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.

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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.

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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

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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.

Syria and the Limits of International Law

Earlier this week, the Assad regime most likely used chemical weapons against its own population in Syria. Up to 500 people may have been affected by this chemical attack, and approximately 75 individuals may have died. Western media reported that most western nations attributed the attack to the Assad regime, and although Assad himself has denied responsibility, this allegation appears credible, in light of Assad’s track record of using chemical weapons. Although this incident may have constituted a violation of jus in bello, and although this incident may be morally abhorrent, international law does not actually provide other nations with tools for a direct (military) response. The Syrian situation thus illustrates the limits of international law, which one may either accept as inevitable and necessary in a sovereignty-based system of international legal rules, or, which one may attempt to eliminate by changing rules of international law. This post will briefly discuss these options, in light of the ongoing crisis in Syria.
First, even in a dire situation like Syria, international law does not actually authorize other nations to use force against the offending regime. Our current international legal order is based on state sovereignty, and on the notion that such sovereignty may be breached in exceptional situations only. Using force against a sovereign nation may constitute the most supreme breach of state sovereignty, and under international law, force may be used against sovereign nations in two limited instances: pursuant to Security Council authorization and/or in self-defense. International law does not authorize nations to use force against another sovereign nation in other situations – no matter how devastating and limiting such a rule may be. For example, international law does not authorize the use of force against a sovereign nation if such a sovereign nation is experiencing a humanitarian catastrophe, caused by its own leadership. Thus, in a situation like Syria, where the country’s own regime is killing and wounding its own population, international law does not provide other nations with authorization to use force – unless such other nations can obtain Security Council approval or can demonstrate that they are acting in self-defense. As another example, international law does not authorize the use of force against a sovereign nation, although the latter may have used internationally-prohibited weapons, and may have committed violations of jus in bello. Thus, the alleged use of chemical weapons by the Assad regime against Syrians does not provide justification, under international law, for the use of force by other nations against Assad. Additionally, even in situations where the Security Council is deadlocked and unlikely to authorize the use of force against a sovereign nation which has engaged in brutal tactics internally, international law does not step in to provide alternative legal basis to other nations who may wish to use force against the offending nation. Assad is thus safe from external interference, from the perspective of international law, so long as Russia/China continue to veto Security Council resolutions against Assad, and so long as he does not attack other countries.
The situation in Syria is akin to that in Rwanda in 1994, where the international community did not interfere, and where hundreds of thousands of civilians were slaughtered over a brief period of time. In Rwanda, like today in Syria, international law did not provide justification toward the use of force by any other nation, and Rwandan leadership was able to get away with its genocidal policy for several months. The situation in Syria is similar to that in Kosovo in the late 1990s, when Serbian president Milosevic committed atrocities against ethnic Albanians. In the case of Kosovo, however, the international community acted, through a series of air strikes against Serbia in the spring of 1999, instituted by NATO despite lack of Security Council approval. From the perspective of international law, international community’s response was correct in Rwanda and illegal in Kosovo. From the perspective of international law, international community may not do anything in Syria and may not use force against the offending Assad regime. This conclusion, although morally questionable, is based on state sovereignty, which forms the basis of our current international legal order. State sovereignty thus shields regimes from interference, even if they commit atrocities, violate jus in bello, and engage in the most reprehensible behavior (absent Security Council involvement). And, if not changed, our international legal order will continue to insulate abhorrent state policies and practices, so long as these remain internal and so long as the Security Council remains deadlocked. International law is of extremely limited utility in situations like Rwanda, Kosovo, and Syria, and its limits underlie its own weakness.
Second, if one is dissatisfied with the current international law rules, how could such rules be altered, to provide a better response in situations like Syria, of internal humanitarian crises and Security Council deadlock? Several changes are theoretically possible. First, one could retain the sovereignty-based system of international law but remove veto power for any nation from the Security Council. One could require that all Security Council resolutions be passed by a super-majority of ten or twelve nations, to ensure that authorizations for the use of force against a sovereign nation face strict scrutiny and require super-majority consensus within the United Nations. Second, one could adopt a regional sovereignty-based system, by allowing regional organizations, such as NATO, to use force against their own member states. This system would allow for regional military responses within regional institutional structures; such regional responses could get around Security Council deadlock and could alleviate humanitarian crises in places like Syria. Under this regional sovereignty system, military responses, such as the 1999 NATO-led air strikes against Serbia, would become lawful. Third, one could legalize humanitarian intervention, as a third exception to the general ban on the use of force. Harold Koh has written about this and has proposed a normative framework for humanitarian intervention; I have also written about this and have argued for a similar set of rules. A true humanitarian intervention, organized by a coalition of states, pursuant to a concrete set of humanitarian goals and limited in scope and duration could become part of our international legal order, while offending state sovereignty in the most justified manner. It may be argued that states which offend international legal norms waive their sovereignty and no longer deserve the protection of the same norms; legalizing humanitarian intervention against the most rogue regimes, such a Assad’s, would only minimally offend the general notion of state sovereignty as this concept would continue to apply for all other law-abiding states. A modified system of international legal rules could preserve state sovereignty while allowing for a more robust (military) response in situations of humanitarian catastrophe, like the one ongoing in Syria.
In sum, international law in its current iteration remains powerless to impose true military restrictions on leaders like Assad. Several western nations have already discussed the possibility of staging a military intervention against Assad; such an intervention, absent Security Council authorization, would be illegal under international law. Intervening nations could choose to ignore international law and act in a military manner, in the face of the dire situation in Syria. This could, in turn, weaken our international legal order, by exposing its limitations and by demonstrating that nations are willing to ignore international law, because this law imposes unreasonable restraints. However, international law, if modified, could contain legal tools that would enable nations to lawfully intervene against leaders like Assad. This solution may be preferable in the long-term, as it would allow lawful state action against offending regimes, and as it would allow international law to develop small limitations on state sovereignty, for the sake of protecting populations from harm directed at them by their own leaders. International law’s limits are underscored by the situation in Syria. In the future, however, international law does not have to remain powerless.