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Some Reflections on the Bemba Appeals Chamber Judgment

by Alexander Heinze

[Alexander Heinze is an Assistant Professor at the Department of Foreign and International Criminal Law, Institute for Criminal Law and Justice, Georg-August-Universität Göttingen. He is the author of the book “International Criminal Procedure and Disclosure” (Duncker & Humblot, 2014).]

In less than a month’s time, the International Criminal Court (ICC) will celebrate its 20th anniversary. Distinguished speakers will be calling into mind that the ICC was first and foremost a Court for victims – and then they will be expressing their condemnation of the recent acquittal of Jean-Pierre Bemba from the charges of war crimes and crimes against humanity, as did the recent blog posts here, here and here. It goes without saying that every aspect of the Majority Judgment, the Separate Opinions and the Dissenting Opinion deserves its own publication. However, since the ICC Prosecutor already issued a press statement strongly criticizing the Majority Judgment, and the above mentioned blogposts – written by authors who are or were affiliated with the ICC’s Office of the Prosecutor – bemoan, without waiting for the publication of Judge Eboe-Osuji’s Separate Opinion, a “lack of clarity, retroactive application of new law, and negative consequences in this and future cases”, “extremely negative consequences for the institution”, or fuel resentments by stressing that “the Court ruled that he could join his family in Belgium while he awaits sentencing in that case” (citing BBC News and adopting the report’s almost exact wording instead of referring to the actual Court decision, where Bemba’s family ties in Belgium are provided merely as a side information in a half sentence), the purpose of this blog entry is to bring the discussion back on the legal track.

With regard to the standard of review, the minority employs an approach that is well known before International Criminal Tribunals, i.e. an Appeals Chamber would only interfere where the Trial Chamber’s appreciation of the facts was wholly unreasonable, that is, where it “cannot discern how the Chamber’s conclusion could have reasonably been reached from the evidence before it” (Dissenting Opinion, para 9). While this approach carries the idea of a margin of deference to the factual findings of the Trial Chamber, the majority views this idea “with extreme caution” (Majority Judgment, para. 38). Even though the majority does support the standard of reasonableness, it clarifies that this standard “is not without qualification” (para. 41; more critically Separate Opinion Eboe-Osuji, para. 72). Thus, the majority opines it may interfere with the factual findings whenever the failure to interfere may occasion a miscarriage of justice. It had the right to deviate from the conventional approach, due to the fact that the ICC “may” but does not have to “apply principles and rules of law as interpreted in its previous decisions” (Art. 21(2) ICC-Statute – Judge Eboe-Osuji justifies the deviation also through a contextual interpretation of Art. 83(1) ICC-Statute, which seems to stretch the ratio of that provision a little too far). The application of the concrete standard of review is then a policy decision (in the same vein Separate Opinion Eboe-Osuji, para. 46) and there are good arguments for both sides (consistency of Appeals Chamber decisions and not turning appeals proceedings into a second trial vs. protection of the rights of the accused and avoiding to “consign the fate of a convicted person to the undoubted good faith of the Trial Chamber whose verdict of conviction has been appealed” (Separate Opinion Eboe-Osuji, para. 11)). There is another argument in favour of the broad approach of the majority: the ICC Appeals Chamber is not a national appeals court. There is no external review mechanism with regard to the rights of the Defendant as we know it in national jurisdictions, where a convicted person can still make an application to a regional human rights body for an infringement of his or her fair trial rights. There is also no Constitutional Court Chamber, as we know it from the Kosovo Specialist Chambers (see my blogpost here). The Appeals Chamber is very much the end of the road. It is therefore illogical when the Prosecutor in her press statement uses this fact as an argument for a “cautious approach to appellate review”. Shouldn’t it be the opposite? When there is no further appellate or revisionary body, the standard of review of the Appeals Chamber needs to be designed in a way that protects the rights of the accused most effectively. Judge Eboe-Osuji’s reasons why he thought following the conventional standard of appellate was especially inappropriate are illuminating. Everyone who evaluates the Majority Judgment as a particularly grave form of arbitrary decision making should read them in total. It is telling that even Judge Eboe-Osuji’s he leaned towards referring the case back to the Trial Chamber, he evaluated the evidential analysis by the Trial Chamber as so flawed that he preferred an acquittal over an inconclusive judgment.

The controversy around the standard of review continues in the question of how the charges must be framed and confirmed so that a conviction does not exceed the charges (Article 74(2) ICC-Statute). Bemba was convicted partly based on individual acts of murder, rape and pillaging committed against particular victims at specific times and places that had not been confirmed in the Confirmation Decision. The Trial Chamber argued that the Pre-Trial Chamber’s Confirmation Decision was broad enough so that new allegations could be included without a new Confirmation Decision. The question therefore was: How concrete must the charges be and how much evidence must the Prosecutor provide? Is it acceptable to formulate them in such a broad fashion that – exaggerated – the Prosecutor can add criminal acts whenever she wishes to do so, with leave of the Trial Chamber after the trial has begun? The minority answers this in the affirmative, which is nothing unusual from a domestic law point of view. The prosecutor enjoys discretion in formulating the charges and that rightly so. The burden of proof in the confirmation proceedings is “substantial grounds to believe that the person committed the crime” (Article 61(5) ICC-Statute) – a standard that is lower than the burden required for a conviction (“beyond reasonable doubt”). Nevertheless, even in national proceedings the opening of an investigation against a suspect and the subsequent charging creates a considerable stigma. This is all the more true in an international context where everything, especially worldwide media attention, is potentiated. The least that can be expected in that situation is a clear and fairly strict formulation (and confirmation) of the charges. The majority therefore rightly states: “Simply listing the categories of crimes with which a person is to be charged or stating, in broad general terms, the temporal and geographical parameters of the charge is not sufficient” (para. 110). Judge Eboe-Osuji concurs with this opinion, even though he disagrees with Bemba that a Trial Chamber was in principle precluded from amending the indictment after the commencement of trial, employing a teleological and contextual interpretation of Art. 74(2) ICC-Statute (in conjunction with Article 69(9)) (Separate Opinion Eboe-Osuji, paras. 118-134).

Taking both procedural questions together, it is certainly fair to say that they address the interpretation of procedural rules that can work both ways with the better arguments for the majority. This also applies to the main substantial question, the requirements of command responsibility. To make this crystal clear: No one affiliated with the implementation of International Criminal Law has an interest that leadership-level- or mid-level perpetrators go free despite their criminal responsibility while their subordinates commit unimaginable atrocities. However, the concept of individual criminal responsibility for violations of humanitarian and human rights norms is universally recognized. There should be no situation in international criminal adjudication today where this self-evident principle needs special emphasis. And yet, the catchphrase “crimes did not commit themselves” is carried like a torch through social media and even the blogosphere (see here) to light fires of outrage and open resentment to the Appeals Chamber and its majority Judges. Again, even the Prosecutor could not resist the temptation of an emotional rejection of the Appeals Chamber’s majority view, instead of entering a self-critical analysis of its work.

In contrast to the minority opinion, it found that Bemba took all necessary and reasonable measures to prevent or repress the commission of crimes by applying a rather realistic set of criteria: Bemba was a “remote commander” with “non-linear command” in a foreign country (Majority Judgment, para. 171) and therefore faced limitations in controlling his troops. The minority disagrees: Even though Bemba as a remote commander faced “logistical difficulties” (Dissenting Opinion, para. 57), the evidence showed that it was possible to overcome these difficulties. The majority generally was of the view that a commander cannot be expected to do the impossible, taking any preventive measure, no matter how unrealistic they would be. Instead, the formula of the majority is rather clear, echoing the principle of individual criminal responsibility:

“The trial chamber must specifically identify what a commander should have done in concreto. Abstract findings about what a commander might theoretically have done are unhelpful and problematic, not least because they are very difficult to disprove” (Majority Judgment, para. 170).

Moreover, what a commander should have done in concreto is not for the accused to show, but for the Trial Chamber. When determining whether the measures the commander had taken were necessary and reasonable, the motive to counter public allegations and rehabilitate the public image of the subordinates does not intrinsically render the measures “any less necessary or reasonable” (Majority Judgment, para. 177; Separate Opinion Eboe-Osuji, para. 16) – even though the commander is required to act in good faith in adopting such measures and must show that he “genuinely” tried to prevent or repress the crimes in question or submit the matter to the competent authorities. Again, these legal aspects require much closer analysis than this, as has been done with the latter aspect (Bemba’s motivation) here.

Considering the remarks of the majority and reading the separate opinion, it becomes clear that the Defense’s call for a more realistic approach to command responsibility that takes into account the specific operative situation of the commander has been heard, at least by the majority of the chamber. Judge Eboe-Osuji’s very detailed and thorough engagement with the arguments brought forward by Defense Counsel show how much of an impact the actual hearing had on the majority’s opinion (read, for instance, para. 247: “It was wise, indeed, of Ms Gibson to have readily accepted the endangerment rationale on behalf of the Defence during the oral hearings. Notably, however, co-counsel Mr Newton, was not as forthcoming. […]). The separate opinion touches upon further controversial criteria of command responsibility that are certainly noteworthy from an academic point of view, even though they are not part of the majority judgment but rather an obiter, since there was apparently no consensus between the judges in that regard. For instance, the separate opinion of Judges van den Wyngaert and Morrison provides an excellent analysis of the subjective element in Article 28, explaining why it matters whether the accused is charged with/convicted of “knowing” the crimes of his/her subordinates or “should have known” the crimes – both standards trigger different obligations for the commander and must therefore be proven differently, what made the Trial Chamber’s notice under Regulation 55 of the Regulations of the Court to characterize the charges from “knowledge” to “should have known” defective (Separate Opinion, para. 39). The minority, by contrast, saw no harm in that, based on a “unitary standard for the mental element” (Dissenting Opinion, para. 266).

