International Law on Statehood and Recognition: Israeli-Palestinian Conflict and the South Caucasus

Hebrew U Conference

Participants of “Recognition” Conference at Hebrew University

Over the past week, I had the honor of presenting at two different conferences on statehood and recognition issues: the first one was held at Hebrew University in Jerusalem, Israel, and its official title was “Recognition in the Context of the Israeli-Palestinian Conflict,” and the second one was held in Ankara, Turkey, and its focus was on “The Centennial of the Independence of the Three Caucasus States: Historical Background, Contemporary Developments and Prospects of Peace and Prosperity” (the conference was organized by the Center for Eurasian Studies, an independent think tank based in Ankara).  My role at each of these conferences was to discuss statehood and recognition issues under International Law – in the context of the Israeli-Palestinian conflict at the first conference, and in the context of the South Caucasus conflicts at the second conference (as most readers would know, there are ongoing separatist conflicts in Nagorno-Karabakh, South Ossetia, and Abkhazia). Although these conflicts present distinct factual issues, many legal issues pertain to all; this post will briefly discuss such common legal issues in an attempt to shed light on complex issues of statehood and recognition.

Jerusalem view

Jerusalem City View

Statehood and recognition are supposed to be distinct from one another.  The former is a legal theory enshrined in international treaty law: the Montevideo Convention on the Rights and Duties of States establishes four criteria of statehood, which include the presence of a defined territory, permanent population, government, and the capacity to enter into international relations.  The latter is a political act traditionally left to the sovereignty of already-existing states. International law scholars have described two different theories of recognition of states: the declaratory view and the constitutive view. Under the former, recognition is seen as a purely political act having no bearing on the legal elements of statehood. Under this view, outside states can choose to recognize the new state, or not, but that decision does not influence the legal determination of statehood.  Under the latter, recognition is seen as one of the main elements of statehood. Thus, an entity cannot achieve statehood unless it is recognized by outside actors as a state. Under the constitutive view, recognition and statehood go hand-in-hand: an entity vying for statehood must garner the support of other existing states, which must express their desire to formally recognize this entity as their sovereign sister state. In addition to the declaratory and constitutive views, scholars have advanced a third, intermediary view on recognition.  The intermediary view seeks to combine the declaratory and constitutive views while acknowledging what truly takes place in practice.  This view posits that recognition is a political act independent of statehood, but that outside states have a duty to recognize an aspiring state if that entity objectively satisfies the four criteria of statehood.  Upon a closer examination of statehood and recognition, it thus seems evident that the two are related on a theoretical level.  The fourth criterion of the Montevideo Convention establishes the capacity to enter into international relations as one of the fundamental criteria of statehood; an aspiring state cannot possibly enter into international relations unless existing states are willing to recognize the aspiring state as a sovereign partner.  In addition, unless one supports the declaratory view on recognition, it appears that recognition is one of the elements of statehood (under both the intermediary and constitutive views).  And, in practice, recognition and statehood are closely connected. Most aspiring states must garner the support of a sufficient number of existing states, and in reality, the support of most of the Great Powers, in order to be recognized as new sovereign states. Without such recognition, aspiring states remain that – entities aspiring to achieve the supreme status of statehood. To the contrary, recognition and support by the Great Power may elevate an aspiring state to the status of statehood, although such an aspiring state may not satisfy the legal requirements of statehood.

