Russia v. Ukraine: The Limits of International Law

February 28, 2022 / Milena Sterio / Leave a comment

Several of my esteemed colleagues and experts have analyzed various international law issues related to the escalating Russia-Ukraine conflict (for example, see here and here and here). The purpose of this post is not to reiterate some of such excellent analyses already published but rather to focus on the limitations of international law in this type of a conflict situation, implicating a Great Power such as Russia.

First, this conflict clearly implicates use of force issues in international law. It is abundantly clear that Russia has violated Article 2(4) of the United Nations’ Charter when it used military force against the territorial integrity and political independence of Ukraine. The international law prohibition on the use of force is also part of customary law and a jus cogens norm; international law is more than unequivocal that this type of behavior by Russia is a flagrant violation of one of international law’s fundamental norms. Yet, despite this, international law remains limited in its ability to respond to Russian actions because of the fact that collective decision-making regarding authorizations to use force against a sovereign nation is tied to the Security Council, where Great Powers, such as Russia, have veto power. Thus, although international law provides a clear answer about Russia’s violations of international legal norms, international law lacks appropriate legal mechanisms through which such violations can be adequately addressed. Scholars have already written about possible limitations to the use of the veto power within the Security Council; such changes and perhaps broader reforms of the Council are desperately needed in situations as this one, where a veto-wielding member is in clear violation of the Charter’s fundamental norms. For now, the international law system remains blocked when attempting to address violations by a Great Power, which happens to have veto powers within the Security Council.

It is important to acknowledge that international law does leave open the possibility of a defensive use of force by Ukraine, through self-defense, and of collective self-defense, where Ukraine could request the assistance of another state in order to fend off Russian troops. It is also important to note that NATO countries could decide to use force against Russia in order to defend Ukraine. Precedent already exists for this type of use of force by NATO countries, to intervene militarily on the territory of a non-member state. In fact, in 1999, NATO countries launched a series of air strikes against the Federal Republic of Yugoslavia, in order to force then-President Slobodan Milosevic to halt committing abuses against Kosovar Albanians. Yet, these potential uses of force remain unlikely and would not be equivalent to a United Nations Security Council-approved collective use of force against Russia. Most states are unlikely to agree to use their military troops in Ukraine, under the paradigm of collective self-defense, as this would most certainly provoke an attack by Russia against those states and expose those states to serious military and political risks. Moreover, a NATO-led use of force to defend a non-member state remains illegal under international law, so long as such use of force remains unauthorized by the Security Council. Although many have defended the 1999 NATO air strikes against the FRY as legitimate or morally authorized, or on humanitarian grounds, these air strikes were illegal under international law. It is unlikely, as of now, that NATO countries would be willing to launch a military operation, illegal under international law, against a Great Power like Russia. Thus, the only plausible use of military force against Russia would be through a Security Council-authorized, collective military coalition, both legal under international law and more likely to succeed militarily against a mighty opponent as Russia. Yet, as explained above, this is not going to happen because Russia has veto power within the Security Council.

Second, this conflict also underscores the limitations of international law in terms of accountability. In theory, political and military leaders who order the commission of atrocity crimes ought to be held accountable. Article 8bis of the ICC Rome Statute defines an act of aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” In this instance, it is clear that Russia’s President Putin has committed an act of aggression vis-à-vis Ukraine. Yet, although the ICC can exercise jurisdiction over genocide, crimes against humanity, and war crimes in situations involving non-state parties (if the crimes are committed by a national of a state party on the territory of a non-state party), the jurisdictional regime over the crime of aggression is significantly more limited. In fact, the ICC can only exercise jurisdiction over the crime of aggression in situations where both the victim and the aggressor state are members of the ICC; in this instance, because Russia is not a member, the court cannot exercise jurisdiction over the crime of aggression. Thus, although it is certain that Putin has committed the act of aggression in Ukraine, it is almost equally certain that he will not face accountability at the ICC. It is relevant to note here that the ICC can potentially exercise jurisdiction over the three other ICC crimes in Ukraine. In fact, Ukraine accepted ICC jurisdiction over crimes allegedly committed there by Russian forces starting in 2013. The ICC Office of the Prosecutor launched a preliminary investigation into Ukraine and concluded that reasonable basis existed to conclude that crimes against humanity and war crimes were indeed committed in Ukraine. Thus, the ICC could continue to investigate and possibly prosecute those responsible for crimes against humanity and war crimes in Ukraine. However, as the current ICC Prosecutor, Karim Khan has confirmed, the ICC remains unable to investigate and prosecute the most important crime committed by Putin against Ukraine, aggression.

