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Weekly News Wrap: Monday, June 29, 2015

by Jessica Dorsey

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

Africa

Middle East and Northern Africa

Asia

Europe

  • Fractious European leaders argued into the early hours on Friday over how to handle over a migrant crisis in the Mediterranean, agreeing a plan to share out the care of desperate people fleeing war and poverty in North Africa and the Middle East.
  • Greek Prime Minister Alexis Tsipras has announced a temporary closure of banks, after the European Central Bank (ECB) said it would not increase additional emergency funding to the country.
  • The suspected Islamist who attempted to blow up a French chemical plant on Friday has admitted killing his manager beforehand, a source close to the investigation said on Sunday, as police linked the suspect to a militant now in Syria.
  • Turkish police fired water cannons and rubber pellets to disperse a gay pride parade in central Istanbul on Sunday, after organizers said they had been refused permission to march this year because of the Muslim holy month of Ramadan.
  • European Council President Donald Tusk urged European leaders to spend more on defense on Friday as deadly attacks in France, Tunisia and Kuwait drove home his point about dramatic changes to the security situation in Europe and its neighborhood.
  • The Swiss government will extradite wartime Muslim defender of Srebrenica Naser Oric to Bosnia, the Federal Office of Justice said on Thursday.

Americas

UN/World

Guest Post: Stephen W. Preston on ‘The Legal Framework for the United States’ Use of Military Force since 9/11’ (ASIL Annual Meeting 2015)–Old Wine in New Bottles

by Elisa Freiburg

[Elisa Freiburg, LL.M. (LSE), is research associate for international law at the University of Potsdam and a doctoral candidate at the University of Heidelberg. Her research focuses on international human rights, development, international criminal law, and the use of force.]

On April 10, 2015, Stephen W. Preston, General Counsel at the United States Department of Defense, delivered a keynote speech at the ASIL Annual Meeting. This speech addressed a vast number of US policy issues and describes the current state of the US understanding of international law on the use of force – an understanding that should worry the international community.

A central issue and starting point of Preston’s speech was the 2001 Authorization for Use of Military Force (AUMF), which had been passed by the US Congress in the aftermath of 9/11 on September 14, 2001, and still, as of today almost 14 years later, continues to authorizes the US President under domestic law to use “all necessary and appropriate force against those nations, organizations, or persons” responsible for 9/11  (or those who harbored such organizations or persons), “in order to prevent any future acts of international terrorism against the United States”. In 2009, the Obama Administration filed a memorandum in the Guantánamo habeas litigation, arguing that the President’s authority to detain “persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners” could be derived from the 2001 AUMF (thereby actually abandoning the “enemy combatant” argument of the Bush administration). By the National Defense Authorization Act for Fiscal Year 2012, US Congress endorsed this new formula which meant that the initial definition of the 2001 AUMF had been significantly expanded.

Certainly, the term “or associated forces” in that definition offers endless possibility to expand the scope of alleged detention authorities. Preston reiterated the interpretation by his predecessor, Jeh Johnson, who had held in 2012 that an associated force must be both (1) an organized, armed group that has entered the fight alongside al-Qa’ida (no mere alignment), and (2) a co-belligerent with al-Qa’ida in hostilities against the US or its coalition partners. Preston also referred to a public hearing before the Senate Foreign Relations Committee in May 2014, during which he had listed the groups and individuals against which the US were taking military action (in the sense of capture or lethal operations) under the 2001 AUMF, namely: al-Qa’ida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-Qa’ida in the Arabian Peninsula (AQAP) Yemen; individuals who are part of al-Qa’ida in Somalia and Libya; (since 2014) the Nusrah Front and the Khorasan Group in Syria; and “the group we fought in Iraq when it was known as al-Qa’ida in Iraq”, the Islamic State. This list already shows how the understanding of the original scope of the AUMF (applicable to those responsible for the 9/11 attacks) has been expanded since 2001. Though Preston tried to differentiate between the Islamic State and its ties with al-Qa’ida, and (theoretically) a totally new group arising “fully formed from the head of Zeus”, in practice one might wonder whether a new group in the region without any links to al-Qa’ida would not rather constitute an abnormality than the rule (at least for the foreseeable future), thereby allegedly allowing the US to include every terrorist group in the region into the AUMF scope if they wanted to. The inclusion of the Islamic State, which does not consider itself as forming part of al-Qa’ida, but as a new group, demonstrates that this line of association might last, from the US perspective if not forever, then for quite a while. (more…)

Does Investor-State Arbitration “Weaken[] the Rule of Law”? Judith Resnik and Larry Tribe Seem to Think So

by Julian Ku

I have not been surprised by the swelling opposition in the U.S. (mostly from the progressive left) against proposed trade agreements with Pacific and European nations (TPP and TTIP).  But I am mildly surprised by the way in which TPP and TTIP opponents have zeroed in on the inclusion of investor-state arbitration mechanisms as a rallying point for their opposition.  Not only has former Harvard lawprof (and now U.S. Senator) Elizabeth Warren come out against the inclusion of investor-state dispute settlement (or ISDS), but yesterday, Yale law prof Judith Resnik and Harvard lawprof Lawrence Tribe, along with Nobel Laureate Joseph Stiglitz and a few others released a letter outlining their concerns with (really, their opposition to)  ISDS.  This letter is much more sophisticated and persuasive than an earlier lawprof letter Roger criticized here.  Indeed, its critique is far broader and echoes “sovereigntist” critiques that many on the political right have often applied to international tribunals.  Here is one snippet of their argument.

