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So How Do We Assess Proportionality? (A Response to Blank, Corn, and Jensen)

by Kevin Jon Heller

Just Security published a post by Laurie Blank, Geoffrey Corn, and Eric Jensen yesterday criticizing two surveys that are interested in how laypeople think about IHL’s principle of proportionality. Much of what the authors say is absolutely correct, particularly about the need to recognize that assessing ex post the ex ante decision-making process of military commanders is fraught with difficulty and likely to both overemphasize actual civilian casualties and underemphasize anticipated military advantage. But the post is still problematic, particularly the following claims:

Second, the surveys exacerbate what is perhaps the most dangerous misperception and distortion of this vital regulatory principle: that you, or I, or anyone can accurately and meaningfully assess the proportionality of an attack after the fact and without full knowledge of the circumstances at the time of the attack. Proportionality necessitates a prospective analysis that cannot be assessed in hindsight by looking solely at the effects of an attack (or the hypothetical effects of a hypothetical attack). The language of the proportionality rule refers to “expected” civilian casualties and “anticipated” military advantage — the very choice of words shows that the analysis must be taken in a prospective manner from the viewpoint of the commander at the time of the attack. Credible compliance assessment therefore requires considering the situation through the lens of the decision-making commander, and then asking whether the attack judgment was reasonable under the circumstances.

[snip]

Ultimately, these surveys are based on a flawed assumption: that “public perception” is the ultimate touchstone for compliance with the proportionality rule; a touchstone that should be substituted for the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat. On that basis alone, it is the surveys that are disproportionate.

I can’t speak to one of the surveys, because the authors don’t provide any information about it. But I am aware of (and have completed) the survey they do link to, which is conducted by Janina Dill, an excellent young Oxford lecturer who is the Associate Director of the Oxford Institute for Ethics, Law and Armed Conflict. The authors caricature Dill’s survey when they claim that it is based on the “flawed assumption” that “public perception” is “the ultimate touchstone for compliance with the proportionality rule.” Dill does not suggest that the legality of a particular attack should be determined by public perception of whether it was proportionate; she is simply interested in how non-military people think about proportionality. Like the authors, I don’t believe Dill’s questions capture the complexity of the military commander’s task. But neither does Dill. That is not the point of the survey.

Dill, however, is more than capable of defending herself. I am more interested in the first paragraph quoted above, because the authors come perilously close therein to claiming that it is per se illegitimate for anyone — or at least individuals who are not soldiers themselves — to second-guess the targeting decisions of military commanders. I suppose they leave themselves a tiny escape from that position by implying (obliquely) that “you, or I, or anyone” could assess ex post a military commander’s ex ante proportionality calculation as long as we had “full knowledge of the circumstances at the time of the attack.” But the authors make no attempt whatsoever to explain how the decision-makers involved in any ex post “compliance assessment” could ever take into account everything the military commander knew about the circumstances of the attack — from “the enemy’s center of gravity and the relationship of the nominated target to that consideration” to “the exigencies of the tactical situation” to “the weaponeering process, including the choice of weapons to deploy and their known or anticipated blast radius or other consequences.” Some information about the objective circumstances of the attack may be available in written reports and through the testimony of the military commander’s superiors and subordinates. But those objective circumstances are only part of the story, because IHL proportionality requires (as the authors rightly note) assessing the reasonableness of the attack “through the lens” of the commander herself — what she actually knew about the objective circumstances of the attack. And that information will be located solely in the mind of the military commander. Perhaps some commanders are so honest and so mentally disciplined that they will provide a court-martial or international tribunal with an accurate assessment of what went through their mind before the attack. But most commanders faced with discipline or prosecution for a possibly disproportionate attack will either lie about their proportionality calculation or unconsciously rewrite that calculation after the fact to justify killing innocent civilians.

In most cases, therefore, the decision-makers involved in a compliance assessment will have no choice but to rely on circumstantial evidence — including, yes, an attack’s actual consequences — to infer what went through the mind of a military commander prior to launching an attack. Such inferences will always be, for all the reasons the authors note, complex, fraught with difficulty, and prone to error. But unless we are going to simply defer to “the expert, hard-earned judgment of military commanders who bear the moral, strategic, tactical and legal consequences of each and every decision they make in combat,” we have no choice but to ask people to draw them. I doubt that any of the authors think that uncritical deference is appropriate; more likely, they think that although compliance assessment is necessary, no civilian should ever be permitted to sit in judgment of a soldier. If so — or if they think that civilian assessment is possible in the right system — the authors need to do more than just complain about how difficult it is to be a military commander and dismiss as irrelevant how civilians think about fundamental principles of IHL. They need to tell us what a properly-designed system of compliance assessment would look like.

