Call for Panel Proposals – International Law Weekend 2018

International  Law Weekend 2018 will take place from October 18-20 in New York City, at the NYC Bar Association and at Fordham Law School.  This conference is jointly organized and sponsored by the American Branch of the International Law Association and the International Law Students Association.  This year’s theme is “Why International Law Matters.”  Please see the theme description below:

Like any legal system, international law is a reflection of the past. Its norms, rules, and institutions are built upon a foundation that is moored in prior decades and steeped in previous centuries. And yet, international law plays an important role today, while setting the stage for the future. Current developments and emerging trends will form into future law. International lawyers must, therefore, serve as both historians and fortune tellers, while applying international legal norms in the present. How does the past inform our present? What current events and movements will most impact our future? And why does international law matter today? Wading through these moments in time, panels at ILW 2018 will consider the past, reflect on the present, and survey the future of our discipline and our profession, while addressing the fundamental question of why international law matters.

For more information, as well as for how to submit a panel proposal, please see here.  Panel proposals are due on May 25th.

Syria and the Limits of International Law

Earlier this week, the Assad regime most likely used chemical weapons against its own population in Syria. Up to 500 people may have been affected by this chemical attack, and approximately 75 individuals may have died. Western media reported that most western nations attributed the attack to the Assad regime, and although Assad himself has denied responsibility, this allegation appears credible, in light of Assad’s track record of using chemical weapons. Although this incident may have constituted a violation of jus in bello, and although this incident may be morally abhorrent, international law does not actually provide other nations with tools for a direct (military) response. The Syrian situation thus illustrates the limits of international law, which one may either accept as inevitable and necessary in a sovereignty-based system of international legal rules, or, which one may attempt to eliminate by changing rules of international law. This post will briefly discuss these options, in light of the ongoing crisis in Syria.
First, even in a dire situation like Syria, international law does not actually authorize other nations to use force against the offending regime. Our current international legal order is based on state sovereignty, and on the notion that such sovereignty may be breached in exceptional situations only. Using force against a sovereign nation may constitute the most supreme breach of state sovereignty, and under international law, force may be used against sovereign nations in two limited instances: pursuant to Security Council authorization and/or in self-defense. International law does not authorize nations to use force against another sovereign nation in other situations – no matter how devastating and limiting such a rule may be. For example, international law does not authorize the use of force against a sovereign nation if such a sovereign nation is experiencing a humanitarian catastrophe, caused by its own leadership. Thus, in a situation like Syria, where the country’s own regime is killing and wounding its own population, international law does not provide other nations with authorization to use force – unless such other nations can obtain Security Council approval or can demonstrate that they are acting in self-defense. As another example, international law does not authorize the use of force against a sovereign nation, although the latter may have used internationally-prohibited weapons, and may have committed violations of jus in bello. Thus, the alleged use of chemical weapons by the Assad regime against Syrians does not provide justification, under international law, for the use of force by other nations against Assad. Additionally, even in situations where the Security Council is deadlocked and unlikely to authorize the use of force against a sovereign nation which has engaged in brutal tactics internally, international law does not step in to provide alternative legal basis to other nations who may wish to use force against the offending nation. Assad is thus safe from external interference, from the perspective of international law, so long as Russia/China continue to veto Security Council resolutions against Assad, and so long as he does not attack other countries.
The situation in Syria is akin to that in Rwanda in 1994, where the international community did not interfere, and where hundreds of thousands of civilians were slaughtered over a brief period of time. In Rwanda, like today in Syria, international law did not provide justification toward the use of force by any other nation, and Rwandan leadership was able to get away with its genocidal policy for several months. The situation in Syria is similar to that in Kosovo in the late 1990s, when Serbian president Milosevic committed atrocities against ethnic Albanians. In the case of Kosovo, however, the international community acted, through a series of air strikes against Serbia in the spring of 1999, instituted by NATO despite lack of Security Council approval. From the perspective of international law, international community’s response was correct in Rwanda and illegal in Kosovo. From the perspective of international law, international community may not do anything in Syria and may not use force against the offending Assad regime. This conclusion, although morally questionable, is based on state sovereignty, which forms the basis of our current international legal order. State sovereignty thus shields regimes from interference, even if they commit atrocities, violate jus in bello, and engage in the most reprehensible behavior (absent Security Council involvement). And, if not changed, our international legal order will continue to insulate abhorrent state policies and practices, so long as these remain internal and so long as the Security Council remains deadlocked. International law is of extremely limited utility in situations like Rwanda, Kosovo, and Syria, and its limits underlie its own weakness.
Second, if one is dissatisfied with the current international law rules, how could such rules be altered, to provide a better response in situations like Syria, of internal humanitarian crises and Security Council deadlock? Several changes are theoretically possible. First, one could retain the sovereignty-based system of international law but remove veto power for any nation from the Security Council. One could require that all Security Council resolutions be passed by a super-majority of ten or twelve nations, to ensure that authorizations for the use of force against a sovereign nation face strict scrutiny and require super-majority consensus within the United Nations. Second, one could adopt a regional sovereignty-based system, by allowing regional organizations, such as NATO, to use force against their own member states. This system would allow for regional military responses within regional institutional structures; such regional responses could get around Security Council deadlock and could alleviate humanitarian crises in places like Syria. Under this regional sovereignty system, military responses, such as the 1999 NATO-led air strikes against Serbia, would become lawful. Third, one could legalize humanitarian intervention, as a third exception to the general ban on the use of force. Harold Koh has written about this and has proposed a normative framework for humanitarian intervention; I have also written about this and have argued for a similar set of rules. A true humanitarian intervention, organized by a coalition of states, pursuant to a concrete set of humanitarian goals and limited in scope and duration could become part of our international legal order, while offending state sovereignty in the most justified manner. It may be argued that states which offend international legal norms waive their sovereignty and no longer deserve the protection of the same norms; legalizing humanitarian intervention against the most rogue regimes, such a Assad’s, would only minimally offend the general notion of state sovereignty as this concept would continue to apply for all other law-abiding states. A modified system of international legal rules could preserve state sovereignty while allowing for a more robust (military) response in situations of humanitarian catastrophe, like the one ongoing in Syria.
In sum, international law in its current iteration remains powerless to impose true military restrictions on leaders like Assad. Several western nations have already discussed the possibility of staging a military intervention against Assad; such an intervention, absent Security Council authorization, would be illegal under international law. Intervening nations could choose to ignore international law and act in a military manner, in the face of the dire situation in Syria. This could, in turn, weaken our international legal order, by exposing its limitations and by demonstrating that nations are willing to ignore international law, because this law imposes unreasonable restraints. However, international law, if modified, could contain legal tools that would enable nations to lawfully intervene against leaders like Assad. This solution may be preferable in the long-term, as it would allow lawful state action against offending regimes, and as it would allow international law to develop small limitations on state sovereignty, for the sake of protecting populations from harm directed at them by their own leaders. International law’s limits are underscored by the situation in Syria. In the future, however, international law does not have to remain powerless.