ISDS weakens the rule of law by removing the procedural protections of the legal system and using a system of adjudication with limited accountability and review. It is antithetical to the fair, public, and effective legal system that all Americans expect and deserve.

The letter valorizes U.S. courts and Article III judges, as well as the importance of democracy, and contrasts those institutions and values with the secretive ISDS process.  The main complaint, which is quite true, is that ISDS gives foreign investors a “separate legal system” to which others, including US citizens and corporations, cannot access. ISDS is not subject to any serious review by either courts or other arbitral tribunals.

None of the statements in the letter are inaccurate or incorrect. But they do leave out the basic assumption and rationale behind ISDS provisions. Foreign investors are presumed to be more likely to face disadvantages in a foreign legal system, which is why they are presumed to need “extra” protections from ISDS.  I think the rationale for ISDS is weaker for trade agreements between the US and Europe or the US and other developed industrialized countries.  But it is still probably true that there is a greater risk of discrimination against foreigners from a local legal system than against local companies.

I am not convinced of the necessity of ISDS in these trade agreements, but I don’t think it is necessarily a bad thing to include them either. I do recognize that these systems of dispute settlement do create non-trivial tensions with the domestic legal systems of member countries. In other contexts (law of the sea, ICJ/death penalty, etc), raising concerns about these tensions has been associated with the political right. So it is interesting to see progressives borrow sovereigntist arguments in their campaign against ISDS.

 

Why We Should Listen to President Obama Rather than Candidate Obama on Unilateral Presidential War Powers

by Julian Ku

I had the pleasure of participating on a panel a couple of weeks ago on Presidential War Powers, in light of the recent proposal to authorize the use of force against ISIS.  The panel was hosted by the New York City Bar Association and chaired by Prof.Jonathan Hafetz of Seton Hall. It included Prof. Ryan Goodman of NYU and Prof. (Lt. Col.) Walter Narramore of West Point.  C-Span aired it last night and the video can be found here.

To give you a sense of my talk (which starts at 36:00), here is a brief summary.

In 2008, then-candidate Barack Obama stated that he believed the President cannot constitutionally use military force absent congressional authorization except in response to an imminent attack or threat.  But since he has taken office, the President has abandoned this view, most notably in a legal memo from his Justice Department justifying military intervention into Libya.   In my view, this shift provides strong evidence that the strict congressionalist view of presidential war powers is untenable.   I concede that there may be other limits on unilateral presidential use of force (e.g. congressional prohibitions, long-term interventions amounting to a “war”, etc.) but we should no longer take seriously the strict congressionalist position articulated by Candidate Obama in 2008.  

 

Guest Post: The Mediterranean Migrants Crisis and the Use of Force–Is There a Case for Destroying Smugglers’ Boats?

by Sondre Torp Helmersen and Niccolo Ridi

[Sondre Torp Helmersen is a PhD Candidate at the University of Oslo and Niccolò Ridi is a PhD Candidate at King’s College London and SNSF Research Assistant, The Graduate Institute, Geneva.]

1. Introduction

The recent disasters off the coasts of Italy have been the deadliest documented incidents in the troubled history of migration in the Mediterranean sea. The unprecedented number of lives lost at sea has prompted outrage in a number of countries and brought the Mediterranean migrants Crisis at the top of the European political agenda. After more than 1000 people drowned in ten days, a summit was finally called by the President of the European Council Donald Tusk.

The outcome of the meeting has been met with disappointment: outside of southern European Countries, plans for a more equitable distribution of migrants within the European Union states do not seem a priority, and the measures agreed upon focus merely on preventing departure. States have agreed on a number of measures comprising the tripling of the funding allocated to Europe’s Operation Triton (which had previously been called ‘woefully inadequate’ by the UN High Commissioner for Refugees Antonio Guterres), improved cooperation against smugglers networks, a generic pledge to do more for refugee protection and resettlement on a voluntary basis and, more controversially, actions directed to identify, capture and destroy vessels used by smugglers before they can be used.

The idea of targeting smugglers’ vessels was originally included in a 10-point action plan relying on the precedent of Operation Atalanta, which focuses on protecting on preventing piracy acts off the coast of Somalia. The adoption of such a strategy as a means of dealing with a migrants crisis, however, calls for careful consideration.

European leaders have asked EU High Representative for Foreign Affairs Federica Mogherini “to propose actions in order to capture and destroy the smugglers’ vessels before they can be used”. However, aside from rumours on the possible use of Apache helicopters targeting vessels from a range of 2 km, proposals on the use of force have so far been quite vague, and their wording careful enough to suggest that any action would have to be consistent with international law. Angela Merkel is reported to have suggested that either a Security Council resolution or the cooperation of a Libyan unity government would be prerequisite for these operations. French President François Hollande has said that France and the United Kingdom will push for a Security Council resolution. But how do these proposed operations fit in the traditional paradigms on the use of force?

2. The Legality of Using Force

The force envisaged by European leaders would apparently be used to destroy boats docked in African harbours or internal or territorial waters. This would violate the prohibition of using force in Article 2(4) of the UN Charter, unless one of its exceptions apply. Attacking the boats may alternatively be classified as ‘law enforcement’ rather than ‘use of force’ (e.g. Guyana v Suriname para 445), but such enforcement would be equally illegal in another State’s territory or internal or territorial waters in the absence of the same exceptions.