Weekend Roundup: January 24-31, 2015

by Jessica Dorsey

This week on Opinio Juris saw Deborah note the publication of current Guantanamo detainee Mohammedou Slahi’s diary and her review that appeared in the Washington Post about it. Peter offered further commentary on his first post on John Boehner’s invitation to Benjamin Netanyahu to address the US Congress, specifically in terms of what the invitation says about constitutional change.

Though he never met him in person, Julian noted the passing of Dr. Luke T. Lee, and paid homage to him and his treatise on Consular Law and Practice.

In light of the hostage situation between ISIS and Jordan/Japan, Jens weighed in on hostages and human dignity. Jens also reported on yesterday’s decision at the ICTY Appeals Chamber, upholding genocide charges in the case of The Prosecutor v. Popovic et al. related to the massacre at Srebrenica in July, 1995.

Duncan highlighted his newest paper, this time he’s written An Intersubjective Treaty Power and a guest post came in from Nimrod Karin, responding to Kevin’s critique of his Just Security posts (here and here), about whether Palestine’s joining the ICC amounted to “lawfare.”

And finally, I updated you on the weekly news and also offered the events and announcements post.

Many thanks to our guest contributor and have a nice weekend!

ICTY upholds Genocide Convictions in Srebrenica Case

by Jens David Ohlin

Today, the ICTY Appeals Chamber affirmed genocide convictions in the Srebrenica case, Prosecutor v. Popović et al. The full Appeals Chamber judgment is here.  The PDF document is 792 pages (including a few short dissents), which is long-ish but certainly not extraordinary by ICTY judgment standards.

In my opinion, the most critical part of the judgment relates to the connection between the defendants, their Joint Criminal Enterprise (JCE), and the perpetrators who actually performed the killings. As you will recall, back in the old days when the JCE doctrine was first brought to fruition in the Tadic case, the assumption was that the court would convict defendants who were part of the same JCE as the perpetrators who performed the actual killings. Later ICTY judgments “de-linked” leadership-level defendants from the relevant physical perpetrators and held that a conviction for JCE did not require that the defendants and the perpetrators were part of the same JCE. This opened up a big question: what link between the defendants and the perpetrators was required in order to convict under the JCE doctrine? Furthermore, what doctrine would justify imposing liability on the defendants when the JCE doctrine was insufficient by itself to establish the link between the defendants and the physical perpetrators. What standard would be used to evaluate the required link?  I was hoping that the Popović judgment would resolve these questions definitively, but it does not appear to have done so.

Here is the relevant paragraphs in the judgment regarding one set of killings:

1065. The Appeals Chamber observes that the Trial Chamber considered that the fact that killings occurred in July 1995, after the fall of Srebrenica, and that the victims were Bosnian Muslim men from Srebrenica, were sufficient to link the Trnovo killings to the common purpose of the JCE to Murder. The Prosecution correctly points out that the principal perpetrator of a given crime need not be a member of the JCE and that it must be determined whether the crime in question forms part of the common purpose. The Appeals Chamber reiterates that: to hold a member of a JCE responsible for crimes committed by non-members of the enterprise, it has to be shown that the crime can be imputed to one member of the joint criminal enterprise, and that this member – when using a principal perpetrator – acted in accordance with the common plan. The Appeals Chamber does not consider the Trial Chamber’s finding to satisfy this requirement. The Appeals Chamber, Judge Niang dissenting, therefore finds that the Trial Chamber’s failure to further elaborate on this link amounts to a failure to provide a reasoned opinion. In view of the Trial Chamber’s error of law, the Appeals Chamber will consider whether the factual findings in the Trial Judgement as a whole would allow a reasonable trier of fact to establish a link between the members of the Scorpions Unit and a member of the JCE to Murder.

1066. Although insufficient on their own to establish a link, the Appeals Chamber notes that the Trnovo killings share certain features with other crimes committed in furtherance of the common plan, namely that the victims were Bosnian Muslim men from Srebrenica, the killings occurred “in July 1995, after the fall of Srebrenica”, and the victims were lined up and shot with automatic rifles.

