[I am passing along this reminder of the upcoming registration deadline on behalf of ILA President Ruth Wedgwood since many of our readers are likely to attend this meeting.]

Register by February 7, 2014 to snap up the advantageous “Early-Bird Rate”– saving $160 over the walk-up rate– for the historic joint meeting between the 150-year-old global International Law Association and the American Society of International Law, running April 7-12, 2014.  The festivities will take place at the International Trade Center, next to the Washington Mall, during the height of Washington’s lovely Cherry Blossom Season.   Family members will enjoy the trip too, since the Trade Center is  close to all the best tourist stops in the nation’s capital, including the National Gallery, the Air and Space Museum, the Lincoln Memorial, the Washington Monument, the Spy Museum, the Kennedy Center and the list goes on.  Incredible program of public and private international law debates is described at  www.ila2014.org  or www.asil.org/annualmeeting.  Adjacent J.W. Marriott Hotel at 1331 Pennsylvania Avenue has conference room rates that are well below market for Cherry Blossom Time.  Notables including judges of the International Court of Justice, the International War Crimes Tribunals, and Supreme Courts around the world will be at the ILA-ASIL Joint Meeting to engage in our robust debates.

Last March, I took the world media (and Alan Dershowitz) to task for some pretty poor reporting on the extradition issues raised in the Amanda Knox case.  Based on the reporting from yesterday’s conviction (again) of Amanda Knox in an Italian appeals court in Florence, I’m glad to report that the news coverage of the extradition issue (as well as Dershowitz’s analysis of it) has improved a great deal. I’ll admit I’ve been co-opted by the media a little, since I have given quotes to several publications about the case (click here for obnoxious self promotion).

What bothered me about the reporting last year was the insistence by news outlets and even several legal commentators that Amanda Knox was facing double jeopardy because she was facing a conviction for the same crime for which she was previously acquitted (see this quote here from CNN’s legal analyst Sonny Hostin as an example of this confusion).   There are three problems with this argument:

1) The US Italy Extradition Treaty does not actually bar extradition for double jeopardy in the U.S. Constitutional sense. All it does is bar extradition if the person being extradited has already been charged for the same crime in the state doing the extraditing.  For instance, the treaty would bar extradition to Italy for Knox only if the U.S. had prosecuted her for the Kerchner* murder.  Judge Friendly’s discussion in the 1980 Sindona v. Grant case of a similar provision in an earlier US-Italy Extradition treaty focuses solely on whether the US charges were the same as the Italian charges.  See also Matter of Extradition of Sidali (1995) which interpreted an identical provision of the US-Turkey extradition treaty.

2) The US Constitution’s double jeopardy bar does not apply to prosecutions by the Italian government (or any foreign government).  This seems pretty unobjectionable as a matter of common sense, but many commentators keep talking about the Fifth Amendment as if it constrained Italy somehow.  For obvious reasons, the fact that the Italian trial does not conform in every respect to US constitutionally-required criminal procedure can’t be a bar to extradition because that would pretty much bar every extradition from the U.S.  The U.S. Supreme Court decision in US v. Balsys seems to have settled this question with respect to the Fifth Amendment self-incrimination rule, and it should apply to double jeopardy as well.

3) In any event, the conviction, acquittal, and then conviction again is almost certainly not double jeopardy anyways.  Knox was convicted in the first instance, than that conviction was thrown out on appeal.  That appellate proceeding (unlike a US proceeding) actually re-opened all of the facts and is essentially a new trial.  But it is still an appellate proceeding and in the US we would not treat an appellate proceeding that reversed a conviction as an acquittal for purposes of double jeopardy.  Moreover, it would essentially punish the Italian legal system for giving defendants extraordinary rights of appeal and tons more due process than they would get in the U.S.  If Knox had been convicted in the U.S, she could not have re-opened all of the evidence the way she did in Italy, and probably would have had a harder time getting her original conviction overturned.  So it seems crazy to call “unfair” a legal system which actually gave Knox a completely new chance to challenge her conviction.

Most media coverage seems to get these points (sort of).  I think they have done so because folks like Alan Dershowitz have finally read the treaty and done a little research (he now agrees with this analysis of the treaty above, more or less), and because the magic of the Internet allowed my blog post from last March to be found by reporters doing their Google searches.  So kudos to the Opinio Juris!    Improving media coverage of international legal issues since 2005!

One final note:  the only way this “double jeopardy” argument matters is if this gets to the US Secretary of State, who has final say on whether to extradite.  He might conclude that the trial here was so unfair (because it dragged out so long) that he will exercise his discretion not to extradite.  But this would be a political judgment, not a legal one, more akin to giving Knox a form of clemency than an acquittal.  I would be surprised if the State Department refuses to extradite Knox, given the strong interest the U.S. has in convincing foreign states to cooperate on extradition.  But Knox appears to have lots of popular support in the US. This may matter (even if it shouldn’t).

 *The original post incorrectly called the murder victim “Kirchner”.

Following up on my earlier posts on the normative aspects of the struggle concerning Ukraine and other former Soviet countries (1, 2, 3) in the run-up to, and the aftermath of, the EU’s November summit in Vilnius, where Ukraine had been expected to sign an Association Agreement with the EU.  However, the Yanukovich regime backed out at the last minute. I want to focus on recent developments in what analysts are calling the “post-Vilnius” atmosphere and what they reflect about how states and citizens compete over norms.

First, there is the spread of protests from the relatively  pro-EU western Ukraine into the relatively pro-Russia eastern Ukraine.  Electoral maps of Ukraine (1, 2) show the ideological division and why Ukraine is an example of what I’ve called a systemic borderland.  The fact that the anti-government protests moving eastward across the map may be a sign of an increasing tilt towards following the original path of the government in seeking closer association with the EU.  But it also may be nothing more that the populace being tired and angry of the political gridlock and motivated by pictures of anti-protestor violence in the western cities. In this latter scenario, the citizens in eastern Ukraine still want to be more closely tied with Russia, they are just sick of their government brutalizing their own people, for whatever the reason. News reports about protests are one thing, but understanding why people are protesting is very important in situations concerning whether or not domestic norms are in play.

I haven’t seen any significant data on whether there is a deeper normative shift taking place or whether the eastern protests are primarily a reaction to offensive government tactics.