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

 

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United Nations Building

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

 

 

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

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

 

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

 

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

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

 

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

 

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United Nations Building

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

 

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

 

Catalan Independence Referendum and the Kosovo “Precedent”

On October 1, the people of Catalonia voted to separate from Spain in an independence referendum which has been declared illegal by Spain.  According to numerous news reports, Spanish police and government forces attempted to interfere with the referendum and engaged in tactics which some have criticized as repressive and “shocking.”  The European Union (EU) however failed to condemn the Spanish government and instead insisted that the referendum was an internal matter for Spain and that the Spanish Constitution and rule of law should be respected.

The Catalan referendum brings back memories of the Kosovo situation in 2008.  Serbian President, Aleksandar Vucic, has criticized the EU for its “hypocrisy” because of the EU’s seemingly different stance vis-a-vis the recent Catalan independence vote and vis-a-vis Kosovo’s secession from Serbia in 2008.  Vucic stated, after meeting with the Greek President, “How come you’ve [EU] declared Kosovo’s secession from Serbia legal, violating international law and the foundations of European law.”  In other words, the EU had essentially “blessed” the Kosovar secession from Serbia while it has, in this instance, supported Spain and failed to recognize that Catalan “right” to an independence referendum.  Are the situations in Catalonia and Kosovo drastically different? What does international law say about the subject-matter of secessions?