1067. As previously discussed, one way to establish the required link would be to demonstrate that in the lead up to the Trnovo killings, the Scorpions Unit co-operated with the VRS, either directly or through the MUP forces, with respect to the custody or control of the prisoners killed in Trnovo. In this regard, the Prosecution asserts it is reasonable to infer that the Bosnian Muslim men killed in Trnovo were captured by or surrendered to the BSF who then handed them over to the Scorpions Unit. The Appeals Chamber observes, however, that the Trial Chamber, having considered and rejected similar arguments, concluded that “₣ağny inference that there was coordination with the VRS Main Staff is speculation”. In reaching this conclusion, the Trial Chamber rejected the Prosecution’s arguments that: (1) the Bosnian Muslim men were arrested in the Drina Corps’ zone of responsibility; (2) the logistics of their transport would have required VRS Main Staff involvement; and (3) the Scorpions Unit would have been unable to take any actions without orders from the BSF and the MUP in Trnovo. The Trial Chamber also took into consideration that it was not presented with evidence: (1) indicating that the six men were detained in the Drina Corps’ zone of responsibility; (2) shedding light on the men’s journey from Srebrenica to the Trnovo area; or (3) indicating that there was any VRS Main Staff involvement in the six men coming into the custody of the Scorpions Unit. The Appeals Chamber is not persuaded that the Trial Chamber’s conclusion – that to infer co-ordination between the Scorpions Unit and the VRS Main Staff would be speculative – is undermined by either the evidence that the six Trnovo victims were last seen along the route of the column between Bratunac and Nova Kasaba, or that other Bosnian Muslim men from the column were captured by or surrendered to the BSF stationed along the Bratunac-Konjevi} Polje Road.

1068. In submitting that the Scorpions Unit and MUP forces were closely co-ordinated during the relevant time period, the Prosecution relies on evidence that demonstrates that: (1) the Scorpions Unit was deployed in Trnovo from late June through at least the end of July 1995; (2) on 1 July 1995, Borovcanin reported on activities on the Trnovo battlefield, including on an attack involving the Scorpions Unit; (3) Borovcanin was in Trnovo on the Sarajevo front until he was resubordinated on 10 July 1995; (4) a mixed company of joint Republic of Serbian Krajina (“RSK”), Serbian and RS MUP forces was among the units under Borovcanin’s command when he was resubordinated and that during the night of 10 July 1995 this mixed company was to withdraw from the Trnovo battlefield and assemble in front of the Public Security Station (“SJB”) in Bratunac by noon the following day; and (5) upon arrival in Bratunac, Borovcanin was to report to Krstic.3113 This circumstantial evidence suggests that Borovcanin worked with the Scorpions Unit and the VRS Sarajevo-Romanija Corps while he was in Trnovo. However, when considered alongside the Trial Chamber’s finding that the only evidence about the whereabouts of the mixed company of joint RSK, Serbian, and RS MUP forces after re-subordination was that they did not arrive in Bratunac,the Appeals Chamber is not persuaded that the only reasonable inference available was that Borovcanin continued to co-ordinate with the Scorpions Unit after he was re-subordinated on 10 July 1995. The Appeals Chamber further emphasises that the killings were committed in Trnovo, which although only 150 kilometres from Zvornik, falls within the area of responsibility of the Sarajevo-Romanija Corps, rather than the area of responsibility of the Drina Corps like the other crimes. Finally, with respect to the Prosecution’s argument that the BSF continued to search for ABiH soldiers and to capture and kill smaller groups of Bosnian Muslim men fleeing from Srebrenica even after the mass killings were complete, the Appeals Chamber considers that although it demonstrates the continued implementation of the murder operation, it is of limited relevance in showing a link between the Scorpions Unit and a JCE member. The Appeals Chamber, Judge Niang dissenting, therefore considers that a reasonable trier of fact could not have established a link between the members of the Scorpions Unit and a member of the JCE to Murder.

1069. In light of these considerations, the Appeals Chamber, Judge Niang dissenting, considers that a reasonable trier of fact could not have concluded that the members of the JCE were responsible for the Trnovo killings. The Appeals Chamber, Judge Niang dissenting, therefore grants in part Beara’s ground of appeal 17 and Popovic’s appeal in this regard, and reverses their convictions under the following counts to the extent they concern the Trnovo killings: Count 1 (genocide); Count 3 (extermination as a crime against humanity); Count 5 (murder as a violation of the laws or customs of war); and Count 6 (persecution as a crime against humanity).

