ICC Assembly of States Parties Symposium: A Recap of Two Excellent Side Events

As a delegate of the Public International Law and Policy Group, I recently attended the 18th Assembly of States Parties (ASP) to the International Criminal Court (ICC).  In addition to general debates among states parties regarding issues such as funding, election of new judges, and the general well-being of the court, various interesting side events took place, sponsored by states and NGOs.  This post will briefly highlight two such side events – the first on The Hague Principles on Sexual Violence, and the second on Timing and Duration of Decision-Making at the ICC.

The first side event, “The Hague Principles on Sexual Violence – Translating the lived experience of sexual violence survivors into law and policy,” was sponsored by Women’s Initiative for Gender Justice (WIGJ) and by Argentina, Australia, Austria, Belgium, Canada, Chile, Costa Rica, Finland, France, Ireland, Luxembourg, New Zealand, Norway, the Republic of Korea, Romania, Senegal, Slovenia, South Africa, Sweden, Switzerland, the United Kingdom, and Uruguay.

The panel was moderated by Melinda Reed from WIGJ, and panelists included Fatou Bensouda, Prosecutor of the ICC, Patricia Sellers, Special Advisor on Gender to the Office of the Prosecutor, Toufah Jallow, Toufah Foundation, Wayne Jordash, Global Rights Compliance, and Howard Morrison, ICC Judge.  Opening remarks were delivered by the Swedish Director-General for Legal Affairs, H.E., Mr. Carl Magnus Nesser, and closing remarks were delivered by the Ambassador of Australia to the Netherlands, H.E. Mr. Matthew Neuhaus.  Prosecutor Bensouda briefly spoke about her office’s efforts in prosecuting sexual violence offenders, and she emphasized the importance of the Ntaganda case, and this defendant’s conviction for crimes of sexual violence.  Judge Morrison spoke about the difficulty of prosecuting and judging cases involving survivors of sexual violence, who may be unwilling to come forward and testify because of their culture and/or because of the inherent necessity of reliving the trauma which court testimony would entail.  Special Advisor Seller highlighted the importance of case law in understanding how to prosecute future crimes of sexual violence, and Wayne Jordash described some of the difficulties associated with the international prosecution of crimes of sexual violence, as well as the failure to prosecute sexual crimes in the Lubanga cases.  The most poignant moments of this panel, however, included remarks by Toufah Jallow, a young Gambian woman who recently came forward and accused the former Gambian president of rape and sexual violence.  Ms. Jallow, who presently lives in Canada, spoke candidly about the assault, violence, and rape which she suffered at the hands of the then-Gambian president, who, according to Ms. Jallow, used sexual violence against her in order to punish her because she had rejected his offer of employment.  Ms. Jallow emphasized the necessity to use concrete language when describing circumstances of sexual assault, as well as the need to overcome cultural barriers and speak out against rape and sexual assault.  Ms. Jallow described how her own mother, who still lives in the Gambia, presently needed security, and how her mother may still believe that “a good African woman is supposed to remain silent” – event if subjected to rape and sexual violence.  Ms. Jallow confirmed that she has already testified before the Gambian national truth commission, where she has repeated the same accusation against the former president.  Finally, Ms. Jallow urged everyone to consider survivors of sexual violence as activists, and not simply as victims.

Finally, several panelists spoke about The Hague Principles on Sexual Violence, which can be found here: https://4genderjustice.org/wp-content/uploads/2019/11/The-Hague-Principles-on-Sexual-Violence.pdf 

According to some of the panelists, these Principles will hopefully become an important tool in prosecuting crimes of sexual violence.

The second side event, “It’s about time – revising the timing and duration of decision-making at the ICC,” was sponsored by the Wayamo Foundation and Austria, Finland, Germany, the Netherlands, Norway, and the United Kingdom.  Speakers included Christian Wenaweser, Permanent Representative of Lichtenstein to the United Nations, Elizabeth Evenson, Associate Director, Human Rights Watch, Lorraine Smith Van Lin, Post-conflict justice advisor, REDRESS, Shehzad Charania, Director of the UK Attorney General’s Office and International Law Advisor to the Prime Minister’s Office, and Mark Kersten, Senior Consultant, Wayamo Foundation, as moderator.  Panelists addressed the ICC’s perceived inefficiency – the court’s seemingly long disposition of various investigations and cases.  The panelists acknowledged that the ICC has handled a relatively small number of cases since its inception, and that some investigations and cases have taken a long time.  At the same time, the panelists nuanced these remarks by noting that the court was an international adjudicative body with a wide mandate and complex cases, and that because of these unique characteristics, the ICC could not be easily compared to a domestic jurisdiction which may handle cases much more speedily.  The panelists also warned that efficiency should not trump due process rights and that cutting corners within investigations, for the sake of speeding up proceedings, would not be a desirable result.