Ankara Conference

Conference on Recognition and Statehood Issues in the Caucasus in Ankara, Turkey 

 

Several historical examples support this argument. When Southern Rhodesia (now Zimbabwe) decided to separate from Great Britain and to form an independent state in 1965, most of the world, including the Great Powers, refused to recognize Southern Rhodesia as a state. Consequently, Southern Rhodesia remained isolated from the world and was unable to conduct international relations. The non-recognition of Southern Rhodesia by outside actors prevented it from fully exercising the attributes of legal statehood. In the context of the former Yugoslavia, European Great Powers as well as the United States decided to prematurely recognize Croatia and Bosnia and Herzegovina, although such recognition was granted at a time when the entities in question arguably did not exercise control over their territories or have effective governments, thereby not meeting the traditional requirement for statehood.  Moreover, the United States refused to recognize the Peoples’ Republic of China (PRC) until 1978, although the PRC satisfied the legal criteria of statehood. Turkey was isolated in its own recognition of the Turkish Republic of Northern Cyprus as a state, although this entity did not necessarily fulfill all the legal elements of statehood. Finally, whereas many Western Great Powers have recognized Kosovo, Russia has refused to entertain any possibility of recognizing Kosovo as a state, although Kosovo’s fulfillment of the legal criteria of statehood is at the very least open to reasonable debate. Thus, recognition, whether it is considered a political or legal act, has a direct impact on the pragmatic determination of statehood: whether an entity will be able to truly act as a state on the international scene.  It may be argued that important states, such as Great Powers, support the constitutive view, because they equate recognition with statehood. In other words, Great Powers, as well as other important states, may decide whether to treat an emerging entity as a state based on their own geo-political interests, and not based on whether the entity satisfies the legal criteria of statehood. Thus, Great Powers, as well as many other states, have demonstrated that in practice, recognition remains constitutive of statehood.

Ankara City View

Ankara City View

Another key ingredient in the process of state creation is United Nations’ membership.  Because United Nations’ membership depends on the Security Council, it is thus subject to the geo-political whims of the five veto-wielding Great Powers (United States, Russia, United Kingdom, France, and China).  United Nations’ membership is important because it de facto elevates an aspiring state into a state.  Conversely, the denial of United Nations’ membership prevents the attainment of full statehood by an aspiring entity.  United Nations’ membership is distinct from the legal criteria of statehood (although such membership arguably enables the entertainment of international relations) and distinct from each existing state’s sovereign decision to recognize or not recognize a newly emerging entity.  However, it may be argued that United Nations’ membership reflects the collective recognition practice of the five permanent members of the Security Council, and that, in order to become a state, any entity must garner the support of these Security Council members – because entering the United Nations signifies the international community’s approval of a new sovereign member.

How does all of the above apply to the Israeli-Palestinian conflict and to the South Caucasus? Although Palestine, Nagorno-Karabakh, South Ossetia and Abkahzia may or may not satisfy the four criteria of statehood, and although Palestine may be recognized by over a hundred existing states, each of these entities have been blocked from entering the United Nations because of Security Council veto – in the case of Palestine, the United States has vetoed the Palestinian application for full membership, and in the cases of Nagorno-Karabkah, South Ossetia and Abkahzia, it is likely that the United States would equally veto membership applications.  Thus, none of these entities stand a chance of attaining statehood at the present moment. It may be argued that the Palestinian case for statehood is much stronger, because Palestine has observer status in the United Nations, because the International Criminal Court has opened an investigation into Israel, at Palestine’s request, and because Palestine has been recognized by more than one hundred existing states.  In addition, Palestine has recently sued the United States in the International Court of Justice under the Vienna Convention on Diplomatic Relations; it will be interesting to find out whether the Court takes up the case on the merits and proclaims anything regarding Palestinian statehood issues. However, because of the United States’ veto in the Security Council, Palestine does not have access to the United Nations and has no prospects of attaining the status of a sovereign state.

In sum, unless one supports the declaratory view, recognition and statehood remain connected on the theoretical level, and recognition and statehood are almost always inter-linked in practice.  Although recognition and statehood are distinct processes, it is nearly impossible to analyze the recognition of new states without focusing on the legal theory of statehood.  In addition to the link between recognition and statehood, recognition is always a political process, dominated by global politics and the interests of the Great Powers.

 

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International Law Weekend 2018

International Law Weekend, a prestigious annual international law conference co-sponsored by the American Branch of the International Law Association and the International Law Students’ Association, will take place from October 18-20, at Fordham Law School, and at the New York City Bar Association.  For a detailed conference program, please see here.  For information regarding registration, please see here.