Third, the conflict also highlights the limited efficacy of the International Court of Justice (ICJ). The ICJ is the primary judicial organ of the United Nations and a forum where states can in theory settle their disputes. Because the court’s jurisdiction is voluntary, states must either agree to litigate in the ICJ on an ad hoc basis or through a treaty’s dispute resolution clause. In this case, Ukraine has sued Russia in the ICJ, basing jurisdiction on the Genocide Convention, to which both states are parties. However, although the ICJ has jurisdiction over this dispute, the court’s reach is limited to genocidal offenses only (because jurisdiction is based on the Genocide Convention), and, most importantly, the court has no enforcement mechanisms. Thus, although the ICJ could order Russia to cease using military force in Ukraine, the court has no direct ways to enforce its own judgment. It is very likely that a Great Power such as Russia would simply ignore the ICJ’s judgment. Thus, the power of the ICJ to contribute to the actual resolution of this conflict remains limited.

In sum, international law contains clear legal norms which condemn Russia’s invasion of Ukraine and which, on a theoretical level, impute state responsibility onto Russia and individual criminal responsibility on its leader, Vladimir Putin. However, as this post discusses, international law remains limited in its ability to address the conflict. Authorization for the use of force against Russia remains deadlocked in the veto-blocked Security Council; the crime of aggression’s restricted jurisdictional regime effectively shields Russian leaders from accountability at the ICC; the ICJ has no prospects of enforcing a judgment which would condemn Russia. It may be argued that this relative inefficacy of international law is linked to the super-sovereign status of Great Powers, like Russia, which benefit from international law’s institutional design. To illustrate this point, imagine a scenario where a non-super power, a state with an average size military and without a permanent seat on the Security Council, invaded a neighboring country. In such a situation, the Security Council could act (assuming that this country was not directly allied with one of the Council’s five permanent members) and order collective force to be used against the aggressor state. The country’s leaders could possibly face accountability in the ICC (there is a higher likelihood that a smaller, non-super power country would be a member of the ICC). And a smaller, weaker state would be more likely to abide by an ICJ ruling. International law, because of its general lack of enforcement mechanisms and because of its institutional design such as the veto power in the Security Council, contributes to an unequal order of states, where those with super-sovereign powers seem able to get away with breaches of fundamental norms with virtually no consequences. Russia, because of its status as a Great Power, has violated fundamental international law norms but may remain insulated from international law’s reach.

The ICC Prosecutor’s Final Report on the Iraq/UK Investigation: Concerns Over Complementarity and the Court’s Future Legitimacy

December 9, 2020December 9, 2020 / Milena Sterio / Leave a comment

Earlier today, the International Criminal Court (ICC) Prosecutor released the Final Report regarding the status of the preliminary investigation into Iraq/United Kingdom (UK). In this Report, the Prosecutor concluded that

on the basis of the information available, there is a reasonable basis to believe that, at a minimum, the following war crimes have been committed by members of UK armed forces: wilful killing/murder under article 8(2)(a)(i)) or article 8(2)(c)(i)); torture and inhuman/cruel treatment under article 8(2)(a)(ii) or article 8(2)(c)(i)); outrages upon personal dignity under article 8(2)(b)(xxi) or article 8(2)(c)(ii)); rape and/or other forms of sexual violence under article 8(2)(b)(xxii) or article 8(2)(e)(vi)) (para. 69).