In addition to the above-described events, this year’s ASP will feature dozens of equally fascinating side events and more general debate among states parties.  Stay tuned.

 

 

 

 

 

 

Interview with Professor Noura Erakat

Noura Erakat is a human rights attorney and assistant professor at George Mason University. She has served as legal counsel to the U.S. House of Representatives and as a legal advocate for Palestinian refugee rights at the United Nations. Noura’s research interests include human rights and humanitarian, refugee, and national security law. She is a frequent commentator, with recent appearances on CBS News, CNN, Fox News, and NPR, among others, and her writings have been widely published in the national media and academic journals.

 

pid_26507Noura Erakat’s book, Justice For Some: Law and the Question of Palestine, was just published by Stanford University Press. I had the honor of interviewing Noura Erakat regarding her new book. The interview is transcribed below.

Milena Sterio: your book addresses an important topic – the Israeli-Palestinian conflict – but a topic that many others have already researched and written about. How is your book, Justice for Some, different? What is your “hook”?

Noura Erakat: This book is about the relationship between international law and politics and shows how that relationship narrates the Palestinian struggle for freedom between 1917-2017. Organized chronologically, the book focusses on five different and key junctures in Palestinian history, to explain how the situation evolved to the present day and to show that the law is both the site of oppression and resistance. The book also makes a theoretical intervention by emphasizing the role of legal work, as defined by Duncan Kennedy, in determining the meaning of law and its dynamic ability to change across time and space.

Milena Sterio: What role has law, and international law in particular, played in the story of Palestine, and how does your book tackle these issues?

Noura Erakat: Although international law has not commanded conduct nor effectively punished transgressions, I show that it has been incredibly consequential. Israel’s legal workers have used it to legitimize Israeli military action in Gaza as well as provide a legal analysis that has facilitated the expansion of Israeli settlements in the West Bank. It also shows how Palestinian legal workers have used it to inscribe their juridical status as a nation in international law and institutions as well as legitimate their use of force. The book explains how the law has become the site of struggle between Israeli and Palestinian legal workers, and the law has been used to justify oppression by the former, but also to inform resistance by the latter.

Milena Sterio: Was part of your goal in writing this book to offer a different historical narrative about Palestine?

Noura Erakat: Yes – most of Palestinian history has been viewed through the lens of the Israeli-Palestinian conflict- a framework that obfuscates the power imbalance between Israel- a state, the only nuclear power in the Middle East, and the 11th most powerful army in the world and Palestinians, a stateless people. I explicitly frame the book as one about the Palestinian struggle for freedom and draw on an alternative archive of Palestinian scholarship. This is especially unique in regard to scholarship on law and Palestine because that is dominated by Israeli scholars and scholarship, thus making their legal work appear as the norm.

Milena Sterio: How did you research Palestinian history? Did you travel to the region? Did you interview any historical figures?

Noura Erakat: I used a combination of legal analysis, archival research, and primary interviews for my research. I spent time in a rich archive at the American University of Beirut library; I also spent a significant amount of time in the Ramallah and Beirut offices of the Institute for Policy Studies which curates a remarkable archive that includes Palestine Liberation Organization (PLO) annual yearbooks. There was a dearth of information on certain junctures including the negotiations that culminate in the Oslo Accords as well as the 1970s when the PLO turns to the United Nations and embarks on legal advocacy. To fill this lacuna, I conducted primary interviews. For example, I reconstruct the negotiations process by interviewing Palestinian negotiators who had participated in the Madrid and Washington negotiations. By doing this, I was able to describe, in this book, a completely different story about the Oslo Accords- one that did not just document how bad of a legal agreement it was for Palestinian interests but that also explained how and why the PLO ultimately endorses it. Much of this story has not been told before.