Commentary on John Bolton’s Speech Regarding New American Policy on the International Criminal Court

National Security Advisor, John Bolton, delivered remarks today on “Protecting American Constitutionalism and Sovereignty from International Threats.”  In his remarks, Bolton announced a new American policy vis-a-vis the International Criminal Court (ICC or Court).  According to Bolton, the ICC “has been ineffective, unaccountable, and indeed, outright dangerous.”  While Bolton, and others in the Trump Administration, are certainly allowed to express their opinion and to craft new policies, it is important that such policies be based on accurate (and not alternative) facts.  The purpose of this post is to highlight some of the most egregious factual errors from Bolton’s remarks.  Any government policy based on inaccurate information and “advertised” through reliance on misleading and inaccurate claims is “ineffective, unaccountable… and outright dangerous.”  In addition, this post will criticize some of Bolton’s arguments as misguided and contrary to the United States’ interests.

Bolton argues in his speech that “[t]he ICC and its Prosecutor had been granted potentially enormous, essentially unaccountable powers, and alongside numerous other glaring and significant flaws, the International Criminal Court constituted an assault on the constitutional rights of the American People and the sovereignty of the United States.”  It is incorrect that the ICC and its Prosecutor have “enormous” or “unaccountable powers.”  The ICC’s jurisdiction is limited temporally as well as rationae materiae (the court can only exercise jurisdiction over genocide, crimes against humanity and war crimes – and in very limited instances, aggression); the court is also constrained by the application of principles of gravity and complementarity.  Moreover, the Assembly of States Parties is an important accountability mechanism over the court – as many readers know, judges can be removed by a two-thirds vote of states parties to the Rome Statute, and a prosecutor can be removed by a majority vote of states parties. Thus, to claim that the ICC somehow wields Harry Potter-like powers which transcend any accountability is simply false.  And, it is unclear why the establishment of the ICC constitutes a constitutional and sovereignty assault against the United States.  The ICC is a treaty-based body; any state, including the United States,  is free to join or not to join this treaty.  If the United States chooses to join the ICC, or any other treaty, potential conflicts with the U.S. Constitution would be resolved through the Supremacy Clause, which establishes the primacy of the Constitution over any inconsistent treaty obligations.  Thus, it is surprising and misleading to claim that the negotiation of a new treaty, like the ICC, is somehow a threat to the United States’ sovereignty or the role of its Constitution.

In addition, Bolton argues that “the Court’s structure is contrary to fundamental American principles, including checks and balances on authority and the separation of powers…..The International Criminal Court, however, melds two of these branches together: the judicial and the executive. In the ICC structure, the executive branch—the Office of the Prosecutor—is an organ of the Court. The Framers of our Constitution considered such a melding of powers unacceptable for our own government, and we should certainly not accept it in the ICC. ”  This is a curious argument: while it may be true that the ICC does not espouse the same separation of powers structure that the United States government does, the United States cannot possibly expect that every treaty-based organization adopt American governance principles.  Multilateral treaties bind multiple nations together and often adopt compromise positions and the “lowest common denominator” of norms; it is not reasonable to expect that treaties would replicate Unites States’ constitutional structures.  And, such replication is not constitutionally mandated.  The United States can become a member of various treaty-based bodies, so long as its obligations under such treaty mechanisms do not directly conflict with the Constitution.  Nothing in the ICC Statute would create such a constitutional conflict.  Thus, Bolton’s argument here is both surprising and unsupported by the Constitution.

Bolton also argues that the ICC “claims ‘automatic jurisdiction,’ meaning that it can prosecute individuals even if their own governments have not recognized, signed, or ratified the treaty.”  This is not true either: the ICC does not have automatic jurisdiction, and Article 12 of its Rome Statute posits that a precondition to the court’s exercise of jurisdiction is that the alleged crimes be committed by a national of a state party, or on the territory of a state party (or if a state accepts the court’s jurisdiction).  Thus, while the ICC may be able to prosecute nationals of a non-party state, this situation is far from automatic, and may only occur if such nationals commit crimes on the territory of a state party.