I do not have an opinion regarding the sufficiency of the evidence and whether the Appeals Chamber should have imputed the killings to the defendants in this case. Rather, I am concerned that the Appeals Chamber did not do enough to establish a particular standard or doctrine to “re-link” perpetrators with killings performed by individuals outside of the JCE. There is nothing close to a standard announced here, but rather the Chamber simply reasserts that there must be some connection in order to justify the imputation. Well yes, but what criminal law doctrine structures that imputation? To me it’s a bit like saying that a defendant in a criminal trial can be punished for someone else’s killing as long as there was some coordination between them, but without specifying whether the defendant is an accomplice, conspirator, instigator, or whatever.

The Chamber performs a fact-intensive inquiry into the matter without any particular doctrine or mode of liability to aid the analysis. It does say that cooperation or coordination would be “one way to establish the link,” and that there was insufficient evidence of such cooperation or coordination in this case. OK, but does that mean that a link could be established in some other way? And if so, what is the overall Dogmatik justification for imputing the criminal actions of non-members to members of the JCE?

Again, I’m not objecting to the result in this case, but rather questioning whether the Appeals Chamber has answered the necessary doctrinal questions and whether they have given sufficient guidance to further Trial Chambers. The results here seem decidedly fact-dependent and, shall we say, under-theorized. 

An Intersubjective Treaty Power

by Duncan Hollis

Ian Henderson may be mad at me.  He asked for fewer posts on foreign relations.  But he also asked for more posts on treaties.  I have a new paper up that tackles both topics — An Intersubjective Treaty Power.  For those of you who are interested in such things, here’s the abstract:

Does the Constitution require that U.S. treaties address matters of international concern? For decades, conventional wisdom answered that question negatively; The Restatement (Third) of U.S. Foreign Relations Law dismissed the very existence of an international concern test. In Bond v. United States, however, three Justices – Alito, Thomas, and Scalia – insisted on its existence, pushing the issue into the foreground of foreign relations law.

This article analyzes whether the Constitution contains an international concern test and what contours it has. I argue that Justices Alito, Scalia and Thomas are correct – and the Restatement (Third) was wrong – on the test’s existence. Various modalities of constitutional interpretation – original meaning, historical practice, doctrine, structure, and prudence – offer evidence supporting some version of an international concern test. But I part ways with the Justices on how the test works. They and other proponents have tended to look for static or objective criteria to divide appropriate “international” matters from impermissible “purely domestic” ones.

In contrast, I argue that the international concern test is intersubjective. U.S. treaties can only be formed (or ratified, implemented, or applied) where the relevant actors at each stage (e.g., States in forming a treaty, the President and the Senate in ratifying it) share a belief that its subject-matter is international. Absent that understanding, the treaty will not be formed (or ratified, or implemented, or applied). Such views may coincide or divide depending on the context. Thus, the Supreme Court could agree that the Chemical Weapons Convention generally addressed a matter of international concern, even if they also agreed that the prosecution of Ms. Bond did not. Nor are these understandings fixed; issues need not be “purely” domestic (or international) for all time. Some topics such as human rights were once understood by States (and the President and the Senate) to be inappropriate subjects for treaty-making, but are now believed to be an essential aspect of international relations. Other topics such as Native American relations were once subject to extensive treaty treatment, but are now no longer accepted as appropriate subjects for U.S. treaties.

This article thus answers one of the longest running questions of U.S. foreign relations law. It confirms the existence of an international concern test, but locates its operation within the treaty process rather than in an externally-imposed laundry list of topics or criteria. In doing so, it provides an explanatory lens for a U.S. treaty practice that many label incoherent and suggests a need for more research on what conditions generate intersubjectivity (or its absence).

 

Hostages and Human Dignity

by Jens David Ohlin

News reports indicate that Jordan is engaged in frantic negotiations with the Islamic State (ISIS) over a proposed hostage swap. Jordan is apparently willing to turn over a prisoner, would-be suicide bomber Sajida al-Rishawi, in exchange for ISIS releasing both a Jordanian air force pilot and a Japanese captive. For reasons that aren’t entirely clear, the deal appears to have collapsed.