The fundamental differences about a possible causation element mirror the unclear legal nature of Art. 28. This unclear legal nature is best captured by Judge Eboe-Osuji, whose journey through the familiar classifications of Art. 28 as dereliction of duty on the one hand and accomplice liability on the other hand leads him to the rather surprising destination of command responsibility as “endangerment liability”: Since armed conflicts are “notoriously dangerous”, Art. 28 seeks to “protect innocent victims from the risk of the excesses that is so notoriously a feature of armed conflicts” (para. 243). Thus, it was not necessary that the defendant’s conduct caused the actual; proof of the creation of danger was sufficient “in the sense that the commander’s complicity in the subordinates’ crimes originated when (s)he created or fostered the danger of the subordinates’ criminality (by training them, arming them and/or deploying them, so as to be able to commit those crimes), and that complicity was consummated when (s)he failed to exert authority (that was effectively available to be exerted) properly to prevent or repress the crime (including through punishment), when s(he) knew (or should have known) that the subordinates were committing or about to commit such crimes.” (para. 251). This is indeed a novel approach, reminiscent of the theory that complicity was a crime of endangerment (as proposed in Germany by Herzberg, Goltdammer’s Archiv für Strafrecht 1971, pp. 1 et seq.). It is for another publication to enquire whether this theory can and should be transferred to command responsibility. The Dissention Opinion and Judges van den Wyngaert and Morrison in their Separate Opinion follow the conventional path of this debate: While the former justifies the causation element in convincing fashion, the latter rejects it based on the argument that it was “not possible that an omission after a fact has occurred (that is, failure to refer criminal behavior to the competent authorities) causes this fact”. This might be true but is a too easy escape route. In case the crimes have already occurred, it is indeed hard to construct an omission. However, viewing the omission with regard to future crimes that might be committed as a result of it, a “hypothetical” or “quasi”-causation can indeed be construed. Unsurprisingly, the separate opinion rejects the view that the commander’s omission can increase the risk of the commission of crimes, as it was held by the Judge Steiner in her Separate Opinion to the conviction decision (Separate Opinion Steiner, para. 19). This rejection seems to be based on a misunderstanding of that view when Judges van den Wyngaert and Morrison opine that the failure of the commander to act does not increase the risk but “[t]he responsibility of the commander is precisely to decrease the risk that his/her subordinates will commit crimes. Failing to reduce a risk can hardly be seen as causing the manifestation of said risk.” However, the theory of increasing risk (see esp. Ambos, in: Stahn (ed.), The Law and Practice of the ICC, 2015, pp. 603 et seq.) is exactly about the question, whether the ex ante formulated norm, even when viewed ex post, still appears to contain a prohibition that reduces the actual harm. Thus, of course the norm in itself is about harm reduction, while the act might increase it. The minority view – by contrast – takes this into account and justifies the causation element in convincing fashion.

In sum, in a very narrow decision, the majority of the Chamber did what it is supposed to do – review a Trial Chamber decision on the basis of the law. It goes without saying that it would be inappropriate to applaud this decision as a victory of criminal doctrine and procedural sophistication. There are no winners. Thousands of victims will have been left in shock by the Appeals Chamber judgment. However, it would also be inappropriate to bemoan the decay of everything the ICC stands for. Not sacrificing the rights of the accused on an altar of grand gestures by the world community (such as the “need to send a clear signal globally that such abhorrent crimes must not go unpunished” [ICC Prosecutor] or a “promise of accountability” [Amann]) is certainly a decision that should find – despite its controversy – support.

Symposium: The Assumptions of Koh’s Transnational Legal Process as Counter-Strategy

by Craig Martin

[Craig Martin is a Professor of Law at Washburn University School of Law, and is Co-Director of the International and Comparative Law Center at Washburn Law.]

This post will bring to a close the formal part of the virtual symposium on Harold Koh’s recent article The Trump Administration and International Law. As moderator, I would like to begin by thanking all those who contributed (including a couple of announced contributors who we unfortunately lost along the way to illness and crises). I think that each of the essays has raised interesting and important questions and issues. In closing, I would like to try to explore the common themes raised in the essays, and suggest that they all relate to a potential paradox in transnational legal process, and a weakness in its utility as a counter-strategy, that Harold may want to address as he expands the article into a book.

Recap

To briefly re-cap the symposium, Harold’s article argued that actors inside and outside of the U.S. government are, and should be, leveraging the features of transnational legal process as a counterstrategy aimed at preventing the Trump Administration from disrupting international law and postwar Kantian global order. There was general agreement with Harold’s analysis and criticism of the Trump Administration, and the threats it poses for international law and its institutions. And all applauded the effort to find ways to meet those threats. But each offered insights and critiques regarding different aspects of Harold’s account of transnational legal process, and its utility as a counter-strategy against threat Trump poses.

Bill Dodge focused on the “outside” component, and specifically the use of litigation, as part of the counter-strategy grounded in transnational legal process. Bill offered the cautionary insight that the use of litigation actually triggers executive interpretations of international law that are not only excessively narrow (and, one might add, sometimes at variance with traditional understanding of the law), but are indeed deeply entrenched through the internalization process. This confirms the interaction-interpretation-internalization dynamic, but not always in ways that contribute to compliance with international law.

Freddy Sourgens similarly questioned the extent to which the “stickiness” created by transnational legal process would be sufficient to enmesh a hostile Trump Administration, particularly given that, in his view, the Trump Administration is only one symptom of a more general unraveling of institutions and norms within the international legal order.

Laura Dickinson raised questions about the manner in which Harold’s approach tends to blur, or perhaps disregard, the distinction between law and policy. She used the example of the Presidential Policy Guidelines on Procedures for Approving Direct Action Against Terrorist Targets Located Outside of the United States and Areas of Active Hostilities (PPG), to great effect in exploring how a detailed set of policy “rules” serve to bridge the gap between differing interpretations of law, but also to mask the legal dimensions of the problem. The implication here is that transnational legal process may lead to problems if such policy looks like, or even substitutes for, an interpretation and internalization of law in the transnational legal process.

Kevin Heller provided a two part tour-de-force providing a retrospective and prospective critique of Harold’s arguments. In Part I, Kevin challenged the excessively black-and-white contrast drawn between Trump and Obama on compliance with international law, highlighting a number of ways in which the Obama Administration exhibited a lack of respect for international law and human rights. In Part II, Kevin provided a detailed and persuasive critique of Harold’s argument in support of the lawfulness of the use of force for purposes of unilateral humanitarian intervention (UHI), as a third exception to the prohibition in Art. 2(4) of the UN Charter. Harold argues that UHI both is and should be lawful, while Kevin is of the view that no such exception currently exists, nor would it be wise to establish one.

The Move from the Descriptive to the Normative

It strikes me that several of the issues raised seem to point towards some common tensions or even paradoxes within the argument. What is more, some of these tensions are not only in relation to the use of transnational legal process as counter-strategy, but relate to the theory of transnational legal process itself. Indeed, it may be that as we begin thinking more deeply about the theory as counter-strategy, we may stumble upon some important questions about the theory itself.

Upon reflection, I found the move made in Harold’s article both intriguing and surprising. That is, the manner in which the article apparently transformed transnational legal process from a descriptive theory into a strategy. My understanding of Harold’s famous work on transnational legal process was that the theory sought to explain why and how international law mobilized compliance. This compliance was the consequence of a complex process that operated automatically, organically, as a natural result of transnational interactions arising from the very structure and nature of the system of international law and its component parts.

In his Washburn article, however, Harold is suddenly speaking about transnational legal process as a counter-strategy. This is no longer just an explanation of how a process operates, but a call to arms. It is an argument that actors both inside and outside of the U.S. government can and should engage in action designed to trigger and implement the mechanisms of transnational legal process, as a means of resisting apparent threats to the international legal order. It is not just that transnational legal process makes international law “sticky”, making departures from the law difficult, but that we should all be engaged in trying to make it stickier, to enmesh and exhaust the rogue regime. What is more, Harold suggests that the Obama Administration effectively and self-consciously pursued the “inside” component of this strategy, by consistently engaging the international community, translating international law rather than disregarding it, and then leveraging international law as a component of the exercise of smart power.

Yet, as Kevin details in Part 1 of his essay, the Obama Administration acted in many ways that were inconsistent with, and indeed even inimical to, international law. But while Kevin was primarily cautioning against allowing our preoccupation with Trump to entirely eclipse any concerns over the transgressions of Obama, these inconsistencies may actually take on a greater significance in light of Harold’s argument. For when Harold speaks of the Obama administration engaging in transnational legal process of interactioninterpretationinternalization, so as to support international law and deploy it as part of American soft power, his implicit premise is that the interpretations of international law at issue were valid and legitimate, in part because previous interpretations have been valid and legitimate, and have been in turn internalized. But what if, as Kevin argues, interpretations frequently were not?

Questioning the Assumptions

Bill has explained that litigation can sometimes force the internalization of a very narrow or constrained, and one might add possibly invalid, view of international law; Laura has explained that the articulation and interpretation of detailed rule-based policy can disguise the legal issues, and be internalized in the place of law; Kevin has detailed instances in which the Obama administration took positions that were inimical to international law. In short, interactions can lead to invalid interpretation, and the internalization of principles, norms, or legal positions that are inconsistent with established international law.

Consider one example that was referred to in Harold’s article, and which was also touched on by both Kevin and Laura – the targeted killing of suspected terrorists with drones in non-consenting states, away from traditional theatres of armed conflict. This one policy has been widely attacked as violating a wide range of well-established principles of jus ad bellum, international humanitarian law (IHL), and international human rights law. Illustrative of Laura’s insight, much is often made of how the PPG established limitations on acceptable collateral damage that were more stringent than limits required by the principle of proportionality in IHL. But this disregards, and distracts from, the key question of whether IHL applies at all. A large segment of the international community, including many American allies, reject the claim that the U.S. can be in a non-international armed conflict against “Al Qaeda, the Taliban, and associated forces,” wherever they happen to be, and thus deny that IHL can apply to the American targeted killing of individuals away from the theatre of armed conflict. And if IHL does not apply, many of these killings would flagrantly violate international human rights law and domestic criminal law.

Similarly, this use of force against non-state actors within non-consenting states requires justification under jus ad bellum. Harold in his article refers to the Obama Administration reliance upon both a “necessarily elongated” notion of imminence, and the “unwilling or unable” doctrine, for its justification of such use of force. But as Kevin notes, and many others have argued, this “elongation” of the concept of imminence actually strips it of any temporal component, and so guts a concept that is integral to the broader doctrine of self-defense. Other aspects of the unwilling or unable doctrine similarly distort the relationship between jus ad bellum and both IHL and the law of state responsibility, and excessively privileges the interests of powerful states over the rights of weak states. Ultimately, it lowers the threshold for the legitimate use of force in ways that could have important ramifications for inter-state conflict.

It is not possible to lay out the proof for these arguments here, but they will be familiar to most readers in any event. But this is merely to illustrate that there are powerful arguments, controversial though they may be, that the Obama policy on targeted killing with drones distorted and undermined well-established principles of jus ad bellum and IHL, in ways that may do serious harm to the stability of those legal regimes, for relatively narrow instrumental anti-terrorism purposes.

The point here is not that Obama was as bad as Trump, or that the targeted killing policy was wrong. The point is to address the extent to which the theory of transnational legal process relies on the validity and legitimacy of the interpretations in question. The Obama Administration “interpreted” and “translated” international law in specific ways to justify policies such as the targeted killing program, and those interpretations were internalized not only within various components of the U.S. government, but other governments (such as the U.K., and Australia) as well. But such interpretation and internalization will only result in compliance with international law if the interpretation itself is at least within a range of reasonable interpretations consistent with established principles of international law. If the interpretation is outside of such reasonable range, and moreover if it is a deliberate and instrumental effort to cloak or rationalize a departure from international law, then it is difficult to see how the process will result in compliance.

It is not clear to me that the there is anything inherent or internal to the process itself that helps ensure that interpretations will more often than not fall within such a reasonable range of validity. The process is explained as being “constructivist”, and is “sticky” and self-perpetuating precisely because prior valid interpretations are internalized. But that does not explain how it is self-corrective if interpretations begin to deviate from the norm. On the contrary, it seems that the validity of interpretations could depend to a significant degree upon the outlook and disposition of the actors within the administration engaged in the interpretation. Harold does suggest in his latest article that the choice of engagement over unilateralism is a feature of the theory, and this may attenuate the problem, though I am not entirely clear on how such engagement is a necessary consequence of the process. It strikes me that this issue could benefit from further explanation—specifically, the question of how transnational legal process encourages interpretations that are themselves consistent with international law.

