Where Are the Women? Breaking International Law’s Glass Ceiling

Just a few days ago, we received the happy news that Australian law professor Hilary Charlesworth has been elected as a judge to the International Court of Justice (ICJ).  Almost in parallel, at the same time, the University of Chicago Law Review published an essay by Fred Shapiro, containing the list of most cited legal scholars of all time.  The top 25 such scholars are all men.  In other words, despite the seeming prominence of some of our notable female colleagues, not a single one of them has amassed a sufficiently high number of citations to be included on this list.  While the citation list is not focused on our field, International Law (a separate list of top ten most-cited International Law scholars includes one female scholar only), and while some notable scholars included on the list worked in a different historical era when most scholars indeed were men, this list is indicative of the general phenomenon that women are under-represented and under-valued across the legal profession, including in International Law.  Professor Charlesworth’s election to the ICJ, as only the fifth female judge to be elected to this prestigious court, underscores this point further.  The purpose of this post is to highlight some of the recent discussion regarding the issue of under-representation of women at prominent international law institutions, as well as to suggest that an additional way which would help women to break international law’s glass ceiling is through citations.  Amassing a high number of citations would enable female scholars to put their names forward and gain a seat at the table. 

Several of my (I can’t help but notice, mostly female) colleagues have already begun to raise awareness and have written about the inadequate representation of women at prominent International Law institutions.  Priya Pillay recently wrote, as part of Opinio Juris’ excellent Symposium on Gender Representation, about the International Law Commission (ILC) and its members: of the two hundred and twenty-nine members since 1947, there have been only seven women.  In fact, the first female member of the ILC was not elected until 2002.  Because the ILC is tasked with codifying existing international rules as well as with contributing to the development of new international legal norms, the absence of women therefrom is particularly troubling as it signals that female voices are excluded from the making of international law.  Angela Mudukuti has written, in the context of the same Symposium, about the “Boys Club” problem at the International Criminal Court (ICC), where women occupy only 23.5 % of professional posts at the P-5 level.  The absence of women in key management and other high-level roles at the ICC has caused a work culture that is discriminatory toward women, according to the ICC Independent Expert Review.  Moreover, the under-representation of women in judicial roles may be contributing to the lack of prosecution of gender crimes and to the lack of development of appropriate jurisprudence in this area.  Finally, Viviana Krsticevic, as another contributor to this Symposium, has highlighted the fact that women are under-represented at international courts and tribunals as well as at other monitoring bodies. According to Krsticevic, because “international courts and monitoring bodies shape international and domestic dynamics” and are “the public face of international organizations and of international justice,” their legitimacy stems not just from their decisions but also from their composition.  The lack of gender diversity at such international institutions undermines their own legitimacy. 

In addition to the writing of prominent academics and lawyers  which have contributed toward the raising of awareness regarding the issue of female under-representation in international law, several other initiatives are important to mention and emphasize  Six years ago, a group of human rights lawyers launched the GQUAL Campaign in order to raise awareness about the absence of women in international justice as well as to promote solutions which would contribute toward inclusion of women.  The GQUAL Campaign was launched, in part, in response to the fact that the Inter-American Court of Human Rights bench was entirely male. In addition, and most recently, the Advisory Committee of the Human Rights Council issued a ground-breaking Report in June 2021.  The Report reviewed the historical and current data of several organs and human rights mechanisms, confirmed the underrepresentation of women therein, and suggested multi-level and multi-actor paths forward.  In particular, the Report highlighted the following five areas where improvements could be made in order to promote the advancement of women at international legal institutions. 

First, the Report includes crucial information about the under-representation of women at various UN bodies and mechanisms.  The Report then calls on States to disseminate such information domestically in order to highlight the importance of this issue, and in order to increase States’ commitment to gender diversity through better recruitment and selection processes.  Second, the Report makes it clear that several of its goals would be best achieved through the informal and formal work of professional networks, which can reach women from under-represented backgrounds and adopt a proactive advocacy agenda.  Networks can facilitate outreach to women across the globe, as well as develop information-sharing where potential candidates may learn from each other’s experiences.  Examples of such networks include the International Association of Women Judges, the GQUAL Campaign mentioned above, the ATLAS network, as well as this very blog.  Third, the Report makes clear that it is necessary to explicitly include gender parity or balance as a criterion in the selection and nomination procedures, and that it is therefore crucial to obtain personal and institutional commitments and pledges toward this goal.  Fourth, the Report underscores the need for women to break the glass ceiling as a right to gender equality and non-discrimination.  The Report discusses the possible development of domestic and international legal standards which would strengthen these rights, enable litigation over such rights to equality and non-discrimination, and thereby contribute toward a more equitable representation of women at prestigious international law institutions.  And, fifth, the Report recognizes that the fundamental problem regarding women’s under-representation at international institutions is the lack of appropriate domestic nomination processes, which, coupled with the lack of institutional mechanisms to remedy the issue at the international level, lead toward a perpetual absence of gender parity.  As Krsticevic has written in her Symposium post, “In short, a critical problem is that not enough women are nominated to fill less than 500 positions worldwide. This happens because not enough women are put forward as candidates by States, States do not take gender into account when voting, and international selection processes are not built to guarantee that women are fairly represented.” 