Earlier video appeared to show that another Japanese hostage was murdered by ISIS–a development that provoked shock and outrage in Japan. ISIS hostage-takers had earlier demanded $200 million from the Japanese government in exchange for releasing the two Japanese nationals. Although Japan is not militarily engaged in the armed conflict against ISIS, the terrorist organization said that its actions were motivated by the financial assistance that Japan had pledged to the regional effort, though Japan clarified that the financial assistance was for non-military efforts. Unfortunately, that clarification did not dissuade ISIS from continuing to threaten the life of the remaining hostage.

It is unclear what policy Japan is following regarding negotiating with ISIS generally and paying ransom demands specifically.

The United States and Britain have explicit policies against paying ransom to ISIS or other terrorist organizations. Consequently, while many captives from other European countries have been released after their governments paid ransoms to ISIS, several U.S. and British hostages have been brutally beheaded because their governments refused to negotiate or give money to ISIS to win their release. This has caused anguish for the families of the hostages.

In this post, I don’t want to address the normative question of whether it is best (morally or strategically) to pay a ransom. Of course, paying the ransom wins the release of the individual hostage. However, it also emboldens and encourages ISIS and other terrorists to perpetrate more kidnappings. It is precisely for this reason that the U.S. refuses to negotiate and pay money to ISIS.  The ransom payments are bankrolling the ISIS war in Iraq and Syria. So the European countries that are paying the ransoms are providing (indirectly and under duress) the resources for ISIS to fight the military coalition that is trying to stop them from carving its caliphate out of the territory of Iraq and Syria.

Rather, I want to ask the descriptive question of why most European governments are willing to pay the ransoms while the U.S. and Britain will not.  Both sides of this issue understand the pragmatic consequences. So why the different conclusions?

I have spent a long time thinking of the question and the only answer i can find is: human dignity. The U.S. and British position sacrifices the interests of the individual hostage in order to serve a larger social goal: denying ISIS the financial resources to continue its military campaign. This is a consequentialist calculation. The problem is that it is not so good for the individual hostage.

European governments care about the lives of the hostages and are willing to save them, even though they know that saving them will make the overall situation worse, both for the global community as well as their own citizens will inevitably be taken hostage again. But they are unwilling to balance away the interests of the hostage for some larger societal interest. This preservation of, and respect for, human dignity is deeply entrenched in some European legal cultures. For example, article 1 of the German Constitution says that human life is inviolable and cannot be balanced away. Utilitarian balancing is impermissible as a matter of constitutional law if it violates the human dignity of the individual, who is entitled to moral and legal respect. This means that the life of the hostage cannot be subordinated to the global interests that are advanced by the policy of non-negotiation.

Of course, one caveat here. The cause of the hostage’s peril stems from an outside agent (ISIS), not the government. So the government is not directly harming the hostage by not paying the ransom. This makes the situation much different from the German Airliner case, where the German courts concluded that authorizing the shooting down of a hijacked airliner would be unconstitutional because it would violate the human dignity of the innocent passengers. In that situation, the passengers would have been killed by the German government, while in the case of the hostages, their deaths would be caused by ISIS, not their own government. This is a relevant difference, both morally and legally.

That being said, I still think that, as a descriptive matter, the commitment to human dignity and moral individualism is at play in the background here. For some European governments, as well as their domestic populations exerting political pressure on them, the interests of individual citizens cannot be dismissed simply because a larger social policy requires doing something different. For some European governments, that social policy sounds particularly cold because it indirectly ends up condemning the individual hostages. The question is why these governments think this result would be cold. And I think the reason why is because the commitment to Kantian dignity is more deeply engrained in some legal cultures than others.

 

RIP, Luke T. Lee, Expert on Consular Law

by Julian Ku

I never met the late Luke T. Lee, but his work, Consular Law and Practice, was one of the first treatises on “practical” international law I ever encountered. As a young student intern in the U.S. State Department, I remember going to his book again and again as I tried to figure out exactly what would happen to a U.S. consular official who got into a car accident in Jerusalem but whose consular status was never properly recognized by the government of Israel (There is a memo I wrote on this subject somewhere in the bowels of the State Department that may or may not ever have been read).  Lee’s work was not breathtakingly complex or sophisticated, but it was clear, careful, and comprehensive on the questions it set for itself. Works like Consular Law and Practice are not the only purpose of writing legal scholarship, but it is a purpose that is still worth celebrating.  RIP.