Despite the above-mentioned finding, and despite the fact that over 3,000 cases of alleged abuse and atrocities by UK troops in Iraq had been referred to the UK national authorities, that many such cases had resulted in favorable settlements in UK civil courts, and that some such cases had been successfully litigated in the European Court of Human Rights (ECHR), the ICC Prosecutor decided to close this investigation. In this post, I will discuss the procedural history of the Iraq investigation, as well as analyze the Prosecutor’s findings in this Report. In addition, I will discuss the potential impact of this decision on the future of the ICC.

Procedural History

The Prosecutor initially opened a brief preliminary investigation into Iraq/ UK, but this investigation was closed in 2006. In January 2014, the European Center for Constitutional and Human Rights (ECCHR) together with Public Interest Lawyers (PIL) submitted an Article 15 communication to the Prosecutor, alleging the responsibility of UK armed forces and other UK officials for war crimes involving systematic detainee abuse in Iraq from 2003 until 2008. In light of this new information, the Prosecutor re-opened a preliminary investigation into this situation in May 2014. In a 2017 Report, the Prosecutor announced that, following a thorough factual and legal assessment of the information available, it had reached the conclusion that there was a reasonable basis to believe that members of UK armed forces committed war crimes within the jurisdiction of the ICC against persons in their custody. This second Iraq/UK investigation was just closed today; the Prosecutor’s rationale for reaching this decision was published in the Final Report.

Prosecutor’s 2020 Final Report

In today’s Final Report, the Prosecutor concluded “that the only appropriate decision is to close the preliminary examination without seeking authorisation to initiate an investigation” (para. 1). The Prosecutor reached this decision on admissibility grounds under Article 17 of the Rome Statute. The Prosecutor focused both on gravity and complementarity under Article 17; this post will focus on the Prosecutor’s analysis of complementarity, which occupied most of the Report (I note that the Prosecutor determined to perform an admissibility analysis in this case, despite the fact that admissibility determinations do not normally form part of Article 15 Pre-Trial Chamber determinations; according to the Prosecutor, “[a]lthough the Appeals Chamber has recently held that admissibility does not form part of the Pre-Trial Chamber’s determination under article 15(4), it nonetheless stressed the persisting duty of the Prosecutor, under rule 48, to be satisfied that all of the factors relevant to the opening an investigation, including admissibility, are met before proceeding with an article 15 application” (para. 156)).

The Prosecutor explained in the Final Report that the complementarity test under article 17 involves a two-step inquiry, “involving a determination of whether the national authorities are active in relation to the same case (first step), and only if so, whether this activity is vitiated by unwillingness or inability of the authorities concerned to carry out the proceeding genuinely (second step)” (para. 154). According to the Prosecutor, the UK authorities had both acted to investigate these alleged abuses and had shown a genuine willingness to investigate.

First, the Prosecutor detailed in this Report how the UK authorities had shown action regarding the investigation of their troops’ alleged abuses in Iraq. The Report explained that the UK authorities established the Iraq Historic Allegations Team (IHAT), whose original mandate was to investigate cases of alleged death or ill-treatment of Iraqis in British custody. IHAT had an initial caseload of 165 cases, and it was supposed to conclude its work by November 2012. Over time, IHAT’s caseload expanded dramatically, as new allegations of death or ill-treatment were received and its mandate was extended first to December 2016 and then to December 2019 (as the Report explained, IHAT was deemed necessary both to discharge the UK’s duty to investigate under British law, as well as under the European Convention on Human Rights; in addition, subsequent proceedings before the ECHR in Al Skeini and others v United Kingdom confirmed that the UK Government had a duty under the European Convention to carry out an adequate and effective investigation into allegations involving British service personnel in Iraq ). The UK considered the IHAT investigations, and potential prosecutions, as necessary to satisfy the admissibility requirements of the Rome Statute. In early 2017, following complaints over IHAT’s duration and expense, the UK Secretary of State for Defence announced that IHAT would be closed. Remaining investigations were taken over by a new investigative unit, known as Service Police Legacy Investigations (SPLI). IHAT and the SPLI referred a total of nine cases to the so-called Service Prosecuting Authority (SPA), the body which had become charged with determining whether a prosecution will take place. In all nine cases, the SPA recommended that no charges be brought against the accused individuals. In February 2020, UK authorities explained to the ICC Prosecutor that the SPA had most likely determined not to proceed with these prosecutions because the SPA applies a higher evidentiary threshold than IHAT/SPLI, and that it was likely that lawyers at the latter “might have considered cases were ready to proceed, whereas the SPA found they were not” (para. 200). In light of all of the steps taken by the UK authorities, and despite the fact that no cases resulted in actual prosecutions, the Prosecutor concluded in this Final Report that the UK authorities had acted for the purposes of the Article 17 complementarity analysis.

