for Rwanda (ICTR) has taken a different approach. In Akayesu (.pdf), the Trial Chamber found that persons hors de combat are members of the civilian population for the purposes of crimes against humanity.  This finding was followed, with zero to minimal discussion, in subsequent cases before the tribunal.

The different approaches of the ad hoc tribunals on this matter can lead to very different outcomes. Adopting the ICTY’s approach means that an attack directed purely against persons hors de combat does not amount to a crime against humanity. Indeed, this was found to have been the case in Mrškić, where the attack had been solely against the persons who were hors de combat and did not form part of a wider attack against a civilian population. The Appeals Chamber held that the attack did not therefore amount to a crime against humanity.

Following the ICTR’s approach, on the other hand, would mean that persons hors de combat are included within the notion of “civilian population” and constitute victims of the crime even if the attack is only against them.  Thus, the persons hors de combat in the Mrškić case would have been eligible victims of the crime.

If one weighs up the two different approaches, the ICTY’s presents itself as being the most logical and thoroughly considered. Nevertheless, it leaves a certain amount of dissatisfaction, and it makes one wonder whether there is a need for a “civilian population” element within the definition of crimes against humanity at all.

As it stands at the moment, following the ICTY approach at least, the civilian population requirement means that attacks that are purely against persons hors de combat cannot amount to crimes against humanity. Certainly, such acts could be prosecuted as war crimes, as indeed happened in the Mrškić case, but this fails to adequately reflect the gravity of the offence, and ignores the symbolic nature that a charge of crimes against humanity has.

The reference to “civilian population” does help to emphasise the collective nature of the crime, but this is arguably adequately reflected in the “widespread or systematic attack” element.  Future definitions of the crime could omit reference to a “civilian” population in the chapeau requirement, replacing it with “population.” Naturally, any court interpreting the chapeau requirement would have to bear IHL in mind and ensure that legitimate attacks against military personnel were not erroneously found to be crimes against humanity.

The “civilian population” requirement should no longer be considered a necessary element to find an act is a crime against humanity. Discarding the civilian population” requirement would mean that attacks that are purely against persons hors de combat can be prosecuted as crimes against humanity and can receive the recognition they deserve.

Reminder: Emerging Voices Submissions Deadline is July 6!

by Jessica Dorsey

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

If you are a doctoral student or in the early stages of your career (e.g., post-docs, junior academics or early career practitioners within the first five years of finishing your final degree) and would like to participate in the symposium, please send a draft blog post somewhere between 1000-1500 words and your CV to opiniojurisblog [at] gmail [dot] com by July 6, 2016.

Submitted posts will then be reviewed by our editors. We’ll let you know by mid-July if your post will be included. Final essays will be posted on Opinio Juris in mid July through late August.

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