More on Boehner’s Netanyahu Invite (and What It Says About Constitutional Change)

by Peter Spiro

My earlier post on whether John Boehner’s invitation to Benjamin Netanyahu seems to have triggered a little in-house conservative disagreement on the issue (or at least Weekly Standard’s Adam J. White is giving me credit for that). Mike Ramsey and David Bernstein come out against the invite’s constitutionality here and here; White argues in favor.

As I left off my first post, the question is appropriately raised but I think ultimately the Boehner move will go down as policy stupid but constitutionally legitimate. Appropriately raised because the invitation seems so patently at odds with a “one voice”/”sole organ” approach to foreign relations. Nice to have Mike Ramsey to confirm that the Founding generation wouldn’t have bought in (though Ryan Scoville dissents on the historical record here). But it would have provoked a huge controversy in the 20th century as well — see the much more informal interaction between Jim Wright and the Sandinistas during the Reagan years. Imagine if Wright had invited Sandinista leader Daniel Ortega to address Congress. I think a lot of folks would have deployed constitutional objections to that.

But just because it may have been unconstitutional then doesn’t mean it’s unconstitutional now.

The fact that it was left to a niche blogger to raise the constitutional question this time around pretty much proves the fact that this is now water under the constitutional bridge. There’s no way to put the lid on direct communication between members of Congress and foreign government officials. So much for “one voice.” One has to assume such communications are now dense. Making the jump from lots of behind-the-scenes contact to more formal actions like the Boehner invitation looks small. One might even argue that it is transparency enhancing. Better to play the institutional cards openly than hide them under the table. (Adam White highlights similar activity on the part of the courts, including the increasing amicus practice of foreign states. That practice would have raised a lot of eyebrows as recently as a couple of decades ago, especially on domestic issues; it’s now pretty routine.)

So the episode is a nice illustration of how changes in context can change constitutional understandings. Assuming the constitutional debate on the Boehner move remains restricted to a side conversation among constitutional scholars, it will supply a good precedent for similar moves on Congress’ part in the future. The practice then becomes constitutionally entrenched, accepted by all relevant actors. Any earlier understandings (including ones dating back to the founding) are overtaken by events. Th Constitution necessarily adapts to the world in which it has to operate.

Weekly News Wrap: Monday, January 26, 2015

by Jessica Dorsey

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

Africa

  • Top Ugandan rebel commander Dominic Ongwen is due to make his first appearance at the International Criminal Court (ICC) in The Hague today to face war crimes charges.
  • United Nations experts warned that Sudan’s remote western territories could become a breeding ground for radical Islamists as violence in the country’s conflict-torn Darfur region rages at an alarming level.
  • Boko Haram has launched a major offensive in Nigeria’s northeastern city of Maiduguri and the town of Monguno, engaging in fierce battles with the military.

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

  • Conservative Prime Minister Tony Abbott has awarded Australia’s highest honor to Prince Philip, husband of Queen Elizabeth, sparking a barrage of criticism across the country on its national day of celebration. The award grated with republicans who want to sever ties with Britain and appoint an Australian president.
  • Australia called on Indonesia on Friday to reconsider its decision to execute two Australians convicted of drug offences, a move that is likely to strain already fragile ties between the two neighbors.
  • The United States has agreed that Australian David Hicks, jailed on terrorism charges for five years at Guantanamo, is innocent, his lawyer said on Friday.

UN/World

  • A new round of U.N. talks between rival Libyan factions will take place in Geneva on Monday, the United Nations said, even as gunmen kidnapped the deputy foreign minister of the recognised government.
  • The World Health Organisation (WHO) has admitted that the Ebola outbreak in West Africa revealed “inadequacies and shortcomings” in how it responds to crises.

Current Guantanamo Detainee Publishes Diary

by Deborah Pearlstein

While I’ve no insights into why the government finally permitted current Guantanamo detainee Mohammedou Slahi to publish the diary he hand wrote in English back in 2005, several years into his captivity, published it now is, subject to relatively minor redaction. The diary is a remarkable read in many respects; my longer take and a summary of Slahi’s account can be found in my review for the Washington Post this past week. Slahi, a Mauritanian national who holds a degree in electrical engineering, describes brutal beatings and other forms of torture not only in detention while in Jordan, but also at length at Guantanamo itself. A federal district court in Washington ruled in 2010 that Slahi’s petition for habeas corpus be granted; on appeal, that decision was remanded (for the application of a different standard of who can be considered “part of” Al Qaeda), and there it continues to sit. Diary publication notwithstanding, Slahi remains at Guantanamo today.