The second development of note is the broadening of the Russia/ EU tensions. The New York Times article on this issue from the January 28 online edition is well worth a full read. Here are a few key points related to the normative aspects of the post-Vilnius tensions:

The future of Ukraine and disagreements over how Russia and EU have approached this are the drivers of the current international bickering. (Keep in mind the domestic tensions are also between the Ukrainian citizens and their government over how the Ukrainian government reacted to protests.)  The international tensions stem from a concern about how Russia perceives its future, vis-à-vis Europe. From the Times:

Russia, [Michael Emerson, the former EU envoy to Moscow] said, needs to show that “all its talk about a ‘common European house’ from Lisbon to Vladivostok is not just a slogan and that Ukraine can be comfortable with both the E.U. and Russia.”

In short: is there one Europe or two?  Will Ukraine be a bridge uniting Europe or a border between two normatively distinct Europes?  A related issue is whether Russia even wants to explore deepening ties with the EU. The Times continues… (Continue Reading)

I recently wrote a post that described the virtues of international lawyers thinking about the future and having an international law analog to “design fiction.” The main point being we as international lawyers are often so focused on historical examples, issues, and analogies that we need to spend more time considering the technological changes that are upon us and changing the world in which we live. A bit of tech futurism + international legal practice.

One of the best-known critiques of the profession considered the lack of imagination of the international legal profession. In 2001, Martti Koskeniemi wrote in The Gentle Civilizer of Nations that international law had been depoliticized and marginalized “as graphically illustrated by its absence from the arenas of today’s globalization struggles” or it had become “a technical instrument for the advancement of the agendas of powerful interests or actors in the world scene.” (page 3) He further wrote that international lawyers “in the past 40 years have failed to use the imaginative opportunities that were available to them, and open horizons beyond academic and political instrumentalization, in favor of worn-out internationalist causes that form the mainstay of today’s commitment to international law.” (page 5)

Now, having made a plea for a little more tech futurism in international law, I note that Professor Benjamin Bratton has just done a great job of taking the form of technological futurism most prevalent in TED conferences and smacking it upside the head a few times. Moreover, he did this in a sharp TEDx presentation (and an essay in The Guardian). I highly recommend watching the full TED talk. There’s a lot there that also applies to international legal profession.

Bratton describes the problem of “placebo politics”—focusing on technology and innovation as the solution to major world problems, but not taking into account the difficult issues of history, economics, and politics that bedevil actual workable solutions. Problems become oversimplified. He wrote in The Guardian:

Perhaps the pinnacle of placebo politics and innovation was featured at TEDx San Diego in 2011. You’re familiar I assume with Kony2012, the social media campaign to stop war crimes in central Africa? So what happened here? Evangelical surfer bro goes to help kids in Africa. He makes a campy video explaining genocide to the cast of Glee. The world finds his public epiphany to be shallow to the point of self-delusion. The complex geopolitics of central Africa are left undisturbed. Kony’s still there. The end.

You see, when inspiration becomes manipulation, inspiration becomes obfuscation. If you are not cynical you should be sceptical. You should be as sceptical of placebo politics as you are placebo medicine.

For more on Kony 2012, see our discussion of it, here.

Bratton continued:

If we really want transformation, we have to slog through the hard stuff (history, economics, philosophy, art, ambiguities, contradictions). Bracketing it off to the side to focus just on technology, or just on innovation, actually prevents transformation.

Instead of dumbing-down the future, we need to raise the level of general understanding to the level of complexity of the systems in which we are embedded and which are embedded in us. This is not about “personal stories of inspiration”, it’s about the difficult and uncertain work of demystification and reconceptualisation: the hard stuff that really changes how we think. More Copernicus, less Tony Robbins.

[Emphases added.]

International lawyers can be (but aren’t always) good at the facts on the ground, the messy realities of history, politics, economics. If my previous post was about how lawyers need to keep a weather eye on how new tech is changing the present and shaping the future, then Bratton reminds us how the technologists need to appreciate the hard realities of the present and to remember the lessons of past. In other words, each of us has a lot to learn from the other.

I’m pleased to flag the fact that the American Journal of International Law has recently launched its own blog — AJIL Unbound.  Interested readers can find out more about the project and the Journal‘s interest in reader feedback here.  In the meantime, AJIL Unbound is currently hosting an on-line discussion of the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. in concert with the Journal‘s print-based Agora on that same case in its October 2013 issue.  I look forward to reading these posts and also to seeing how AJIL Unbound develops and evolves in the weeks and months ahead.

[Anthony Colangelo is Associate Professor of Law at SMU Dedman School of Law.]

As my comment to Roger’s initial post noted and my forthcoming piece in the Cornell Law Review explains, like Bill Dodge I view the presumption against extraterritoriality’s operation in Kiobel as going principally to the cause of action allowed by the ATS as opposed to the ATS proper. Though as Roger points out, the Supreme Court did find itself construing the ATS in order to discern whether the presumption applied to the cause of action, making an already messy area of law incoherent in light of the Court’s own most recent precedent, as I noted in an OJ Insta-Symposium contribution last spring.

What I’d like to explore now is another question raised by this terrific series of posts: the extent to which state law incorporating international law may authorize suits for causes of action arising abroad after Kiobel. This question is both especially urgent because it involves a potential alternative avenue for litigating human rights abuses abroad in U.S. courts, and especially vexing because it juxtaposes different doctrinal and jurisprudential conceptualizations of the ability of forum law to reach inside foreign territory. On the one hand, the question can be framed as whether forum law applies extraterritorially; on the other, it can be framed as a choice of law among multiple laws, of which forum law is one. These different ways of framing the question are not necessarily mutually exclusive, yet they can lead to radically different results. Namely, Supreme Court jurisprudence stringently applying a presumption against extraterritoriality to knock out claims with foreign elements stands in stark contrast to a flexible cadre of state choice-of-law methodologies that liberally apply state law whenever the forum has any interest in the dispute.

The result is a counterintuitive disparity: state law enjoys potentially greater extraterritorial reach than federal law. The disparity is counterintuitive because the federal government, not the states, is generally considered the primary actor in foreign affairs. Indeed, the presumption against extraterritoriality springs directly from foreign affairs concerns: its main purpose is to avoid unintended discord with other nations that might result from extraterritorial applications of U.S. law. If the federal government is the primary actor in foreign affairs, and if the presumption operates to limit the reach of federal law on a foreign affairs rationale, it follows that state law should have no more extraterritorial reach than federal law.