First, the situations in Kosovo and Catalonia may be different because their respective mother states are different.  Kosovo had been a part of Serbia, which, while under the rule of Slobodan Milosevic, had engaged in brutal tactics to suppress an independence-seeking rebellion brewing within Kosovo.  Thus, the international community got involved – through the 1999 NATO-led air strikes and subsequently through various NATO and EU-led administrative, security-based, and civil missions.  When Kosovo declared independence in 2008, United States Secretary of State Condoleezza Rice described Kosovo as “sui generis,” in part because of the international community’s strong involvement in this region.  The Catalan had expressed their desire for independence and had held other independence referenda in the past, but the Spanish government had never engaged in human rights violations in Catalonia and the situation has remained peaceful.  The international community itself has never been involved in Catalonia and it may be that factually, Catalonia remains an internal matter.  If Catalonia is an internal matter, then, like in Scotland and in Quebec, any potential secession would need to be worked out through peaceful negotiations and a constitutional framework.  If Spain says no, then Catalonia would not have the right to unilaterally secede.  This is the factual argument, not based in international law.  This leads me to my second point – what does international law have to say about the Catalan secession?

Second, international law is silent on secession.  Almost all international law scholars would agree that international law does not entail a “right” to secession, and that secession may be tolerated in international law in  rare instances, like in Kosovo, or in Bangladesh.  We know from the 2010 International Court of Justice Advisory Opinion on Kosovo that international law does not specifically prohibit unilateral declarations of independence, and that international law only condemns declarations of independence procured through an illegal use of force.  We also know that international law contains the right to self-determination, but, as I recently wrote in the context of the Kurdish independence referendum, it is unclear whether the right to self-determination ever applies in the non-decolonization paradigm, and whether this right can ever lead to remedial secession.  It is unclear that the Catalan can invoke the right to self-determination in order to justify secession from Spain – the right to self-determination in this instance may entail simply a right to autonomy within the larger Spanish state.  The Kurds may have a much stronger self-determination-remedial secession argument than the Catalan, as the former may be able to demonstrate much more easily that their mother state is not representative of their interests.  Spain is a democratic nation which respects human rights, and the international law-recognized right to self-determination (leading to remedial secession) has never been invoked in this type of context before.  Thus, international law, at best, begrudgingly tolerates secession in extreme and rare instances, where the mother state is not a democratic nation which respects human rights.  The Catalan do not have a sound international law-based argument, and despite Spanish interference with the Catalan independence referendum, the Catalan cannot claim a particular legal right to secede.

Finally, how does one reconcile the seemingly different results (as of now) in Kosovo, Catalonia, and Kurdistan? Kosovo unilaterally declared independence from Serbia in 2008 and within a short period of time, it was recognized as a new state by many in the international community (although not by Spain – understandably so).  Interestingly, almost no states among those supporting Kosovo advanced international law-based rationales for the Kosovar secession from Serbia; instead, such states continued to distinguish Kosovo as a unique situation, sui generis, a special case which should somehow not create any type of precedent in international law.  Catalonia and Kurdistan have held independence referenda which have not been supported by almost any states in the international community.  Many states have referred to these referenda as illegal because contrary to the wishes of their respective mother states, or as internal matters, or as not representative of any particular “rights” in international law.  Accepting the argument that international law is silent on secession and does not regulate secession, it would appear that secessions are matters of domestic law. If this is the case, it appears that the international community may accept such a role of domestic law in cases where the mother state is a democratic nation or an emerging democracy whose sovereignty is deemed worth-while.  This manner of reconciling different referendum results is not based in international law, but it rather reflects geo-political interests of other powerful states.

 

Syria: The (Il)legality of the United States’ Use of Force Against Assad

On April 6, the United States unilaterally used force in Syria, against President Assad’s regime, in response to Assad’s alleged use of chemical weapons against a Syrian town and region.  Despite a humanitarian crisis that has been ongoing in Syria for several years, the United Nations Security Council has remained deadlocked, in light of the Russian and Chinese veto regarding any resolution that would have authorized a multilateral use of force.  The United States thus acted alone – potentially breaching both international and domestic law.  This post will examine the legality of United States’ actions under international and domestic law. 

Article 2(4) of the United Nations Charter prohibits states from using force against the territorial integrity or political independence of another state.  The only two exceptions to this general ban on the use of force involve Security Council authorization and self-defense.  The United States’ use of force in Syria had not been authorized by the Security Council, because, as mentioned above, Russia and China have persistently threatened or used their veto power to block resolutions regarding Syria.  Moreover, the United States’ use of force in Syria was not an instance of self-defense.  States can use force in self-defense if they are under an armed attack, or if they are about to be attacked; Syria has not threatened any other nations, and certainly not the United States, and the latter was not in danger of an imminent attack by Damascus.  Thus, under a traditional interpretation of international law, the United States has used force illegally in Syria, in breach of treaty and customary international law. 