In addition to the various ways in which women’s representation in international law could be improved, as highlighted above, ensuring that scholarship by prominent female authors is adequately disseminated and cited is another important step toward breaking international law’s glass ceiling.  Citations matter. A scholar who is frequently cited, whose work is published by prominent editors and included in treatises and encyclopedias becomes viewed as an expert and authority in their field.  Studies have already suggested that male authors tend to be cited more frequently – either because male authors might tend to cite other male authors or because male authors seem to be inherently perceived with both authority and legitimacy.  The same way that women are under-represented as judges and lawyers at international institutions, courts, and mechanisms, women are under-cited in prestigious publications.  The list of top-cited legal scholars should include more women.  Some of the ways which could contribute toward a more equitable representation of women at international institutions discussed above and highlighted by the Report, such as information-sharing, networks, and personal and institutional pledges and commitments, apply equally to the issue of under-citation of female scholars.  It is thus important to continue to collect and disseminate information regarding the under-citation of female scholars; it is useful to have networks which can promote the published work of female scholars; it is crucial to work toward obtaining personal pledges by individual publishers and editors and by their respective institutions to publish and cite more women.  Once international law’s ceiling is hopefully broken, not only will women occupy a respectable number of positions at prominent institutions, but in addition female scholars will be cited equally as their male counterparts.  Let’s hope that, in the near future, Judge Charlesworth is in mostly female company at the ICJ and that the list of top-cited legal scholars includes the names of our distinguished female colleagues. 

ICC Experts’ Seminar- June 30th

American Branch of the International Law Association ICC Committee, with the N.Y.U. Center for Global Affairs, Washington University in St. Louis School of Law, and the University of Illinois College of Law, is co-sponsoring the ICC Experts’ Seminar on Wednesday, June 30th, from 10:00 a.m. to 3:00 p.m. For registration information, please see the conference website. The conference agenda is included below:

AGENDA

10:00 – 10:30 a.m.  Welcome and Opening Keynote Address

  • Ambassador David J. Scheffer, Northwestern University Pritzker School of Law

10:30 – 10:45 a.m.  Break

10:45 a.m. – 12:15 p.m.  Teaching International Law in a Sometimes Challenging Environment

  • Moderator: Leila Sadat, Washington University in St. Louis School of Law
  • Patrick Keenan, University of Illinois College of Law
  • Saira Mohamed, University of California Berkeley School of Law
  • Milena Sterio, Cleveland-Marshall College of Law

12:15 – 12:45 p.m.  Break

12:45 – 1:00 p.m.  ICC Outreach Materials

  • Violeta Willemsen-Curic, Outreach Unit, International Criminal Court

1:00 – 2:30 p.m.  US/ICC Advocacy in a Sometimes Challenging Environment

  • Moderator: Jennifer Trahan, N.Y.U. Center for Global Affairs
  • Elizabeth Evenson, Human Rights Watch
  • Katie Gallagher, Center for Constitutional Rights
  • Rebecca Shoot, Washington Working Group on the ICC
  • Kristin Smith, Atrocity Crimes Initiative, ABA Criminal Justice Section & Center for Human Rights

2:30 – 2:40 p.m.  Break

2:40 – 3:00 p.m.  Concluding Keynote Address

  • Beth Van Schaack, Stanford University

ICC Ongwen Case Event

For our readers interested in the International Criminal Court, I am posting information about an upcoming event on the ICC Ongwen case, on Wednesday, March 24, from noon – 1:00 p.m. EST.  The event will be co-hosted by Dr. Julie Fraser (Utrecht University, Netherlands) and yours truly, and it will feature Sarah Kihika Kasande, International Centre for Transitional Justice, Kjell Anderson, University of Manitoba, Grace Acan, Co-Founder of Women’s Survivors’ Group in Northern Uganda, Adina Nistor, University of Groningen, and Dov Jacobs, Leiden University.  