Although the initial assessment of a claim might not lead to a fully-fledged investigation being undertaken (based on the screening criteria), or an investigation or prosecution might be abandoned after a subsequent assessment, the Office considers that it is difficult to argue that the State had remained inactive in relation to such a claim, since such assessments form part of the investigative and prosecutorial process (para. 276)

Second, the Prosecutor determined in the Final Report that the UK authorities had shown a genuine willingness to investigate alleged crimes committed by their forces in Iraq. As the Prosecutor explained, the determination of unwillingness requires, “having regard to the principles of due process recognized by international law”, that “[t]he proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5” (para. 294). The Prosecutor further emphasized that the concept of being “unwilling” genuinely to investigate is “concerned with a situation in which proceedings are conducted in a manner which would lead to a suspect evading justice as a result of a State not being willing genuinely to investigate or prosecute” (para. 284). The Prosecutor thus reviewed various UK authorities’ actions in this case through the lens of willingness. Serious concerns had been raised against UK authorities, alleging that they did not genuinely intend to pursue prosecutions against their own service members and higher-level officials. As the Final Report described, despite the fact that over 3,000 potential cases had been referred to UK authorities, the latter failed to initiate a single prosecution. In addition, former IHAT staff members had raised concerns that this mechanism lacked proper access to evidence and to witnesses, due to UK government interference. Finally, concerns over undue delays in the proceedings had been flagged as a potential violation of the victims’ rights; such delays, according to some allegations, were the result of the UK authorities’ purposeful policy not to seriously investigate and/or prosecute cases. Despite such serious concerns regarding the UK government’s “willingness” to genuinely prosecute, the Prosecutor concluded that “the information available does not demonstrate a lack of willingness to genuinely carry out the proceedings, pursuant to article 17(2)(b)” (para. 433). In fact, the Final Report emphasized that it was not sufficient for the Prosecutor to have concerns over the genuineness of a national authority’s willingness to investigate and prosecute, but that instead it must be demonstrated that such authorities acted in bad faith. According to the Prosecutor,

The primary task of the Office is not to express its view on how it might have proceeded differently in the circumstances, nor to identify areas of disagreement with IHAT/SPLI and SPA’s decision-making and operational assessments of whether cases presented a realistic prospect of obtaining sufficient evidence at the investigative stage or a realistic prospect of conviction to support a prosecution. Nor is it the Office or the Court’s mandate to pronounce on whether a State complied with its duties to provide an effective remedy and fulfilled its procedural obligation to give effect to fundamental human rights enshrined in instruments such as the ECHR. The question is whether there is evidence to establish that the State concerned was unwilling to investigate or prosecute (para. 458).

In sum, the Prosecutor concluded that the case of Iraq/UK was inadmissible under Article 17’s complementarity requirement, because the UK authorities had sufficiently demonstrated that they had acted to investigate and that they were genuinely willing to investigate.

Potential Impact of the Final Report on the ICC’s Legitimacy

It is possible, and relatively easy, to criticize some of the Prosecutor’s findings, particularly on “willingness” grounds. It could be argued that the record established sufficient evidence that the UK authorities had reluctantly established IHAT and subsequent mechanisms; that they interfered with the mechanisms’ access to evidence; that they caused undue delays and demonstrated a significant bias against initiating any prosecutions – in sum, that they acted purposefully to shield their own service members and officials from any possibility of prosecution. Yet, while such concerns are serious, the more fundamental issues raised by this decision to close the Iraq/UK investigation involve future cases and the ICC’s legitimacy.