It should be noted that the United Nations Charter is a treaty, to which the United States is a party.  The obligation in Article 2(4), mentioned above, is a treaty provision which binds the United States.  Thus, this treaty provision would be considered as “supreme Law” of the land under Article VI of the U.S. Constitution.  As such, this provision becomes part of United States’ domestic law and binds the United States on the domestic level as well.  Congress can, under the so-called later-in-time rule, pass a federal statute which trumps an otherwise binding treaty provision.  However, Congress has very rarely done so regarding existing treaties (doing so would put the United States in breach of its international law obligation), and Congress has certainly not done so in this instance, regarding the use of force in Syria. 

Moreover, under domestic law, a United States President is supposed to ask authorization from Congress before using military force in another country.  As Marty Lederman has explained recently, there are three major theories as to when the President can use force unilaterally against another sovereign nation and without Congressional authorization:

“(i) almost never (i.e., only to repel actual attacks, and then only as long as Congress is unavailable to deliberate)–what one might call the “classical” position;

(ii) virtually always, up to and including full-scale, extended war–that was John Yoo’s position, adopted by OLC in the Bush Administration, at least in theory; and

(iii) only under a set of complex conditions that do not amount to “war in the constitutional sense,” and only in conformity with legal restrictions Congress has imposed (including the War Powers Resolution)–a middle-ground position that I denominated the Clinton/Obama “third way,” and which in effect has, rightly or wrongly, governed U.S. practice for the past several decades.”

Marty Lederman had, in a 2013 post, elaborated as follows on the middle ground view:

“Between these two categorical views is what I like to call the Clinton/Obama “third way”—a theory that has in effect governed, or at least described, U.S. practice for the past several decades.  It is best articulated in Walter Dellinger’s OLC opinions on Haiti and Bosnia, and in Caroline Krass’s 2011 OLC opinion on Libya.  The gist of this middle-ground view (this is my characterization of it) is that the President can act unilaterally if two conditions are met:  (i) the use of force must serve significant national interests that have historically supported such unilateral actions—of which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause,” a standard that generally will be satisfied “only by prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period” (quoting from the Libya opinion).”

Assuming that the middle ground view is correct- that the President can decide to use force without Congressional approval in limited circumstances – the current use force against Assad cannot be easily justified.  As others have pointed out, the closest precedent for the unilateral use of force in Syria may be the United States’ and NATO use of force in Kosovo in 1999, under the Clinton Administration.  The United States never advanced a legal rationale for its use of force in Kosovo, relying instead on a policy argument that Kosovo was sui generis.  Kosovo was arguably a better case than Syria, because the military intervention in Kosovo had been staged by NATO, not by the United States acting alone, and because the United Nations had already been involved in Kosovo, unlike in Syria.  Thus, Kosovo may not provide the best precedent for Syria.  In addition, adopting the above-mentioned middle ground view on the President’s ability to use force unilaterally, it is difficult to argue that the use of force in Syria will serve significant national security interests, such as self-defense or the protection of American nationals.  It remains to be seen whether the United States’ use of force in Syria will entail an extensive and prolonged military engagement, requiring Congressional approval, or if it will instead be comprised of a time-limited and precise series of strikes not involving exposure of United States’ military personnel.  As of today, however, it is difficult to argue that President Trump should not have sought Congressional approval for the use of force in Syria.

Can the United States’ military actions in Syria be justified on either the international or domestic planes?  First, regarding international law, Harold Koh has argued that the unilateral use of force against a sovereign state can at times be justified under the developing norm of humanitarian intervention.  According to Koh, the following conditions must be met in order for a state to be able to invoke the humanitarian intervention exception to international law’s general ban on the use of force:

“(1) If a humanitarian crisis creates consequences significantly disruptive of international order—including proliferation of chemical weapons, massive refugee outflows, and events destabilizing to regional peace and security—that would likely soon create an imminent threat to the acting nations (which would give rise to an urgent need to act in individual and collective self-defense under U.N. Charter Article 51);

(2) a Security Council resolution were not available because of persistent veto; and the group of nations that had persistently sought Security Council action had exhausted all other remedies reasonably available under the circumstances, they would not violate U.N. Charter Article 2(4) if they used

(3) limited force for genuinely humanitarian purposes that was necessary and proportionate to address the imminent threat, would demonstrably improve the humanitarian situation, and would terminate as soon as the threat is abated.