The event will be formally hosted by the Public International Law and Policy Group and Utrecht University Centre for Global Challenges.Event information and the registration link are available here:
https://www.publicinternationallawandpolicygroup.org/ongwen-case-roundtable

Rohingya Genocide Expert Roundtable

The following event will take place this Friday, Jan. 29th, from noon -1 p.m. EST: Expert Roundtable: The Rohingya Genocide. The event is hosted by the Public International Law and Policy Group and sponsored by Orrick. Panelists include: Dr. Greg Noone, Dean Michael Scharf, Drew Mann (former U.S. Government official), Sandra Hodgkinson (former U.S. Government official), Yasmin Ullah (local Rohingya activist), and Prof. Milena Sterio (moderator).

The event link and registration are available here: Expert Roundtable: The Rohingya Genocide — PILPG (publicinternationallawandpolicygroup.org)

Webinar on U.S. Government Sanctions Against the ICC

I am posting information about an exciting webinar that will take place this Wednesday, Jan. 27th, at noon EST, on the topic of “Sanctions Against the International Criminal Court: Constitutional and International Law Issues.”  The webinar will feature Prof. Gregory Magarian, Washington University School of Law, as moderator, and Prof. Leila Sadat, Washington University School of Law, Prof. Gabor Rona, Cardozo Law School, Stephen Rapp, former Ambassador-at-Large, Office of Global Criminal Justice, Scarlet Kim, ACLU, and Prof. Milena Sterio, Cleveland-Marshall College of Law as speakers.  Panelists will address the ongoing litigation against the U.S. government – two lawsuits are now pending, one in New York and one in California – challenging the legality of the underlying Executive Order (through which the sanctions regime was established) on constitutional law grounds (Professors Rona and Sterio are co-plaintiffs in the New York lawsuit, and Prof. Sadat and the ACLU are co-plaintiffs in the California lawsuit). The panel is co-sponsored by the AALS National Security Law Section, the ABILA ICC Committee, and the ASIL International Courts and Tribunals Interest Group. 

The event link (registration required) is available here: https://www.law.csuohio.edu/newsevents/events/2021012712006019

The ICC Prosecutor’s Final Report on the Iraq/UK Investigation: Concerns Over Complementarity and the Court’s Future Legitimacy

Earlier today, the International Criminal Court (ICC) Prosecutor released the Final Report regarding the status of the preliminary investigation into Iraq/United Kingdom (UK).  In this Report, the Prosecutor concluded that 

on the basis of the information available, there is a reasonable basis to believe that, at a minimum, the following war crimes have been committed by members of UK armed forces: wilful killing/murder under article 8(2)(a)(i)) or article 8(2)(c)(i)); torture and inhuman/cruel treatment under article 8(2)(a)(ii) or article 8(2)(c)(i)); outrages upon personal dignity under article 8(2)(b)(xxi) or article 8(2)(c)(ii)); rape and/or other forms of sexual violence under article 8(2)(b)(xxii) or article 8(2)(e)(vi)) (para. 69).  

Despite the above-mentioned finding, and despite the fact that over 3,000 cases of alleged abuse and atrocities by UK troops in Iraq had been referred to the UK national authorities, that many such cases had resulted in favorable settlements in UK civil courts, and that some such cases had been successfully litigated in the European Court of Human Rights (ECHR), the ICC Prosecutor decided to close this investigation. In this post, I will discuss the procedural history of the Iraq investigation, as well as analyze the Prosecutor’s findings in this Report.  In addition, I will discuss the potential impact of this decision on the future of the ICC.  

Procedural History

The Prosecutor initially opened a brief preliminary investigation into Iraq/ UK, but this investigation was closed in 2006. In January 2014, the European Center for Constitutional and Human Rights (ECCHR) together with Public Interest Lawyers (PIL) submitted an Article 15 communication to the Prosecutor, alleging the responsibility of UK armed forces and other UK officials for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008. In light of this new information, the Prosecutor re-opened a preliminary investigation into this situation in May 2014.  In a 2017 Report, the Prosecutor announced that, following a thorough factual and legal assessment of the information available, it had reached the conclusion that there was a reasonable basis to believe that members of UK armed forces committed war crimes within the jurisdiction of the ICC against persons in their custody. This second Iraq/UK investigation was just closed today; the Prosecutor’s rationale for reaching this decision was published in the Final Report.

