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.


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.

The Human Rights Council’s consideration of gender representation in UN treaty bodies and special mechanisms: Call to submit inputs for the report of the Advisory Committee on current levels of representation of women in human rights organs and mechanisms

On July 11, 2019, the Human Rights Council adopted Resolution A/HRC/41/L.6 on the “Elimination of all forms of discrimination against women and girls.” GQUAL, a global campaign to achieve gender parity in the composition of international tribunals and monitoring bodies, worked with the United Nations Working Group on Discrimination against Women (WG) and the Mission of Mexico in Geneva to develop language for this year’s Human Rights Council (HRC) resolution promoting gender balance in United Nations (UN) international bodies. GQUAL’s efforts were successfully translated in the Resolution which acknowledges for the first time that “women remain underrepresented … in United Nations bodies and mechanisms responsible for developing international human rights norms and standards and monitoring their implementation.”

Additionally, the Resolution calls upon States and encourages the UN and other international institutions to promote, inter alia, balanced gender representation in the membership of international bodies at all levels. In particular, the Resolution calls upon States to develop better procedures at the national level to take gender as a consideration for the appointment and election of candidates. Furthermore, it encourages States and the appropriate UN bodies, including the OHCHR, to deepen their efforts to promote women candidacies through the distribution of information on available vacancies, encouragement to women to put their names forward, and monitoring and reporting on progress in achieving balanced gender representation.

Furthermore, the Resolution instructs the HRC Advisory Committee to draft a report, in consultation with CEDAW and the WG, and including the input of States and other relevant stakeholders, to systematize good practices and recommendations for increasing gender representation in international bodies. As part of the first step towards the preparation of the report, the HRC Advisory Committee has posted a call for inputs and views, including a questionnaire on the issue for stakeholders to submit information.

The call for inputs and views, was released on September 12, 2019 and the deadline to submit is January 12, 2020. The questionnaire to facilitate the submission of inputs for the report is posted here.

Submissions and other information should be submitted to:

Secretariat of the Human Rights Council Advisory Committee
OHCHR – United Nations Office at Geneva
CH-1211 Geneva 10, Switzerland
Fax: +41 22 917 9011

The Resolution and the call for inputs and views by the HRC Advisory Committee provide a unique opportunity for civil society, academia and other interested parties, to submit information and proposals that contribute to improve selection procedures and to realize women’s right to equality in UN bodies.

Also, please contact the GQUAL Campaign should you have an interest in supporting this report at

GQUAL Campaign: 2019 achievements on gender equality and opportunities for 2020

During 2019, GQUAL carried out a very extensive and successful agenda, which resulted in important gains for moving towards gender parity in international justice. Some highlights of our work are described below. For a full report of activities see here.

Launched in September 2015, GQUAL is a global campaign to achieve gender parity in the composition of international tribunals and monitoring bodies. Data available on GQUAL’s website shows that the underrepresentation of women continues to exist across almost all international bodies in charge of imparting international justice.

As part of its goal to develop international standards, as well as good practices for national and international selection procedures that include gender as criteria for the appointment and selection of candidates, GQUAL embarked in several successful initiatives that included:

Adoption of Human Rights’ Council Resolution

GQUAL worked with the UN Working Group on Discrimination against Women (WG) and the Mission of Mexico in Geneva to develop language for a Human Rights Council (HRC) resolution promoting gender balance in UN bodies. GQUAL’s efforts were successfully translated in Human Rights Council Resolution A/HRC/41/L.6 on the “Elimination of all forms of discrimination against women and girls.” This landmark resolution acknowledges for the first time the lack of gender balance in UN treaty bodies and special procedures, and calls upon States, the UN and other international organizations to promote gender balance in the composition of international organs at all levels. In particular, the Resolutions calls upon states to develop better procedures at the national level to take gender as a consideration for the appointment and election of candidates, and the OHCHR to deepen their efforts to promote women candidacies.

Additionally, the Resolution calls on the HRC Advisory Committee to draft a report, in consultation with CEDAW and the WG, and including the input of States and other relevant stakeholders, to systematize good practices and recommendations for increasing gender representation in international bodies. As part of the first step towards the preparation of the report, the HRC Advisory Committee has posted a call for inputs and views (now extended), which includes a questionnaire for stakeholders to submit information. This provides a unique opportunity for civil society, academia and other interested parties, to submit information and proposals that contribute to improve selection procedures and to realize women’s right to equality in UN bodies.