In particular, these nations’ claim that their actions were not wrongful would be strengthened if they could demonstrate:

(4) that the action was collective, e.g., involving the General Assembly’s Uniting for Peace Resolution or regional arrangements under U.N. Charter Chapter VIII;

(5) that collective action would prevent the use of a per se illegal means by the territorial state, e.g., deployment of banned chemical weapons; or

(6) would help to avoid a per se illegal end, e.g., genocide, war crimes, crimes against humanity, or an avertable humanitarian disaster, such as the widespread slaughter of innocent civilians, for example, another Halabja or Srebrenica. To be credible, the legal analysis of any particular situation would need to substantiate each of these factors with persuasive factual evidence of: (1) Disruptive Consequences likely to lead to Imminent Threat; (2) Exhaustion; (3) Limited, Necessary, Proportionate, and Humanitarian Use of Force; (4) Collective Action; (5) Illegal Means; and (6) Avoidance of Illegal Ends.”

It is unclear whether these conditions have been met in Syria – for example, it is unclear that the Trump Administration is acting consistently with condition 3, and it is unquestionable that the American unilateral action does not satisfy condition 4.  Moreover, Koh’s proposed framework is doctrinal in nature and does not reflect the current status of international law – unless one assumes that Syria is a law-breaking moment and that the evolution of international law requires the breaking of existing international law norms (a point of view which many scholars would disagree with).  Finally, it is also unclear that the use of chemical weapons is prohibited in non-international armed conflict; chemical weapons are banned in international armed conflict and their use is certainly morally abhorrent, but it is not legally clear that chemical weapons are always prohibited in internal and non-international warfare (the use of chemical weapons in international armed conflict is not prohibited by treaty law although it may be argued that it is prohibited under customary law).  And, even if chemical weapons were prohibited in non-international armed conflict, a violation of jus in bello does not provide justification for the use of force against a sovereign state – a point which Koh’s framework ignores (arguably because Koh’s framework focuses on the protection of human rights, which justifies the conflation of jus in bello and jus ad bellum norms). 

On the domestic level, the United States’ use of force in Syria could be justified if one adopts the Yoo/Bybee view, that President can always act alone, without Congressional approval, or if one adopts the middle ground view and concludes that the action in Syria advances national security interests and is so limited in time and scope that it falls outside of a traditional “war.”  As mentioned above, it is unclear as of today what the Syrian military action will entail and it is uncertain whether the strikes will remain limited in duration and scope and whether United States’ military personnel will not be exposed. 

Thus, it is difficult to construct the legal argument that the United States’ use of force in Syria is legal under both international and domestic law.  While military action may be the morally correct response to Assad’s slaughtering of civilians, it appears that the United States’ actions lack a solid legal basis. 

AALS International Human Rights Section Call for Papers

The AALS International Human Rights Section is sponsoring two different Calls for Papers at the 2017 AALS Annual Meeting.  Submission details for both Calls for Papers are available below:

CALL FOR PAPERS
INTERNATIONAL HUMAN RIGHTS
SECTION PANEL
2016 AALS ANNUAL MEETING
January 3-7, 2017, San Francisco, CA

The AALS Section on International Human Rights is pleased to announce that it will sponsor a call for papers for its program during the 2017 AALS Annual Meeting in San Francisco, CA. The program will be called Human Rights Outside the West. It will take place during the Annual Meeting, which is scheduled for January 3-7, 2017. We anticipate selecting up to two speakers from this call for papers to present their work during our Section’s program.

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Radovan Karadzic Convicted by ICTY Trial Chamber

Yesterday, the Trial Chamber of the International Criminal Tribunal for Yugoslavia convicted Radovan Karadzic, former leader of the Bosnian Serbs during the 1990’s, of numerous crimes committed during the conflict.  Karadzic received a 40-year sentence; because he is 70 years old, the sentence essentially amounts to life imprisonment (unless he is released on compassionate grounds at some future point in time, but in all likelihood, even if that were to happen, he will be in his late 80’s or early 90’s by then).  The trial verdict is over 2,000 pages long and is available here.  A shorter summary of the verdict is available here, and an excellent analysis of the verdict by Marko Milanovic on EjilTalk! is available here.

