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 

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Professor Leila Sadat, moderating the “Ferencz Issues Panel”

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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.

16th Assembly of States Parties of the International Criminal Court: The Theme of Cooperation

 

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United Nations Building

As a delegate of the Public International Law and Policy Group, I had the honor of attending the 16th Assembly of States Parties (ASP) of the International Criminal Court (ICC), which took place from December 4-14 at the United Nations’ Headquarters in New York City. In addition to the election of new judges, the most important themes of this year’s ASP included cooperation and whether to add the crime of aggression to the Rome Statute. Some posts have already been published on the latter (see here and here), but as of now, it is unclear which version of the circulated texts on aggression may have been adopted last night. Thus, I plan to report more on the crime of aggression later. This post will focus instead on the topic of cooperation, in the context of this year’s ASP.

 

 

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16th Session of the Assembly of States Parties of the International Criminal Court

States which have ratified the Rome Statute and are thus members of the ICC have a treaty-based duty to cooperate with the court. While some states have routinely carried out this international law obligation, others have not. In particular, several states have failed to execute the ICC’s arrest warrants regarding Sudanese President Al-Bashir. The ICC issued two arrest warrants for Al-Bashir, in 2009 and in 2010, after the Security Council referred the Darfur situation to the court for an investigation in 2005, through Resolution 1593. States which are members of the ICC have a treaty-based duty to execute the court’s arrest warrant by arresting the subject of the warrant if he or she happens to be on their territory. In addition, the Sudan situation was referred to the ICC through Security Council Resolution 1593; in cases of Security Council referral, it may be argued that all states, not only ICC member states, have a duty to cooperate with the court. The text of Resolution 1593 supports this argument:

 

Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully.

 

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Security Council Briefing on the Darfur Situation (16th Session of the ASP)

Resolution 1593 recognizes that states which are not parties to the Rome Statute do not have a treaty-based duty to cooperate with the ICC, which is why the Resolution itself “urges” all states and other regional and international organizations to cooperate with the court. Thus, according to this argument, all states have a duty to arrest Al-Bashir, in light of Resolution 1593, if he chose to travel to their territory, and to deliver him to The Hague.

 

While several “western” states support this view and have called for all states to cooperate with the ICC by arresting those wanted by the court, many African states reject this view. Al-Bashir has traveled freely to several African countries in the decade following the ICC arrest warrant – most recently to Uganda and South Africa. Many African countries have insisted that heads of state, such as Al-Bashir, have immunity from international criminal prosecutions, and that the ICC arrest warrant against a sitting head of state breaches the international law principle of state sovereignty. The recently negotiated Malabo Protocol, adopted by the African Union in 2014, extends the jurisdiction of the African Court of Justice and Human Rights (ACJHR) to crimes under international law and transnational crimes. The Protocol reflects the view, espoused by many African leaders in the context of the ICC Al-Bashir arrest warrant, that heads-of-state should be immune from prosecution, by including a provision on head-of-state immunity. In addition, many African states have argued that Resolution 1593, which referred the Darfur situation to the ICC, imposes a cooperation obligation only on member states of the ICC, not on non-member states.

 

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United Nations Building

At the ASP, the ICC Prosecutor, Fatou Bensouda, briefed the Security Council on the situation in Darfur. Following Prosecutor Bensouda’s briefing, several states offered comments on the Darfur situation, as well as on the Al-Bashir arrest warrant. Predictably, most western states, including European nations such as France, United Kingdom, Italy, and Sweden, condemned states for not cooperating with the ICC and urged all states to execute the ICC arrest warrant. Additional states which supported this view included Senegal, Ukraine, Japan, Bolivia, Uruguay, and the United States. Other states, predictably, held the opposite view and insisted on head-of-state immunity from ICC prosecution, as well as on state sovereignty. Such states included Ethiopia, Egypt, Sudan, Russia, and China. Finally, Kazakhstan seemed to adopt a middle ground position, by encouraging Sudan to continue to make progress in humanitarian efforts in the Darfur region, and by urging everyone in the international community to respect Sudan’s sovereignty and independence. These Security Council members’ positions, although unsurprising, shed light on the existing geo-political dilemma caused by the ICC arrest warrant of Al-Bashir, as well as on the different states’ positions regarding this issue. In general, western states tend to support the ICC (with the exception of the United States), and in general, most western states have insisted that all states should cooperate with the ICC in the execution of this arrest warrant (including the United States). Sudan, many African states, as well as Russia and China, have criticized the court for its Africa focus, and have argued that the arrest warrant improperly breaches fundamental principles of international law, such as state sovereignty as well as head-of-state immunity. Because of the current Russian and Chinese position on this issue, that Resolution 1593 does not nullify the principle of head-of-state immunity for heads of states which are not members of the ICC and that the international community should respect Sudan’s sovereignty and independence, it seems unlikely that a new Security Council resolution, clarifying the issue of head-of-state immunity, will be voted on this issue.