Adoption of OAS General Assembly Resolution on criteria for the selection of members of the IA Commission and Court

For the fourth straight year, in 2019 GQUAL proposed language and advocated for a resolution at the Organization for American States (OAS) addressing the need for selection procedures at the national and regional level for the appointment of judges at the Inter-American Court and members of the Commission. AG/RES. 2941 (XLIX-O/19) Resolution, approved by the OAS General Assembly in June 2019, underlines the need of achieving better gender balance in these bodies.

Briefings before the WG and CEDAW

Both the WG and CEDAW play a fundamental role in developing legal standards on the obligation to promote gender parity in international representation and monitoring State’s compliance with this obligation.

– In June 2019, GQUAL briefed the members of the WG on a research conducted by the Campaign regarding the WG’s practice on issues of parity and representation. Also, in the briefing, both parties explored avenues for collaboration.

– Additionally, in July 2019 GQUAL conducted a private briefing to the CEDAW Committee during its 73th sessions in Geneva. GQUAL presented the results of research conducted by the Campaign on the Committee’s jurisprudence regarding gender parity in international bodies and called on the Committee to develop standards under article 8 of the CEDAW Convention and issue recommendations to States.

Submission of position paper to the UN treaty bodies strengthening process

In April 2019, GQUAL submitted a position paper to the OHCHR as part of a call to provide inputs to the human rights treaty body strengthening process launched in 2014 through UN General Assembly Resolution 68/268. Inputs were sought to enrich the UN Secretary General report to be published in January 2020, in anticipation of the state review process starting in April 2020.

GQUAL’s position paper adds a unique focus on gender, by highlighting the importance of reviewing nomination and selection procedures and practices and adopting measures to achieve gender parity in the composition of human rights treaty bodies.

Participation in events

Additionally, to amplify knowledge and networks, in 2019 GQUAL participated in the following events:

Women Delivering Justice: Investing in Women Justice Professionals for the Achievement of the 2030 Agenda, side event during the Commission on the Status of Women (#CSW63) with IDLO and International Association of Women Judges Link to video
Event organized by the Commission of Judiciary and Political Affairs of the OAS to discuss good practices for the nomination and elections of members to the IACHR and Court and the text of a resolution to be discussed by the OAS General Assembly,
Gender Parity in UN human rights bodies and mechanisms, side event to the 41st Human Rights Council Session in Geneva, with the International Bar Association Human Rights Institute (IBAHRI), and Women@theTable.
Panel Discussion on Accelerating Gender Equality – 42nd Human Rights Council Session in Geneva. The panel discussion was part of a series of Meeting organized annually by the OHCHR. The objective of this session was to discuss the recently adopted HRC Resolution A/HRC/41/L.6, which addresses, inter alia, gender balance in international court and was promoted and drafted by the GQUAL Campaign.

2020 will be a busy year for the campaign. The HRC Resolution opened an important opportunity to develop guidelines and recommendations that can improve international selection processes and ensure that more women are nominated and elected. There will also be important elections both at the UN and at regional systems. We invite you all to check the upcoming elections here, and to contact us to learn more about our plans and actions.

Call For Abstracts & Papers: 4th Annual “Revisiting The Role Of International Law In National Security” Workshop

JUNE 25, 2020

Cardozo Law School, New York City

Many conversations in the U.S. about situations of armed conflict – within civil society, academia, and the U.S. government – center on “national security law,” often drawing primarily from domestic law and military perspectives.  International law is sometimes set aside in these discussions.   This workshop aims to draw the international legal aspects of armed conflicts to the forefront of national security discussions.

The workshop, co-organized by the International Committee of the Red Cross’s Delegation in Washington, and faculty at Loyola Law School Los Angeles, Stanford Law School, and Cardozo School of Law, is for public international law scholars and practitioners.  It aims to drive discussions of public international law, including international humanitarian law, international human rights law and international criminal law, into conversations, in the U.S. in particular, on national security issues and situations of armed conflict. The organizers are particularly interested in discussing scholarship and ideas that seeks to bridge partisan political divides while addressing both the law and national interests.

The workshop will provide an opportunity for authors to have their works in progress critiqued by established experts in the field of IHL, and will provide a networking opportunity for participants.  The organizers ask only for papers that that have not yet been accepted for publication.