Yet at the same time there is a long and robust history stretching back to the founding of state law providing relief in suits with foreign elements through choice-of-law analysis. Hence, not only does the disparity between the reach of federal and state law bring into conflict federal versus state capacities to apply law abroad (or entertain suits arising abroad), it also brings into conflict the broader fields that delineate those respective capacities: foreign affairs and federal supremacy on the one hand, which argue in favor of narrowing the reach of state law to U.S. territory, and private international law and conflict of laws on the other hand, which argue in favor of allowing suits with foreign elements to proceed in state court under state law. Continue Reading…

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs of the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

The Supreme Court held in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), that the presumption against extraterritoriality applies to suits brought under the Alien Tort Statute (ATS). In a recent post, Roger Alford asks whether a federal court sitting in diversity or a state court of general jurisdiction may still hear the federal common law claims for torts in violation of the law of nations that the Court recognized in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The answer depends on whether Kiobel applied the presumption against extraterritoriality to the ATS itself or to Sosa’s federal common law cause of action.

As a general matter, the presumption against extraterritoriality does not apply to jurisdictional statutes. Putting Kiobel to one side for the moment, I know of only two cases in which the Supreme Court has used the presumption to interpret statutes that might be characterized as jurisdictional. In Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440-41 (1989), the Court applied the presumption to the Foreign Sovereign Immunities Act, and in Smith v. United States, 507 U.S. 197, 203-04 (1993), it applied the presumption to the Federal Tort Claims Act. But both the FSIA and the FTCA codify rules of immunity, which the Court has characterized as substantive, and so neither statute is purely jurisdictional. No one suggests that the presumption against extraterritoriality limits 28 U.S.C. § 1331 (the federal question statute), or 28 U.S.C. § 1332 (the diversity and alienage jurisdiction statute), or 18 U.S.C. § 3231 (the subject matter jurisdiction statute for federal criminal offenses). Yet none of these jurisdictional provisions contain the clear indication of extraterritoriality that would be necessary to rebut the presumption. To take one example, if the presumption against extraterritoriality were applied to 18 U.S.C. § 3231, a federal court would have to dismiss for lack of subject matter jurisdiction a federal prosecution for bombing U.S. government facilities abroad despite the fact that the substantive criminal statute (18 U.S.C. § 2332f) expressly applies when “the offense takes place outside the United States.” That makes no sense, and is not a result that any sensible court would reach.

The Supreme Court’s decision in Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010), confirms the distinction between substantive statutes to which the presumption against extraterritoriality applies and jurisdictional statutes to which it does not. In Morrison, the Court used the presumption to limit a substantive provision of the Securities Exchange Act, finding “no affirmative indication in the Exchange Act that § 10(b) applies extraterritorially.” Id. at 2883. But notably, the Court did not apply the presumption against extraterritoriality to the Exchange Act’s jurisdictional provision. To the contrary, the Court specifically held in Part II of its opinion that “[t]he District Court here had jurisdiction under 15 U.S.C. § 78aa to adjudicate the question whether § 10(b) applies to National’s conduct,” id. at 2877, despite the fact that § 78aa contains no clear indication of extraterritoriality, which would be needed to rebut the presumption if it applied.

Kiobel is consistent with the distinction that courts applying the presumption against extraterritoriality have long drawn between jurisdictional and substantive statutes. “We typically apply the presumption to discern whether an Act of Congress regulating conduct applies abroad,” the Court noted. 133 S. Ct. at 1664 (emphasis added). The ATS was not such a statute; the Sosa Court had held that it was “strictly jurisdictional.” But Sosa also held that the ATS authorized courts to recognize federal common law causes of action for torts in violation of the law of nations, and it was to those causes of action that the Supreme Court applied the presumption in Kiobel. “[W]e think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.” Id. (emphasis added). Thus, after reviewing the text and history of the ATS, the Court concluded “that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.” Id. at 1669 (emphasis added).

To be clear, Continue Reading…

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall University School of Law. This post is written as a comment to Stuart Ford’s guest post, published yesterday.]

Stuart Ford’s article, Complexity and Efficiency at International Criminal Courts, seeks to address the common misperception that international criminal trials are not only expensive, but also inefficient.  Professor Ford’s article focuses principally on the International Criminal Tribunal for the Former Yugoslavia (ICTY), which, in terms of the total number of accused, is the largest international criminal tribunal in history.  Professor Ford seeks to measure whether the ICTY has, in effect, provided good bang for the buck.  He concludes, rightly I believe, that it has.    Although his primary aim is to develop a way for measuring a tribunal’s efficiency, Professor Ford’s article also has important implications for broader debates about the merits of international criminal justice.

Professor Ford defines efficiency as the complexity of a trial divided by its cost.  While trials at the ICTY often have been long and expensive, they have also been relatively efficient given their complexity.   Further, the ICTY preforms relatively well compared to other trials of similar complexity, such as terrorism trials conducted in the United States and Europe, as well as trials that are somewhat less complex, such as the average U.S. death penalty case.   Garden-variety domestic murder trials, which at first blush might appear more efficient than the ICTY,  do not provide a useful point of comparison because they are much more straightforward.

Once complexity is factored in, the ICTY appears comparatively efficient.  Its record is more impressive considering that an often recognized goal of international criminal justice—creating a historical record of mass atrocities—can make the trials slower and less efficient in terms of reaching outcomes for specific defendants.

Professor Ford also finds that the ICTY performed more efficiently than the Special Court for Sierra Leone (SCSL), thus challenging a perceived advantage of such hybrid tribunals over ad hoc tribunals like the ICTY.  His conclusion suggests the need for future research on comparisons among tribunals within the international criminal justice field, which might have implications from an institutional design perspective. Continue Reading…

[Stuart Ford is an Assistant Professor at The John Marshall Law School.]

It is common to see people criticize international tribunals as too slow, too expensive, and inefficient.  Professor Whiting even argues this is now the consensus position among “policymakers, practitioners, and commentators (both academic and popular).”  But are these criticisms accurate?  At least with respect to the International Criminal Tribunal for the former Yugoslavia (ICTY), I believe the answer is no.