This post will highlight some of the most interesting points from the Karadzic verdict.  While the fact that Karadzic was found guilty is not surprising to anyone in the academic community, a few more nuanced points from the verdict are worthy of interest.  First, Karadzic had been charged with several counts of genocide, one of which (count 1) was for genocide committed against different municipalities in Bosnia.  Karadzic was acquitted of that charge.  While the acquittal in this context should not mean much – because even if he did not commit genocide in the legal sense, Karadzic still committed other numerous crimes, such as crimes against humanity, war crimes, etc., which are equally reprehensible – the acquittal on the genocide charge may be interpreted by some (Serb nationalists, in particular) as a legitimization of Republika Srpska and of some of its heinous policies.  Marko Milanovic has already made this point, and I simply repeat and emphasize it here.  What I would add though is that the Karadzic case can serve as guidance to future international criminal tribunals’ prosecutors in the following sense: the crime of genocide is notoriously difficult to prove, and prosecutors would be much better off, in many cases, if they charge defendants with crimes against humanity and win “easy” convictions.  An acquittal on the charge of genocide can be much more harmful to the affected region and can contribute toward fueling nationalistic tensions and hatred.  Trying to win a genocide conviction simply because of the symbolic value that this type of conviction and “label” may carry is not worth the risk of acquittal on the same charge, especially in places like Bosnia where resentments still linger and where true reconciliation may be decades away.

Second, the Karadzic case is interesting because of the genocide conviction on a separate count – Karadzic was actually convicted of genocide because of his role in the Srebrenica massacre.  The trial chamber held that Karadzic was a participant of a joint criminal enterprise “who agreed to the expansion of means so as to encompass the killing of the men and boys intended to kill all the able-bodied Bosnian Muslim males, which intent in the circumstances is tantamount to the intent to destroy the Bosnian Muslims in Srebrenica.” (para 5741).  The trial chamber then established that Karadzic had the requisite intent to commit genocide at Srebrenica, as a participant in the said joint criminal enterprise, based on conversations which Karadzic had with Miroslav Deronjic, an official appointed earlier as a civil administrator of Srebrenica.  From these conversations, the trial chamber infers that Karadzic both knew that the massacre was about to happen, and had the intent for it to occur.  The relevant language, which Marko Milanovic quoted in his post already, and which I choose to reproduce here, because of its legal significance is as follows:

“The Chamber therefore takes particular note of the fact that, despite his contemporaneous knowledge of its progress as set out above, the Accused agreed with and therefore did not intervene to halt or hinder the killing aspect of the plan to eliminate between the evening of 13 July and 17 July. Instead, he ordered that the detainees be moved to Zvornik, where they were killed. Moreover, once Pandurević reported on 16 July that he had opened a corridor to allow members of the column who had not yet been captured or surrendered to pass through, Karišik was promptly sent to investigate and the corridor was closed within a day. Finally, the Chamber recalls that although he touted the opening of the corridor when speaking to the international press, in a closed session of the Bosnian Serb Assembly held weeks later, the Accused expressed regret that the Bosnian Muslim males had managed to pass through Bosnian Serb lines. Accordingly, the Chamber considers that the only reasonable inference available on such evidence is that the Accused shared with Mladić, Beara, and Popović the intent that every able-bodied Bosnian Muslim male from Srebrenica be killed, which, in the Chamber’s view, amounts to the intent to destroy the Bosnian Muslims in Srebrenica.”

This is significant for the purposes of defining the requisite mens rea for genocide.  Genocide is notoriously difficult to prove because a defendant must have the highest mens rea, intent, to kill or harm in other ways members of protected groups, because of their membership in such groups.  Here, the trial chamber seems willing to infer such intent, presumable because Karadzic knew that the massacre was about to be committed but did nothing to stop it, and because, according to the trial chamber, he must have shared the genocidal intent with other participants of this joint criminal enterprise.  If one accepts the idea that one of the most fundamental goals of international criminal justice is to secure the highest level of convictions against those who commit atrocities, and that the most significant conviction is that of genocide, then one would support the argument that the definition of genocide should be interpreted more loosely, to allow for inferences of this sort.  If one thinks, on the other hand, that rule of law is the most important thing and that legal definitions should be interpreted strictly, then one may take issue with the trial chamber’s liberal approach in finding a genocidal intent based on inferences.

What is almost certain is that the Karadzic team will appeal the verdict on some of these grounds and will hope for a partial reversal and a reduction of the sentence.  What is also certain is that Karadzic participated in the commission of some of the worst atrocities in Bosnia and that his conviction in general is a victory for international criminal justice.

Strike at Kunduz: Did the United States Violate International Humanitarian Law?