Prosecutor’s 2020 Final Report

In today’s Final Report, the Prosecutor concluded “that the only appropriate decision is to close the preliminary examination without seeking authorisation to initiate an investigation” (para. 1). The Prosecutor reached this decision on admissibility grounds under Article 17 of the Rome Statute.  The Prosecutor focused both on gravity and complementarity under Article 17; this post will focus on the Prosecutor’s analysis of complementarity, which occupied most of the Report (I note that the Prosecutor determined to perform an admissibility analysis in this case, despite the fact that admissibility determinations do not normally form part of Article 15 Pre-Trial Chamber determinations; according to the Prosecutor, “[a]lthough the Appeals Chamber has recently held that admissibility does not form part of the Pre-Trial Chamber’s determination under article 15(4), it nonetheless stressed the persisting duty of the Prosecutor, under rule 48, to be satisfied that all of the factors relevant to the opening an investigation, including admissibility, are met before proceeding with an article 15 application” (para. 156)).

The Prosecutor explained in the Final Report that the complementarity test under article 17 involves a two-step inquiry, “involving a determination of whether the national authorities are active in relation to the same case (first step), and only if so, whether this activity is vitiated by unwillingness or inability of the authorities concerned to carry out the proceeding genuinely (second step)” (para. 154). According to the Prosecutor, the UK authorities had both acted to investigate these alleged abuses and had shown a genuine willingness to investigate.  

First, the Prosecutor detailed in this Report how the UK authorities had shown action regarding the investigation of their troops’ alleged abuses in Iraq.  The Report explained that the UK authorities established the Iraq Historic Allegations Team (IHAT), whose original mandate was to investigate cases of alleged death or ill-treatment of Iraqis in British custody.  IHAT had an initial caseload of 165 cases, and it was supposed to conclude its work by November 2012. Over time, IHAT’s caseload expanded dramatically,  as new allegations of death or ill-treatment were received and its mandate was extended first to December 2016 and then to December 2019 (as the Report explained, IHAT was deemed necessary both to discharge the UK’s duty to investigate under British law, as well as under the European Convention on Human Rights; in addition, subsequent proceedings before the ECHR in Al Skeini and others v United Kingdom confirmed that the UK Government had a duty under the European Convention to carry out an adequate and effective investigation into allegations involving British service personnel in Iraq ).  The UK considered the IHAT investigations, and potential prosecutions, as necessary to satisfy the admissibility requirements of the Rome Statute.  In early 2017, following complaints over IHAT’s duration and expense, the UK Secretary of State for Defence announced that IHAT would be closed.  Remaining investigations were taken over by a new investigative unit, known as Service Police Legacy Investigations (SPLI).  IHAT and the SPLI referred a total of nine cases to the so-called Service Prosecuting Authority (SPA), the body which had become charged with determining whether a prosecution will take place.  In all nine cases, the SPA recommended that no charges be brought against the accused individuals.  In February 2020, UK authorities explained to the ICC Prosecutor that the SPA had most likely determined not to proceed with these prosecutions because the SPA applies a higher evidentiary threshold than IHAT/SPLI, and that it was likely that lawyers at the latter “might have considered cases were ready to proceed, whereas the SPA found they were not” (para. 200). In light of all of the steps taken by the UK authorities, and despite the fact that no cases resulted in actual prosecutions, the Prosecutor concluded in this Final Report that the UK authorities had acted for the purposes of the Article 17 complementarity analysis. 

Although the initial assessment of a claim might not lead to a fully-fledged investigation being undertaken (based on the screening criteria), or an investigation or prosecution might be abandoned after a subsequent assessment, the Office considers that it is difficult to argue that the State had remained inactive in relation to such a claim, since such assessments form part of the investigative and prosecutorial process (para. 276)

Second, the Prosecutor determined in the Final Report that the UK authorities had shown a genuine willingness to investigate alleged crimes committed by their forces in Iraq. As the Prosecutor explained, the determination of unwillingness requires, “having regard to the principles of due process recognized by international law”, that “[t]he proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5” (para. 294). The Prosecutor further emphasized that the concept of being “unwilling” genuinely to investigate is “concerned with a situation in which proceedings are conducted in a manner which would lead to a suspect evading justice as a result of a State not being willing genuinely to investigate or prosecute” (para. 284). The Prosecutor thus reviewed various UK authorities’ actions in this case through the lens of willingness. Serious concerns had been raised against UK authorities, alleging that they did not genuinely intend to pursue prosecutions against their own service members and higher-level officials.  As the Final Report described, despite the fact that over 3,000 potential cases had been referred to UK authorities, the latter failed to initiate a single prosecution.  In addition, former IHAT staff members had raised concerns that this mechanism lacked proper access to evidence and to witnesses, due to UK government interference.  Finally, concerns over undue delays in the proceedings had been flagged as a potential violation of the victims’ rights; such delays, according to some allegations, were the result of the UK authorities’ purposeful policy not to seriously investigate and/or prosecute cases.  Despite such serious concerns regarding the UK government’s “willingness” to genuinely prosecute, the Prosecutor concluded that “the information available does not demonstrate a lack of willingness to genuinely carry out the proceedings, pursuant to article 17(2)(b)” (para. 433).  In fact, the Final Report emphasized that it was not sufficient for the Prosecutor to have concerns over the genuineness of a national authority’s willingness to investigate and prosecute, but that instead it must be demonstrated that such authorities acted in bad faith. According to the Prosecutor,