Most of those who have criticized the ICTY are implicitly comparing the ICTY to trials in domestic courts.  And indeed, ICTY trials take much longer than the average domestic criminal proceeding.  For example, in 2011 nearly 70% of criminal trials in federal courts in the United States took one day or less to try and there were only 37 trials that lasted more than 20 days.  See here at Table T-2.  In comparison, the average ICTY trial has lasted 176 days.  So, it is true that trials in the U.S. are much quicker than trials at the ICTY, but it is also true that ICTY trials are vastly more complex than the average domestic trial, and we generally expect more complex trials to be more expensive.  As a result, it is misleading to compare the cost and length of the ICTY’s trials to those in other courts without first accounting for the complexity of those trials.

Consequently, I propose a method for measuring trial complexity based on the number of trial days, trial exhibits and trial witnesses needed to complete a trial.  The figure below shows the relative complexity of trials at the ICTY and in the U.S.  As you can see, the average domestic trial barely registers on the chart, and even the Lucchese trial, one of the most complex trials ever conducted in the U.S., is only about half as complex as the ICTY’s most complex trial.  But measuring complexity is just the first step to understanding whether the ICTY is too slow and expensive.

Continue Reading…

Your weekly selection of international law and international relations headlines from around the world:

Africa

• The International Criminal Court  has scrapped a planned February 5 start date for the trial of Kenyan President Uhuru Kenyatta after prosecutors asked for more time to strengthen their case (ICC press release here).
• At least eight people were killed in mob violence in Central African Republic’s capital, Bangui, as senior officers from the Seleka rebel movement fled the city.

Asia

• India and Japan’s talks on nuclear cooperation have gained momentum over the past few months and the two hope for an agreement on civilian nuclear energy soon.
• The head of Japan’s influential public broadcaster has used his first public comments to say that Japan’s World War Two policy of forcing conquered foreign women into sex slavery was “common in any country at war.”
• In Thailand, an anti-government protest leader was killed in Bangkok, shot in the head while speaking during a protest rally.
• The Philippine military has launched a major offensive against a splinter rebel group, two days after negotiations with the country’s main Muslim rebel group to end a decades-long insurgency that has killed tens of thousands successfully ended.
• North Korea’s leader Kim Jong-un has ordered the execution of his uncle’s entire family, including his children and relatives serving as ambassadors to Cuba and Malaysia, according to South Korea’s state news agency, Yonhap.

Americas

• The U.S. military carried out a missile strike in Somalia targeting a suspected militant leader with ties to al Qaeda and al Shabaab.
• The U.S. National Security Agency is involved in industrial espionage and will grab any intelligence it can get its hands on regardless of its value to national security, former NSA contractor Edward Snowden told a German TV network.

Middle East

• Women and children in the besieged districts of the city of Homs can leave “immediately,” the Syrian government has said as peace talks between it and the country’s opposition continues.
• Israeli Prime Minister Benjamin Netanyahu reportedly will insist that Jewish settlers in the West Bank have a right to remain under Palestinian rule in any future peace deal.
• Iraqi government forces battling al Qaeda-linked militants intensified air strikes and artillery fire on the rebel-held city of Falluja.

Europe

• Thousands of people in the Ukrainian capital Kiev have mourned a protester shot dead during clashes, as demonstrations against President Viktor Yanukovich continued despite sweeping concessions offered by the embattled leader.
• In London supporters of a far-right Hungarian politician have been labeled “Nazi scum” as he arrived in the British capital for a rally.
• German Finance Minister Wolfgang Schaeuble dismissed fears that too many immigrants from Romania and Bulgaria were moving to Germany, saying his country had benefited from European Union integration more than any other.

The New York Times reports that  Ilham Tohti, a Uighur economics professor, has been arrested by Chinese authorities for separatism and inciting ethnic hatred.  A number of his students are also seemingly being detained. Tohti is just one person and, perhaps unfortunately for him, his case is emblematic of larger regional tensions in China and Central Asia.

The Uighurs are a Turkic-speaking ethnic group, about 80% of whom live in the southwestern part of the Xianjian Uighur Autonomous Region in Western China.  Xianjiang is a geopolitical crossroads  and is also important for China’s energy policy, with significant oil and natural gas reserves.   Moreover, a Council on Foreign Relations backgrounder on Xianjian and the Uighurs explains that

Xinjiang shares borders with Mongolia, Russia, Kazakhstan, Kyrgyzstan, Tajikistan, Afghanistan, Pakistan, India, and the Tibet Autonomous Region, some of which have minority communities of Uighurs. Because of the Uighurs’ cultural ties to its neighbors, China has been concerned that Central Asian states may back a separatist movement in Xinjiang.

The CFR also gives a précis of the last century:

Since the collapse of the Qing Dynasty in 1912, Xinjiang has enjoyed varying degrees of autonomy. Turkic rebels in Xinjiang declared independence in October 1933 and created the Islamic Republic of East Turkistan (also known as the Republic of Uighuristan or the First East Turkistan Republic). The following year, the Republic of China reabsorbed the region. In 1944, factions within Xinjiang again declared independence, this time under the auspices of the Soviet Union, and created the Second East Turkistan Republic.

In 1949, the Chinese Communist Party took over the territory and declared it a Chinese province. In October 1955, Xinjiang became classified as an “autonomous region” of the People’s Republic of China. The Chinese government in its white paper on Xinjiang says Xinjiang had been an “inseparable part of the unitary multi-ethnic Chinese nation” since the Western Han Dynasty, which ruled from 206 BCE to 24 AD.

And then we come to the story of Ilham Tohti, the economics professor.  The New York Times reports:

A vocal advocate for China’s embattled Uighur minority, Mr. Tohti, 44, was the rare public figure willing to speak to the foreign news media about the Chinese government’s policies in the vast region that borders several Central Asian countries. He was also the target of frequent harassment by the Chinese authorities, especially after he helped establish Uighurbiz.net, a website for news and commentary on Uighur issues.

There has been unrest in China’s west over the past year…

(Continue Reading)

Calls for Papers

• This serves as a reminder that the deadline for submissions for the 2014 Cambridge Journal of International and Comparative Law Conference is fast-approaching. The original deadline has been extended to 29 January 2014. Please also note that the keynote address will be given by Judge Kenneth Keith of the International Court of Justice. For more information, please click here (.pdf).
• Transnational Legal Theory publishes theoretical scholarship that addresses transnational dimensions of law and legal dimensions of transnational fields, regulatory regimes and evolving normative-institutional arenas. The journal is currently accepting submissions for a special symposium issue that addresses the potential and substance of Transnational Criminal Law (TCL), an evolving and still largely under-explored field of law. TCL is at the intersection of domestic, international and comparative criminal law and reaches deep into contemporary debates over conceptions of crime and illegality, social values and regulatory politics. Abstracts outlining the direction of the planned submission are invited by Monday 17 February 2014 and final papers are due by Monday 28 April 2014. Abstracts and/or submissions as well as any inquiries should be directed to tlteditorial [at] hartpub [dot] co [dot] uk or PZumbansen [at] osgoode [dot] yorku [dot] ca. For more information, click here (.doc).