This brings us back to Trump and the deployment of transnational legal process as counter-strategy. If transnational legal process as a theory of compliance is dependent to some degree upon the good faith motives of key actors within the system, what happens when it is confronted with something like the Trump Administration? And which is worse: a rouge administration’s utter disregard for international law, or its decision to engage in an instrumental, malicious effort to subvert and destroy it through its own process of distorted interpretations and internalizations of international law in a manner cynically designed to serve its instrumental purposes? This is reminiscent of a debate between Adrian Vermuele and David Dyzenhaus over whether black holes or gray holes are worse for the rule of law—whether a façade of legality disguising unlawful conduct may do more violence to the rule of law than outright disregard or suspension of legal principles in certain exigent circumstances.

In short, I think that in developing the article into a book, Harold could perhaps explain further the implications of the move from descriptive theory to counter-strategy, and explore more deeply the question of how transnational legal process ensures interpretations and internalizations that conform with established international law. None of this detracts from the importance of Harold’s project—to the contrary. His explanation of the threats posed by the Trump Administration, and what is at stake for the international rule of law, and indeed the global world order, is compelling. His call to arms is rousing, his optimism is encouraging, and his offer of a counter-strategy is promising. I hope that this symposium will contribute to a conversation that may continue to inform Harold’s development of what is sure to be an important book.

Symposium: Koh, Trump, Obama – and Jean Baudrillard (Part 2)

by Kevin Jon Heller

[Kevin Jon Heller is a Professor of Law at the University of Amsterdam. This is the second part of a two-part post. The first part can be found here.]

Humanitarian Intervention

The first part of this post outlined my retrospective problem with Harold’s article. My prospective problem concerns his passionate call for the legal recognition of unilateral humanitarian intervention (UHI) – intervention that is not authorised by the Security Council. Harold’s desire to legalise UHI is understandable, given the ongoing humanitarian disaster in Syria. (The past couple of days being a horrific reminder.) And I share his anger toward Russia, which has repeatedly used its permanent veto to prevent the international community from taking stronger action against Assad. (Though I think the US and NATO are at least partially to blame for Russia’s intransigence, given how NATO abused the authority Russia was willing to give it in Libya.) But even if we believe that UHI should be legal – which I don’t – I think Harold is wrong to insist that it is legal.

Here is what he says about the categorical prohibition of the use of force in Art. 2(4) of the UN Charter (p. 461):

This “never-never rule” exhibits the absolutist, formalist, textualist, originalist quality Americans usually associate with the late Justice Antonin Scalia. It relies on absolutist readings of text, as those texts were “originally understood,” claiming that a nation may not engage in unilateral humanitarian intervention because of prohibitive wordings of Article 2(4) of the U.N. Charter and Article I of the U.S. Constitution. But on inspection, this position cannot be sustained. In both cases, this simplistic, absolutist reading cannot be squared with state practice, inter-branch practice, or the broader object and purpose of the document the reader claims to be interpreting.

To be clear, the “simplistic, absolutist reading” Harold condemns is not only consistent with the text of Art. 2(4), it is precisely the reading intended by the drafters of the UN Charter — powerful and weak states alike. Lowe and Tzanakopoulos explain:

13 The travaux préparatoires of the UN Charter, however, establish clearly that the expressions ‘territorial integrity’, ‘political independence’, and ‘in any other manner inconsistent with the purposes of the United Nations’ were not meant as qualifications of the scope of the prohibition in Art. 2 (4) UN Charter, but rather as reinforcements of the prohibition, aimed at assuring smaller and less powerful States that the use of force, for whatever reason, was absolutely prohibited. This was confirmed by the International Court of Justice (ICJ) in the Corfu Channel Case, where a British argument that its actions in forcibly sweeping Albanian waters for mines did not violate the territorial integrity and sovereignty of Albania was rejected, the UK intervention being declared to be a ‘manifestation of a policy of force’ (at 35). In the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America), the ICJ reaffirmed the absolute prohibition of forcible intervention, and stated that ‘the use of force could not be the appropriate method to monitor or ensure … respect’ for human rights (at para. 268)….

With respect to Harold, dismissing the remarkable clarity of the text and history of Art. 2(4) by invoking a right-wing ideologue like Justice Scalia is unfair, conjuring as it does the image of a bunch of white men articulating rules that have to be blindly followed by future generations regardless of societal and demographic change. The Charter might have been drafted by a limited number of states, but the categorical nature of the prohibition of the use of force has been affirmed by every state that has ratified the UN Charter – i.e., all of them – including the dozens of states that did not yet exist when the Charter was drafted. In that respect, there is simply no parallel between the US Constitution and the UN Charter. Far from being quaint or outdated, the Charter’s regulation of self-help reflects state will no less today than it did in 1949.

Harold’s reference to the “object and purpose” of the UN Charter also fails to justify UHI. Although promoting human rights is one of the goals mentioned in the Preamble, it is not the only goal. Others include “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”; “to unite our strength to maintain international peace and security”; and “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest.” It is impossible, therefore, to separate promoting human rights from the prohibition of the use of force; on the contrary, the UN Charter is founded on the idea that respect for the latter is a condition of possibility for the former. Lowe & Tzanakopoulos again:

14 Most importantly, the narrow interpretation of Art. 2 (4) UN Charter is inimical to the purpose and structure of an organization intended to maintain international peace and security through the establishment of a collective security system. Oscar Schachter famously wrote that the narrow interpretation of Art. 2 (4) UN Charter requires an ‘Orwellian construction’ (at 649) of the provision’s terms. The better view is that any use of force, irrespective of its—humanitarian or otherwise laudable—motivation, is caught by the prohibition of Art. 2 (4) UN Charter and must be justified on the basis of an accepted exception.

To be sure, I agree with Harold that state practice could legalise UHI, either as a new interpretation of Art. 2(4) through subsequent practice (Art. 31(3)(b) of the VCLT) or as a supervening rule of customary international law. But there is simply no evidence that any significant number of states want to legalise UHI. Here is Harold’s argument to the contrary (pp. 459, 462):

The United Kingdom, Denmark, and Belgium have all articulated the conditions under which they believe humanitarian intervention to be lawful.

To overcome the manifest rigidity of the never-never rule, state practice has offered many prominent counterexamples of de facto humanitarian intervention: India- Bangladesh; Tanzania-Uganda; Vietnam-Cambodia (Khmer Rouge); the U.S. and the U.K. creating no-fly zones over Iraq to protect the Kurds and the Shias; and of course, NATO’s famous Kosovo episode of the late 20th century.

None of the examples Harold mentions supports the legality of UHI — where opinio juris is required, not simply the ability to describe a use of force as “de facto humanitarian intervention.” In each and every case, the invading state invoked a traditional justification for its use of force instead of UHI:

[1] India justified its invasion of East Pakistan (now Bangladesh) on the ground that the millions of refugees created by Pakistan’s repression of the Bengalis qualified as an armed attack for purposes of self-defence – a view overwhelmingly rejected by the General Assembly.

[2] Tanzania claimed that it was responding to an armed attack by Uganda. In fact, as Lowe and Tzanakopoulos note (para. 15), Tanzania did not even mention Uganda’s terrible human rights record in its public statements.

[3] Vietnam justified its invasion of Cambodia as self-defence against armed attack.

[4] The Coalition initially provided no justification whatsoever for creating no-fly zones over Iraq. The UK eventually invoked UHI, but no other member of the Coalition did likewise. Indeed, the US later argued – unpersuasively, to be sure – that the no-fly zones were permissible acts of self-defence.

[5] Only the three states Harold mentions – the UK, Belgium, and Denmark – invoked UHI to justify NATO’s bombing of the Serbs. No other NATO state did, and Belgium argued that the bombing campaign should not be seen as a precedent for the legality of UHI in other situations. (A claim Germany made, as well, even though it did not invoke UHI.) By contrast, as Lowe and Tzanakopoulos note (para. 33), “[t]he Non-Aligned Movement (NAM), numbering well over half of the Member States of the UN, unequivocally condemned the use of force against the (then) FRY, as did many other States, some of which are nuclear powers.”

The UHI ledger, in short, can hardly be said to support the legality of UHI. Only three states have ever invoked UHI as a matter of law – and one of those three refuses to endorse it as a general rule. Three states do not a new interpretation or supervening custom make – especially when more than 130 states, the entire Non-Aligned Movement (NAM), have specifically and repeatedly condemned UHI as unlawful.

It is not an accident, of course, that NAM states have led the opposition to UHI. Their opposition may be overinclusive, in the sense that it is at least possible to imagine powerful states in the Global North using force against weaker states in the Global South for genuinely humanitarian purposes. But if the Global South is (too) skeptical of UHI, the US and other powerful states have only themselves to blame, given their long and ignoble history of using force illegally – and dressing up those illegal uses of force in the language of humanitarian concern. (See, e.g., the invasion of Iraq.) Just consider the US’s personal list of military and CIA interventions since WW II, courtesy of William Blum: Iran (1953); Guatemala (1954); Thailand (1957); Laos (1958-60); the Congo (1960); Turkey (1960, 1971 & 1980); Ecuador (1961 & 1963); South Vietnam (1963); Brazil (1964); the Dominican Republic (1963); Argentina (1963); Honduras (1963 & 2009); Iraq (1963 & 2003); Bolivia (1964, 1971 & 1980); Indonesia (1965); Ghana (1966); Greece (1967); Panama (1968 & 1989); Cambodia (1970); Chile (1973); Bangladesh (1975); Pakistan (1977); Grenada (1983); Mauritania (1984); Guinea (1984); Burkina Faso (1987); Paraguay (1989); Haiti (1991 & 2004); Russia (1993); Uganda (1996); and Libya (2011). And we wonder why the Global South doesn’t trust the US (or the UK, or France, or…) to get UHI right?

Does this mean that, to paraphrase Cicero, silent enim leges inter tyrannide? Not necessarily. As Harold’s discussion of the P5 (p. 461) itself indicates, the obstacle to addressing the situation in Syria is not Art. 2(4) of the UN Charter, but the existence of the permanent veto. So instead of embracing UHI, it would be far better to argue — as John Heieck has — that the P5 has a legal duty not to veto a Security Council resolution aimed at preventing jus cogens violations such as genocide and crimes against humanity.

To be sure, good positivist that I am, I am not completely convinced that international law imposes a “no veto” duty on the P5. (I’ll wait for John’s forthcoming book to convince me otherwise.) The stronger legal “solution,” therefore, is probably the one Lowe and Tzanakopoulos discuss — relying on the 1950 Uniting For Peace Resolution to argue that the General Assembly can authorise humanitarian intervention when, as in Syria, the P5 is hopelessly divided:

36 The lack of Security Council authorization cannot be the final word on the issue of legality of an intervention on humanitarian grounds, even if no right of unilateral humanitarian intervention has emerged by way of customary international law. As Certain Expenses of the United Nations (Advisory Opinion) and the Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) have confirmed, the Council has primary but not exclusive responsibility for the maintenance or restoration of international peace and security, which may be threatened by humanitarian catastrophes. The UN General Assembly has devised a procedure through which to respond to threats to the peace when the Security Council cannot act because of the use of the veto. This is the procedure established under the Uniting for Peace Resolution (1950). In the event that the Security Council cannot act, States arguing in favour of humanitarian intervention may take the issue to the General Assembly, as in fact they should before even considering unilateral action. Many States have expressed their preference for some form of UN response to a humanitarian crisis as opposed to allowing unilateral action.