Milena Sterio: Who is the audience for this book?

Noura Erakat: This book is for a general audience – so anyone who wants to understand the Question of Palestine can benefit from it- in a formal classrooms teaching Middle East studies and beyond. its emphasis on law and its use of critical legal theory will make it particularly appealing to law students, practitioners, and scholars. I wrote this book as a tool of Palestinian knowledge production, where Palestinians are not portrayed simply as victims but instead where they play a central role in shaping the narrative.

Milena Sterio: Does your book offer any policy recommendations for the future?

Noura Erakat: No, this book does not offer policy recommendations. One of the goals of the book is to have a different conversation about Palestine that is not bound by the centrality of preserving Zionist settler sovereignty. It does this by proposing a different way to think about possibilities for the future by recasting the return of Palestinian refugees as the beginning of new futures rather than as the ultimate outcome of Palestinian struggle. How does the presence of six million refugees become an opportunity to forge new political communities that disrupt stark native/settler binaries? What is it that Palestinians have to offer to Jewish Israelis better than what Israel has been able to offer them? It also urges for abandoning a sovereignty framework – which has established the incommensurability of Palestinian and Zionist settler sovereignty – in favor of a framework of belonging which is not mutually exclusive. Part of this thought exercise is to think of what it would take to make Israel a part of the Middle East, rather than a satellite state in the Middle East. I suggest that this requires Jewish Israelis to accept and embrace everything indigenous to the region as the first step.

Milena Sterio: What is next on your research agenda? Do you have other projects lined up about the region or the conflict?

Noura Erakat: I have several research projects lined up. One research project looks at framing Israel’s shoot-to-kill policy in Gaza as a form of settler-colonial eliminatory violence. I am writing another article on the topic of surveillance and settler colonialism using Israel’s encroachment in one Palestinian village as a case study. And I have an additional project about the work of Israeli lawyers in the field of national security law.

My next book project begins where this book ends: namely at the “sovereignty trap,” which I define as a political arrangement of derivative sovereignty featuring native collaboration with settler-colonial and imperial powers, whereby good native behavior is rewarded with limited autonomy and perpetual subjugation. I am examining contemporary renewals of Black Palestinian transnational solidarity to explore the potential for freedom in excess of sovereignty. At this stage, my research consists primarily of interviews with activists involved in this movement.

ICJ Advisory Opinion in the Chagos Archipelago Case: Self-Determination Re-Examined?

On February 25, 2019, the International Court of Justice (ICJ) delivered an advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.  The advisory opinion had been requested of the court through a General Assembly resolution in 2017, on the following legal question:

(a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?;
(b) What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?

ICJ answered the first question in the negative, and concluded that the decolonization process of Mauritius had not been lawfully completed at the time of Mauritian independence.  And the court held, on the second question, that the United Kingdom was under an obligation to bring to end its administration of the islands as rapidly as possible.  This post will provide a brief factual background regarding the Chagos Archipelago, as well as a succinct legal analysis of the world court’s reasoning and ultimate conclusions.

Where is the Chagos Archipelago and what was its relationship to the United Kingdom and Mauritius prior to Mauritian independence in 1968? Between 1814 and 1965, the Chagos Archipelago was administered by the United Kingdom as a dependency of the colony of Mauritius.  In 1964, during a time when the  United Kingdom was contemplating decolonizing Mauritius, the United States expressed an interest (to the United Kingdom) in establishing a military base on one of Chagossian islands, Diego Garcia.  In 1965, the United Kingdom concluded the co-called Lancaster Agreement with the representatives of the colony of Mauritius.  Through the Lancaster Agreement, the U.K. and Mauritius “agreed in principle to the detachment of the Chagos Archipelago from the territory of Mauritius. This agreement in principle was given on condition that the archipelago could not be ceded to any third party and would be returned to Mauritius at a later date, a condition which was accepted at the time by the United Kingdom.” (para. 171).  After this Agreement, the United Kingdom detached the Chagos Archipelago from Mauritius.  In 1965, the United Kingdom also concluded an agreement with the United States, allowing the latter to build a military base on Diego Garcia.  By 1971, all of the inhabitants of Diego Garcia were forced to relocate from the island by the United Kingdom authorities and the United States proceeded to build a military base on the island.  Mauritius (without Chagos Islands) obtained independence from the United Kingdom in 1968; according to a former Mauritian Prime Minister, Mauritius had no choice but to agree to the detachment of the Chagos Archipelago prior to independence.  As of today, the United States still operates a military base in Diego Garcia (the U.S. – U.K. agreement of 1965, allowing the U.S. to operate a military base in Diego Garcia, has been extended).  The Chagossians have been dispersed, since the early 1970s, in Mauritius, the Seychelles, and the United Kingdom.  By virtue of U.K. law, they have not been allowed to return to the Chagos Archipelago.