Events

• ASIL has announced an event entitled: “Careers in International Organizations,” scheduled for this Wednesday, January 29, 5:30pm-7:30pm in Washington, D.C. This event will also be livestreamed. Please register/get more info here. A quick description: “Working at an international organization offers unique insight into how international law is made through the convergence of national interests, personal dynamics, global realities, and constantly evolving norms.  But how does a lawyer enter these labyrinths?  What is it like to work in them?  How do you get the assignments that advance your career once inside?  And where do you go from there? Panelists at this event sponsored by ASIL’s New Professionals Interest Group will share the perspectives they have gained from the United Nations, the World Bank, the Organization of American States, and other international organizations, answering these questions and ones posed by the audience. Panelists include: Simone Schwartz-Delgado, United Nations High Commissioner for Refugees; Grace Menck, Inter-American Development Bank; Heidi Jimenez, Pan-American Health Organization; and Steve Koh, ASIL (former attorney at the International Criminal Tribunal for the Former Yugoslavia and International Criminal Court).”
• Students for the Promotion of International Law (SPIL), Mumbai is proud to present its flagship event to you “Reliance Industries Limited presents 5th Government Law College International Law Summit, Government Law College, Mumbai.” SPIL, Mumbai  has endeavored for the past four years to promote International Law among the students and legal fraternity alike through its flagship event, the “International Law Summit”. In line with its past tradition, SPIL, Mumbai will be hosting the “5^thGovernment Law College International Law Summit” with its theme “International Investment Law”,  from 31^st January to 2^nd February, 2014.
• On February 7-8, 2014, the Brigham Young University Law School and the International Committee of the Red Cross (ICRC) will host a Workshop on Teaching International Humanitarian Law (IHL) at BYU Law School in Provo, Utah. The Workshop is targeted at law professors interested in teaching an IHL course for the first time (otherwise known as the Law of Armed Conflict), integrating IHL modules into their current courses and/or rethinking their current teaching of this important subject. Topics covered will include: Building a Course Structure; Integrating IHL into non-IHL Courses; Using Problems, Scenarios and Hot Topics in Teaching IHL; Experiential Learning in IHL Instruction; and Internships, Jobs, and Other Opportunities in IHL. The Workshop provides an opportunity for law faculty to think creatively about teaching IHL, network with others, exchange ideas, and expand teaching of these topics. The cost of the two-day seminar is $250 per person and includes breakfast and lunch both days, dinner the first day, and all workshop materials.  For further information and to register, please click here.

Announcements

• Transnational Dispute Management announces another journal issue: TDM 1 (2014) – Reform of Investor-State Dispute Settlement: In Search of a Roadmap. From TDM:
  “Edited by Jean E. Kalicki (Arnold & Porter LLP and Georgetown University Law Center) and Anna Joubin-Bret (Cabinet Joubin-Bret) this TDM special issue on the “Reform of Investor-State Dispute Settlement: In Search of a Roadmap” has close to 70 papers making it the largest TDM Special Issue to date. The interest in this topic, and the breadth of proposals offered by our contributors, demonstrates both the importance of holding this dialogue and the creativity of astute users and observers of the present system. This Special Issue is particularly timely in light of the European Union public consultation on investor-state dispute settlement and the Transatlantic Trade and Investment Partnership just begun by EU Trade Commissioner Karel De Gucht.”

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

We here at Opinio Juris were saddened to hear of the passing last week of Georgetown Professor Barry Carter.  Our condolences go out to his friends and family. Georgetown Dean William Treanor has a tribute to Barry here.

For my part, I’ve used Barry’s textbook (which he originally authored with Philip Trimble, then Curt Bradley, and now Allen Weiner) ever since I started teaching international law. Despite a heavy U.S. emphasis, it offers a compelling and highly accessible introduction to international law.  I know it’s part of the reason so many students find themselves drawn to a career in international law. In recent months, I’d enjoyed getting to know Barry more as we both served as Advisers to the 4th Restatement on Foreign Relations Law project.  I enjoyed his many comments to that effort and I know his contributions there will be sorely missed.

Readers can leave their own memories and tributes to Barry on a page at Georgetown Law’s website here.

This week on Opinio Juris, Julian discussed the US’ funding (along with the EU and the UK) of a team of investigators gathering war crimes evidence in Syria and why that effort would probably not lead to any prosecutions. Chris pointed out a trend with regard to in cyber(in)security with his post on zero-day exploits, noting that the “money in the market has shifted from rewarding security to incentivizing insecurity.”

Duncan covered the latest breach by the US on its obligations under the Vienna Convention on Consular Relations after Texas executed Edgar Tamayo, a Mexican national, earlier this week; Roger posed the question about whether the presumption against extraterritoriality only apply to the alien tort statute or also to the underlying federal common law claims in the Kiobel decision and Kevin gave us his new e-mail address as he transitions to SOAS in London.

Additionally we’ve featured stellar guest posts: one from Chantal Meloni, analyzing the latest communication to the International Criminal Court about allegations of torture carried out by UK forces against Iraqi detainees from 2004-2008; a piece from Farshad Ghodoosi continuing Duncan’s discussion on the Iranian New Deal, but offering analysis under Iranian law; and a contribution from Adam Steinman, who covered the US Supreme Court’s decision in Daimler AG v. Bauman, an Alien Tort Statute case involving human rights violations by Daimler Argentinian subsidiary during Argentina’s “dirty war” of the 1970s and 1980s.

Finally, I wrapped up the news and listed events and announcements.

Thanks again to our guest contributors and have a nice weekend!

I just completed a draft essay on Kiobel for the Notre Dame Law Review (the symposium will include luminaries such as A.J. Bellia, Doug Cassel, William Castro, Bradford Clark, Bill Dodge, Eugene Kontorovich, Thomas Lee, Michael Ramsey, Ralph Steinhardt, Beth Stephens, and Carlos M. Vázquez). To my surprise after careful reflection there remains an important question that I have not seen discussed anywhere thus far: Does the presumption against extraterritoriality apply to the statute only or also to the underlying federal common law claims recognized in Sosa? If it only applies to the ATS, then does it follow that the underlying federal common law claims can be pursued elsewhere, such as in federal courts exercising diversity jurisdiction or in state courts exercising general jurisdiction?

