John Bolton is right (sort of)—the ICC should not be able to prosecute Americans. How US law has major gaps in domestic accountability for war crimes.

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US National Security Advisor John Bolton. Photo Credit Gage Skidmore.

It has long been known that US National Security Advisor John Bolton is no fan of the International Criminal Court (ICC). But today marked a dramatic step up in his rhetoric, ahead of the ICC’s decision about an investigation into possible war crimes and crimes against humanity in Afghanistan. Despite the fact than any ICC investigation will probably focus on the Taliban, the US is worried that American troops stationed in the country may be vulnerable to prosecution.

Ahead of the ICC’s announcement, Bolton claimed that the US 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.” (However, it seems unclear if the President actually has the legal authority to do this.)

John Bolton is right about one thing: the ICC should not be able to prosecute Americans for war crimes or crimes against humanity. The fact that the ICC can reveals huge gaps in the American domestic legal system’s ability to hold citizens and foreign nations residing in the US accountable for mass atrocities.

Bolton’s pronouncements to the contrary, the ICC only has jurisdiction over crimes included in its statute committed by citizens or in the territory of states party to the Rome Statute. That is why the ICC only theoretically has jurisdiction over Americans for crimes committed in Afghanistan (and not, for instance, Yemen). Furthermore, the ICC is a court of last resort. The principle of complementarity means that the ICC can only prosecute individuals if other states are unwilling or unable to prosecute them first.

Despite Bolton’s claim that his opposition to the ICC is to protect American service members, US military personnel are arguably more protected from ICC prosecution by the principle of complementarity than other American civilians. The US military’s court martial system is generally ‘willing and able’ to hold service members accountable for war crimes and crimes against humanity. However, there is a huge gap in the American legal systems’ ability to hold American civilians and foreign nationals residing in the United States accountable for crimes against humanity and war crimes committed abroad.

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New supplements to the International Protocol on documentation and investigation of sexual violence in conflict for Iraq, Myanmar and Sri Lanka

Cover_Myanmar_Burmese supplement.jpgOnce hidden and unspoken, reports of sexual violence now feature prominently in daily media dispatches from conflict zones around the world. This visibility has contributed to a new emphasis on preventing and addressing such violence at the international level.

Promoting the investigation and documentation of these crimes is a key component of the international community’s response. However, this response requires thoughtful and skilled documenters.  Poor documentation may do more harm than good, retraumatising survivors, and undermining future accountability efforts.

Recently, the Institute for International Criminal Investigations (IICI) and international anti-torture organisation REDRESS, with the funding support of the United Kingdom’s Foreign and Commonwealth Office (FCO), have launched a series of country-specific guides to assist those documenting and investigating conflict-related sexual violence in Myanmar, Sri Lanka and Iraq.

The guides (available in English, Burmese, Tamil, Sinhalese, Arabic and Kurdish on the REDRESS and IICI websites) complement the second edition of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, published in March 2017 by the FCO.

The Protocol aims to support practitioners to document appropriately by providing a “set of guidelines setting out best practice on how to document, or investigate, sexual violence as a war crime, crime against humanity, act of genocide or other serious violation of international criminal, human rights or humanitarian law”. It is a tremendous resource for practitioners, covering theoretical, legal and practical aspects of documentation.

However, as the Protocol itself makes clear, documentation of conflict-related sexual violence is highly context-specific. Each conflict situation and country has individual legal and practical aspects that must be considered alongside the Protocol’s guidelines.

The guides aim to fill this gap by addressing the context for and characteristics of conflict-related sexual violence in the three countries. They address legal avenues for justice domestically and at the international level, specific evidential and procedural requirements and practical issues that may arise when documenting such crimes.

The publication of these guides on the three different countries highlights some interesting comparisons and contrasts.  Although the background to and most common forms of sexual violence differ from country to country, the motivations for the violence have parallels. Similarly, the stigmatisation of survivors is a grave concern in each country, influencing all aspects of daily life for them and the way that institutions and individuals respond to the crimes committed against them.

In all three countries, a landscape of almost complete impunity prevails, and in many situations survivors, their families and practitioners face significant threats to their security – often from state actors (e.g. police, military, state security). This harsh reality is borne out by the fact that although the drafting of the supplements relied heavily on the experience and input of local practitioners, due to security concerns, very few were able to be individually acknowledged for their contributions.  Continue reading

The Legality of ISIS Air Strikes Under International Law

President Obama announced in his speech on September 10 that the United States would pursue expanded military (air) strikes against the Islamic State or ISIS terrorist group in both Iraq and Syria.  Many academics have already grappled with the issue of whether the President has authority for this type of military action under domestic law, with most arguing that the President did not have authority under the Authorization to Use Military Force (AUMF) (see Deborah Pearlstein’s post on Opinio Juris and Marty Lederman’s and Jen Daskal’s posts on Just Security).  What I would like to focus on in this post is the issue of legality of the proposed military campaign under international law.