How did the ICJ reason in this advisory opinion, and how did it reach its ultimate conclusions? First, the ICJ held that it had jurisdiction over the dispute because the request from the General Assembly for this advisory opinion constituted a “legal question” pursuant to article 65 of the court’s statute (para. 58).  Second, the ICJ held that, in its discretion, it should not decline to exercise jurisdiction over this case.  The court reasoned that it had enough factual information to answer the legal questions asked (paras. 69-74), that it was not for the court to decline jurisdiction based on the argument that the court’s opinion would not assist the General Assembly, as this is for the General Assembly itself to decide (paras.  75-78), and that it was not precluded through the principles of res judicata from rendering this advisory opinion (because the U.K. and Mauritius had arbitrated a slightly different dispute before an arbitral tribunal, and because the U.K. and Mauritius are not the same parties in the present request for an advisory opinion) (paras.  79-80).  Moreover, the ICJ rejected the argument that it should decline jurisdiction because the request for an advisory opinion would force the court to settle a territorial dispute between two states, the U.K. and Mauritius, which had not both consented to the court’s jurisdiction over this dispute (paras. 83-91).  Instead, the ICJ held that “the purpose of the request is for the General Assembly to receive the Court’s assistance so that it may be guided in the discharge of its functions relating to the decolonization of Mauritius.” (para.  86).

After answering the jurisdictional challenges, the ICJ turned to the merits.  The court examined the right to self-determination under customary law, and whether this right existed under customary law in the late 1960s, at the time that the U.K. decolonized Mauritius.  According to the ICJ, General Assembly Resolution 1514 of 1960 “represents a defining moment in the consolidation of State practice on decolonization” (para. 150) and “[t]he wording used in resolution 1514 (XV) has a normative character, in so far as it affirms that ‘[a]ll peoples have the right to self-determination.'” (para. 153).  Moreover, according to the court, “[b]oth State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination.” (para. 160).  Thus, the ICJ concluded that the right of self-determination was a part of customary law in 1968, at the time of Mauritian independence.  Next, the court concluded that the people of Mauritius, through the Lancaster Agreement of 1965, did not freely consent to the detachment of the Chagos Archipelago (para. 172), and that the decolonization of Mauritius was thus not lawfully completed, as it did not respect the relevant principles of self-determination.  In light of this conclusion, the court found that “the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State” (para. 177) and that “the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to complete the decolonization of its territory in a manner consistent with the right of peoples to self-determination” (para. 178).  Moreover, the ICJ concluded that because “respect for the right to self-determination is an obligation erga omnes, all States have a legal interest in protecting that right” and “while it is for the General Assembly to pronounce on the modalities required to ensure the completion of the decolonization of Mauritius, all Member States must co-operate with the United Nations to put those modalities into effect” (para. 180).