To test the hypothesis, let’s assume that following Kiobel Congress immediately amended the ATS to make it clear that the statute applied extraterritorially. The amendment made no mention of the underlying common law claims one way or another. What impact would that amendment have on the extraterritorial application of the federal common law claims? If the jurisdictional statute suddenly applied extraterritorially by congressional mandate, would the underlying federal common law claims be cognizable for extraterritorial conduct and injury?

If the answer to that question is yes, then does it also follow that the only extraterritorial limitation that Kiobel recognized was with respect to the statute, not the underlying federal common law claims? Reading Kiobel in light of Sosa presents the following possible syllogism: if (1) there is a limited category of federal common law claims actionable for violations of the law of nations; and (2) the statutory canon limits the extraterritorial reach of the ATS, not the underlying common law claims; then (3) the common law claims may be pursued in federal courts exercising diversity jurisdiction or state courts exercising general jurisdiction.

The first uncontroversial premise is that the ATS does not create a cause of action for violations of the law of nations, the common law does. In Sosa the Court held that the ATS, although only a jurisdictional statute, was “enacted on the understanding that that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability….” It then held that “no development in the two centuries from the enactment of § 1350 … has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law. Congress has not in any relevant way amended § 1350 or limited civil common law power by another statute.” For such a common law claim to be actionable, however, it must be “based on the present-day law of nations” and “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” The Court in Kiobel reinforced this understanding of a “modest number” of “federal common law claims” actionable for violations of the law of nations. In other words, both Sosa and Kiobel confirm that the ATS is not the source or the limit for common law claims involving international law violations.

The second more controversial premise is that the ATS is a jurisdictional statute and that the presumption against extraterritoriality applies only to the statute, not to the underlying federal common law claims. In Kiobel the Court declared that “the presumption against extraterritoriality constrains courts exercising power under the ATS.” That presumption, the Court said, is “a canon of statutory interpretation” that assumes “when a statute has no clear indication of an extraterritorial application, it has none.” The purpose of the canon is to avoid unintended clashes between our laws and those of other nations by requiring Congress to manifest a clear intent to regulate conduct abroad. Although the ATS “does not directly regulate conduct or afford relief” the Court concluded that “we think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.” The Court then looked to the text, history and purpose of the ATS to determine whether Congress intended for the ATS to apply abroad, and found “nothing in the statute to rebut the presumption.” Had there been such evidence, the jurisdictional statute would apply extraterritorially without altering the content or reach of the underlying common law claims. Likewise, as noted above, should Congress amend the ATS so that it applies extraterritorially, this too would not alter the content or reach of the underlying common law claims. Thus, the presumption against extraterritoriality applies to limit Congress’ grant of jurisdictional authority to adjudicate federal common law claims for violations of the law of nations.

The surprising conclusion one draws from these two premises is that federal common law claims actionable for violations of the law of nations still may be pursued in federal courts exercising foreign diversity jurisdiction or state courts exercising general jurisdiction. As for the former, foreign diversity jurisdiction pursuant to 28 U.S.C. § 1332 requires a $75,000 amount in controversy and the inclusion of a U.S. citizen either as a plaintiff or defendant. The typical “foreign-cubed” facts pursued in ATS claims would be foreclosed under this grant of jurisdiction. However, where a U.S. citizen is involved in a diversity action, the federal common law claims recognized in Sosa may survive Kiobel’s presumption against extraterritoriality. The presumption against extraterritoriality will apply to the diversity jurisdiction statute as well, but as Anthony Bellia and Bradford Clark argue in their forthcoming essay “[i]t is uncontroversial that federal courts may exercise foreign diversity jurisdiction over tort claims by aliens against U.S. citizens for acts occurring outside the United States.”

This conclusion also means that state courts sitting as courts of general jurisdiction may resolve the federal common law claims recognized in Sosa. Unless one interprets the presumption against extraterritoriality articulated in Kiobel as limiting the underlying common law claims rather than the jurisdictional statute, the international law claims that heretofore were pursued in federal court under the ATS still could be pursued in state court as federal common law claims. There is nothing unusual in suggesting that federal common law claims may be adjudicated in state courts. State courts routinely apply and make federal common law, including claims involving admiralty and implicating the rights and obligations of the United States.

But let’s assume that this syllogism is wrong. If the Court’s application of the presumption against extraterritoriality applies both to the ATS and the underlying federal common law claims, there remains the possibility that state courts could fashion state common law claims based on the criteria established in Sosa. State law routinely mirrors comparable federal law. There is nothing in Sosa or Kiobel that prevents a state court from recognizing a state cause of action for violations of “a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms,” such as piracy, violations of safe conducts, or offenses against ambassadors. Courts applying the common law already have established gradations of torts that embrace negligence, gross negligence, intentional torts and strict liability. There is no logical reason that an international law violation could not be a state common law cause of action, or at a minimum a critical factor in the determination of liability or damages under state law.

To suggest that the statutory presumption against extraterritoriality does not apply to federal common law claims (or similar state common law claims) is not to suggest the absence of territorial limits. As with the extraterritorial application of state laws, the constitutional limits of the Due Process Clause set forth in Allstate Ins. Co. v. Hague prevent state courts from applying common law claims in the absence of any “significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction.” Nor is there any reason to think courts resolving common law claims for international law violations would go so far as to violate international limits of prescriptive jurisdiction. Both constitutional and international law impose obligations of a territorial nexus separate and apart from the statutory presumption against extraterritoriality. The territorial limits of common law claims for international law violations are derived from constitutional and international law, not canons of statutory interpretation.

I’m not convinced that all of this reasoning is correct, and even less convinced that lower courts will buy these arguments. But I thought it was important enough to flag for our readers.

[Adam N. Steinman is Professor of Law and Michael J. Zimmer Fellow at Seton Hall University School of Law. This contribution is cross-posted at Civil Procedure & Federal Courts Blog.]