37 The position of NATO that it needs to ‘stand ready to act should the UN Security Council be prevented from discharging its purpose of maintaining international peace and security’ (North Atlantic Assembly Resolution 283 para. 15 (d)) is, accordingly, questionable without further qualification. One major reservation relates to whether and when the Security Council is indeed ‘prevented from discharging’ its duties: a decision of the Security Council not to act cannot, without more, be qualified as the Council being ‘unable’ to act; nor can the fact that a resolution in support of action fails to command the necessary majority in a vote within the Council. Even to establish the premise, further evidence is needed that the Security Council cannot act because of the recalcitrant stance of a permanent member, and not merely because there is no agreement as to the use of force in a particular instance. Indeed, the non-authorization of the use of force may be a clear instance of the Council actually discharging its primary responsibility, rather than of it being prevented from doing so. And even if it is considered that the Council is being prevented from acting, UN law allows for an institutional solution: recourse may be had to the General Assembly in an attempt to garner support by two-thirds of its members under the Uniting for Peace procedure. Indeed the language of the NATO resolution itself comes close to that of the Uniting for Peace resolution.

If 2/3 of the General Assembly wants to authorise force to promote human rights — a threshold that would require a number of states in the Global South to support intervention — what possible basis is there, other than a “simplistic, absolutist” reading of the UN Charter and naked power politics, for the P5 to prevent the UN from acting?

To be clear, this is a legal argument, not a practical one. Although as a lawyer I would feel better about humanitarian intervention in Syria if it was authorised by the General Assembly, I am skeptical that such intervention would actually work. (Hence the scare quotes around “solution” above.) There is evident reason to question the value of external military force in Syria, for reasons explored here and here and here and here and here and here. Those analyses focus on UHI, not humanitarian intervention authorised by the General Assembly. But similar considerations apply as long as Russia remains devoted to Assad’s murderous regime.

Indeed, Harold himself clearly recognizes that no durable solution is possible in Syria without Russia’s support (p. 460):

To solve Syria, the United States must join other nations— including Russia—in building a sustainable peace process, organized around lawful conduct and a durable legal arrangement, and leverage that lawful core into a broader policy solution that contains and manages the sprawling crisis.

I completely agree — which is why I find Harold’s full-throated defense of UHI so puzzling. If Russia ever gets on board with a “sustainable peace process,” the Security Council could authorize humanitarian intervention in Syria, making UHI unnecessary. And if Russia continues to obstruct peace in Syria, as it has to date, engaging in UHI (or any kind of HI) would be exceptionally likely to end badly – if not in WW III. Either way, there would be no pragmatic rationale for UHI.

Conclusion

I share Harold’s anger toward the lawlessness of the Trump administration, and his analysis of all the ways in which Trump has further destabilized an already chaotic world is essential reading for anyone interested in American politics, international law, and the intersection between the two. But we cannot allow the horrors of the Trump administration to blind us to the many failings of its predecessor. Like all presidents, Obama was only selectively committed to the values he espoused; democracy and human rights mattered to him in a way they will never matter to Trump, but those values all too often took a backseat to more quotidian US interests such as “national security” and access to markets and resources. Plus ça change, plus c’est la même chose…

As for Syria, UHI it is not the answer, no matter how understandable our desire may be to do something — anything — to alleviate the human suffering there. I don’t know precisely what the solution is; if I did, I would be a politician or a diplomat, not a pointy-headed law professor. But UHI is illegal, as it should be. And it would almost certainly only make the situation in Syria worse. Military force for ostensibly humanitarian purposes is exceptionally likely to fail even when blessed by the Security Council, as Libya tragically demonstrates. Such force without international support, and against the wishes of Russia, is a recipe for disaster.

Symposium: Koh, Trump, Obama – and Jean Baudrillard (Part 1)

by Kevin Jon Heller

[Kevin Jon Heller is a Professor of Law at the University of Amsterdam. This is the first part of a two-part post. The second part is found here.]

Introduction

It is an honour to be invited to respond to the article version of Harold Koh’s recent Foulston Siefkin Lecture at Washburn Law School, “The Trump Administration and International Law.” I am a great admirer of Harold’s work and an even bigger fan of Harold himself, whom I am proud to call a friend and who has been incredibly supportive of me for a number of years, even though I was never his student.

There are many international-law issues Harold and I disagree passionately about. The Trump administration’s disdain for international law is not one of them. Harold’s wide-ranging analysis of how Trump has made both the US and the world a more dangerous place is spot-on, and I can only hope that the quiet resistance to Trump’s policies within the American government is as strong as Harold believes it to be. The wide circulation of his elegant article should certainly help.

The point of this symposium, however, is not (simply) to sing Harold’s praises. Although I agree completely with his critique of the Trump administration, I think there are two blind spots in the article’s analysis that are worth discussing. The first is retrospective, concerning the supposedly stark contrast between the Obama and Trump administrations concerning respect for international law and human rights. The second is prospective, on whether unilateral humanitarian intervention is or should be legal.

Obama vs. Trump

It is difficult to witness the daily international horrors wrought by the Trump administration and not feel more than a twinge of longing for its predecessor. But as I read Harold’s article, I could not help but think of what Jean Baudrillard, the great French cultural theorist, said about the role Disneyland plays in American culture:

The Disneyland imaginary is neither true nor false: it is a deterrence machine set up in order to rejuvenate in reverse the fiction of the real. Whence the debility, the infantile degeneration of this imaginary. It is meant to be an infantile world, in order to make us believe that the adults are elsewhere, in the “real” world, and to conceal the fact that real childishness is everywhere, particularly among those adults who go there to act the child in order to foster illusions of their real childishness.

The Trump administration, I would suggest, functions as a similar kind of “deterrence machine.” Its almost comical awfulness retroactively burnishes and legitimates the records of the administrations that preceded it, no matter how problematic those records might be in their own right. To see the power of this effect, we need only consider the rapid rehabilitation of George W. Bush since Trump became the nominee, with a baffling 61% of Americans now viewing him favourably, compared to 33% at the time he left office. Even more distressing, the surge in Bush’s popularity has largely been driven by Democrats, who seem to have forgotten, in the face of Trump’s bumbling and absurdly bellicose foreign policy, that Bush is the president who brought us systematic torture and the invasion of Iraq.

The Trump deterrence machine hums along even more smoothly, though, with regard to the Obama administration. Who among us, even my fellow denizens of the far left, wouldn’t be delighted to have a third term of Obama now that we have a President who couldn’t find Ukraine on a map if you pointed him toward the correct continent? Should we lefty international-law types really be spending our limited energies reminding people of Obama’s failures, when we are currently being led by a pathological liar with the emotional maturity and impulse control of a third-grader – someone who would happily start WW III if he thought it would allow him to turn Mar-a-Lago into a survivalist camp for billionaires?

The answer, of course, is “yes.” I unequivocally reject the hard left argument that Obama was just as bad as Trump on foreign policy. But I also think it is important to resist Harold’s admittedly understandable nostalgic longing for the Obama administration, a supposedly halcyon time when international law and respect for human rights mattered. Consider this statement (p. 417):

The inside strategy, which I applied as a government official, I called “Engage–Translate–Leverage,” or simply, using “International Law as Smart Power.” In hindsight, call this “the Obama–Clinton doctrine.” President Barack Obama tried to apply this foreign policy philosophy throughout his presidency. Upon taking office in 2009, President Obama said that “A new era of engagement has begun,” emphasizing that “living our values doesn’t make us weaker. It makes us safer, and it makes us stronger.” That approach was particularly urged upon him by his first Secretary of State, Hillary Rodham Clinton, who argued: “We must use what has been called smart power, the full range of tools at our disposal—diplomatic, economic, military, political, legal, and cultural” to achieve better policy outcomes. Had she been elected President, Secretary Clinton undoubtedly would have continued that approach.

I have no doubt that Harold worked tirelessly behind the scenes to ensure that the Obama administration exercised what he calls “smart power.” As an outsider, though, I still find his description of the Obama administration often unrecognizable. I don’t have time to dwell on all the ways in which the Obama administration proved itself anything but a paragon of respect for international law and human rights, but a few examples are worth mentioning – in no particular order:

[1] Sold more than $100bn in weapons to Saudi Arabia – including fighter jets, attack helicopters, warships, tanks, bombs, and air-to-ground missiles – even after there was no longer any doubt the Saudis were using them to commit unspeakable war crimes in Yemen.

[2] Preached the importance of democracy and human rights in Iran and Syria, while remaining silent about viciously repressive regimes in Bahrain and Saudi Arabia and supporting dictators like Mubarak in Egypt and Ben Ali in Tunisia until it was clear neither would remain in power. (A particularly important point to make, given that Harold rightly condemns (p. 431) the Trump administration’s “blatant, disturbing softness on human rights in the Middle East, particularly with respect to Saudi Arabia, Egypt, Bahrain, and Turkey”).

[3] Used the Security Council resolution authorizing civilian protection in Libya as a pretext for regime change – and then stood idly by as Libya descended into chaos.

[4] Advocated, in the context of “self-defence” against the shadowy Khorasan Group, a view of imminence that denudes the requirement of all meaning. Recall what Pentagon spokesman Rear Adm. John Kirby said about whether the US actually responded to an armed attack by the group: “I don’t know that we can pin that down to a day or month or week or six months…. We can have this debate about whether it was valid to hit them or not, or whether it was too soon or too late… We hit them. And I don’t think we need to throw up a dossier here to prove that these are bad dudes.”

[5] Claimed that Obama was free to violate both conventional and customary international law when authorizing covert actions.

The most problematic aspect of Harold’s argument, however, concerns what he says about torture (p. 431):

Perhaps the most visible proposed human rights rollback was candidate Trump’s statement that “[if I am elected, w]e’ll use waterboarding and a hell of a lot worse than waterboarding.” Shortly after the election, the press leaked a draft national security executive order that called for reinstating the discredited program of interrogation of high-value alien terrorists, to be operated outside the United States, presumably at revived “black sites”—former offshore detention facilities operated by the C.I.A. But campaign statements and draft executive orders are not law. Congress has repeatedly forbidden torture by treaty and statute.

Harold is absolutely right to be appalled by Trump’s enthusiastic embrace of torture. But why shouldn’t Trump embrace it? Despite high-ranking government officials openly confessing to national and international crimes, the Obama administration did nothing – literally nothing – to hold anyone accountable for the systematic torture regime that Bush created. On the contrary, Obama promptly immunized the torturers, justifying impunity with what has to be one of the most profoundly Orwellian excuses in American political history – that he was “looking forwards, not backwards.” Had Obama been willing to look backwards – what we naive types call “criminal prosecution” – Trump might actually see torture as a crime, instead of as merely one policy choice among others.