In light of this decision, it may become relatively easy for other powerful states to evade the ICC’s reach by launching their own “genuine” investigations which result in zero prosecutions. States such as the United States and Israel may welcome the court’s analysis of complementarity in this Final Report and its conclusion that the UK has been “willing” to prosecute its own soldiers and officials, despite a decade-long investigation which has yielded no cases. Complementarity may become a shield in and of itself, despite the fact that complementarity is actually supposed to ensure that perpetrators aren’t shielded from ICC’s prosecutorial reach. If states are able to avoid the ICC on complementarity grounds in the future, this could seriously undermine the court’s legitimacy. The ICC was established in order to ensure that accountability is imposed on perpetrators of atrocities; despite its relatively weak prosecutorial record, judicial squabbles on its bench, several state withdrawals from its jurisdiction, and some powerful states’ open hostility, the Court could be objectively defended in light of the importance of its fundamental mission. The imposition of accountability on those who commit genocide, crimes against humanity, or war crimes is objectively one of the most important goals of international criminal justice; an imperfect institution which nonetheless contributes to this goal remains important and legitimate. If the ICC were to become an easily-avoided forum, which states can bypass by launching sham but “genuinely willing” investigations, then the Court’s fundamental purpose comes into question. In such circumstances, it becomes difficult to continue to defend the ICC. For those of us who believe in the pursuit of international justice and in its institutions, including the ICC, the possibility of this type of a complementarity-based challenge to the court’s legitimacy is troubling.

Book Launch: Legal Limits to Security Council Veto Power (Jennifer Trahan)

July 17, 2020July 17, 2020 / Milena Sterio / Leave a comment

Please join us for this exciting book launch next week!

BOOK LAUNCH EVENT: Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (Cambridge University Press 2020), co-sponsored by the American Society of International Law International Criminal Law Interest Group and the American Branch of the International Law Association United Nations Committee

Join leading experts in the field discuss Professor Jennifer Trahan’s new book which examines the legality of the use by a permanent member of the UN Security Council of its veto while there is ongoing genocide, crimes against humanity, or war crimes.

Thursday, July 23, 12:00 p.m. – 1:30 p.m. EST (zoom link below)

Panelists:

Jennifer Trahan, Clinical Professor and Director of the Concentration in International Law and Human Rights, NYU, Center for Global Affairs

Richard Goldstone, founding Prosecutor, International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda

Beth Van Schaack, Leah Kaplan Visiting Professor of Human Rights, Stanford Law School

Michael Scharf, Co-Dean and Joseph C. Hostetler – BakerHostetler Professor Of Law, Case Western Reserve School of Law

Moderator: Milena Sterio, Charles R. Emrick Jr.-Cafee Halter & Griswold Professor of Law; Director, Domestic and International LL.M. Program, Cleveland-Marshall College of Law

To purchase the book, go to https://www.cambridge.org/core/books/existing-legal-limits-to-security-council-veto-power-in-the-face-of-atrocity-crimes/7EB9A13B1DE4F573CE29CEA6D3DFF936

Topic: Professor Jennifer Trahan Book Launch

Time: Jul 23, 2020 12:00 PM Eastern Time (US and Canada)

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Meeting ID: 979 1692 3543

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The Legality of the United States’ Strike on Soleimani

January 6, 2020January 6, 2020 / Milena Sterio / Leave a comment

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.

Policy

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.

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

December 4, 2019 / Milena Sterio / 1 Comment

As a delegate of the Public International Law and Policy Group, I recently attended the 18^th 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

May 1, 2019May 5, 2019 / Milena Sterio / Leave a comment

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_26507 Noura 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?

March 6, 2019 / Milena Sterio / 1 Comment

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

February 18, 2019February 19, 2019 / Milena Sterio / 3 Comments

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

November 12, 2018 / Milena Sterio / Leave a comment

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 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.

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

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

September 10, 2018 / Milena Sterio / Leave a comment

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.

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Milena Sterio