The primary task of the Office is not to express its view on how it might have proceeded differently in the circumstances, nor to identify areas of disagreement with IHAT/SPLI and SPA’s decision-making and operational assessments of whether cases presented a realistic prospect of obtaining sufficient evidence at the investigative stage or a realistic prospect of conviction to support a prosecution. Nor is it the Office or the Court’s mandate to pronounce on whether a State complied with its duties to provide an effective remedy and fulfilled its procedural obligation to give effect to fundamental human rights enshrined in instruments such as the ECHR. The question is whether there is evidence to establish that the State concerned was unwilling to investigate or prosecute (para. 458).  

In sum, the Prosecutor concluded that the case of Iraq/UK was inadmissible under Article 17’s complementarity requirement, because the UK authorities had sufficiently demonstrated that they had acted to investigate and that they were genuinely willing to investigate.

Potential Impact of the Final Report on the ICC’s Legitimacy

It is possible, and relatively easy, to criticize some of the Prosecutor’s findings, particularly on “willingness” grounds.  It could be argued that the record established sufficient evidence that the UK authorities had reluctantly established IHAT and subsequent mechanisms; that they interfered with the mechanisms’ access to evidence; that they caused undue delays and demonstrated a significant bias against initiating any prosecutions – in sum, that they acted purposefully to shield their own service members and officials from any possibility of prosecution.   Yet, while such concerns are serious, the more fundamental issues raised by this decision to close the Iraq/UK investigation involve future cases and the ICC’s legitimacy.

In light of this decision, it may become relatively easy for other powerful states to evade the ICC’s reach by launching their own “genuine” investigations which result in zero prosecutions.  States such as the United States and Israel may welcome the court’s analysis of complementarity in this Final Report and its conclusion that the UK has been “willing” to prosecute its own soldiers and officials, despite a decade-long investigation which has yielded no cases. Complementarity may become a shield in and of itself, despite the fact that complementarity is actually supposed to ensure that perpetrators aren’t shielded from ICC’s prosecutorial reach. If states are able to avoid the ICC on complementarity grounds in the future, this could seriously undermine the court’s legitimacy. The ICC was established in order to ensure that accountability is imposed on perpetrators of atrocities; despite its relatively weak prosecutorial record, judicial squabbles on its bench, several state withdrawals from its jurisdiction, and some powerful states’ open hostility, the Court could be objectively defended in light of the importance of its fundamental mission.  The imposition of accountability on those who commit genocide, crimes against humanity, or war crimes is objectively one of the most important goals of international criminal justice; an imperfect institution which nonetheless contributes to this goal remains important and legitimate.  If the ICC were to become an easily-avoided forum, which states can bypass by launching sham but “genuinely willing” investigations, then the Court’s fundamental purpose comes into question.  In such circumstances, it becomes difficult to continue to defend the ICC.  For those of us who believe in the pursuit of international justice and in its institutions, including the ICC, the possibility of this type of a complementarity-based challenge to the court’s legitimacy is troubling.

Panel on Teaching International Law

If interested, please consider zooming in for this exciting panel on the topic of teaching International Law.

Teaching International Law During Challenging Times

(sponsored by the American Branch of the International Law Association & the American Society of International Law, Teaching International Law Interest Group)

Friday, October 2, Noon – 1:30 p.m. EST

Register in advance for this webinar:

https://csuohio.zoom.us/webinar/register/WN_ImR3EKZ1STWWfHiRRHGvMQ

After registering, you will receive a confirmation email containing information about joining the webinar.