Why did the court (likely) decide the way it did, and what does this all mean? First, it is important to note that the court’s decision was virtually unanimous: the judges unanimously determined that the court had jurisdiction; by twelve votes to two, the judges decided to comply with the request to render the advisory opinion (Judges Tomka and Donoghue against); by thirteen votes to one, the judges reached their substantive conclusions (Judge Donoghue against).  Second, as Marko Milanovic has argued, the outcome of this case may demonstrate how important the framing of the legal question is (“by avoiding the use of the term ‘sovereignty’, Mauritius and the GA defused the likelihood of the Court dismissing the case as involving a bilateral dispute”).  This may explain, in part, why the ICJ judges ultimately reached the conclusions above – that the narrow and clever wording of the advisory opinion request allowed the ICJ to reach particular legal conclusions without having to address issues of U.K. and/or Mauritian sovereignty.  Third, I agree with Marko Milanovic that the ICJ’s discussion of the most fundamental and difficult issue – whether the right of self-determination was part of customary law in 1968, at the time of Mauritian decolonization – was too brief, too rushed, and insufficiently developed in terms of legal analysis.  Fourth, the ICJ did not explain how the people of Mauritius could have freely exercised their right to self-determination (when they consented to the separation of the Chagos Archipelago): was the U.K. at an obligation to conduct a popular referendum in Mauritius on this issue, or were there other modalities of self-determination available in 1968? Fifth, it is clear that this outcome is a big loss for the U.K., as the ICJ most clearly stated that the Mauritian decolonization was not lawfully completed and that the U.K. was under an obligation to end its administration of the Chagos Archipelago immediately. Sixth, it may be argued that the outcome of this case is a loss for other countries, such as the U.S., as the ICJ concluded that all states were under an obligation to co-operate with the United Nations to ensure the completion of the decolonization of Mauritius (does this mean that the U.S. is now under an obligation to dismantle its military base on Diego Garcia?) Seventh, it may also be argued that the ICJ missed another opportunity to pronounce itself on the contours of the right of self-determination, like in the Kosovo Advisory Opinion.  The legal question in this advisory opinion concerned the right to self-determination directly; instead of quickly concluding that the right was part of customary law in 1968, the court could have included a more detailed legal analysis of the content and modalities of the right of self-determination under customary law.

It remains to be seen how the U.K. (or the U.S.) will react to this advisory opinion, whether the U.S. will be willing to negotiate the relocation of its military base in Diego Garcia, and whether the people of the Chagos Arhipelago may be allowed to return to their home land.

 

The Legality of President Trump’s National Emergency Declaration

On February 15, President Trump declared a national emergency, based on the immigration situation along our southern border.  President Trump plans to use the national emergency in order to access funds previously allocated to the Department of Defense (DoD) to build a border wall.  As most of our readers know, Congress has previously refused to allocate specific funds toward the construction of a wall; President Trump can bypass Congress and access DoD funds which have not been earmarked for another specific purpose through emergency powers. The purpose of this post is to discuss the legality of such a presidential emergency declaration – in light of immigration data itself, and under both constitutional law as well as under federal statutes.  For previous posts about this topic, see this excellent compilation on Just Security.

President Trump has claimed that the immigration situation along our southern border is one constituting a national emergency, because of high numbers of immigrants attempting to enter the United States, but also because of such immigrants’ ties to terrorism and/or the drug trade.  Immigration data does not support this claim.  Net immigration numbers have been steady, and the number of border apprehensions along our southern border is at a historically low number.  In fact, in 2000, the Customs and Border Protection (CBP) had apprehended roughly 1.6 million individuals along the southern border; that number is down to slightly below 400,000 in 2018, and to roughly 300,000 in 2017.  In addition, the number of undocumented aliens in the United States has been steady, at around 10.7 million.  Out of thousands of suspected terrorists who have entered or attempted to enter the United States, only a handful have done so by land.  And the vast majority of illegal drugs enter the United States through legal ports of entry, and are not carried by illegal immigrants who attempt to enter by land, through our southern border, by walking across the desert and swimming across the Rio Grande.  Thus, actual data does not support President Trump’s assessment of immigration at our southern border.