In addition to submissions to traditional US law reviews, participants might consider the possibility of publication in the ICRC’s International Committee of the Red Cross Review, which is seeking submissions for its upcoming editions.  The Review covers a wide variety of issues, and to the extent that there are paper topics that overlap with “revisiting the role of international law in national security” and upcoming Review topics, the organizers encourage these submissions. One upcoming Review topic is “Counter-terrorism and terrorism,” which is described in more detail below. The author would still need to submit the publication to the Editor of the Review for consideration.

We invite you to submit a detailed abstract or draft of an article for discussion.  A small number of papers will be selected for discussion at the workshop. Either draft papers OR abstracts may be submitted.

  • When:  June 25th, 2020 (full day)
  • Where:  Cardozo Law School, New York City
  • Submissions:  Please send your name, current affiliation, and paper proposal to Tracey Begley
  • Deadline for submissions:  April 1st, 2020

Co-organized by the International Committee of the Red Cross Delegation for the United States and Canada, and faculty at Loyola Law School Los Angeles, Stanford Law School and Cardozo Law School.

A limited amount of travel funds may be available.


Terrorism as a phenomenon is not limited to any one part of the world. It is a global phenomenon that, although it can occur in both wartime and peacetime, is often linked to armed conflict. Although there is no universal definition of “terrorism” under international law, international humanitarian law (IHL) prohibits acts which would be considered “terrorist” and acts or threats whose primary purpose is to spread terror among the civilian population. IHL also prohibits the underlying acts of attacks targeting the civilian population in both international and non-international armed conflicts. In response to the threat of terrorist attacks, States have undertaken numerous measures aimed at those that perpetrate them. While pursuing the legitimate aim of ensuring State security, counterterrorism measures can have a considerable impact on whether and how States fulfil their obligations under IHL. This issue of the Review will explore the issues like the so-called “foreign fighters”, the criminalization of aid, State, regional and UN counterterrorism sanctions, and partnered counter-terror operations, among others.

ICC Assembly of States Parties Symposium: Overall Update and Reflections & the Afghanistan Hearing

Guest Post By Jennifer Trahan, Clinical Professor, NYU Center for Global Affairs

ASP Photo 1

Members of Civil Society Organizations at the 2019 ICC Assembly of States Parties 

Milena Sterio has already blogged about two of the side-events held, and Valerie Oosterveld has provided an update on the progress made during various days of the ASP.  This blog post will provide an update on a few issues covered during the ASP, and on the hearings held simultaneously (December 4-6) at the International Criminal Court regarding the appeal of the rejection of the Prosecutor’s application to proceed with the Afghanistan investigation.  I was able to attend both the ASP as well as segments of the Afghanistan hearing, and also serve as an amicus on the Afghanistan appeal.

The ASP, chaired by ASP President Judge O-Gon Kwon, culminated in the adoption of seven resolutions by consensus on:  amendments to article 8 of the Rome Statute (adding starvation as a war crime when committed in non-international armed conflict), cooperation, the nomination and election of judges, the proposed programme budget for 2020, the remuneration of judges, review of the International Criminal Court and the Rome Statute system, and strengthening the International Criminal Court and the Assembly of States Parties (a/k/a the “omnibus resolution”).  The Assembly also elected six members of the Committee on Budget and Finance and a member to fill a vacancy, and a member of the Advisory Committee on nominations of judges.  In addition to the General Debate, there were thematic plenary sessions on cooperation and the review of the Court, and a large number of civil society and State Party-sponsored “side-events.”  (Press release, ICC-CPI-20191206-PR1505.)

The Review Process

One of the aspects that made this ASP different from past ASPs was the creation of a review process for review of the work of the Court and the Rome Statute system.  Calls for the creation of such a process came after the launch of politically-motivated attacks against the Court, as well as a motivation to strengthen certain aspects of the ICC’s work.  After many drafts this fall of the terms of reference for an independent expert review, it was determined that the review would focus on three areas: (1) governance, (2) judiciary, and (3) prosecution and investigation.  After submissions to the ASP President of nominations of the names of over 60 experts, President Kwon selected the final list of names, with three experts nominated under each category.  This list was then approved at the final ASP session.  This review process will run in parallel with certain review efforts to be addressed directly by the ASP.  There was debate both during the ASP about how the expert review would be implemented, and at least some concern that not all states necessarily seem to fully share the goal of strengthening the ICC.  It was noticeable that some states during the ASP and this past fall were calling for a “reform” process, whereas most agreed that the process was to be a “review” process aimed at strengthening the Court.  NGOs and States Parties have also undertaken to strengthen the process for the nomination and election of ICC judges, with some modest progress made in a resolution adopted on the topic.