Reports recently surfaced that United States forces carried out an air strike against a Doctors Without Borders (Medecins Sans Frontieres) hospital in Kunduz, Afghanistan. Twenty-two civilians died as a result of the attack – twelve Doctors Without Borders staff members and ten patients; thirty-seven additional individuals were injured during the attack. By all accounts, the United States-executed bombing took place as part of a larger military operation to re-capture Kunduz from the Taliban forces. The strike was horrific, as described by a Doctors Without Borders President, Dr. Joanne Liu:

“Our colleagues had to operate on each other. One of our doctors died on an improvised operating table — an office desk — while his colleagues tried to save his life.”

This post will explore the most relevant question: whether the United States’ bombing of the Doctors Without Borders hospital constituted a violation of international humanitarian law and whether the individuals responsible for this operation committed a war crime?

The answer to the above question is not easy and it depends on numerous factors, including an accurate factual accounting of what truly happened. The United States’ government first claimed that the bombing was a mistake; that narrative changed over the last few days, when Gen. John F. Campbell, the American commander in Afghanistan, offered detailed congressional testimony to lawmakers, and clearly stated that the attack was “a U.S. decision made within the U.S. chain of command.” President Obama himself officially apologized to Dr. Liu. According to White House officials, President Obama also told Dr. Liu that he would make any changes necessary to ensure that such incidents were less likely in the future, and he promised a “full accounting” of who was to blame, and whether the military’s rules of engagement needed to change. In addition, Doctors Without Borders have confirmed to the press that they shared the hospital’s GPS coordinates with the United States’ military numerous times, including as late as September 30. In light of General Campbell’s testimony, President Obama’s apology to Dr. Liu, and the fact that Doctors Without Borders shared the hospital’s precise location with the United States’ forces very recently, it seems unlikely that the bombing was simply a mistake. Jonathan Horowitz on Just Security has already laid out four different hypotheticals for what could have led the United States to conduct the attack against the Doctors Without Borders hospital; two of these hypotheticals include scenarios where the United States did not know that it was bombing a hospital. This post will discard these two hypotheticals because it seems implausible, in light of recent developments, that the United States’ military did not know that it was attacking a hospital. Two other plausible scenarios which Horowitz correctly lays out include the possibility that the United States intentionally targeted the hospital which was being used for medical services only, or that the United States intended to bomb Taliban fighters who it believed were located either in the hospital or somewhere nearby. If either of the latter two factual scenarios were true, did the United States violate international humanitarian law? Most likely – yes.

Civilians, as well as hospitals and medical professionals cannot be an object of an attack under international humanitarian law – even if the enemy is receiving medical treatment inside a hospital. Hospitals lose their protected status only if they are being used by the enemy to launch attacks. However, even if a hospital becomes a legitimate target of a military attack, international humanitarian law’s principle of precautions still requires that the attacker take precaution to minimize or avoid harm to civilians. Principle of proportionality additionally requires that attacking forces must ensure that the attack will not cause civilian harm excessive to the anticipated military advantage. If one assumes that the United States deliberately targeted a hospital which was being used for civilian and medical purposes only, then the United States violated international humanitarian law, and individuals involved in these attacks committed war crimes. Even if the attacked hospital had been treating Taliban fighters, the same conclusion would apply because, as stated above, hospitals do not lose their protected status under international humanitarian law if they are treating enemy forces.

If the United States attacked the hospital because it suspected that Taliban fighters were located near or in the hospital itself, the relevant principles of precautions and proportionality would still apply. The United States would have to demonstrate that its forces took appropriate precautions – that those who planned the attack chose the most appropriate means and methods in order to avoid or minimize incidental loss of civilian life, and injury to civilians and civilian objects. In addition, the United States would have to show that it conducted an appropriate proportionality assessment – that its military commanders knew, when ordering the strike against the hospital, that civilians would be killed and/or injured, but that they concluded that military advantage gained from the attack would outweigh civilian harm. In other words, the principle of proportionality authorizes military attacks if the expected civilian harm is not excessive to the anticipated military advantage; those carrying out the attack have an obligation to cancel or suspend the attack if it becomes apparent that the attack will not be proportionate. It is unclear, at best, that the United States will be able to prove that its military actions against the hospital in Kunduz satisfied the principles of precautions and proportionality. The general public is still in the dark regarding more specifics about United States’ targeting operations in Kunduz and how important the attack against the hospital was in relation to the overall military strategy in this region. What is clear, however, is that the civilian harm caused by the attack was significant, and that the United States has a lot of explaining to do in order to justify this attack. In addition, the United States would only be justified in attacking the hospital if it could demonstrate that the Taliban fighters present in the hospital or its vicinity were launching attacks themselves against United States’ forces (as stated above, if Taliban fighters were in the hospital because they were receiving medical treatment, then the hospital could not become a legitimate military target). Doctors Without Borders has vehemently disputed any such allegations, and it is not clear as of now what the United States’ government’s position on this issue is.