Last week the Supreme Court issued its decision in Daimler AG v. Bauman, a case covered earlier here and here and here. In many ways, the case resembles Kiobel v. Royal Dutch Petroleum, last Term’s decision on the Alien Tort Statute (ATS). The Daimler plaintiffs had brought claims under the ATS against Daimler—a German company headquartered in Stuttgart—for human rights and other violations committed by Daimler’s Argentinian subsidiary during the “dirty war” of the 1970s and 1980s. The Supreme Court’s decision in Daimler, however, is all about personal jurisdiction, and it is not limited to the ATS context.

The Ninth Circuit had held that Daimler was subject to general personal jurisdiction in California based on the activities of its American subsidiary, MBUSA. Because it involves general jurisdiction, Daimler is an important follow-up to the Court’s 2011 decision in Goodyear Dunlop v. Brown. Writing for a unanimous Court in Goodyear, Justice Ginsburg explained that general jurisdiction over corporations is proper “when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.”

In Daimler, all nine Justices conclude that it would be unconstitutional for California to exercise general jurisdiction over Daimler. Justice Ginsburg again writes for the Court, although Justice Sotomayor writes a separate concurrence that disagrees with much of Justice Ginsburg’s reasoning. Parts of the decision—and some of the areas of disagreement—are harder than usual to follow because the parties either conceded or forfeited a number of potentially important points during the course of the litigation [See p.15]. That said, the most significant parts of the Daimler decision address three issues:

(1) When can a subsidiary’s activities in the forum state be attributed to the parent for purposes of general jurisdiction?

(2) More generally, when is a corporation subject to general jurisdiction under the Goodyear standard?

(3) What role (if any) do the so-called “reasonableness” factors play in the general jurisdiction context?

The majority opinion does not provide much affirmative guidance on the first question, although Justice Ginsburg rejects the Ninth Circuit’s approach. The Ninth Circuit had attributed MBUSA’s contacts to Daimler using an “agency theory,” which “rested primarily” on the premise that “MBUSA’s services were ‘important’ to Daimler, as gauged by Daimler’s hypothetical readiness to perform those services itself if MBUSA did not exist.” [p.17] Justice Ginsburg reasons that this view “stacks the deck, for it will always yield a pro-jurisdiction answer.” [p.17]. Nor—on these facts—could attribution be based on Daimler’s “control” over MBUSA. According to the Ninth Circuit, Continue Reading…

News out of Texas today that it executed Edgar Tamayo, a Mexican national, for killing a police officer, Guy Gaddis.  Tamayo was one of the nationals Mexico named in the Avena case.  Thus, he fell within the scope of the ICJ’s order that the United States provide ‘review and reconsideration’ of the conviction and sentence of named Mexican nationals in light of the U.S. failure to provide a right to consular access within a reasonable time of their arrest pursuant to the Vienna Convention on Consular Relations (VCCR).  Thus, whatever Texas’ interests in ensuring justice was served on someone who killed a police officer, the execution is a clear violation of U.S. obligations under the ICJ Statute (Art. 59), the UN Charter (Art. 94), and, of course, the VCCR itself (Art. 36), given US adherence at the time to the VCCR’s Optional Protocol.

This marks (I believe) the third Mexican national Texas has executed since the ICJ issued its decision in Avena, and since the U.S. Supreme Court declared in Medellin that the US treaty obligations in question are non-self executing, meaning that as a matter of U.S. constitutional law, the Executive is powerless to stop Texas absent further implementation of the VCCR (or other treaties) by federal legislation.  The prospects of Congressional action to implement Avena, however, seem pretty dim at this point.

So, what happens now? Will Mexico continue to treat each new execution with the same weight as it has previously?  There are still dozens of Mexican nationals to whom the Avena decision had purported to offer relief. I also wonder if the State Department will maintain the same level of lobbying against these executions or if its statements will become more a matter of lip service?  I’d note, for example, the extent of federal lobbying seems to be lessening over time — compare Kerry’s comments on Tamayo’s case with the 2008 efforts by the White House, State, and Justice Department to delay Mr. Medellin’s execution).  In other words, will the regularity with which these executions (and the arguments surrounding them) seem destined to occur diminish their visibility for either the States themselves or their nationals?  Is Mexico’s claim against the United States strengthened or weakened by the United States’ continued inability (or some might say unwillingness) to comply with its international obligations?  As a formal matter, one would have to insist that Mexico has more to complain about with each execution.  But, on a more practical level, I’d argue Mexico’s chances for relief are likely to diminish the more the international community comes to expect continued U.S. non-compliance with the Avena judgment.  That may not be the right result, but I’m thinking it’s the most likely one. What do readers think?  Am I missing something?

All Things Considered ran an interview this past Monday with Alex Fowler, the chief privacy officer of Mozilla (developer of the Firefox web browser), stemming from a blog post Fowler had written critiquing President Obama’s speech last week concerning NSA activities. When asked about the “most glaring reform needs” that were not addressed in the President’s speech, Fowler said:

right now, we have a policy approach in Washington which is focused on not closing security holes but actually [on] hoarding information about security backdoors and holes in our public security standards and using those then to exploit them for intelligence needs. In our perspective, and I think certainly those of your listeners – as you think about the news related to Target data breaches and breaches with Snapchat and other common tools that we use every day – that what we really need is to actually focus on securing those communications platforms so that we can rely on them. And that we know that they are essentially protecting the communications that we’re engaged with.

This relates to the market for so-called “zero-day exploits,”  where the U.S. government pays hackers for information about holes in software security that its intelligence and law enforcement agencies can then use for surveillance. (The market for zero-day exploits is described in greater detail in this previous post.) The U.S. also pays the sellers of these exploits to keep the holes secret, not even warning the company that has the security hole, so that the exploit may remain useful to the U.S. government for as long as possible. Unfortunately, this also means it will remain open for criminal hackers who have also discovered the hole.

The injection of U.S. government funds has transformed a formerly loose, reputation-based, market into a lucrative global bazaar with governments driving up prices and the formation of firms with business models based on finding and selling exploits to the U.S. and other governments. Although cash-rich companies like Microsoft are responding by trying to out-bid state actors for information about zero day exploits in their own products, the money in the market has shifted from rewarding security into incentivizing insecurity…

(Continue Reading)

Jess Bravin has an interesting report out in Thursday’s WSJ (subscrip. req’d)  detailing U.S., UK, and EU support (and funding) for a team of investigators to gather evidence of war crimes by Syrian government and military officials.

For nearly two years, dozens of investigators funded by the U.S. and its allies have been infiltrating Syria to collect evidence of suspected war crimes, sometimes risking their lives to back up promises by Western leaders to hold the guilty accountable.