In short, Harold’s critique of the Trump administration’s approach to international law is both accurate and devastating. But although his hands may be clean, the hands of the administration he worked for are not. Like its predecessors, the Obama administration was more than willing to ignore international law when it proved too limiting and human rights when they proved too inconvenient.

[The second part of Kevin’s post is found here.]

Symposium: The Trump Administration and International Law–Policy in the Shadow of International Law

by Laura Dickinson

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at George Washington University Law School.]

In International Law in the Trump Administration, Harold Hongju Koh has articulated a bold vision of the role that international law can play (and to some extent is playing) during the current administration. Unlike some critics, he does not argue that the administration is inevitably destined to completely abandon or ignore all international law frameworks, although he does express serious concerns that Trump policies may seek to undermine or dismantle important international institutions such as NATO. Instead, Koh believes that international law continues to have teeth; he argues that it is a true constraining force, a “guardrail,” that reins in this or any administration.

Koh’s belief in international law’s constraining power derives from his longstanding theory of how international law actually functions and how it derives its force. Instead of a formalist vision of international law made only by states, interpreted largely through Executive Branch pronouncements, and implemented only occasionally in courts, Koh focuses on what he calls “transnational legal process.” In Koh’s view, this process is interactive and multi-dimensional, encompassing a diverse range of actors, from other governments contesting U.S. legal views, to U.S. courts interpreting those views, to foreign, regional, and international courts outside the United States issuing relevant decisions, to inter-governmental and non-governmental organizations advocating or expressing views of the law. For Koh, international law’s constraining power inheres in the norms that inevitably get articulated and inculcated during this complex process.

Koh’s theory of transnational legal process has not only been a path-breaking theoretical vision of how international law works. It also provides a pragmatic approach to international lawyering. One of the strengths of this piece is that in it Koh maps out a broad range of specific international law issues and projects for actors within this transnational process to tackle in the coming years, from immigration to the use of force, from climate change to cybersecurity.

There is, of course, much that could be said about Koh’s wide-ranging article. Here, I would like to focus on one issue that is implicit in his approach, but which remains largely unexplored: the distinction between legal rules and policy choices, as well as the relationship between the two. The various examples that Koh provides of transnational legal process, both in his previous writings and in this proposed plan of action, tend to slide back and forth between law and policy. For example, some of the instances of legal process that he cites in this new article are more frequently understood as policy choices rather than as legal constraints, in particular many policies that were adopted by the Obama administration.

It may be that Koh doesn’t focus on the law/policy distinction because he thinks that norms articulated as a policy matter impact legal rulings and over time may “harden” into law. Indeed, such seepage seems to be at the core of transnational legal process. And it is undoubtedly true that such seepage is an important part of the constraining power of international legal norms. Yet, that does not mean that the formal distinction between law and policy should be ignored altogether. Indeed, having just spent a year serving as Special Counsel to the General Counsel of the U.S. Department of Defense, half of which was at the end of the Obama administration and half of which was in the new Trump administration, I have a greater appreciation for the way in which government lawyers think about the law/policy boundary and the effect that the distinction may have.

During the Obama administration, many issues that could be described as conflicts over interpretation of international law got resolved not through definitive judgments about the content of international law, but through the implementation of Executive Branch policies. One prominent instance of this, in my view, is the 2013 Presidential Policy Guidance on Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (PPG), which Koh suggests is an example of a constraint within his framework of transnational legal process.

As a matter of domestic law, a Presidential Policy Guidance has a legal dimension. But for the purposes of international law, the 2013 PPG did not purport to establish legal rules. Instead, it imposed, via policy, a set of limitations on the use of force by the United States over and above all existing limitations under the law of armed conflict (LOAC), also known as international humanitarian law (IHL).

In particular, the PPG permitted U.S governmental personnel to use force in areas outside zones deemed areas of active hostilities only when such force was being used: (1) against a target that posed a “continuing, imminent threat to U.S. persons,” (2) when there was “near certainty” that the target was present, (3) when there was “near certainty that noncombatants … [would] not be injured or killed,” (4) when “capture ….[was] not feasible at the time of the operation,” (5) when the “relevant authorities in the country where the action was contemplated” could not or would not “effectively address the threat,” and (6) when “no other reasonable alternatives” existed. The PPG also imposed a variety of procedural requirements regarding the nomination of targets and their approval, including inter-agency coordination, review by senior administration officials, and evaluation by lawyers.

As a policy, the PPG addressed, but significantly did not resolve, an underlying conflict over the appropriate legal paradigm applicable to the use of force in these geographic areas. If the United States is in a global armed conflict with Al Qaeda, the Taliban, and associated forces, then LOAC/IHL would apply to the use of force anywhere in the world against these entities. But if this armed conflict is not global, then the usually more restrictive rules regarding the use of force governed by international human rights law (IHRL) would generally apply outside the areas of armed conflict. Various actors in the international system, including states and non-governmental organizations, disagree about this issue and have taken differing approaches to the scope of this armed conflict (or conflicts). By adopting the PPG, it could be said that the Obama administration bridged an interpretive legal dispute with a policy, because many of the elements of the PPG resemble human rights norms regarding the use of force. Currently, it is unclear to what extent the Trump administration is following that policy, though reports have indicated that it has developed a new policy that retains some, but not all, of the elements of the PPG.

I do not here want to say that the policy approach to the 2013 PPG was necessarily good or bad in that particular instance. But I would like to suggest that adopting a voluntary policy, rather than an interpretation of what is legally required in such circumstances does have important consequences and has distinct advantages and disadvantages. (And of course, whether one sees an advantage or disadvantage in a particular case, may depend in part on one’s perspective on the specific policy).

On the plus side:

  1. 1. Policy is flexible. In this sense it reflects a kind of pragmatism. Policies can be fine-tuned and calibrated to specific circumstances. Thus, the PPG might be said to implement standards similar to those of human rights law, but the state is not bound under this body of law, and the standards do not have to match exactly. This flexibility gives the state room to maneuver as appropriate in a variety of circumstances.

  2. 2. Policy may serve to address differences of legal interpretation within a government. To the extent that there is a dispute over the applicable legal framework among different entities even within the Executive Branch, adopting rules as a matter of policy rather than as a legal requirement may help to smooth over those differences. It may therefore be easier to achieve consensus on policy rather than to try to resolve serious disputes about the applicable legal requirements.

  3. 3. Policy can also bridge gaps in legal interpretation among states. Adopting rules as a policy matter can present certain inter-operability benefits among allies who may have different approaches to the law. For example, one could make the case that the US adoption of the PPG helped relations with our European allies, many of whom have a narrower view than the United States regarding the scope of the armed conflict against Al Qaeda, the Taliban, and associated forces. By adopting an approach closer to that of our allies as a matter of policy, the Obama administration could ease tensions that might otherwise accompany joint operations with those allies. And significantly, such tensions could be eased without needing to make a wholesale change to U.S. legal interpretations of the scope of IHL/LOAC.

Nevertheless, despite these advantages, it is important to recognize that there are also potentially certain disadvantages to the adoption of rules as a matter of policy rather than law:

  1. 1. Policy may be too flexible. Although the flexibility of policy can be an advantage, it can also be a disadvantage. For example, a voluntarily policy exerts less constraining power on a state. Although there may be certain path dependencies that cause policies to be “sticky” once adopted, there is little doubt that Executive Branch policies usually do not bind future administrations in the same way as Executive Branch determinations about the applicability of international legal rules.

  2. 2. Policy can mask (or ignore) the legal dimensions of a problem. Even when a policy could be said to help smooth over differences regarding legal interpretations, a policy does not necessarily make explicit the degree to which the policy being adopted is informed by perceived legal requirements. Certainly the 2013 PPG does not do so. As a result, the refusal to make explicit the perceived law in the area might slow the development of the law by relieving pressure on the interpretive conflict.

Beyond these general advantages and disadvantages, there are also some specific consequences that arise when a policy can be said to be “legalistic.” What do I mean by a “legalistic” policy? When a policy articulates very specific rules, standards, and procedures, as the PPG does, it could I think be fairly called “legalistic.” One consequence of implementing this type of policy is that it may require government lawyers to interpret it, even if those lawyers are not the ultimate decision-makers. Yet, legal interpretation of a policy may be complicated because it is unclear whether the policy should be interpreted in light of international law doctrine or not. In addition, sometimes the adoption of a “legalistic” policy can blur the boundaries between law and policy itself. For example, even if a government implements a policy rather than articulating a legal obligation, other actors in the system – other states, non-governmental organizations – might subsequently argue that the policy is evidence of customary international law, especially if the government is not entirely clear about the policy’s status. If that occurs, it might mitigate some of the advantages of policy. Indeed, if governments become worried that they might unwittingly be creating customary international law, they might begin to resist crafting policies that are more protective than minimum legal standards.

All of this is just to say that, as one thinks about how transnational legal process may operate, it is important to consider the differing ways in which policy decisions on the one hand, and legal decisions, on the other, may work. It may matter quite a bit the kind of “hook” that an actor in a “transnational legal process” may be using. And we should at least be aware of the differences and implications of both.

Symposium: Law and “Stickiness” in the Times of the Great Unglued

by Frederic Sourgens

[Frédéric G. Sourgens is a Professor of Law at Washburn University School of Law.]

The key virtue of transnational legal process is what Dean Harold Koh calls its “stickiness.” (pp. 416, 437) Transnational legal process is rooted in the deep authority structures underpinning world community: we, as members in world society, have internalized global norm commitments as our own and reflexively order our own lives accordingly. (p. 256) Once set in motion, compliance with transnational legal process is simply a matter of path dependence. In ordinary times, this makes it extraordinarily difficult to escape transnational legal process. By way of example, it would be strange to think of a Republican Secretary of State standing up for the Paris Agreement and perhaps even stranger to suppose that this Secretary of State was the former CEO of Exxon. And yet, Secretary Tillerson reportedly was an internal champion for the treaty.

The problem is: these are far from ordinary times. The Trump administration has been described as “unglued.” Perhaps it would be more adroitly described as an agent of a great “ungluing” of the fabric of global life. The administration is setting out to unglue the administrative state. It is poised to dismantle the vestiges of stickiness within the administrative state by failing to fill political appointments by the hundreds and driving civil servants from State Department and the EPA in record numbers. If stickiness depends upon the internalization in due course of transnational legal expectations in the administrative state – simply deny the administrative state the ready means of norm internalization in the first place.

More worryingly still, the Trump administration is a symptom rather than a cause of a great ungluing of existing world order(s). To complain that the world would come together to solve its problems but for the current occupant of the White House would be to suffer from willful blindness. The ungluing of which President Trump is such a potent symbol is a global phenomenon. What is more, it continues to spread and follows the logic of its own process: a transnational transference of lawlessness, or photonegative of Dean Koh’s transnational legal process. This counter-process is fueled by deeply felt, if not necessarily richly deserved, dissatisfaction with our globalized world order. It is therefore fair to surmise that it is not the “Will of Trump” that is set upon ungluing our world. Hell, it’s others. Hell, it’s us.