Bolton claims that the ICC Prosecutor’s request  to investigate Americans for alleged detainee abuse in Afghanistan is “an utterly unfounded, unjustifiable investigation.”  This investigation is not unfounded in and of itself; the investigation will permit the Prosecutor to ascertain enough facts to decide whether to go forward with any possible prosecutions.  Moreover, the investigation is not unjustifiable, as it falls within the Court’s mandate, and as potential prosecutions would satisfy the Court’s temporal and subject-matter jurisdiction.

Bolton proceeds to criticize the ICC because it “claims jurisdiction over crimes that have disputed and ambiguous definitions, exacerbating the Court’s unfettered powers.  The definitions of crimes, especially crimes of aggression, are vague and subject to wide-ranging interpretation by the ICC.”  This claim is inaccurate: the ICC Statute specifically defines the crimes over which the Court has jurisdiction, and the interpretation and application of these definitions is appropriately left in the hands of the Court’s judiciary, in the same manner that the interpretation and application of domestic statutes is bestowed upon domestic judiciaries.  In addition, Bolton then argues that the ICC would somehow claim universal jurisdiction.  “The next obvious step is to claim complete, universal jurisdiction: the ability to prosecute anyone, anywhere for vague crimes identified by The Hague’s bureaucrats.”  There is nothing in the ICC’s Statute to support this conclusion, and while the Rome Statute negotiating record reveals that different states held different views regarding the Court’s reach and structure, it is false to claim that any serious intentions existed to provide the Court with universal jurisdiction over “anyone” or over “vague crimes.”

Finally, some of Bolton’s claims are, while not completely factually inaccurate, misguided and contrary to United States’ interests.  First, Bolton claims that the ICC is ineffective, as it has spent too much money, has prosecuted few individuals, and has not deterred the commission of atrocities in places such as the DRC, Sudan, Libya, or Syria.  This may be a fair criticism of the Court, but accepting such criticism could lead one to adopt a pro-ICC policy, to support the Court, and to ensure that the Court has better funding and better opportunities to truly deter the commission of atrocities, through its investigative and prosecutorial mechanisms.  This approach would benefit both the Court and all states which are committed to principles of accountability and individual criminal responsibility (United States should be positioned as a leader within this group of countries).  Second, Bolton believes that the ICC is superfluous, because of superior United States’ judicial and ethical standards.  According to Bolton, we do not need the ICC because the United States can handle its own investigations much better.  Bolton argues that the ICC’s application of the complementarity principle is “farcical” and  that the Prosecutor will decide which investigation to pursue based on political motives.  While the ICC has been criticized on complementarity grounds (in the Libya case in particular), there is nothing to suggest that the Prosecutor does not consider complementarity issues seriously, in each case that has been initiated with the Court.  And, even accepting that the United States’ judicial system is superior to the ICC, one could imagine a situation where the United States is unwilling to investigate its own wrongdoing; the ICC’s role is to act in such situations and to provide justice and accountability against perpetrators whose home countries choose to shield them.

Last but not least, most troubling is Bolton’s threat against those who cooperate with the ICC.  “We will respond against the ICC and its personnel to the extent permitted by U.S. law.  We will ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.”  It is absolutely within the United States’ sovereignty to refuse to issue visas/entry to ICC officials who may be foreign nationals (although this would be terrible policy).  However, it is simply unbelievable to announce that the United States would prosecute ICC officials, and other companies or states who assist the ICC, in the U.S. domestic system.  ICC officials are highly respected experts in international criminal law; judges, prosecutors, investigators, and other individuals who have committed their careers to the pursuit of international justice.  Those who assist or have assisted the ICC include our colleagues – the most prominent experts in international criminal law, who have provided advice and expertise to the Court.  What crimes have such individuals committed under United States law? And, how would such prosecutions (even if grounded in U.S. law) affect the United States’ role in international relations and in the world community? John Bolton’s speech is both factually inaccurate as well as misguided, and a new American policy vis-a-vis the ICC, built on Bolton’s remarks, will be detrimental to our own interests and our position in the global community.