Moderator: Milena Sterio, The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law, Cleveland-Marshall College of Law

Panelists: Mark Wojcik, Professor of Law, UIC John Marshall Law School; Cindy Buys, Professor of Law, Southern Illinois University School of Law; Jennifer Trahan, Clinical Professor, Center for Global Affairs, New York University; Darin Johnson, Associate Professor of Law, Howard University School of Law

Panel Description:

This panel will address the very important topic of teaching International Law during challenging times, such as the ongoing Covid-19 pandemic. International Law has occupied a less central role within American law schools’ curricula. At many law schools, International Law is taught as an upper-level elective course; thus, numerous American law school students graduate without ever having had exposure to International Law. It is this panel’s starting premise that International Law is a crucial course of study for every law school student; that International Law occupies a very important place in every lawyer’s practice; that International Law should be taught more frequently at all law schools in the U.S.; and that during the Covid-19 pandemic – a challenging time for all – the role of International Law should be re-emphasized and the course taught to all students. This panel will thus focus on exchanging best practices in terms of teaching International Law, with a particular emphasis on best practices regarding remote/online and/or hybrid teaching of International Law. The panelists will engage in an exchange of teaching practices and ideas, and they will share sources and tips regarding remote/online teaching of International Law. What are the best ways of “transferring” a traditional International Law course to an online/hybrid model? What teaching sources are best in an online/hybrid format? What video/audio/graphic sources may help to enhance the online/hybrid delivery of an International Law course? What challenges may teachers and students experience when enrolled in a non-traditional International Law course?

Book Launch: Legal Limits to Security Council Veto Power (Jennifer Trahan)

Please join us for this exciting book launch next week!
BOOK LAUNCH EVENT:  Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (Cambridge University Press 2020), co-sponsored by the American Society of International Law International Criminal Law Interest Group and the American Branch of the International Law Association United Nations Committee
Join leading experts in the field discuss Professor Jennifer Trahan’s new book which examines the legality of the use by a permanent member of the UN Security Council of its veto while there is ongoing genocide, crimes against humanity, or war crimes.
Thursday, July 23, 12:00 p.m. – 1:30 p.m. EST (zoom link below)
Panelists:
Jennifer Trahan, Clinical Professor and Director of the Concentration in International Law and Human Rights, NYU, Center for Global Affairs
Richard Goldstone, founding Prosecutor, International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda
Beth Van Schaack, Leah Kaplan Visiting Professor of Human Rights, Stanford Law School
Michael Scharf, Co-Dean and Joseph C. Hostetler – BakerHostetler Professor Of Law, Case Western Reserve School of Law
Moderator:  Milena Sterio, Charles R. Emrick Jr.-Cafee Halter & Griswold Professor of Law; Director, Domestic and International LL.M. Program, Cleveland-Marshall College of Law
Topic: Professor Jennifer Trahan Book Launch
Time: Jul 23, 2020 12:00 PM Eastern Time (US and Canada)
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Meeting ID: 979 1692 3543
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New Women in International Law Scholarship Prize

The Inaugural Women in International Law Interest Group (WILIG) Scholarship Prize Committee (Lori Damrosch, Adrien Wing, Viviana Krsticevic, Nienke Grossman and Milena Sterio) is excited to create the inaugural WILIG Scholarship Prize.

The WILIG Scholarship Prize aims to highlight and promote excellence in international law scholarship involving women and girls, gender, and feminist approaches. Although scholars have utilized gender and feminist analyses in international law for at least a quarter of a century, such approaches frequently fail to permeate the mainstream of international legal scholarship and practice. This prize, awarded every two years, recognizes innovative contributions to international law scholarship that theorize or utilize a feminist lens or lenses, highlight and seek to address topics disproportionately affecting women and girls, or consider the impact of international law or policy on gender more broadly.

WILIG’s Scholarship Prize Committee invites all ASIL members to submit a single article, chapter, or book published in the last three years, for consideration. Self-nomination is welcome, as is nomination of others. The Committee will consider the following criteria in granting the award, and encourages nominators to include a brief cover letter describing how the submitted work meets these criteria:

(1) Appropriate Substance. The work utilizes a feminist lens or lenses, addresses a topic that disproportionately affects women and girls, or considers the impact of international law or policy on gender more broadly.

(2) Innovative. The work addresses topics not covered by previous scholars, highlights diverse perspectives on law and policy, uses new theoretical or methodological approaches, or applies theoretical or methodological approaches to topics in new ways.

(3) Learned. The work demonstrates in-depth knowledge and expertise concerning a topic.

(4) Impactful. The work has affected or has the potential to affect the way scholars and policy-makers view or address a particular topic or issue going forward.

Please email your cover letter and scholarly work to lschnitzer@ubalt.edu with subject line “WILIG Scholarship Prize Submission” by June 15, 2020. Questions about the prize can be emailed to wilig@asil.org.

The WILIG Scholarship Prize will be awarded at the WILIG Luncheon at the 2021 ASIL Annual Meeting.

The Legality of the United States’ Strike on Soleimani

On January 2, 2019, the United States carried out a drone strike at Baghdad airport in Iraq in which Qassem Soleimani, a high-level Iranian military leader, was murdered.  This post will analyze the legality of this particular United States’ use of force under international law as well as under U.S. domestic law.  Moreover, this post will discuss (negative) policy implications of this strike.