As we all know, Article 2(4) of the United Nations Charter bans states from using force against the territorial integrity and political independence of other states.  The only legally recognized exceptions to this overall ban are instances where the Security Council authorizes the use of force or where the intervenor nation alleges self-defense pursuant to article 51 of the United Nations Charter.  In this instance, if the United States intervened in Iraq and Syria against ISIS, such use of military force would not be authorized by the Security Council, because the latter has been deadlocked over any use of force in the Middle East and because Russia would likely veto any future discussions of authorization to use force in this region.  Can the United States assert self-defense? Maybe.

The United States could argue either individual or collective self-defense.  If it argues individual self-defense, the United States would have to assert that it is fighting ISIS, a terrorist group and non-state actor in an area where the relevant state authority is unable or unwilling to intervene, such as in Syria or in Iraq.  While the United States has squarely adopted the position that the “unable or unwilling” test enables it to assert an individual self-defense rationale against a terrorist non-state actor operating out of another sovereign state, international law scholars have debated the legality of this approach and have been far from reaching a consensus on this issue.  Moreover, it appears that at least Syria asserts that it is willing and able to fight ISIS; the United States’ position vis-a-vis Syria on this issue is thus complex and has been summarized in a recent excellent post by Ryan Goodman on Just Security:

“What is the international law when a host state (Syria) is willing and able to deal with a nonstate group (ISIS) through military cooperation with the threatened state (the United States) but the latter (the United States) doesn’t want to associate itself with the host state for other potentially unrelated reasons?”

Thus, it appears that the United States’ rationale for using force against ISIS in Iraq and Syria is shaky at best under international law, because of lack of consensus in the scholarly community about the “unable or unwilling” test and because of the test’s complex application  to the Syrian context (arguably, Iraq is “unable or unwilling” to fight ISIS).

Another possibility for the United States would be to argue that the recent beheadings of two American journalists by ISIS amount to an “armed attack” against the United States, within the meaning of Article 51 of the United Nations Charter.  This interpretation of Article 51 is possible although it is likely that many in the scholarly community would disagree with it.  While it appears that most scholars and some states have embraced the view that states may assert a self-defense rationale when fighting against non-state (terrorist) actors, there is no consensus on what type of attack by a non-state actor against a sovereign state could trigger the latter’s right of self-defense.  9/11 terrorist attacks against the United States constituted an “armed attack” according to most, if not all scholars, but the beheadings of two American journalists, however gruesome they may have been, may not reach the same threshold.  Thus, the armed attack argument remains subject to debate in this context.

Finally, the United States could claim collective self-defense in order to justify its use of military force against ISIS.  In order to do so, the United States would have to make the argument that the governments of Iraq and Syria invited the American intervention.  This argument is easier to make with respect to Iraq than Syria, because the former may very well agree to the presence of American forces and may thus “invite” air strikes, while it is unlikely that Syria’s President Assad would so agree or make such a request.  The collective self-defense argument works better in the Iraqi context, but is weak when it comes to Syria.

I should also point out here that  although some scholars have argued in favor of a humanitarian intervention in the context of Syria, the latest American-announced air strikes do not fall in this category because they will be directed against a terrorist group and will not be aimed at easing humanitarian suffering.   Overall, it appears that the United States government is asserting an individual self-defense argument based on the “unable or unwilling “test for both its actions in Iraq and Syria.  These actions will hopefully prove useful in the global fight against terrorist groups such as ISIS; they will certainly continue to raise difficult international law issues.

‘Yesterday I lost a country’: Kathleen Cavanaugh on Iraq

Since 2003, Iraq has experienced significant political unrest and the emergence of ethno-religious divisions, writes Kathleen Cavanaugh of the National University of Ireland, Galway, over at OUPblog:

The ‘fear of sectarianism’ has undoubtedly shaped and formed how protest movements in Iraq (and indeed regionally) are constituted. There is a rootedness in the identity politics of the region, a ready-made framework within which these divisions are articulated. …

Politically, Prime Minister Nouri al-Maliki has used the past seven years to consolidate his power. … Yet there are cracks in al-Maliki’s power base and despite significant popular support in the polls, political challenges to his increasingly authoritarian rule and his Baghdad-centered governance (and policies) are growing. Within the legal landscape, despite notions of equality and rights embedded in the 2005 Iraqi Constitution and its accession to the UN Convention Against Torture in 2011, serious human rights violations remain, including the arrest and detention of persons “for prolonged periods without being charged and without access to legal counsel [as well as] prisoner and detainee abuse and torture.” …

[T]en years after the US invasion, what remains is not just a democratic deficit in Iraq, but a society and political system that is fractured and bruised. … Whatever leadership emerges in 2014, shedding historical hangovers and reimagining a political community that counter and undo the politics of sectarianism, in practice and discourse, will be a formidable task.

More at OUPblog.

(Image credit: Cross by Caroline Jaine)