For other commentary regarding Bolton’s speech, see here and here.

 

Female Voices at the 12th International Humanitarian Law Dialogs

I had the pleasure to attend the 12th International Humanitarian Law Dialogs in Chautauqua, New York, from August 26-28.  This post will brief highlight notable female contributions to this year’s conference.

Catherine Marchi Uhel

Catherine Marchi-Uhel, Head of IIIM (Katherine B. Fite Lecture, 12th IHL Dialogs)

As usual, Intlawgrrls sponsored the Katherine B. Fite lecture; this year’s lecturer was Catherine Marchi-Uhel, the recently appointed Head of the International Impartial and Independent Mechanism for Syria (IIIM).  Catherine Marchi-Uhel is a French national who began her career in the French judiciary, and then held several different posts at the United Nations, including in Bosnia, Kosovo, New York, and at the Extraordinary Chambers in the Courts of Cambodia.  In addition and as usual, Intlawgrrls sponsored a porch session.  This year’s porch session was on the topic of “Victims and International Criminal Tribunals.”  The session was moderated by yours truly, and included Professors Jennifer Trahan, Yvonne Dutton, and Valerie Oosterveld as speakers.

IntlawGrrls Porch Session

Intlawgrrls Porch Session: Professors Oosterveld, Sterio, Dutton, and Trahan (from left to right)

Other notable lectures and panels by female professors included the “Year in Review” lecture by Professor Valerie Oosterveld, a lecture on “Legal Limits to the Use of the Veto in the Face of Atrocity Crimes” by Professor Jennifer Trahan, and the “Ferencz Issues Panel: Is the Justice We Seek the Justice They Want?” moderated by Professor Leila Sadat (panelists included Zainab Bangura, Binta Mansaray, and Catherine Read).  The recipient of the Heintz Award this year were Allyson Caison, North Carolina Stop Torture Now, and Christina Crowger, North Carolina Commission of Inquiry on Torture.

Chautauqua 2018 Photo 3

Recipients of this year’s Heintz Award: Allyson Caison and Christina Cowger 

Chautauqua 2018 Photo 1

Professor Leila Sadat, moderating the “Ferencz Issues Panel”

Women in International Law Interest Group Networking Breakfast

The Women in International Law Interest Group (WILIG) at the American Society of International Law Annual Networking Breakfast will take place on Thursday, August 9th, from 8:30 am – 9:30 am, at Tillar House (ASIL Headquarters), located at 2223 Massachusetts Ave NW in Washington, D.C.  For more information about the networking breakfast, as well as how to register, please see here.

This year’s speakers include:

Dawn Yamane Hewitt, Quinn Emanuel

Nneoma Veronica Nwogu, World Bank

Teresa McHenry, Human Rights and Special Prosecutions Section, Department of Justice

Melanie Nezer, Senior Vice President, Public Affairs, HIAS

Shana Tabak, WILIG Co-Chair, Tahirih Justice Center (moderator)

2018 ICC Scholars Forum

IMG_2255 copy

2018 ICC Scholars Forum

On June 15-16, I participated in the 2018 International Criminal Court (ICC) Scholars Forum, which took place at the Grotius Centre for International Legal Studies at the University of Leiden, at The Hague, Netherlands.  The Forum was jointly sponsored by the Whitney R. Harris World Law Institute (Washington University School of Law) and the Grotius Centre.  The 2017 ICC Scholars Forum had been convened and organized by Professor Leila Nadya Sadat, and it had taken place at the Whitney R. Harris World Law Institute at Washington University in St. Louis.  This year, Professors Larissa van den Herik and Sergey Vasiliev (both from the University of Leiden) joined forces with Professor Sadat to organize and host the 2018 Forum at The Hague.