 The Afghanistan hearing

ASP Photo 2

ICC Prosecutor Fatou Bensouda addressing delegates at the ICC Assembly of States Parties 

Prosecutor Fatou Bensounda and ICC President Chile Eboe-Osuji had opened the ASP Plenary Session on December 2 with frank calls about the need to support the ICC as it faced politically-motivated attacks against its work, with the Prosecutor expressing her firm commitment to proceeding notwithstanding.  The timing was such that the ICC Appeals Chamber would simultaneously during the ASP conduct hearings on the appeal of the dismissal of the Prosecutor’s request that the Afghanistan preliminary examination proceed to the investigation phase.

The Pre-Trial Chamber had on April 12, 2019 determine that the Afghanistan preliminary examination met the grounds to proceed under Rome Statute Article 15—that there was a “reasonable basis to believe that the incidents underlying the [Prosecutor’s] [r]equest occurred” and “may constitute crimes within the jurisdiction of the Court” (Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’ of 12 April 2019, para. 60).  Yet, the Pre-Trial Chamber notwithstanding held that it was not “in the interests of justice” under Rome Statute Article 53 (1) (c) to open the investigation based on the Pre-Trial Chamber’s de novo assessment of the application of that phrase (paras. 91-96).

The first day of the appeals hearing (December 4) focused on two procedural questions – whether “victims” had standing to be part of the appeal, and whether the appeal was one related to “jurisdiction.”  The second two days (December 5 and 6) focused on the merits of the argument—what the phrase “the interests of justice” was meant to address, and whether the Pre-Trial Chamber properly assessed the issue, and whether it properly construed the factors by which to evaluate application of the phrase.  This blog post won’t cover all the arguments, but on the day I attended (December 6), the amici present presented extremely persuasive cases that the Pre-Trial Chamber erred in its assessment, including a strong presentation by former US War Crimes Ambassador David Scheffer.

The Appeals Chamber’s ruling is extremely significant not only as to whether the Afghanistan investigation—involving alleged crimes by the Taliban, Afghan authorities, as well as US nationals—may proceed, but some of the criteria utilized by the Pre-Trial Chamber in evaluating whether to open the investigation represent extremely unworkable ones that potentially could jeopardize whether many of the ICC’s preliminary examinations are able to proceed.  Thus, the ruling has potential importance far beyond the Afghanistan situation.  I was privileged to submit a written amicus brief—as amici were asked to present either a brief or to present oral arguments.  All the written amicus submissions addressing “the interests of justice” agreed that the Pre-Trial Chamber had erred in its assessment.

The release of the annual report on Preliminary Examinations

While Valerie Oosterveld has already blogged about the Prosecutor’s release on Thursday, December 5, 2019, of her office’s annual Report on Preliminary Examination Activities, I will just note that the report has a new section covering “Phase 1” of Preliminary Examinations.  The Report (para. 23) explains that during “Phase 1”, the OTP analyzes all communications received pursuant to Article 15 of the Rome Statute using the following criteria:

whether the allegations contained therein concerned: (i) matters which are manifestly outside of the jurisdiction of the Court; (ii) a situation already under preliminary examination; (iii) a situation already under investigation or forming the basis of a prosecution; or (iv) matters which are neither manifestly outside of the Court’s jurisdiction nor related to an existing preliminary examination, investigation or prosecution, and therefore warrant further factual and legal analysis by the Office.

This new section contains discussion of:  North Korea (dual nationals), North Korea (overseas laborers on the territories of States Parties), and Philippines (South China Sea).

At the Prosecutor’s accompanying briefing on Friday December 6, 2019, many representatives of States Parties and members of civil society were present.  Civil society members voiced several extremely heartfelt pleas for the OTP to make more progress in various of the situation countries.  While being sensitive to these interventions, the Prosecutor also explained the reality that the current budget and the limitations it imposes will force her office to “prioritize,” thereby delaying the OTP’s work in some situations.