The exception for self-defence is not applicable, since there has been no “armed attack” against European countries from African States or people smugglers (the latter would be relevant if one recognises a right to self-defence against non-State actors). There may also be a right for States to use force to protect their nationals abroad, but European nationals are generally neither threatened by nor involved in the smuggling. The more or less debunked doctrine of ‘humanitarian intervention’ would also not be applicable, since, even if one could argue that parts of Africa and/or the Middle East are suffering humanitarian crises, destroying people smugglers’ ships would not help alleviate those crises.

The simplest approach would be to have the consent of the relevant African States. In most cases this would mean Libya. A complicating factor is the current split between the two governments that claim to represent the State of Libya. One is based in Tripoli, the other in Tobruk. This raises the question of which of these, if any, that may give valid consent to the use of force in Libyan harbours and waters. The Tobruk government controls the majority of Libya’s territory, and is recognised by most other States as Libya’s government. However the Tripoli government controls the country’s traditional capital as well a substantial part of its territory. Some territory is also controlled by other groups, including the (so-called) Islamic State. In short, the situation is murky. After having repeatedly offered its cooperation to help fight the smuggling operations, the Tripoli government has said it will not give consent to using force against people smugglers. The Tobruk government has apparently not yet taken an official position.

The second option is to get authorisation from the UN Security Council, under the UN Charter Chapter VII. Such authorisation was given for the EU’s anti-piracy ‘Operation Atalanta’ off the coast of Somalia. However in that case the authorisation was made conditional on the consent of the Somali government. A similar condition could be set now. Authorisation would also require the consent of the UNSC’s five permanent members. Relations are currently frosty between Russia and the West, and one reason is how the Western powers used and possibly abused the 2011 authorisation to use force in Libya. Indeed, President Hollande has conceded that some convincing might be necessary to overcome Russian reluctance. Another basic condition for the UNSC to authorise the use of force is that the force is necessary to “maintain or restore international peace and security” (Article 42), in the presence of either a “threat to” or “breach of” international peace or an “act of aggression” (Article 39). The most plausible route would be to argue that the situation in the Mediterranean constitutes a “threat to the peace”. This is not obvious from the text of Article 39, but the UNSC has interpreted the provision highly flexibly in the past, and may well do so again. For example, in Resolution 668 (on Iraq’s treatment of its Kurdish population), the UNSC held that “a massive flow of refugees towards and across international frontiers … threaten[s] international peace and security”.

Other legal issues may also arise. African countries’ failure to clamp down on people smugglers’ activities may constitute a violation of the ‘duty of vigilance’ (Armed Activities para 246-250), but such a violation does not in itself authorise other States to respond with armed force. Further, if we concede that international humanitarian law applies, smugglers’ boats would be entitled to protection as civilian objects. The smugglers’ activities should not qualify as ‘piracy’ under the UNCLOS Article 101. That would in any case only make them liable to seizure by force by any State on the high seas (Article 105). To argue that the provision allows to destroy their ships when docked in a harbour seems too much of a stretch.

3. Conclusion: Another Problem that Cannot be Solved by Force

While there are legal avenues open for using force against African people smugglers, a wholly different question is whether this would actually contribute to solving the problem. The former head of operations of Atalanta has recently stated that to destroy smugglers’ boats would not be effective, as the boats used tend to be cheap and easy to replace. In a broader perspective, it would help solve neither the underlying causes of migration, which include conflict and misrule in Africa, nor the causes of the EU’s attempts to restrict migration, which include its social and economic costs.

The EU does seem to envisage the destruction of boats as one element in a broader set of tools. What is lacking, though, is an attempt to improve the current European asylum framework and a more equitable distribution of migrants among the members of the Union. This remains one of the most controversial and polarising issues in the EU. It therefore comes as no surprise that states less concerned by the refugee flows, such as the UK, would lend their support to operations at sea but avoid committing to any plans for a new resettlement system.

Finally, but perhaps most importantly, the construction of a narrative that places emphasis on the criminal nature of smuggling activities is conspicuous. There is clearly no question that smugglers are criminals. The idea of a “war on smugglers” seems to fit the policy goal of avoiding to give the Triton operation a clear search and rescue mandate – indeed, one of the most significant concerns voiced by human rights groups. As Kenneth Roth has suggested, to reduce the problem to the “false pretext of criminality” is to ignore the gravity of the situations from which many migrants are fleeing, and the resulting readiness to go to any lengths to seek better opportunities on European soil.

Breaking the Silence — About Israel’s Assault on Gaza

by Kevin Jon Heller

The irreplaceable Breaking the Silence has released a new report on Operation Protective Edge — and it’s a doozy. Here are some particularly disturbing snippets from the Guardian‘s article on the report, which contains dozens of testimonials by past and present IDF soldiers:

“[The commander] said: ‘We don’t take risks. We do not spare ammo. We unload, we use as much as possible.’”

“The rules of engagement [were] pretty identical,” added another sergeant who served in a mechanised infantry unit in Deir al-Balah. “Anything inside [the Gaza Strip] is a threat. The area has to be ‘sterilised,’ empty of people – and if we don’t see someone waving a white flag, screaming: “I give up” or something – then he’s a threat and there’s authorisation to open fire … The saying was: ‘There’s no such thing there as a person who is uninvolved.’ In that situation, anyone there is involved.”