Where does this leave “stickiness?” Dean Koh is a perennial optimist. He bets – hopefully correctly – that the stickiness of transnational legal process is stronger than the force seeking to unglue it. If this proves so, the Trump administration and others like it would simply tire themselves out. What Dean Koh calls the “rope-a-dope” of a daily grind against the resistance of settled expectations in world society will eventually bring about norm compliance by the Trump administration just like it does for every other administration that campaigned on radical change. (p. 415)

Dean Koh provides a blueprint for how transnational legal process can constrain the Trump administration. Thus, he notes that “[t]hose opposing President Trump’s policy initiatives on legal grounds can use the various fora available to them to resist those initiatives, forcing Trump to punch himself out by expending energy and capital on initiatives that that do not advance his or his party’s chance at reelection” (p. 421). Dean Koh provides examples of how the “transnational legal process kicked in” by “swift and furious legal challenge[s].” (p. 425). The examples Dean Koh provides rest upon domestic legal actions such as immigration law in the context of the travel/ Muslim ban (p. 428) and environmental law in the context of the Paris Agreement (pp. 438-440). He cites the involvement of civil society actors around the world in support of these lawsuits as having an effect upon the Trump administration consistent with the demands of transnational legal process and stickiness.

Dean Koh is implicitly relying upon a connection between transnational legal process and domestic litigation. Problematically, in the face of current ungluing efforts, he does not theorize why this link should exist. As the pointed disagreement over the use of foreign legal materials in constitutional argument at U.S. Supreme Court showcased just too vividly, the great ungluing precisely seeks to impeach the reflex to coordinate domestic and transnational legal processes. The Trump administration and others dissatisfied with the current state of globalization are precisely leery of the hidden (if not invisible) hand of transnational processes guiding domestic judicial and administrative decision-making. It is therefore inadvisable to double down on implicit compliance. It is time to bring transnational legal process out of the closet and make its function explicit and express.

In the first instance, it is important to provide a further appraisal of stickiness on the international level. Take the Paris Agreement. As Dean Koh points out, the Paris Agreement did not on its face make greenhouse gas emission reduction pledges binding as a matter of the agreement itself. Nevertheless, it is fair to say that Dean Koh treats the Paris Agreement as one of the key examples of the transnational legal process at work in constraining the U.S. from changing course on climate change efforts during the Trump administration. (pp. 438-440). How did the Paris process create international legal commitments? While doctrinally tricky, this needle can be threaded and thus provide a further backstop showing why compliance is consistent with the transnational legal process not just a matter of prudential choice, but – fittingly given the name of this blog – grounded in a sense of legal obligation.

An international law answer is not enough however to satisfy the domestic side of our stickiness puzzle. To address the critics decrying the “Class of Davos,” transnational legal process in the times of Trump must answer why the international commitments incurred by the Obama administration continue to commit a successor administration. Only such an answer will give cover to career civil servants who intuitively follow the move towards compliance indicated by transnational legal process. Only this answer will answer the accusation of “deep state” with “rule of law.” What then is the role of the international commitment undertaking at Paris in barring efforts by the Trump administration to repeal and replace rules like the Clean Power Plan upon which the U.S. Paris commitment centrally relied? (p. 4). Again, the needle is tricky to thread. But not threading the needle is to give ammunition to those wishing to unglue our current world order and allows them to accuse proponents of the transnational legal process of corrupting American primacy.

Answering both questions is not a fool’s errand. Transnational legal process can provide answers in the context of the Paris Agreement. Hopefully it will push transnational legal process to provide a further layer of explanation for transnational legality. It allows us to ask not just why states comply with international law. It permits us to push further to understand how the process of complying (stickiness) is itself grounded in law. We would thus be one step further along in uncovering the central forces driving a lawfully constituted world society.

As it stands, Dean Koh’s The Trump Administration and International Law is a powerful call to action. It is an important confirmation of the virtue and value of transnational legal process. Its virtue and value is ultimately that we do not live in the President’s world, but in ours so long as we remain connected – sticky – and hold our world together. As Dean Koh notes by reference to one of the great fighters, Muhammad Ali, it is our choice to stand up for the fundamental principles inherent in the rule of law – stability, reciprocal engagement, and growth – and to be relentless in our resolve to take whatever blows an opponent might choose to inflict. But it is important to do more than stand up for these principles; one must speak up for them with an eloquence to rival one’s tenacity so that years later, it is the spirit of Muhammad Ali rather than the spirit of the U.S. boxing commissions which we all celebrate and remember. Stickiness must not only be just and lawful. It must be seen to be just and lawful.

Symposium: Advancing International Law Under the Trump Administration–Some Cautionary Thoughts About Litigation

by William S. Dodge

[William S. Dodge is Martin Luther King, Jr. Professor of Law at the UC Davis School of Law. From 2011 to 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State.]

Among Harold Koh’s many academic achievements, perhaps his most influential has been to articulate a theory of transnational legal process that explains why nations obey international law. According to this theory, public and private transnational actors generate interactions that lead to interpretations of international law that in turn become internalized in domestic law. Once internalized, such interpretations become difficult to change.

In a recent lecture at Washburn University School of Law, Harold used the lens of transnational legal process to examine “The Trump Administration and International Law.” His tour d’horizon is a tour de force, examining the entrenchment of international law with respect to immigration and refugees, human rights, climate change, Iran, North Korea, Russian hacking and cybersecurity, Ukraine, al Qaeda and IS, and Syria. As he writes, “no single player in the transnational legal process—not even the most powerful one—can easily discard the rules that we have been following for some time.”

Harold’s purpose is not simply descriptive. He also sets forth a “counter-strategy” to resist Trump’s assault on international law and international institutions. This strategy includes an “inside strategy” that government officials can use to engage other states, translate international law norms, and leverage those norms as smart power to advance U.S. interests. And it includes an “outside strategy” that non-governmental actors can use “to generate interactions that force interpretations that promote internationalizations of international norms even by resisting governments.”

I want to focus on the “outside strategy,” and particularly its reliance on litigation. “Lawsuits are the paradigmatic example” of the outside strategy, Harold explains. “[I]f a government policy moves in a legally noncompliant direction, an outside nongovernmental group can sue (generate an interaction) that yields a judicial ruling (an interpretation) that the government defendant must then obey as a matter of domestic law (norm internationalization).” There is no doubt that litigation is a critical tool to promote compliance with international law. But litigation can also serve as a catalyst for interpretations that constrain international law.

In an insightful article that should be required reading for any lawyer entering government service, Professor Rebecca Ingber has examined how different interpretation catalysts shape executive branch interpretations in the area of national security. She writes: “Once the government is implicated in a lawsuit, particularly over a matter of national security, nearly all forces align to push the executive to advocate an expansive view of its own authority, to defend past action, and to request a judgment in favor of the government on the broadest possible grounds so as to preserve executive flexibility to the greatest extend possible.” After the executive branch takes a position in the context of litigation, that interpretation can be quite difficult to change.

I witnessed this dynamic first hand when I served as Harold’s Counselor on International Law at the State Department and participated in the interagency process that produced the two amicus briefs for the United States in Kiobel v. Royal Dutch Petroleum. With respect to the question of corporate liability for human rights violations, which posed no direct litigation risk to the United States or its officials and on which the United States had not previously taken a position, it was possible to reach consensus on a position that advanced international law (a position that became entrenched and that the Trump administration repeated in its amicus brief in Jesner v. Arab Bank). But with respect to questions of extraterritoriality, it proved difficult to move away from positions adopted by the Bush Administration in the shadow of the “War on Terror” and allegations of human rights violations by U.S. government actors.

In her article, Rebecca gives the example of the Bush Administration’s “War on Terror” policies. “The Bush years are often cast as a time of momentous Supreme Court pushback against administration policies in areas where presidents had previously been awarded great deference. That is one narrative, and there is truth in it.” But she explains that there is another narrative in which “repeated years of litigation . . . did not radically alter the legal architecture for the Bush Administration’s policies in its ‘War on Terror.’ Instead, this litigation entrenched it.” Despite the desire of the Obama Administration to move in a different direction, the existing executive interpretations made it “exceedingly difficult for the new Administration to change course and suddenly take new positions in litigation, above all those that might constrain government action or fail to defend past government policies.”

Litigation can be an important interaction in the transnational legal process framework. But it can produce narrow interpretations of international law by the executive, which are only sometimes overturned by broader interpretations in the courts. And narrow executive interpretations can become internalized, just as broader judicial interpretations can.

One may be more likely to get broader judicial interpretations when the courts do not trust a particular administration, at least not on a particular issue. That factor may have played some role in the Bush Administration’s losses at the Supreme Court in the “War on Terror” cases, and it could certainly be relevant in litigation challenging some of the Trump Administration’s policies. The probability of a good interpretation from the courts may offset the probability of a bad interpretation from the executive.

Whether litigation is the right counter-strategy also depends, of course, on the alternatives. As Rebecca rightly notes, “litigation may well be the only way to force the executive’s hand.” This may be particularly true for the Trump Administration, in which other potential catalysts (like reports to treaty bodies) are likely to have less impact and other potential interpreters of international law (like the State Department) have already been marginalized.

Finally, one must consider the impact of litigation not just on the executive branch and the courts but also on the broader public mind. A case in point is the litigation challenging the Trump Administration’s Travel Bans, in which the clinics at Yale Law School have played an important role. One by-product of the litigation was a devastating declaration of former national security officials, which later became an amicus brief, confirming that the Travel Ban would likely harm counterterrorism and law enforcement efforts. The litigation has also helped galvanize resistance from members of Congress and state and local governments. Even if this litigation generates narrow executive branch interpretations of international law, and even if courts uphold some of those interpretations, the political impacts of the litigation may yet prove worthwhile.

Transnational legal process provides an important framework for understanding why nations obey international law and how to frame strategies to ensure that the Trump Administration does as well. But it is wise to remember that executive branch interpretations tend to be most regressive when made in the context of defensive litigation, and that internalization can apply to bad interpretations as well as to good ones.

Introducing the Symposium on Harold Hongju Koh’s Washburn Lecture and Article: “The Trump Administration and International Law”

by Craig Martin

[Craig Martin is a Professor of Law at Washburn University School of Law, and is the Co-Director of the International and Comparative Law Center of Washburn Law.]

Over the next few days Opinio Juris will be conducting a virtual symposium to discuss Professor Harold Hongju Koh’s article The Trump Administration and International Law. The article was published in a special Symposium Issue of the Washburn Law Journal, which also includes articles by David Sloss, Peggy McGuiness, and Clare Frances Moran, responding to or picking up on the themes of Harold’s article. The article was in turn based on a wonderful lecture that Harold delivered to an entranced standing-room only crowd at Washburn University School of Law in March 2017. He is expanding the article into a book that is soon to be published by Oxford University Press.

Harold’s article addresses the key question of whether the Trump administration will disrupt America’s relationship with international law and its institutions. It argues that transnational actors both inside and outside the U.S. government are operating to resist such change, and to frustrate or mitigate the Trump administration’s efforts to stretch or break international law. This, Harold argues, is yet another example of transnational legal process, the theory that is of course famously associated with Harold’s name. Transnational legal process theory provides the basis for a counter-strategy to resist the efforts of the Trump Administration.