International Law

By launching an air strike on the territory of a sovereign nation (Iraq), which targeted a top-level military official of another sovereign nation (Iran), the United States used force against two other sovereign nations.  Such use of force is prohibited under Article 2(4) of the United Nations Charter, and the United States thus violated its international law obligations under the Charter, unless the United States can demonstrate that the military strike was conducted pursuant to a Security Council authorization or in self-defense.  In this case, the United States acted alone, without seeking Security Council approval.  Thus, under international law, the only way that the United States could justify the drone strike and the resulting killing of Qassem Soleimani is through self-defense.

The traditional law of self-defense, as reflected in Article 51 of the United Nations Charter, allows a state to use force in self-defense if it has been subjected to an armed attack.  Moreover, the use of force in self-defense must respect the requirements of necessity and proportionality.  In this instance, even assuming that Soleimani was planning activities which would have been harmful to the United States’ national security interests, the United States had not suffered an armed attack by Soleimani/Iran and cannot rely on the traditional law of self-defense.  More recently, scholars (for a good recap of the law of anticipatory and pre-emptive self-defense, see here and here) and some states (United States in particular) have advanced more aggressive variants of self-defense, including preventive self-defense, pre-emptive self-defense, and the “unable or unwilling” standard.  The George W. Bush administration argued that force could be used in self-defense in a pre-emptive manner, against both terrorists as well as countries which harbor terrorists.  The strike against Soleimani could potentially be justified under pre-emptive self-defense, especially if evidence demonstrated that Soleimani was engaged in activities which posed a threat toward the United States.  However, pre-emptive self-defense is not a widely accepted interpretation of the international law of self-defense; it is not part of treaty or customary international law; even subsequent United States’ administrations have adopted different views on self-defense.  Thus, pre-emptive self-defense remains a controversial interpretation of the international law of self-defense.  The Obama Administration adopted a different approach by arguing that the United States could use force in compliance with the international law of self-defense against a state which was unable or unwilling to control non-state actors operating from within its territory, if such actors posed an imminent threat to the United States. Under the Obama Administration view of the right of self-defense, the United States’ strike against Soleimani cannot be easily justified because, even if Soleimani posed an imminent threat to the United States (it remains to be seen whether Soleimani was presently engaged in activities which would have posed an imminent threat against the United States), he was not a non-state actor, but rather an Iranian military official. It is thus questionable that the strike was lawful under the Obama Administration paradigm of self-defense paradigm.  Finally, the United States could possibly claim that it was acting in collective self-defense pursuant to Iraq’s request for help- that Iraq had requested assistance from the United States in acting against Soleimani/Iran.  As of now, there is no evidence that this was the case.  The U.S. troops were in Iraq to lend support in the fight against ISIS, and it appears that the United States launched this attack without Iraq’s knowledge or approval.  In fact, in response to the Soleimani strike, the Iraqi Parliament has voted a resolution which would expel U.S. troops from Iraq.  Thus, the collective self-defense argument has no merit for now.  The only way in which the Soleimani strike can be possibly justified under self-defense would be through the Bush Doctrine/preemptive self-defense.  As argued above, pre-emptive self-defense is not part of well-accepted international law as of today, and the Soleimani strike is illegal under international law.

Domestic Law

Under United States’ law, the President can use force against another sovereign nation pursuant to his constitutional authority as Commander-in Chief, or pursuant to specific congressional authorization to use force.  Congress has not authorized the president to use force against Iran.  Congress did authorize the president to use force against those who planned the September 11 attacks in 2001 (2001 AUMF), as well as to use force against Iraq in 2002 (2002 AUMF).  It is very difficult to link Soleimani to Al Qaeda/Taliban terrorists who planned the 9/11 attacks.  It is equally difficult to claim that Soleimani was operating in Iraq, and that the strike against him would somehow support the U.S. troops present in Iraq pursuant to the 2002 AUMF. Thus, the 2001 and 2002 AUMFs did not authorize the president to use military force in this particular instance.  The relevant question therefore becomes whether the president had inherent constitutional authority to act.  Although considerable debate exists about the scope of presidential power regarding the use of military force without congressional authorization, the executive branch, through several Office of Legal Counsel memoranda, has argued that the president has the authority to use force when: 1) there is an important national security interest in doing so; and 2) the use of force falls short of “war” in the traditional sense.  The executive branch has thus advanced the view that “military operations will likely rise to the level of a war only when characterized by ‘prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.’” Pursuant to this view, the executive branch has opined that the U.S. military activities in Haiti in the 1990s, the military strikes in Libya in 2011, as well as in Syria in 2018, did not cross the “war” threshold.