The only way that we may find out what truly happened in Kunduz is through an independent investigation. Thus far, the United States has committed to conducting an investigation by the Department of Defense. In addition, NATO and a joint United States-Afghan group will also investigate. Doctors Without Borders has called for a separate independent investigation by the International Humanitarian Fact-Finding Commission. The Commission is a body set up under the Geneva Conventions which can investigate violations of international humanitarian law; however, affected countries (here the United States and Afghanistan) must consent. It is unlikely that either will. Because of the gravity of the alleged conduct, they clearly should. A military investigation conducted by the military which itself may have carried out the illegal operation is insufficient and inappropriate.

Documenting Human Rights in South Sudan

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Victoria Akur (left) and Grace John (right), members of South Sudanese CSOs, with Milena Sterio (middle).

On behalf of the Public International Law and Policy Group (PILPG), a Washington, D.C.-based non-governmental organization (NGO), I participated in a four-day workshop in Nairobi, Kenya.  The workshop was entitled “South Sudan Human Rights Documentation Initiative” and it built on existing PILPG Work in South Sudan.  This particular workshop brought together approximately forty participants: several PILPG members, including yours truly as a consultant, members of various South Sudanese civil society organizations (CSOs), a United Nations representative, as well as members of a partner organization, the Centre for the Study of Violence and Reconciliation (CSVR), a South African NGO.

The workshop was structured over four long days of presentations, interactive dialogs, exercises and guided simulations.  The specific topics covered during the workshop included specifics of documentation in general, such as purposes of documentation, preserving documents, various investigation options and tools, and involving women in human rights documentation efforts.  One day of the programming was organized by the CSVR, with a specific focus on the psycho-social effects of trauma, and the effects of violence and trauma on documentation efforts.  The outcome of the workshop will be the drafting of a joint agreement on a human rights documentation roadmap, as well as the beginning of ongoing discussions with representatives of South Sudanese CSOs regarding how international groups and NGOs can assist in future documentation efforts.

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Kenyan coffee (it helped during long days of workshops).

This post will explore the purposes and importance of documentation efforts in South Sudan.  South Sudan is a war-torn country.  It gained its independence from Sudan in 2011, through a public referendum where the majority of South Sudanese voted in favor of separating from Sudan.  The referendum came at the heels of a decades-long independence war during which South Sudanese rebels fought against the Khartoum regime.  South Sudanese independence, although initially celebrated, did little to quell the ongoing conflict.  The independence in many ways exacerbated already existing tribal and ethnic rivalries, resulting in new violence and civil conflict pitting two major South Sudanese groups against each other: the Dinka and the Nuer.  The Dinka-Nuer conflict, deeply rooted in South Sudanese colonial history and reflected in the independence rebellion itself, has by now involved other minority groups who have been forced to align each other with either the Dinka or the Nuer and to thereby take a more active role in the fighting.  The current South Sudanese president, Salva Kiir Mayardit, is Dinka, and the government regime is composed of mostly ethnic Dinkas.  The Nuer feel particularly vulnerable under this regime, and have reported that police and security forces working on behalf of the government have targeted not just Nuer fighters, but civilians as well.

Documenting human rights violations in this type of climate appears as the first step toward peace-building and reconciliation; ultimately, documented human rights violations can lead toward accountability and can serve a particular role in potential prosecutions of perpetrators of human rights abuses.

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Urban safari at the Nairobi National Forest.

Other countries have already implemented various human rights documentation efforts.  Various groups have worked on documenting human rights abuses in places such as Brazil, Guatemala, Argentina, Cambodia, etc. These efforts, which were briefly discussed during the Nairobi workshop, can serve as models for South Sudan and can provide successful examples of documenting and archiving human rights abuses, and using them toward both reconciliation and accountability.  In addition to serving as a first step toward accountability, documenting human rights violations can serve other purposes, such as building a fair and neutral historical narrative about the South Sudanese conflict, memorializing various types of violence, building long-lasting peace and promoting reconciliation. All of these different purposes of human rights documentation were discussed at the workshop. The ultimate conclusion of the workshop was that documenting human rights violations for all its possible purposes was of particular importance in South Sudan, and that the country’s CSOs would take the lead in this project.

The Legality of ISIS Air Strikes Under International Law

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

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

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

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

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

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

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

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