Under the United States Constitution, the President is the commander-in-chief and has inherent constitutional authority to act.  Presidential powers are not unlimited however.  In the famous Youngstown case (1952), the Supreme Court held that President Truman did not have inherent constitutional authority to seize the operation of steel mills during the Korean War, because Congress had not authorized him to do so.  Justice Jackon, in his concurring opinion, wrote that when the president acts in direct contravention of congressional wishes, his power is at its “lowest ebb.”  The Youngstown precedent may be problematic for the Trump Administration: it may be argued that Congress has specifically refused to authorize funding for the border wall, and that the President is acting against Congressional wishes, so that his power would be at its “lowest ebb.”  Under this paradigm, President Trump’s actions may not be upheld as constitutional. Some have argued, however, that the President’s actions may be validated by the current conservative majority of the Supreme Court, in light of a subsequent Supreme Court case, Dames & Moore (1981).  In Dames & Moore, the Supreme Court upheld President Carter’s and President Reagan’s presidential actions to implement the Algiers Accords, ending the Iranian hostage crisis, which consisted of lifting sanctions against some Iranian assets in the United States, suspending litigation against Iran in U.S. courts, and funding the Iran-United States Claims Tribunal.  In this case, the Supreme Court found that the President had constitutional authority to act because Congress had implicitly authorized this particular presidential action.  Thus, some have argued that the Supreme Court is likely to defer to the executive branch, following its Dames & Moore precedent, because Congress has implicitly authorized wall construction, through the 2006 Secure Fence Act, which authorized the construction of fencing along some points of our southern border.  It may be argued that the Secure Fence Act did not provide congressional acquiescence toward the construction of a lengthy wall along the entire border, but that the act instead authorized limited fencing at concrete points of our border.  Thus, it may be argued that Congress did not implicitly authorize wall construction.  Nonetheless, it is difficult to predict how the Supreme Court would rule on this issue; the Court would be likely to split along its conservative/liberal membership.

Under federal law, Presidents can declare emergencies under the National Emergencies Act of 1976.  Pursuant to this Act, a President has to inform Congress about the emergency, and has to identify which other statutes that have emergency provisions in them the President plans to rely upon.  Since the Carter era, 31 emergencies have been declared by our presidents.  According to the Brennan Center for Justice, there are 123 statutes with emergency provisions embedded in them; out of these statutes, two are relevant in this situation.  Section 2808, Title X, provides that in case of a national emergency which requires the use of armed forces, the Secretary of Defense may undertake the construction of military projects necessary to support such armed forces.  Such construction projects may be undertaken using funds previously allocated to the DoD, which have not been earmarked for another specific purpose.  It is not at all clear that immigration enforcement along the southern border requires the use of armed forces.  In fact, immigration enforcement is a civilian function, accomplished through Immigration and Customs Enforcement and CBP.  Moreover, it is not clear that the construction of a wall is necessary to support armed forces.  Even if armed forces were required for immigration purposes on the border, they could be supported through technology, civilian human resources, weaponry, etc.  Thus, it is not certain that Section 2808 applies in this situation and a court, including the Supreme Court, could decide not to validate President Trump’s reliance on this law.  In addition, Section 2293, Title 33,  provides for reallocating funds for civil works during national emergencies. Similar to section 2808, this provision applies to any national emergency that “requires or may require use of the Armed Forces,” meaning it would raise the same legal issues as those described above. In addition, this provision allows the DoD to reallocate funding between already authorized projects, but not to undertake new, unauthorized ones.  And, this section only allows for projects which are “essential to the national defense.”  It is uncertain that the construction of a wall is essential to our national defense.  Moreover, even if this section were used, it is unclear how much funding President Trump could access, because section 2293 simply allows for the reprogramming and reallocation of existing funds, which may be insufficient for wall construction.  In sum, it is uncertain whether President Trump has the requisite statutory authority to implement his emergency declaration, as both of the sections discussed above can be interpreted as not authorizing the construction of a thousand-mile wall along our entire southern border.

While it is difficult to predict what will happen, it is certain that legal challenges are on the way.  Multiple groups, including state attorney generals and the ACLU have indicated that they will sue the Trump Administration.  And it is likely that the legal challenge will end up before the Supreme Court.  The fate of a border wall is uncertain for now, and the Trump Administration may be on shaky legal ground.

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

Hebrew U Conference

Participants of “Recognition” Conference at Hebrew University

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

Jerusalem view

Jerusalem City View

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

Ankara Conference

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

 

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

Ankara City View

Ankara City View

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

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

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

 

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

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

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

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

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

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

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

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

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

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

 

Female Voices at the 12th International Humanitarian Law Dialogs

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

Catherine Marchi Uhel

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

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

IntlawGrrls Porch Session

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

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

Chautauqua 2018 Photo 3

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

Chautauqua 2018 Photo 1

Professor Leila Sadat, moderating the “Ferencz Issues Panel”