“The rules of engagement for soldiers advancing on the ground were: open fire, open fire everywhere, first thing when you go in,” recalled another soldier who served during the ground operation in Gaza City. The assumption being that the moment we went in [to the Gaza Strip], anyone who dared poke his head out was a terrorist.”

Soldiers were also encouraged to treat individuals who came too close or watched from windows or other vantage points as “scouts” who could be killed regardless of whether there was hard evidence they were spotting for Hamas or other militant groups. “If it looks like a man, shoot. It was simple: you’re in a motherfucking combat zone,” said a sergeant who served in an infantry unit in the northern Gaza strip.

“A few hours before you went in the whole area was bombed, if there’s anyone there who doesn’t clearly look innocent, you apparently need to shoot that person.” Defining ‘innocent’ he added: “If you see the person is less than 1.40 metres tall or if you see it’s a lady … If it’s a man you shoot.”

In at least one instance described by soldiers, being female did not help two women who were killed because one had a mobile phone. A soldier described the incident: “After the commander told the tank commander to go scan that place, and three tanks went to check [the bodies] … it was two women, over the age of 30 … unarmed. They were listed as terrorists. They were fired at. So of course they must have been terrorists.”

The soldiers’ descriptions are disturbingly reminiscent of the notorious “free fire” zones in Vietnam and the US government’s well-documented (and erroneous) belief that signature strikes directed against “military-age men in an area of known terrorist activity” comply with IHL’s principle of distinction. The testimonials are, in a word, stunning — and put the lie to oft-repeated shibboleths about the IDF being “the most moral army in the world.” As ever, the stories told by the IDF and the Israeli government are contradicted by the soldiers who actually have to do the killing and dying.

You can find the report here. And if you’re interested in a predictable right-wing attempt to discredit the report — which basically just complains that Breaking the Silence doesn’t release the identity of the soldiers who gave testimony (gee, can’t imagine why not…) — see here.

Weekly News Wrap: Monday, May 4, 2015

by Jessica Dorsey

Africa

Middle East and Northern Africa

Asia

Europe

Americas

Oceania

UN/World

  • Key infrastructure in war-torn Yemen, including water supplies, health services and telecommunications, are on the verge of breaking down due to a major fuel shortage, a United Nations humanitarian official has warned.

Guest Post: The Complexity of International Trials Is Necessary

by Stuart Ford

[Stuart Ford is an Assistant Professor at The John Marshall Law School.]

International criminal trials are extremely complex. The average trial at the International Criminal Tribunal for the former Yugoslavia (ICTY) takes 176 trial days and involves more than 120 witnesses and 2,000 exhibits. See here at table 2. In comparison, the average criminal trial in the United States takes less than one day, and even the average murder trial takes only three or four days. Id. at 53-55. As a result, there is a widespread belief that international criminal trials are too complex, and international tribunals have come under enormous pressure to reduce that complexity. See here at Part I.

The ICTY, for example, made a number of changes to the Rules of Evidence and Procedure that were intended to reduce trial complexity. See, for example, here. Professors Langer and Doherty found that those changes failed to reduce the complexity of the ICTY’s trials, but why? The answer is important because if we understood what drove the complexity of international trials, perhaps we could find ways to reduce their complexity (and the associated cost) without undermining the purposes of international criminal justice.

My latest project attempts to answer that question by taking the complexity data I collected for my earlier work on the efficiency of international criminal courts and using it to build a model of trial complexity. Trial complexity is the response variable in the model, while the explanatory variables were based on a number of hypotheses about what might cause trial complexity. The hypotheses are summarized below:

Hypotheses
H1 Complexity increases as the number of accused tried together increases
H2 Complexity increases as the seniority of the accused in the political and military hierarchy increases
H3 Complexity increases as the total number of counts in the indictment increases
H4 Complexity increases as the number of crime sites in the indictment increases
H5 Complexity increases if the accused are charged with genocide
H6 Complexity increases is the accused are charged as members of a joint criminal enterprise (JCE)
H7 Complexity increases if the accused are charged under a theory of superior responsibility
H8 Complexity decreases if the accused are charged as a direct perpetrators

The association between the hypotheses and trial complexity was then tested using a multiple regression model. The results of the regression are presented below:

Model Results
Variable Effect Size Significant
Total Accused   0.077 Yes
Seniority   0.065 Yes
Total Counts   0.0061 Yes
Crime Sites   0.0006 No
Genocide   0.066 No
JCE   0.048 No
Superior Responsibility -0.088 No
Direct Perpetrator -0.20 Yes

The results suggest that international tribunals will have a very hard time reducing the complexity of their trials. First of all, the number of crime sites is not significant in the model. Thus simply permitting the judge to impose limits on the number of crime sites in the indictment will probably not be successful. The number of counts in the indictment is statistically significant, but the magnitude of the effect is very small, indicating that any reduction in the overall complexity from imposing limits on the number of counts would also be small. Neither the mode of liability used to prosecute the accused or the legal qualification of the charge had a statistically significant effect on trial complexity either.