 The impressive number and diversity of side-events & civil society engagement

While a few side-events have already been covered by prior blog posts, the sheer number of events (related to justice in Myanmar, Darfur, Syria, and many, many more) was extremely impressive.  My only regret was that (with the ASP shortened to 5 actual and 6 scheduled days), it was impossible to attend many of the side-events as a number occurred simultaneously.  The ASP has become quite a gathering place for civil society members from around the world and States Parties interested in advancing (through many different approaches) the pursuit of international justice as well as prosecution of core crimes within national court systems.

The participation of civil society in large numbers at each ASP is largely attributable to the tireless work of the Coalition for the International Criminal Court (“CICC”).  The CICC was ably convened this year by Melinda Reed as Acting Convenor following the retirement of William R. Pace.

The Rome Statute and Cyberwarfare

While many side-events deserve their own blog posts, I will call attention to one that addresses a relatively new area (for ICC followers at least).  It was a side-event held Monday December 2 entitled “The Application of the Rome Statute to Cyberwarfare:  The International Criminal Court’s Jurisdiction over the Crime of Aggression.”  The panel featured Stefan Barriga (Minister and Deputy Ambassador, Liechtenstein Embassy in Brussels) as moderator, and myself and Don Ferencz (Convenor of the Global Institute for the Prevention of Aggression) as panelists.  It was sponsored by Argentina, Austria, Belgium, Liechtenstein, and The Global Institute for the Prevention of Aggression.

The discussion focused on how a cyberattack (if it reached a certain threshold of gravity) could potentially be covered by the ICC’s crime of aggression, particularly if launched by a state actor, and how a cyberattack by a non-state actor potentially could be covered by Article 8 war crimes and Article 7 crimes against humanity.  These issues will be pursued further in meetings of the newly formed Council of Advisors on the Application of the Rome Statute to Cyberwarfare, co-sponsored by Argentina, Austria, Belgium, Estonia, Liechtenstein, Luxembourg, Spain, Switzerland, and The Global Institute for the Prevention of Aggression, and Chaired by Ambassador Christian Wenaweser, Permanent Representative of Liechtenstein to the United Nations.  Focus on the application of the Rome Statute to cyberwarfare illustrates one of the ways that the Rome Statute is potentially broad enough to address new challenges and new forms of warfare, and presents an area that should be of interest to many states that are increasingly facing such attacks.  It might even persuade some States Parties that have not yet ratified the ICC crime of aggression amendment, to see it in a potentially new light.

 Challenges ahead

With a huge number of preliminary examinations and investigations, the ICC has much work facing it, and it will be a challenge how much can be accomplished both due to budgetary limitations but also a frequently hostile political landscape.  For example, when both the Philippines and Burundi withdrew from the Rome Statute, while those countries are supposed to have continuing obligations to cooperate with the ICC, for the OTP to move forward most certainly becomes much more difficult.  While the reasoning contained within the Pre-Trial Chamber’s decision dismissing the OTP’s request to proceed with the Afghanistan investigation seems weak, if the Appeals Chamber reverses the decision and the Court proceeds, there undoubtedly will be significant hurdles to face.  Yet, at the end of the day, that seems exactly what the Court was designed to do:  to pursue difficult cases, particularly against high-level accused, where national systems are unwilling or unable to do so—remembering that there is always the initial choice for national authorities to conduct their own investigations and/or prosecutions, obviating the need for the ICC to play any role.  Additional challenges will be to ensure that at the conclusion of the review process, the ICC and ASP ensure that recommendations designed to strengthen the Court are effectively implemented.

ICC Assembly of States Parties: Final Day


The International Criminal Court (ICC) Assembly of States Parties (ASP) finished on December 6 – a day early – with the amendment of article 8 of the Rome Statute to include the war crime of starvation in internal armed conflicts, the approval of the Court’s 2020 budget, and the adoption of a number of resolutions.

States unanimously adopted an amendment to article 8 of the Rome Statute to include starvation as a war crime in situations of non-international armed conflict. Switzerland proposed this amendment, which mirrors the offence already included in the Rome Statute as a war crime in international armed conflict. As described by Federica D’Alessandra, the adoption of this provision was the result of joint state-academic-civil society efforts over the past year.

On the final day of the ASP, states also approved a 2020 budget for the ICC of €145.62 million. This is both less than the Court’s request of €147.42 million, and also less than the recommendation of the Committee on Budget and Finance of €146.21 million. This amounts to a .41% increase, which effectively shrinks the Court’s budget when one considers recent inflation trends.