Guest Post: A Response to Kevin Jon Heller

by Nimrod Karin

[Nimrod Karin is a J.S.D. candidate at New York University School of Law. From 2006 to 2012 he served as a legal adviser to the Israel Defense Forces at the International Law Department of the Military Advocate General’s Corps’ HQ, and from 2012 to 2013 he was the Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations.]

Thanks so much for the kind words, Kevin, and even more so for the interesting push-back. I confess that a reader of an early draft of my post cautioned me against using the term “lawfare,” although for different reasons than those Kevin noted. Now I realize I should’ve given this comment more thought, but at the same time I’m very pleased to have helped generate the side-discussion over Kevin’s use of the term “bravery,” which is fascinating in itself.

In my original post I wrote that “lawfare” is a Palestinian prerogative, and therefore I clearly think that it’s both politically and legally legitimate, and so I can’t think that it has such negative connotations as Kevin apparently thinks I do. In fact, I did mean “lawfare” in the sense Kevin’s discussants (Dov, el roam, and Mendieta) are using it: “lawfare” as strategic utilization of the law, which for me isn’t negative but rather value-neutral, and this is why in the post I contrasted it with “the quest for justice” or “embracing the law.” Strategy is simply neither of those, just as it isn’t “good” or “bad” – Strategy is only successful or unsuccessful. And as my original post indicated, to me the only plausible strategic role for the ICC in the Israeli-Palestinian conflict is as “the (legal) straw that broke the camel’s (political) back”. Only time will tell whether this is in fact a successful strategy for the Palestinians.

As with most strategies, this latest Palestinian move carries risk, not only of failing but also of backfiring, exactly as Dov put it. And this is what Kevin apparently deems to be “bravery,” and that’s because (1) the ICC process is uncontrollable and (2) it is likely to implicate Hamas as well. At first blush I thought that in this context Kevin’s use of “bravery” stands for selfless, non-strategic risk-taking, on behalf of some higher or noble cause. This would mean Kevin does see the Palestinian ICC bid as primarily driven by “justice” or “rule of law” considerations, in which case Kevin and I substantively disagree. However now I think that Kevin’s using “bravery” in its dictionary form, i.e. doing something incredibly risky (for whatever reason), perhaps even unreasonably dangerous given the possible reward, and maybe even a “Samson Option” type of last resort (as melodramatic as it may sound). I think this meaning of “bravery” conforms to the value-neutral charchter of the “lawfare” definition, which means Kevin and I agree on the principle, and then we can ask whether the Palestinian move is strategically sound given the well-known thinness of the line separating bravery and stupidity.

The question therefore becomes just how risky the Palestinian ICC bid really is, and how risky the Palestinians thought it was when they made it, and we can only speculate with regard to both of these questions. My educated guess here is that the ICC bid isn’t that much of a risk for the Palestinians, or at least that it’s not perceived as such by the Palestinians, least of all by the relevant decision-makers, i.e. Abbas and his concentric power circles of PA-PLO-Fatah. I think that by now it’s more than obvious that for that side of the Palestinian internal conflict the best possible scenario is an international cop stepping in to take care of Hamas. If Hamas leaders ever get indicted by the ICC, Abbas would be finally free of the whole unity charade, and at absolutely no internal political cost for him, because Abbas wouldn’t face the dilemma of whether or not to extradite suspects or accept external investigation – Abbas has no de facto authority or control whatsoever over either the suspects or the actual “scene(s) of the crime(s)”. This means that the “Abbas side” is not only strategically superior in this respect, but a free-rider; and as I mention in the post, this might not have been so easy for the “Abbas side,” if the new ad hoc declaration had stuck to the July 1, 2002 date for retroactive temporal jurisdiction – because this might have put some PA/PLO/Fatah leaders in the path of the ICC due to their activities during the Second Intifada.