In contrast, two factors are both statistically significant and have a large impact on the resulting trial complexity. The most important factor is the accused’s seniority within their respective military or political hierarchies. The complexity that resulted from increasing the accused’s seniority by one level was approximately equivalent to adding an additional ten counts to the indictment. Direct perpetration also had a large impact on overall complexity. Accused who were alleged to be direct perpetrators of violence (i.e., they carried it out themselves), had significantly shorter trials.

The figure below shows the relative contributions of the various factors to the complexity of the median ICTY case. The seniority of the accused and whether the accused was a direct perpetrator account for the majority of the resulting trial complexity.

sford

So, what does this all mean? The results suggest that the key factor driving the complexity of international criminal trials is the geographic and organizational distance of the accused from the crimes they are alleged to be responsible for. Indirect perpetration, where the accused is alleged to be legally responsible for crimes that were physically carried out by others, is a hallmark of international criminal trials. Such individuals tend to be distant, both organizationally and geographically, from the violence that results. (In the model, this distance is captured by the seniority and direct perpetration variables.) As a result, proving that they are criminally responsible for the acts of the direct perpetrators is very difficult and accounts for the bulk of the trial’s complexity.

This has implications for the future of international trials. For at least the last ten years, international tribunals have sought to reduce trial complexity by tinkering with the rules of procedure and evidence. This is unlikely to ever be successful because changes in the procedure cannot change the accused’s seniority or whether that person is a direct perpetrator.

There are some ways that trial complexity could be reduced, but they all come with fairly serious drawbacks. For example, courts could significantly reduce complexity by trying only low-level direct perpetrators. For policy reasons, however, international courts have been encouraged to focus on the most senior leaders. See, for example, here at 71-74. The result is very complex and expensive trials.

Making international criminal law a strict liability regime would also probably reduce complexity significantly by reducing the difficulty of linking accused to crimes from which they are organizationally and geographically distant. The cost, however, would be too high. Strict liability crimes are only appropriate when the violation is not associated with strong moral condemnation and the penalties are small. Serious violations of international criminal law, however, involve both stiff penalties and strong moral condemnation. Importing strict liability into international criminal law would be extremely undesirable, even if it did dramatically reduce trial complexity.

Another possibility would be to embrace symbolic charging at international tribunals. My calculations (see here at 38-42) indicate that using symbolic charging rather than representative charging would have reduced trial complexity at the ICTY by, at best, about a quarter. At the same time, it would have made it significantly harder for the court to achieve its goals by limiting its ability to inform the historical record, promote post-conflict reconciliation, and help victims find closure. These are important goals of international criminal justice and they are probably not worth compromising for a relatively modest reduction in trial complexity.

Finally, an increased use of plea bargaining might be another way to reduce overall trial complexity by simply avoiding the need to have some trials. Unfortunately, it is unlikely to have a significant impact because the cases involving the most senior leaders are the cases least likely to be resolved through a plea bargain and simultaneously the largest source of trial complexity. Prosecutors, for instance, are probably reluctant to enter into a plea deal with the individuals they believe masterminded the crimes. At the same time, senior accused are more likely to see their prosecutions in political terms and thus less likely to accept a plea deal. Indeed, the majority of plea bargains at the ICTY were accepted by low to mid-level accused.

The last ten years have seen most international tribunals focus their efforts on the most senior leaders, almost none of whom are direct perpetrators of violence.   The unsurprising result is trials of enormous complexity. Moreover, this complexity is largely out of the hands of individual judges and prosecutors. It arises from the policy decision to focus on senior leaders, and the model suggests it cannot be meaningfully changed by tinkering with the rules of procedure and evidence. The cost and complexity of international criminal trials is a necessary consequence of that policy decision.

Elisa Massimino Defends Harold Koh (And So Do I)

by Kevin Jon Heller

Massimino is the head of Human Rights First, one of the leading human-rights organisations in the US. Here is a snippet from her editorial today in the Washington Post, with which I almost completely agree:

As a close observer of the U.S. government’s national security policy, I know it is better for Koh’s involvement.

That’s not to say that I agreed with all the positions he took and defended. Two years ago at our annual human rights summit, Koh gave a speech defending the Obama administration’s use of drone strikes. He made the best case anyone could, but it left a lot to be desired. Throughout his tenure at State, we called on the administration to ensure that its targeted killing program was consistent with the laws of war. We’re still not satisfied that it is.

But on a range of issues — military commissions, treaties, Guantanamo Bay, detention, and transparency on drones — Koh forged progress behind the scenes. This wasn’t the kind of work that made headlines, but it strengthened respect for human rights and reduced suffering. If that makes Koh a sellout, we need more of them.

I hope that the students who signed the anti-Koh petition — who by doing so have demonstrated a concern for human rights — will spend their lives trying to advance them. They would, I’m confident, find such work fulfilling. But they will discover that victories are seldom, if ever, absolute, and that we in the movement simply can’t afford to mistake allies for enemies.

In a better world, the views of knowledgeable (and progressive) national-security experts like Massimino would carry some weight with Koh’s critics. I’d also like to think I have at least some credibility regarding the situation — after all, it was my blog post arguing that the killing of al-Aulaqi was murder under US criminal law that seemingly led the OLC to greatly expand its notorious memo justifying the attack, and I wrote the first substantial (and deeply critical) legal analysis of signature strikes. Moreover, although I don’t think having a been a student or colleague of Koh’s disqualifies someone from defending him, I have no such ties — although I have always admired Koh’s scholarship, I had never even met him until about a year ago, when he gave a lecture at Melbourne (which I disagreed with!) about his time at State.