The ASP’s plenary approved a number of other resolutions on: the remuneration of ICC judges, cooperation, review of the procedure for the nomination and election of judges, review of the ICC and the Rome Statute system, and the annual omnibus resolution on strengthening the ICC and the ASP. This last resolution indicates that the ASP “reiterates its commitment to uphold and defend the principles and values enshrined in the Rome Statute and to preserve its integrity undeterred by any threats against the Court, its officials and those cooperating with it” and “renews its resolve to stand united against impunity”.

The final day saw a number of side events. For example, Australia, Sweden, the International Center for Transitional Justice and the International Nuremberg Principles Academy co-sponsored an event titled “Enhancing Prosecution: A Crucial Factor in Cooperation for Core International Crimes”. As well, Canada and MADRE co-sponsored a discussion on the “Aftermath of ISIL: Community Hearings for Gender-Based Violence Survivors and their Communities in Iraq”. Additionally, the Netherlands, Switzerland, Human Rights Watch, the Independent Investigative Mechanism (Myanmar) and International, Impartial and Independent Mechanism (Syria) co-sponsored “Turning challenges into opportunities: Rethinking UN and civil society cooperation towards accountability in Myanmar and Syria”.

The 2020 ASP will be an important one for shaping the future of the Court, with the election of the next Prosecutor and a number of new judges. Stay tuned a year from now with more IntLawGrrls coverage!

ICC Assembly of States Parties Symposium: Day Four

OTP Report on Preliminary Activities

Day Four of the International Criminal Court (ICC) Assembly of States Parties (ASP) saw a number of developments.

The ICC Prosecutor released her office’s annual Report on Preliminary Examination Activities today. The report details the preliminary examination activities carried out by the Office of the Prosecutor (OTP) between December 2018 – November 2019 in relation to nine situations under consideration for possible investigation. During the reporting period, one preliminary examination – the situation in Bangladesh/Myanmar – was completed and authorization to investigate was granted on November 14, 2019. As well, the OTP appealed the April 2019 decision by Pre-Trial Chamber II rejecting the request of the Prosecutor to proceed with an investigation of the situation in Afghanistan. The Prosecutor also filed her reconsideration decision with respect to the referral brought by the Comoros, following the Appeals Chamber’s judgement.

During 2019, the OTP continued its preliminary examinations of the situations in Colombia, Guinea, Iraq/United Kingdom, Nigeria, Palestine, the Philippines, and Ukraine, all of which are now at the admissibility stage (complementarity and gravity), and in Venezuela, where the OTP is assessing subject-matter jurisdiction.  The OTP also received 795 communications pursuant to article 15 of the Rome Statute. Of these, 617 were found to be manifestly outside the jurisdiction of the Court.

The ICC ASP held a plenary session on the topic of “Inter-State and Inter-Institutional cooperation at the heart of cooperation challenges”. Both the Prosecutor and Registrar provided thoughts on this theme, pointing to the need for enhanced state cooperation, given – for example – the number of outstanding arrest warrants. The plenary session also heard from panelists, states and civil society organizations. NGOs called on the ASP to tackle non-cooperation and on States Parties to enter into voluntary cooperation agreements with the Court on witness relocation, interim and final release, and sentence enforcement.

The final consultation on the annual omnibus resolution – “Strengthening the International Criminal Court and the Assembly of States Parties” – was held today. It will be put before the plenary tomorrow. Negotiations also continued today on the ICC’s 2020 budget.

Among the many side-events held today was one focused on “Accountability for International Crimes Committed Against Ethnic Minorities in Myanmar: Discussing Complementary Avenues for Justice”, co-sponsored by Canada, Liechtenstein, the European Center for Constitutional and Human Rights, the Global Justice Center, the Global Center for the Responsibility to Protect, and the Women’s Initiatives for Gender Justice. The event discussed the need for multiple forms of accountability to address Myanmar’s treatment of ethnic minorities – processes that will need to incorporate a strong gender perspective at every step. The panel considered how concurrent efforts at the ICC, the International Court of Justice, within third party states, and at the International Independent Mechanism for Myanmar need to act in a complementary manner in order to bring justice to the Rohingya and other minorities.

Day Five of the ICC ASP will see the introduction of draft resolutions to the plenary and a meeting of the Working Group on the budget.