 

The academic (see here, here,  and here, for example) and International Court of Justice view on the question of head-of-state immunity seems well-established: the principle of head-of-state immunity applies in national proceedings but not before international criminal tribunals (I note the important distinction between two different types of immunity: ratione personae and ratione materiae, which the academic literature cited here clearly addresses, but which this brief post will not go into.  It suffices to say that for the purposes of various states’ arguments on immunity, as described above, the distinction is immaterial). In the Al-Bashir arrest warrant situation, the additional “wrinkle” is the existence of a Security Council resolution, which trumps state sovereignty-based arguments and imposes a duty on cooperation on all states, whether ICC members or not. Thus, the argument espoused by some African states, Russia, and China, at this year’s ASP seems clearly rooted in politics and contrary to established norms of international law.

 

Call for Nominations: Francis Lieber Prize

The American Society of International Law’s Lieber Society on the Law of Armed Conflict awards the Francis Lieber Prize to the authors of publications that the judges consider to be outstanding in the field of law and armed conflict.  Both monographs and articles (including chapters in books of essays) are eligible for consideration — the prize is awarded to the best submission in each of these two categories.
 
Criteria:         Any work in the English language published during 2017 or whose publication is in final proof at the time of submission may be nominated for this prize.  Works that have already been considered for this prize may not be re-submitted.  Entries may address topics such as the use of force in international law, the conduct of hostilities during international and non‑international armed conflicts, protected persons and objects under the law of armed conflict, the law of weapons, operational law, rules of engagement, occupation law, peace operations, counter‑terrorist operations, and humanitarian assistance. Other topics bearing on the application of international law during armed conflict or other military operations are also appropriate.
 
Eligibility:       Anyone may apply for the article or book prize.  For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in an academic teaching or research position. Membership in the American Society of International Law is not required.  Multi-authored works may be submitted if all the authors are eligible to enter the competition.  Submissions from outside the United States are welcomed.
 
Submission:     Submissions, including a letter or message of nomination, must be received by 10 January 2018.  Three copies of books must be submitted.  Electronic submission of articles is encouraged. Authors may submit their own work.  All submissions must include contact information (e‑mail, fax, phone, address) and relevant information demonstrating compliance with eligibility criteria.  The Prize Committee will acknowledge receipt of the submission by e‑mail. 
 
Printed submissions must be sent to:
 
Professor Laurie Blank
Emory University School of Law
1301 Clifton Road
Atlanta, Georgia  30322
USA
 
Electronic submissions must be sent to:
 
 Lblank[at]emory.edu
 
Please indicate clearly in the subject line that the email concerns a submission for the Lieber Prize.
 
Prize:   The Selection Committee will select one submission for the award of the Francis Lieber Prize in the book category and one in the article category. The Prize consists of a certificate of recognition and a year’s membership in the American Society of International Law.  The winner of the Lieber Prize in both categories will be announced at the American Society of International Law’s Annual Meeting in April 2018. 
 
In 2017, the winners were:
 
Book prize:
— Kenneth Watkin, “Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict” (OUP 2016)


Article prize:

— Tom Dannenbaum, “Why Have We Criminalized Aggressive War?,” 126 Yale Law Journal (2017)