In broad terms, it suggests the choice of engagement over unilateralism, an emphasis on choosing persuasive legal translation over denying the applicability of international law at all, and the leveraging of “international law as smart power” rather than over-reliance on hard power. All of this, of course, stands in stark contrast to the Trump Administration’s approach to international issues. More specifically, colorfully invoking the metaphor of Mohammad Ali’s “Rope-a-Dope” strategy, Harold explains the process by which transnational actors have and continue to interact with, interpret, and internalize international law, and how this will operate externally to hold the Trump Administration accountable to American international law obligations, and internally to constrain and frustrate the ability of the government to effectively abrogate American commitments and undermine international law and its institutions.

Having thus set out the theoretical account for how transnational legal process may operate, Harold examines a series of specific situations for purposes of illustrating how this process of interaction, interpretation, and internalization, has played out. These case studies run the gamut from the Trump Administration’s approach to immigration and refugees, through the Paris Climate Agreement, the Iran nuclear deal, North Korea, Russian Hacking, the Ukraine, Al Qaeda and ISIS, to the war in Syria. In each case, Harold explores how various actors both internal and external to the administration have responded in a manner that bears out and illustrates the legal process theory account, and how their actions have constrained and frustrated the efforts of the American government.

While Harold’s analysis and overall argument are optimistic and encouraging, in closing he strikes a darker note in cautioning us on what is ultimately at stake. He warns that this is a struggle “between competing visions of a future world order.” His claim is not only that a counter-strategy informed by transnational legal process is currently operating to curb the Trump Administration’s efforts, but that it is essential to prevent “the slow backsliding of our Kantian postwar system into a more cynical, Orwellian system of global governance far less respectful of democracy, human rights, and the rule of international law.” In this sense, it is yet another contribution to the deepening sense that Western liberal democracy and the international law system are confronting existential threats, and provides a powerful argument for ways in which we can all meaningfully respond.

For the symposium we have a group of distinguished scholars who have all done considerable work in different ways on the theoretical issues at play in this piece, and who will discuss various aspects of Harold’s argument. I expect that some will focus on one or more of Harold’s specific case studies, exploring in more detail his theoretical explanations for what is actually going on in each of them, while others may grapple with the application of transnational legal process theory more generally, and whether it is indeed as well suited to the task as Harold suggests. The line-up will be (though not necessarily in the order that they will appear): Bill Burke-White (Pennsylvania), Laura Dickinson (GW), Bill Dodge (UC Davis), Kevin Jon Heller (Amsterdam), Freddy Sourgens (Washburn), and Melissa Waters (Wash U).

It is my hope that this will help to generate a robust discussion, both here in the comments section and elsewhere, and that the discussion in turn will help to inform the development of Harold’s upcoming and important book on this subject.

Symposium: The Trump Administration and International Law

by Jessica Dorsey

Over the next several days we will have an online discussion on a recent article by Harold Koh on The Trump Administration and International Law, 56 Washburn L. J. 413 (2017). The article is based on a lecture Professor Koh gave at Washburn University School of Law last year, and is published in a special issue of the Journal that includes four other articles responding to different aspects of the Trump administration and international law.

For this week’s discussion, we welcome Craig Martin (Washburn University School of Law), who will kick off and wrap up the discussion, and we will post exciting contributions from Bill Burke-White (University of Pennsylvania School of Law); Laura Dickinson (George Washington University Law School); Bill Dodge (UC Davis School of Law); Kevin Jon Heller (University of Amsterdam School of Law); Freddy Sourgens (Washburn University School of Law); and Melissa Waters (Washington University School of Law).

We very much look forward to the conversation!

Does the ICJ Have Binding Jurisdiction Over the Guyana-Venezuela Border Controversy? Probably, But Maybe Not

by Julian Ku

Last month, the UN Secretary General António Guterres announced that he was referring the longstanding border dispute between Guyana and Venezuela to the International Court of Justice. This decision was made after a long period of mediation by various UN Secretaries-General dating back to 1990.  But as a ICJ jurisdiction nerd, I am curious what the basis of the Secretary-General’s power to refer the dispute to the ICJ is.

It is based on the 1966 Geneva Agreement between the United Kingdom (which was sovereign over Guyana at the time) and Venezuela. That agreement specified a long process of study via a joint commission and then noted that, if agreement on the commission’s report failed, the following process should be undertaken according to Article IV(2):

If, within three months of receiving the final report, the Government of Guyana and the Government of Venezuela should not have reached agreement regarding the choice of one of the means of settlement provided in Article 33 of the Charter of the United Nations, they shall refer the decision as to the means of settlement to an appropriate international organ upon which they both agree or, failing agreement on this point, to the Secretary-General of the United Nations. If the means so chosen do not lead to a solution of the controversy, the said organ or, as the case may be, the Secretary-General of the United Nations shall choose another of the means stipulated in Article 33 of the Charter of the United Nations, and so on until the controversy has been resolved or until all the means of peaceful settlement there contemplated have been exhausted.

There is no doubt that this provision has been invoked, and the Secretary General’s announcement indicated that he deems “the International Court of Justice as the means to be used for the solution of the controversy.”  Article 33 of the UN Charter does list “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” as options for “pacific settlement of disputes.”  The ICJ would seem to qualify as a “judicial settlement.”

The problem is that it is not clear that Article IV of the Geneva Agreement automatically makes the ICJ’s decision legally binding. Neither Guyana nor Venezuela have accepted the compulsory jurisdiction of the ICJ, so there is no independent basis for jurisdiction.  The Geneva Agreement, I suppose, should be read as delegating to the UN Secretary-General the power to refer their dispute to “judicial settlement.” But it is not clear whether this broad delegation includes any and all forms of dispute settlement, or that those settlements would be binding.

The most natural reading, I concede, is that Venezuela is indeed bound to abide by any ICJ ruling in this case. But I wouldn’t be surprised if Venezuela tries to contest the jurisdiction of the ICJ, or the binding nature of any decision it issues.

Events and Announcements: February 11, 2018

by Jessica Dorsey

Call for Papers

  • Call for papers: Ensuring and Balancing the Rights of Defendants and Victims at International and Hybrid Criminal Courts: Pluricourts, University of Oslo has issued a call for papers for this conference to be held in Oslo on 30 and 31 August.  The call is available here. The deadline for abstracts is 19 March.

  • The Palestine Yearbook of International Law is now inviting submissions of scholarly articles for publication for its next volume, XXI (2018). This is a general call for papers. As such, the editors encourage the submission of scholarly pieces of relevance to public international law, including but not necessarily in relation to Palestine. The Yearbook is published in the English language, is edited at Birzeit University’s Institute of Law (Birzeit, Palestine), and published by Martinus Nijhoff Publishers (The Hague, The Netherlands). The Editor-in-Chief of the Yearbook is Mr. Ardi Imseis. The Yearbook is now accepting abstracts for review. Abstracts should include a working title, with a preliminary outline of the author’s research and arguments, along with a current CV. Important Dates and Contact Information: Prospective authors should express interest by e-mailing an abstract (of under 750 words) of the suggested paper as indicated above, along with a CV by March 15, 2018. If full manuscripts are available by that date, prospective authors should feel free to send those instead by that date. All submissions should be made to: Reem Al-Botmeh (rbotmeh [at] Birzeit [dot] edu and iol [dot] pyil [at] birzeit [dot] edu; Ardi Imseis (ai295 [at] cam [dot] ac [dot] uk) and Ata Hindi (ahindi [at] birzeit [dot] edu). For more on the Palestine Yearbook of International Law, see here.
  • CALL FOR PAPERS: 3rd ANNUAL “REVISITING THE ROLE OF INTERNATIONAL LAW IN NATIONAL SECURITY” WORKSHOP Many conversations in the U.S. about situations of armed conflict – within civil society, academia, and the U.S. government – center on “national security law,” often drawing primarily from domestic law and military perspectives.  International law is sometimes set aside in these discussions.   This workshop aims to draw the international legal aspects of armed conflicts to the forefront of national security discussions. The workshop is for public international law scholars and practitioners.  It aims to drive discussions of public international law, including international humanitarian law, international human rights law and international criminal law, into conversations, in the U.S. in particular on national security issues and situations of armed conflict. The organizers are interested in discussing scholarship and ideas that seek to bridge partisan political divides while addressing both the law and national interests.The workshop will provide an opportunity for authors to have their works in progress critiqued by established experts in the field of IHL, and will provide a networking opportunity for participants. The organizers ask only for papers that that have not yet been accepted for publication. In addition to submissions to traditional US law reviews, participants might consider the possibility of publication in the ICRC’s International Committee of the Red Cross Review, which is seeking submissions for its upcoming editions. The Review is a thematic journal covering a wide variety of issues, and to the extent that there are paper topics that overlap with “revisiting the role of international law in national security” and upcoming Review topics, the organizers encourage these submissions. The upcoming Review topics are outlined below. Please note that selection for this workshop does not guarantee that a paper will be published by the Review. The author would still need to submit the publication to the Editor of the Review for consideration. We invite you to submit a detailed abstract or draft of an article for discussion.  A small number of papers will be selected for discussion at the workshop.
    • When:  June 18th, 2018 (full day)
    • Where:  Cardozo Law School, New York City
    • Submissions:  Please send your name, current affiliation, and paper proposal to Tracey Begley at trbegley [at] icrc [dot] org
    • Deadline for submissions:  April 1st, 2018

    Co-organized by the International Committee of the Red Cross Delegation for the United States and Canada, and faculty at Loyola Law School Los Angeles, Stanford Law School and Cardozo Law School. A limited amount of travel funds may be available.

Announcements

  • On August 3-4, 2018, the University of Colorado Law School is hosting a workshop on International Law and Racial Justice. Among the central concerns of the workshop is the current place (or absence) of racial theory in international law.  You can find more information about the workshop here. The workshop is being organized by James Anaya, Tendayi Achiume, and Justin Desautels-Stein. If you are interested in presenting a paper at the workshop, please email jjdstein [at] colorado [dot] edu.

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.

Is International Law International? Continuing the Conversation

by Anthea Roberts

[This is the last post in our joint symposium with EJIL:Talk! on Anthea Roberts’ new book Is International Law International? If you missed any earlier posts here on OJall of them are linked at the end of this post. Please be sure to continue the conversation here, at EJIL:Talk!, and on our Twitter feed.]

In the movie Shadowlands, the character C. S. Lewis says, “We read to know that we’re not alone.” For me, perhaps it is also true to say, “I write to know that I am not alone.” Implicit in Is International Law International? is a series of questions: Have you seen what I have seen? Do you analyze it in the same way? If not, what has your experience been and what do you make of that? How and why are your reactions similar to or different from mine? And what does that mean regarding whether international law is, should be and can be international?

I want to thank EJIL: Talk! and Opinio Juris for hosting, and the contributors for engaging in, this sort of dialogue. Two common themes of the contributions are that my book represents the start of a conversation rather than the final word and that it provides a platform for future research. I agree. My book is a big-picture macrosketch based on detailed microobservations that seeks to challenge existing understandings. A lot of details need to completed, analyses tested, additional points noted and implications thought through. In the spirit of continuing this exchange, I offer some reflections below.