The 2017 Forum has been extraordinary, and this year’s edition followed in the same path of excellence.  The 2018 ICC Scholars Forum united scholars from both the United States as well as Europe, to “workshop” papers addressing various topics relevant to the functioning of the ICC.  I had the pleasure of discussing an excellent paper by Professor Joe Powderly (University of Leiden), on the topic of “Representation and Competence on the International Criminal Bench:  A Profile Sketch of the International Criminal Judiciary.”  Other notable projects included “Blameworthiness as the Benchmark: Relegating Hierarchical Approaches to Crimes and Individual Criminal Responsibility” (Matthew Kane); “The Forest for the Trees: Proving Contextual Elements of Crimes Against Humanity, Insights from the Bemba Appeal” (Kate Gibson); “From Timbuktu to The Hague: The War Crime of Intentional Attacking Cultural Property” (Mark Drumbl); “ICL as Expressing Justice” (Carsten Stahn); “The Crises and Critiques of International Criminal Justice” (Sergey Vasiliev); “The International Law Commission’s Draft Convention on Crimes Against Humanity” (Charles Jalloh); “Unequal Enforcement of the Law Targeting Aggressors for Mass Atrocity Prosecutions” (Nancy Combs); “Social Media Platforms: The New Kids on the Block at the ICC” (Emma Irving); “The Hartford Guidelines on Speech Crimes in International Criminal Law” (Richard Wilson and Matthew Gillett); “New Histories of Nuremberg: Figuring Women and Others into the Trials Narrative” (Diane Marie Amann); “The Gendered Jurisprudence of the ad hoc Tribunals’ Joint Criminal Enterprise Theory of Liability and Article 25(3) of the Rome Statute: Two Trains Running” (Leila Nadya Sadat, Patricia Viseur Sellers, and Susana saCouto).  Discussants included, in addition to yours truly, Harmen van der Wilt, Wayne McCormack, Tom Dannenbaum, Caroline Fount, Bertram Schmitt, Larissa van den Herik, J.D. Bowers, Megan Fairly, Jennifer Trahan, Harry Rhea, and Niamh Hayes.  I should note also the presence of two International Criminal Court judges at the 2018 Forum: judge Bertram Schmitt (who served as discussant), and Judge Christine Van Den Wyngaert, whose nine-year term on the ICC just ended, and who participated informally.  Last but not least, the 2018 Forum also included a book launch of “Seeking Accountability for the Unlawful Use of Force” (edited by Professor Leila Nadya Sadat, Cambridge University Press 2018).

Topics discussed at the 2018 Forum were wide-ranging and extensive, and a single blogpost would not be able to accurately describe the breadth of expertise in the room or the depth of ongoing discussions.  I am thankful to this year’s ICC Scholars Forum organizers, and I look forward to the 2019 edition.

Call for Panel Proposals – International Law Weekend 2018

International  Law Weekend 2018 will take place from October 18-20 in New York City, at the NYC Bar Association and at Fordham Law School.  This conference is jointly organized and sponsored by the American Branch of the International Law Association and the International Law Students Association.  This year’s theme is “Why International Law Matters.”  Please see the theme description below:

Like any legal system, international law is a reflection of the past. Its norms, rules, and institutions are built upon a foundation that is moored in prior decades and steeped in previous centuries. And yet, international law plays an important role today, while setting the stage for the future. Current developments and emerging trends will form into future law. International lawyers must, therefore, serve as both historians and fortune tellers, while applying international legal norms in the present. How does the past inform our present? What current events and movements will most impact our future? And why does international law matter today? Wading through these moments in time, panels at ILW 2018 will consider the past, reflect on the present, and survey the future of our discipline and our profession, while addressing the fundamental question of why international law matters.

For more information, as well as for how to submit a panel proposal, please see here.  Panel proposals are due on May 25th.