The way I see it, the only real backfire risk for the (relevant) Palestinians comes from Israel, where possibilities are endless when it comes to overreaction. I can’t tell of course if the Palestinians are simply dismissive of this risk, or if they’re fully aware and think the possible reward outweighs the risk (perhaps only in the cynical sense of cutting off the nose to spite the face), or if the Palestinians are realistic with respect to both risk and reward, but also truly desperate, as el roam seems to think. I guess that it’s a mix of all three.

Events and Announcements: January 25, 2015

by Jessica Dorsey

Call for papers

  • International Colloquium – Current Issues of Agricultural Law in a Global Perspective, Scuola Superiore Sant’Anna Pisa, September 17-18, 2015. The Scuola Superiore Sant’Anna and the Institute of Law, Politics and Sustainability are pleased to announce the First Edition of the International Colloquium on Current Issues in Agricultural Law in a Global Perspective. The Colloquium is intended to be an opportunity for Post Docs and Ph.D Candidates to present and discuss their research results and methodological approaches in a supportive environment. The aim is to build a community of early career researchers interested in agricultural law and its intersections with other legal areas. We welcome both theoretical and empirical papers as well as studies on issues at the local, regional and international levels. The main topics include: Natural Resources and Environmental Protection at the cross-roads with Agricultural Law; Agricultural models and People’s Rights; Agri-Food Production: Tradition and Technologies; International Trade Agreements, Investment Law and Agriculture. Those interested should submit a short CV and 400 word abstract to colloquium [at] sssup [dot] it no later than April 3, 2015. For full details, including information about application processes, please see the official Call for Papers

Announcements

  • ALMA and the Radzyner School of Law of the Interdisciplinary Center (IDC) Herzliya would like to invite you to next session of the Joint International Humanitarian Law Forum. The session will be held on Wednesday, January 28, 2015, 18:30 in room C110 (Arazi-Ofer Building, 2nd floor) at the IDC. In this session Adv. Efrat Bergman-Sapir, the Director of the Legal Department of the Public Committee Against Torture in Israel will discuss: Torture under the Protection of the Law? From HCJ to CIA (following the release of the U.S. Senate Torture Report). Following the presentation, there will be an open round table discussion. Please note that the session will be conducted in Hebrew. The meeting is free and open to the public. If you wish to attend the meeting please register in advance via forum [at] alma-ihl [dot] org.

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

Weekend Roundup: January 17-23, 2015

by An Hertogen

This week on Opinio Juris, we hosted a symposium on International Law as Behavior, following a workshop at the University of Georgia in late 2014. Elena Baylis discussed the methodological, theoretical and conceptual questions that need to be grappled with when studying international law as behavior, while Galit Sarfaty provided insights from anthropology for the study of international law behavior. More specific issues were dealt with in posts by Jean Galbraith, who reflected on the use of deadlines in international law, Tim Meyer, who described instances of epistemic cooperation as a way of encouraging states to coordinate their behavior, and Harlan Cohen, who addressed the puzzling phenomenon of precedent in international law. Tomer Broude applied behavioural theory to the ongoing negotiations on the Trade in Services Agreement (TiSA), and Harlan Cohen closed the symposium with reflections on the agenda for the study of international law as behavior.

The Palestinian ratification of the Rome Statute and its article 12(3) declaration was the subject of extensive commentary. Kevin disagreed with Nimrod Karin’s posts on Just Security that these steps amount to “lawfare”. He also argued why an investigation into Arafat’s death would be problematic. The issues of settlements in the West Bank was discussed in Ido Rosenzweig’s guest post and by Kevin who explained why the Palestinian Authority cannot use an ICC investigation as leverage to freeze settlement construction.

Foreign affairs law issues came up in Peter’s discussion of the constitutionality of Boehner’s invite to Netanyahu in light of precedents where the Logan Act was invoked, Julian’s argument that President Obama needs congressional approval to lift the trade embargo on Cuba, and Julian’s analysis whether a US-Iranian nuclear deal should take the form of an article II treaty with its requirement of congressional approval.

In other posts,  Fox News came under fire from Kevin for its report on Paris’ “no-go” zones and from Deborah over its factual inaccuracies in reports on Muslims in the UK and France. Kristen updated us on the Haiti Cholera case where the SDNY upheld the UN’s immunity, and Kevin posted a youtube video of a protest song on Australia’s detention centre on Manus Island

Finally, Jessica wrapped up the international news headlines and I rounded up the events and announcements.

Many thanks to our guest contributors and have a nice weekend!