Moreover, the War Powers Resolution of 1973 imposes an additional limitation on the president’s authority to conduct military operations without explicit congressional approval.  The War Powers Resolution specifies that the president may introduce U.S. armed forces into hostilities only if there is a 1) declaration of war; 2) specific statutory authorization; or 3) a national emergency created by an attack against the United States.  The War Powers Resolution also requires that relevant military operations be terminated after a defined period of time (60 days), unless Congress specifically authorizes further military action, as well as that the president report to Congress within 48 hours of engaging in hostilities.  In this instance, the Trump Administration has actually provided a classified report to Congress under the War Powers Resolution, two days after the drone strike which killed Soleimani.  As of now, the report is classified and it is impossible to know what type of rationale the administration has provided to Congress. Presumably, the Trump Administration believes that the strike falls within the War Powers Resolution limitations on presidential authority to conduct military attacks as the Administration has provided a post-strike report to Congress.

In light of the above, the strike against Soleimani would be legal under U.S. domestic law only if the strike was in the U.S. national security interest, if the strike did not constitute “war,” and if the strike did not lead U.S. troops into “hostilities” under the War Power Resolution.   It is debatable whether the strike was in the U.S. national security interest now – although many experts agree that Soleimani had been a threat to the United States, it is unclear if he was presently involved in planning attacks against the United States.  Moreover, it is uncertain whether the strike falls short of “war.”  In addition to the executive branch test mentioned above (“prolonged and sustained military operations”), Office of Legal Counsel memoranda have suggested that the use of force may constitute “war” if such force is used against another sovereign nation without such nation’s consent, and if there is a high likelihood of escalation.  In this instance, the relevant question to ask is whether the strike is likely to lead U.S. troops to enter prolonged and sustained military operations with a high likelihood of escalation (the strike was clearly conduct4ed without Iraq’s consent).  If the answer to this inquiry is positive, then the president’s action would be illegal under U.S. law.  Finally, it is unclear whether the military strike against Soleimani constitutes a “hostility” under the War Powers Resolution.  The Obama and the Trump administrations have taken the position that providing aerial refueling and intelligence support to the Saudi-led coalition in Yemen falls short of introducing U.S. troops into “hostilities.” It may be argued that the killing of another nation’s military leader is an action much more likely to lead U.S. troops to enter “hostilities” than an action conducted to provide aerial refueling or intelligence support.  In sum, it is debatable whether the military strike which killed Soleimani is legal under domestic law.  In order to reach this determination, one would have to conclude that the strike was in the U.S. national security interest, that it did not amount to war, and that it would not lead U.S. troops to enter into hostilities.  In light of the ongoing crisis with Iran, and the fact that Iran is state with a strong military, as well as with developing nuclear technology, it is likely that the strike will lead to an escalating military conflict.  Thus, it is more than reasonable to conclude that the strike was not conducted pursuant to domestic legal authority, because the president did not seek requisite congressional authorization and did not have inherent constitutional authority to act.

Policy

Finally, even assuming that the strike was lawful under international and domestic law, the strike did not amount to good policy.  First, the strike may portray the United States as a rogue actor in the Middle East, willing to carry out assassinations against those whom its perceives as enemies.  This image of the United States may limit its ability to build strategic alliances with other countries in the Middle East as well as with other global partners.  Second, the strike may provoke revenge and retaliation by Iran.  Iran could attack Americans in the Middle East, could pursue attacks or other aggressive actions against Israel, an important U.S. ally, and could act through various proxies to destabilize the Middle East.  Iran will likely  re-initiate its nuclear weapons development programs, as it has already announced that it is abandoning the Nuclear Agreement which it had signed with the United States and several European countries; this will pose an additional threat in the region.  Third, the strike has already caused a backlash from other countries and non-state/terrorist actors.  As mentioned above, the Iraqi Parliament has voted to expel U.S. troops from Iraq.  United Nations Secretary-General Antonio Guterres has expressed “deep concern” over the U.S. strike against Soleimani; Russia has condemned the strike, and several Americans were killed in a terrorist attack in Kenya.  Fourth, it is unclear how the strike furthers United States’ national security and foreign policy.  As mentioned above, there is no credible information to suggest that Soleimani was engaged in present-day terrorist activity against the United States, and his elimination does not protect the United States any further, nor does it advance any particular foreign policy in the Middle East.  In fact, the strike is likely to cause conflict in this already volatile region and to potentially drag the United States into another war.  In sum, the strike is illegal under international law, very likely illegal under domestic law, and definitely bad policy.