Alas, many of Koh’s most vociferous critics — though certainly not all — have little interest in reasoned debate. My posts defending Koh are “laughable” and nothing more than “the academic equivalent of the ‘I’m not a racist, but….’ argument” — because it apparently makes no difference how critical you are of the US government’s drone program; if you defend Koh, you’re just an apologist for the program. I have taken “a careerist and opportunity [sic] approach when it suits” me — even though I am a professor in the UK and shudder in horror at the thought of ever having a position in the US government (or any government, for that matter). I am a “hitman” for Koh and an agent “in the market of favors (rather than ideas)” — this part of a bizarre ad hominem attack (with bonus points for working in the word “Zionist”) on Koh for alleged venality. I’m “bullying” the students by defending Koh on the blog instead of letting their accusations of murder go unchallenged. And I’m “elitist’ and “insular” because I believe students have no right to demand “standards” from their professors — a claim based on precisely nothing other than my disagreement with the petition. This is the kind of rhetoric that people use when they have nothing substantive to argue.

Let me be clear: I have no problem with students, faculty, or anyone else criticising Koh. I’ve done that myself. I also fully support the First Amendment right of students, faculty, and anyone else to circulate a petition calling for NYU to rescind its offer to Koh to teach human rights at the law school. But it is not “bullying” for those who respect Koh to respond to irresponsible claims that he is a murderer and war criminal. Nor is it an “attack on the students” to meet their speech with counter-speech. Indeed, if Koh’s critics are “drowned out” by the response to their petition — by the fact that more than 750 people of every political persuasion imaginable believe that the petitioners are, in Massimino’s words, “mistaking allies for enemies” — perhaps the problem isn’t the response.

Perhaps the problem is that the petition’s claims are wrong.

Guest Post: Landmark Sovereign Debt Restructuring Award

by Laurie Achtouk-Spivak and Paul Barker

[Laurie Achtouk-Spivak is a member of the Bar in Paris and New York. She acts as counsel and advocate in investment treaty arbitrations before ICSID as well as other arbitration institutions. She teaches investor-State dispute settlement at the University of Poitiers. She also regularly publishes on investment treaty arbitration and is a member of the Peer Review Board of the ICSID Review. Paul Barker is a member of the Bar in New York. He has acted as counsel to States in ICSID arbitrations and international proceedings arising out of sovereign debt restructurings. His publications and research interests include the standard of review and legitimate regulatory interests in investment treaty arbitration, and transnational human rights litigation. The authors were members of Cleary Gottlieb’s counsel team for the Hellenic Republic in the Poštová arbitration. The views expressed here are their own and do not necessarily reflect those of their firm, the Hellenic Republic or any of their firm’s other clients.]

On 9 April 2015, an International Centre for Settlement of Investment Disputes (“ICSID”) arbitral tribunal dismissed a case arising out of Greece’s sovereign debt exchange for lack of jurisdiction. The landmark decision is the first time that an ICSID tribunal has declined jurisdiction over interests in sovereign bonds.

The award was made in Poštová banka, a.s. and ISTROKAPITAL SE v. Hellenic Republic, a bilateral investment treaty (“BIT”) arbitration initiated in 2013 by a Slovak bank and its former Cypriot shareholder under the Slovak Republic-Hellenic Republic BIT (“Slovakia-Greece BIT”) and the Cyprus-Hellenic Republic BIT. The claimants had sought compensation for illegal expropriation, failure to accord fair and equitable treatment, and violation of umbrella clauses in respect of the bank’s interests in Greek government bonds (“GGBs”) that were exchanged in 2012.

Beyond the headline, the decision is an important reminder that not every kind of asset qualifies as a protected investment under a potentially applicable investment treaty or the ICSID Convention, and of the basic yet fundamental rule of treaty interpretation that a BIT’s terms must be interpreted in good faith within their context and in light of the treaty’s object and purpose. More generally, the conclusion by a majority of the Tribunal that the bank’s interests in GGBs did not meet the objective requirements of contribution and risk for the purposes of Article 25 of the ICSID Convention may have broader implications for treaty-based claims asserted by other holders of interests in restructured sovereign debt.

No Investment Under The BIT

In deciding whether it had jurisdiction ratione materiae (subject-matter jurisdiction) over the dispute, the Tribunal had to determine as a matter of treaty interpretation whether the interests in the GGBs held by the Slovak claimant, Poštová banka, qualified as a protected investment under the definition of investment in Article 1(1) of the Slovakia-Greece BIT, specifically its chapeau and the categories of assets listed thereunder. As we discuss below, the Tribunal found that the bank’s interests in GGBs did not fall within the definition and therefore dismissed the claim.