Before doing so, I wanted to note that, reading the comments, I was struck once more by how much we approach international law from our particular national perspectives. Whether it is Vera Rusinova reflecting on international law through the iron curtain, Hélène Ruiz Fabri drawing connections with debates in the French literature, Marko Milanovic considering the differences he has experienced in the US and UK academies, or Bing Bing Jia providing insights into Chinese international law textbooks, each of us brings our biography into play when analyzing our field. Of course, this observation is part of the point of my book. But it also means that we won’t be able to access the richness of this variety, in both sources and perspectives, unless we diversify our interactions and networks.

Risks and Discomfort

Ruiz Fabri was very perceptive in noting that writing a book like this was a “risky enterprise” and that it “might be a good way to displease many people.” This book indeed deals with touchy subjects. On the personal level, it suggests that we international lawyers are often not as cosmopolitan as we like to think. On the political level, it raises awkward questions about the implications that might flow from different understandings of and approaches to international law in light of changing geopolitical power.

Although the book deals with controversial issues, I think it needed to be written. I am drawn to academic issues that intrigue me or make me feel intellectually uncomfortable. This book did both. Just as many readers have felt unsettled reading it, so I felt unsettled writing it. I coped with that discomfort by seeking to render as balanced a picture as I could, typically presenting both sides of issues rather than taking a normative stand about which one I thought was preferable. I showed that strengths often contain weakness and vice versa. I subjected myself to the same critique as I asked my readers to undertake.

Given the potentially provocative nature of this book, I want to thank my OUP editors John Louth and Blake Ratcliff for supporting it. The book was unlike anything I had done previously. It did not conform to standard approaches to legal scholarship. It was clear from the outset that the work would involve shaking echo chambers and had real potential to offend. Despite these risks, they immediately and intuitively understood what I was trying to do, from our first coffee chat. I am genuinely grateful that they were unwavering in their support and insightful in their critiques.

To my surprise, instead of encountering a wall of hostility, my book has opened rather than closed dialogues. I have received emails from all around the world and often my interlocutors shared personal stories about their experiences of the divisible college of international lawyers in both academia and practice. For instance, much to my regret, I was unable to include an analysis of a Latin American state in the book. Instead of spurning it, numerous Latin American scholars have reached out to tell me their side of this story (e.g., Francisco-José Quintana about the problems with teaching the Falklands/Malvinas dispute in Argentina using UK textbooks).

The book is an invitation for self-critique and dialogue. I hope that it prompts many conversations, even if some of them are uncomfortable. Academia is meant to challenge the status quo and shake up things up. Taking risks is part of the point.

Methods and Layering

In reading the book, Ruiz Fabri found herself wondering about its nature. Was it “A sociological inquiry? A manifesto? A plea? Against arrogance? Against a new Empire? For comparison? For pluralism? Maybe a bit of all this?” This is an insightful question and one that I have pondered more since writing the book. It is also one that Paul Stephan astutely, if partially, answers.

I have come to see this book as embracing what sociologist of globalization Saskia Sassen describes as a “Before Methods” approach. Complex global phenomena and emerging or underanalyzed issues are helpfully dealt with by first stepping back and seeking to destabilize our existing understandings of the world and the conceptual frameworks we use to describe it. Often particular concepts, framings and metrics obscure as much as they reveal. This approach requires one to sketch and project, and to connect microobservations to macroforces in an iterative observational and analytical process.

As Stephan notes, such work must be done analytically prior to many other projects: my book “strips away preconceptions and mystification” with a view to setting the scene for social justice projects and instrumental and empirical analyses. For instance, although the book engages in some empirical analysis, it doesn’t pretend to be exhaustive or a champion of sophisticated methods. Similarly, the book describes and explains international law and lawyers’ fragmented reality but does not take the next step of providing a normative framework for assessing which approaches are better or worse.

Good scholarship is often completed in layers. As Stephan concludes, this book “expose[s] the forces that bring about systematically different cultures of international law in different parts of the world” but leaves others to explore “the link between disaggregated cultures and the international law that results.” It is the horse before the cart. It seeks to open our eyes to many issues, analyze their origins and effects, and provide a framework and vocabulary for talking about them. The book doesn’t answer every question but makes many new questions possible.

The same sentiment underlies Rusinova’s conclusion that the effect of this book will ultimately depend on what other international lawyers do with it. According to Rusinova, the book should be understood as a challenge to international lawyers to ask themselves, “Do I realize which boundaries surround me in the discipline and am I, at least, trying to act above them?” Thus, she concludes that “it is in our own hands to make [the book] change the ‘world of international law.’” Yet, as Ruiz Fabri notes, much will turn on how those in the privileged inner circle (the “International Bubble,” as she calls it) respond to the critique.

Promise and Perils

Jia’s contribution constitutes a very good example of analyzing the promise and perils of comparison. As Jia notes, and as I found through my study, although textbooks and casebooks from some states contain good information about the practices of those states, that does not hold true for all states. In particular, Chinese international law textbooks often draw heavily on the approach of Oppenheim and Brownlie and feature little Chinese practice or views. If these books weren’t written in Chinese (a bit of a giveaway), I could easily have mistaken them for not being Chinese, except for their treatment of a handful of issues like Taiwan and the South China Sea.

Any metric that one uses to compare international law or international lawyers across states will be limited because metrics that make sense in one context often don’t make sense in another. This problem is one of the perils of comparison and it explains why one needs to adopt many approaches and metrics to build up a more complete picture. But it is also part of comparison’s promise. Thus, rather than accept the status quo, Jia suggests that the time has come for China to adopt a new generation of international law textbooks that, among other things, give the reader more information about China’s approach. I concur.

How such a development plays out remains to be seen. The future for Chinese international textbooks seems caught between two forces. On one side, some academics are developing casebooks that are much closer to US-style casebooks, particularly in international economic law. On the other side, the Chinese government has stepped up its censorship of academics and has now sponsored the creation of a quasi-mandatory textbook on international law that is meant to feature Chinese socialist characteristics (though these attributes are apparently pretty sparse in the first edition). This struggle between nationalized, denationalized and westernized approaches is happening before our eyes and may evolve differently with respect to form and substance.

Censorship and Judgment

The last point on censorship links to an important factor that Milanovic and Julian Ku highlight. Not all states have robust traditions of academic freedom or free speech more generally. If we are going to diversify our networks and sources, how should we assess scholarly opinions coming from authoritarian states like China and Russia where there is evidence of significant external and internal censorship? This issue arises in my book in the discussion of textbooks and in my account of the virtual uniformity of Chinese and Russian academic views – as well as their conformity with the positions of their states – with respect to the South China Sea arbitration and Crimea, respectively.

I agree with Milanovic that this issue arises in my book but deserves more explicit attention in comparative international law work going forward. In fact, I am currently working on a piece with a colleague addressing this very issue. But I disagree with Ku’s conclusion that adopting a comparative international law approach necessitates descending into pure relativism. As I say in the book, recognizing “differences in the way international law is understood, interpreted, applied, and approached can be examined without adopting a relativist stance that all positions are equal” and “[w]hether a given position reflects international law depends on many factors, such as the number of states that support it [and] how widespread and representative they are as a group.”

Although I deliberately refrained from making legal judgments in the book as my purpose was to identify, explain and analyze the divisible college, I am not averse to people reaching such conclusions. Much of this is a question of sequencing. My suggested approach is:  (1) seek to engage, listen and understand, (2) seek to test your assumptions and argue your position, (3) identify and justify your framework for assessing different positions, and (4) engage in judgment.  I emphasize steps one and two in my book because too often I see international lawyers go straight to step four, missing steps one and two and simply assuming step three. Steps one and two are crucial for building knowledge, self-awareness and networks. For international law to move forward, however, one of the central challenges will be deciding when to recognize divergent interpretations as valid and when to conclude that some venture beyond the pale (step three). And this may end up being contested.

In developing such frameworks, we all need to be attentive to our blind spots and biases, but we should also pay attention to those of other national communities. I agree with Milanovic’s conclusion that the international reputation of a group of national scholars will depend significantly on their ability to take positions that are independent from those adopted by their state. Discerning the dividing line is most difficult in academies, like the Chinese and Russian ones, that have what Milanovic describes as “some non-negligible level of academic freedom.” Levels of freedom are also likely to vary across fields and issues. Scholars might have more freedom with respect to international economic law and less concerning core national interests, for instance. Although this will always be difficult to judge, it is much harder to do so if you don’t have networks in and knowledge of these academies.

In terms of the South China Sea case, I agree with Ku that the uniformity of the Chinese scholars’ views on the South China Sea worked in the end to damage their credibility and that their “going out” approach worked hand-in-hand with the government’s media campaign. However, at least based on my networks and knowledge – which are necessarily partial and subjective – I think that Western international lawyers often dismiss the objection of Chinese scholars to the SCS tribunal’s jurisdiction as being purely politically motivated when my sense was that it was usually genuinely held. By contrast, I believe that politics were at play behind the lack of criticism by some mainland Chinese scholars of China’s refusal to participate in the arbitration and abide by the award.

In addition to considering academic freedom, we also need to be aware of other socializing and incentivizing factors that might influence academics to align with their states, such as the media they watch, unusually close connections between academia and government (as in the United States) and the strategic use of research funding (as in China). Indeed, Milanovic notes that the United States has a strong tradition of freedom of speech, but non-US international lawyers often find strong synergies between the positions of US international lawyers and the US government and frequently credit that, in part, to the socializing and incentivizing factors that come with the US government/academic revolving door.

We also need to be mindful about how a failure to engage can be interpreted as an unwillingness to listen and how the Western dominance of so many international institutions creates concerns about exclusion and bias. In my book, I document systematic patterns of non-engagement across communities and lack of diversity in international institutions that have nothing to do with concerns about censorship. US academics do not generally ignore French scholars because of concerns about academic freedom. The frequent invisibility of Latin American scholarship and cases within Western international law circles has nothing to do with a concern about propaganda. There is a lot more we could do to diversify our knowledge and networks. And if we are more inclusive on steps one and two, and more reflective and explicit in how we ground our evaluative frameworks in step three, then our ultimate judgments in step four will deserve greater weight.

Conclusion

The obvious question to ask at the end of this back-and-forth is, What’s next? Many of the contributors identify where one could take a scholarly agenda from here, for example, from developing and testing instrumental theories about the link between cultural differences and approaches to international law (Stephan) to encouraging greater internationalization of self-contained academies (Rusinova). One can imagine greater in-depth studies of specific national approaches and larger empirical cross-national comparisons.

My book also works as a springboard to larger normative questions, such as what the existing diversity means for finding and justifying “international law,” especially in an age of shifting geopolitical power (Ku). These questions are currently being addressed by projects such as International Rule of Law: Rise or Decline? As I say in the book’s conclusion, I began the project by seeking to change the question from whether international law is law to whether it is international, but perhaps the challenge of our generation is in recognizing that these questions are inextricably linked.