The chapeau of Article 1 of the Slovakia-Greece BIT provides that “[i]nvestment means every kind of asset and in particular, though not exclusively includes: (…).” Article 1(1)(b) refers to “shares in and stock and debentures of a company and any other form of participation in a company.” Article 1(1)(c) refers to “loans, claims to money or to any performance under contract having a financial value.” (para 278)

Although the Tribunal agreed with Claimants that Article 1 of the BIT contains a broad asset-based definition rather than a closed list or exhaustive description (para 286), the Tribunal noted that the careful drafting of categories of protected investments in the subsections demonstrated that there were limits to the definition. (para 294) In this regard, the Tribunal considered Greece’s treaty practice, observing that some Greek BITs refer to the term “loans,” others to “long term loans,” others to loans “connected to an investment”, whilst others exclude the term “loan” altogether. (para 292) Accordingly, the Tribunal underlined the importance of the principle of effective treaty interpretation as follows:

  1. The list of examples provided by the Slovakia-Greece BIT must, thus, be considered in the context of the treaty and be given some meaning together. Otherwise, if the interpretation stops by simply indicating that any asset is an investment, the examples will be unnecessary, redundant or useless. […]

The Tribunal was further persuaded by the fact that Article 1(1)(b) of the BIT refers to “shares in and stock and debentures of a company and any other form of participation in a company” but not to sovereign debt or bonds issued by the State parties. The Tribunal found that this language in the Slovakia-Greece BIT differed significantly from the Argentina-Italy BIT at issue in Abaclat and Ambiente Ufficio, in which ICSID tribunals upheld jurisdiction over sovereign bonds. (para 304) For example, whereas Article 1(c) of the Argentina-Italy BIT includes “obligations, private or public titles or any other right to performances or services having economic value, including capitalized revenues,” Article 1(1) of the Slovakia-Greece BIT does not refer to a general concept such as “obligations,” or to “public titles”. (paras 306-308)

In the absence of similar language to the Argentina-Italy BIT, the Tribunal could not reach the same conclusions as in Abaclat and Ambiente (or for that matter the more recent Alemanni case), holding that:

an interpretation of the text and context of Article 1(1) leads the Tribunal to consider that the State parties to the treaty wanted an ample definition of what could constitute an investment, but within certain categories that are also broad, but not unlimited. Otherwise, the examples could be expanded to include any asset whatsoever, and would become useless or meaningless. (para 314)

As part of the interpretative exercise, the Tribunal paid particular attention to the special features and characteristics of sovereign debt that distinguish it from private debt, (318-323) including that creditors’ security and legal recourse against a sovereign debtor is much more limited, and there is a high degree of political influence and risk, because:

[a] sovereign State engages in much more complex decisions, both in negotiating and structuring the debt and in payment thereof, and repayment is subject not only to the normal credit risk of any credit operation, but also to political decisions that are extremely sensitive for the inhabitants of the given State, such as a tax increase or a reduction in public expenditure or investment to repay the sovereign debt. (para 320)

The Tribunal thus concluded:

In sum, sovereign debt is an instrument of government monetary and economic policy and its impact at the local and international levels makes it an important tool for the handling of social and economic policies of a State. It cannot, thus, be equated to private indebtedness or corporate debt (para 324)

The Tribunal also noted the practical realities of sovereign debt, including that its issuance is subject to specific and strict regulations and that secondary market trading and holding of sovereign debt is also heavily regulated. (paras 325-326, 329) The Tribunal noted that sovereign debt financial instruments are “easily tradable” on the secondary market, independent of the issuing State, and that creditors therefore change many times during the life of the financial instrument. (para 327)

The Tribunal agreed with Greece that sovereign bonds are “different from forms of participation in corporations, and therefore their exclusion from the definition of investment in a given treaty indicates that the contracting parties did not intend to cover these types of assets.” (para 333)

Having performed its analysis of the treaty language and practicalities of sovereign debt issuance and trading, the Tribunal reasoned that:

  1. Neither Article 1(1) of the Slovakia-Greece BIT nor other provisions of the treaty refer, in any way, to sovereign debt, public titles, public securities, public obligations or the like. The Slovakia-Greece BIT does not contain language that may suggest that the State parties considered, in the wide category of investments of the list of Article 1(1) of the BIT, public debt or public obligations, much less sovereign debt, as an investment under the treaty.

Nor did the sovereign bonds at issue fall within Article 1(1)(c) of the BIT (“loans, claims to money or to any performance under contract having a financial value”), because there was inter alia no claim to money, no contractual privity or contractual relationship between Poštová and Greece that could arise out of the bond issuance or trading process. (paras 338-349)

By adopting a rigorous approach to treaty interpretation that focuses on the terms in their context and in light of the BIT’s object and purpose in order to give an effective meaning, the award therefore has wider significance in demonstrating that not every kind of asset qualifies as a protected investment, including where the treaty contains a broadly drafted asset-based definition, which is common in BITs.

No Investment Under The ICSID Convention

For an ICSID arbitral tribunal to have jurisdiction ratione materiae, it must find that the dispute concerns an investment protected under both the underlying BIT and the ICSID Convention. Because the Poštová Tribunal found no jurisdiction under the Slovakia-Greece BIT, it was not necessary to consider the position under the ICSID Convention in order to dispose of the case. Nevertheless, a majority of the Tribunal made important observations on the treatment of sovereign debt under the ICSID Convention.

As noted by the Tribunal, a number of ICSID tribunals have held that there are “objective” characteristics of an “investment” under Article 25 of the ICSID Convention irrespective of any “subjective” definition of an investment agreed in the BIT, namely (i) a contribution of money or assets, (ii) duration and (iii) risk. (paras 351-359)

Having concluded that the “subjective” test pursuant to Article 1 of the BIT was not met – and therefore the Tribunal lacked jurisdiction over the dispute – a majority of the Tribunal nevertheless stated that the claimants would also have failed to satisfy the “objective” requirements for an investment to be protected under the ICSID Convention. (paras 360, 371) Specifically, “the element of contribution to an economic venture and the existence of the specific operational risk that characterizes an investment under the objective approach” were not present. (para 371) Accordingly, the Tribunal could not have asserted jurisdiction even if the BIT had been drafted broadly enough to cover sovereign debt.

Whereas the majority considered an investment “in an economic sense, is linked with a process of creation of value”, the arbitrators found that Poštová’s purchase of interests in GGBs made no contribution to an economic venture. (paras 361, 371) In this regard, the majority noted:

  1. The Claimants have not argued that the money Poštová banka paid for the GGB interests, even if considered as ultimately benefitting Greece, was used in economically productive activities. Rather, it appears that the funds were used for Greece’s budgetary needs, and particularly for repaying its debts…

Citing to Michael Waibel’s scholarship, the Tribunal noted the importance of the distinction between sovereign bonds that are used for general funding purposes and those used for specific public works or services. (para 364)

The Tribunal observed that the ICSID tribunals in Fedax v. Venezuela, CSOB v. Slovakia, Joy Mining v. Egypt and Alps Finance v. Slovak Republic have adopted the same approach in distinguishing between protected investments connected with a particular economic operation, on the one hand, and instruments or contracts that are not linked with an economic venture and are therefore do not satisfy the objective test, on the other. (para 365)

Regarding the risk element, the majority held that investment risk requires the presence of operational risk, explaining:

  1. Under the objective approach, commercial and sovereign risks are distinct from operational risk. The distinction here would be between a risk inherent in the investment operation in its surrounding – meaning that the profits are not ascertained but depend on the success or failure of the economic venture concerned – and all the other commercial and sovereign risks.

The majority’s view was that acquisition of interests in sovereign bonds would not amount to taking any operational risk. (para 371)

In sum, had the objective requirements of contribution and risk been applied, the Tribunal would not therefore have had jurisdiction over the dispute under the ICSID Convention, regardless of the language in the Slovakia-Greece BIT. This conclusion will undoubtedly give pause to other holders of interests in sovereign debt before initiating arbitration proceedings under other investment treaties.

Weekly News Wrap: Tuesday, April 28, 2015

by Jessica Dorsey

Africa

Middle East and Northern Africa

  • Israel fired on seven United Nations schools during the 2014 Gaza war, killing 44 Palestinians who had sought shelter at some sites, while Palestinian militants hid weapons and launched attacks from several empty U.N. schools, a U.N. inquiry found.
  • The humanitarian situation in Yemen has become catastrophic, relief officials said on Monday, as Saudi-led aircraft pounded Iran-allied Houthi militiamen and rebel army units for a second day, dashing hopes for a pause in fighting to let aid in.
  • Israel invited bids on Monday to construct 77 new homes in two settlements on occupied land in East Jerusalem, drawing a swift Palestinian condemnation.

Asia

Europe

Americas

Oceania

  • Australian ties with Indonesia have become strained after nine drug traffickers met their families for what could be the final time at an Indonesian maximum security prison on Tuesday, as Jakarta rejected international pleas for clemency and ordered their executions to proceed, possibly within hours.

UN/World

Events and Announcements: April 26, 2015

by Jessica Dorsey

Events

  • The Graduate Institute of International and Development Studies, Geneva (IHEID), International Law Department will hold a conference entitled “International Law and Time” in Geneva, Switzerland, from 12-13 June 2015. Registration for the conference is now open. For more information please visit the conference website or email lawconference@graduateinstitute.ch.
  • A one-day conference entitled The European Convention on Human Rights and General International Law is being organized jointly by the European Court of Human Rights and the European Society for International Law. The programme includes presentations by ten judges from the European Court of Human Rights, as well as presentations by judges from the International Court of Justice, and other judges and international law scholars. More information here.
  • BIICL is organising, together with Professor Andrea Bianchi, an evening seminar on Thursday, 14 May (from 5.30 to 7.00pm) entitled: ‘Interpretation in International Law: The Object, the Players, the Rules, and the Strategies’ . The seminar is linked to the recently published book on ‘Interpretation in International Law’ (OUP). The event will be part of our ‘Temple Garden Chamber Series on International Adjudication’ and you can find more info here.
  • The ALMA Forum is coming up and the next session will focus on the international law aspects of the situation in Yemen. The speakers will be Yoni Eshpar (UNSCO) – “UN Mediation in Yemen” and Larry Maybee (ICRC) – The Evolving Conflict in Yemen – IHL Implications”. The session will be held on April 29th, 2015, 18:30 (local time) in the IDC, Herzliya.
  • SOAS Academic Summer School is offering a new range of law courses for 2015. Courses include: International Law: Contemporary IssuesLaw and Multiculturalism 1Law and Multiculturalism 2Gender, Conflict and Law. The courses are taught by experts in the field including Dr Gina Heathcote, Professor Werner Menski, Dr Muin Boase to name but a few. The courses will allow you to acquire solid foundations in the topic of your choice, through a mixture of academically rigorous lectures, readings, discussions and activities, totalling 46 contact hours. Activities will include film screenings and debates, guest lectures and visits which allow you to get a fresh perspective, in a dynamic learning environment.

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.