As Bravin notes, the U.S. government has issued several high profile statements warning that any war crimes committed in Syria would be punished and Syrian government officials and army commanders would be held accountable.  Gathering this evidence fulfills part of this pledge to hold war criminals accountable.

What is sad about this exercise, however, is that there is little evidence that the threat of eventual criminal prosecution (issued back in 2011 by Hillary Clinton) has deterred the commission of serious atrocities by the Syrian government.  The WSJ report suggest that the evidence being gathered is growing at depressingly fast rates (and this NYT report adds more horrific detail). Frankly, the threat of prosecution is either not credible, or less threatening to the Syrian army and government leaders than defeat in this increasingly desperate civil war.  (Professor Jide Nzelibe and I predicted this pattern of behavior by desperate dictators long ago in this article).

Moreover, as Bravin also notes, several diplomats have suggested that amnesty for some or all of the Syrian government’s leaders would have to be considered for any successful peace deal.  Since the U.S. military option to remove the current government is off the table, and since the civil war seems headed for a stalemate, it would be irresponsible of the U.S. to demand full accountability for war crimes as a condition of any peace deal.  To do so might just lead to more atrocities, and still no punishment.

Which means that there is not much chance that the evidence gathered by these brave and dedicated individuals described by Bravin will ever be used in a criminal prosecution.  Sure, it will be leverage during peace talks, but not much more than that.

Posting has been a bit light lately and will continue to be light for a while, because I am in the process of relocating to London. If you would like to contact me, please use my new SOAS email address: kh33 [at] soas [dot] ac [dot] uk. I am not sure how long I will be able to get emails at my Melbourne address.

[Farshad Ghodoosi is a JSD candidate at Yale Law School.]

In continuation of the discussion about the New Iranian Deal started by Duncan Hollis, I decided to take a stab at clarifying the Iranian side of the story.  The new deal, the so-called Geneva Agreement (24 Nov. 2013) and the ensuing implementation agreement (that took effect on Jan 20^th, 2014), between Iran and the 5 plus 1 group seems to be more than a joint plan of action. Practically, it attenuates some of the bites of the previous Security Council Resolutions on the Iran Nuclear Program and will create tit-for-tat commitments on both sides. Whether the agreements reached thus far create binding obligations under international law is beyond the scope of this piece and requires further details on the recent –yet unpublished – implementation agreement. However, the drafters of the agreement of Nov. 24^th deftly avoided the term “agreement” and instead employed the term “comprehensive solution”.

This choice of term might have been to avoid the formalities of treaty law internationally but also domestically vis-à-vis Iran.  Naming might make a difference under Iranian Law. Generally speaking, the Iranian Constitution seeds skepticism towards international agreements and contracts in the present Iranian legal system. Article 77 declares, “international protocols, treaties, contracts and agreements should be ratified by the Islamic Consultative Assembly (Majlis)”. The Article is very broad and all encompassing. Those hardliners unhappy about the deal in Iran’s parliament are pressing on implementing this article, stating that the agreement needs to be ratified domestically, otherwise it is void of effects. On the other hand, supporters in parliament categorize it as a “preliminary agreement” not requiring parliament approval.

I believe a preliminary agreement is still an agreement and is subject to Article 77 of the Iranian Constitution. If I were in the shoes of the supporters of the deal in the Parliament, I would emphasize the word “comprehensive solution” as it is reflected in the text. The term “comprehensive solution” is not listed in the Article 77 of the Iranian Constitution and therefore would arguably not need parliament approval.

Another hurdle for international agreements is Article 125 of the Iranian Constitution. This Article stipulates that “signing international treaties, protocols, agreements and contracts of the Iranian states with other states and also signing conventions pertaining to international organizations, subsequent to Islamic Consultative Assembly approval, is vested in the President or his legal representative.” The Council of Guardians, the body responsible for interpreting the Constitution, restricts this Article to instances where the international instrument contains “an obligation” or “a contract” (decision March 13, 1983). It handed down its decision in a situation where “a letter of intent” for cooperation was signed between Iran and India while there were doubts whether parliament had to approve it.

Despite the language in the Iranian Constitution, I believe, it is not certain that Articles 77 and 125 make the Iranian legal system a dualist system. In dualist systems, international instruments are devoid of any status in domestic law until ratified through the legislative process. I posit that the matter should be clear in the language of the Constitution. Under Article 77, however, the sanction for non-compliance with the provision is unclear. It does not mention whether non-compliance renders the international agreements ineffectual, or makes them of lower status (similar to regulations) in relation to other domestic laws. Alternatively, it could be simply a ground for impeachment or question from the President. Article 125 also seems only to vest the signing authority on the President to render the international instruments official, and not necessarily dictate their binding nature.  It might sound like a long shot, but I believe, notwithstanding the requirement of parliamentary approval, international agreements could still be invoked and enforced in Iranian domestic law—at least as a contractual agreement between parties. This interpretation makes international agreements and contracts with Iran, most of which are not ratified by parliament, valid and effective under Iranian Law.

I would like to end this post with a separate comment — the absence of any dispute resolution mechanism in the deal. It is indeed not a very smart idea to omit any form of dispute resolution mechanisms. Considering the lack of trust and the history of contention between both sides (especially Iran and the US), any minor disagreement might lead to dismantling the entire agreement and the new rapprochement (as was apparently close to happening in the implementation the Joint Action Plan). There are several potential reasons parties avoided incorporating any dispute resolution mechanism. First and foremost, they probably disliked the idea of handing over such a highly political matter to a judicial body of any sort. Another potential reason was to avoid making the agreement seem like a treaty subject to international law or otherwise a binding instrument. Nonetheless, I believe disagreements over implementing the agreement could have been vested to an arbitral body or a mediation panel at least in an advisory capacity.

Your weekly selection of international law and international relations headlines from around the world:

Africa

• A senior UN official has given warning of the risk of genocide in the Central African Republic without a more robust international response to communal bloodshed in which at least eight more people have died. The EU is expected to send troops to help stabilize the situation.
• The UN has said it has evidence of the use of child soldiers and mass war crimes committed by both sides in South Sudan’s civil war. More from Jurist here.
• South Sudanese government forces said they seized the flashpoint town of Bor back from rebels and Uganda’s army claimed credit for the operation, highlighting the depth of its involvement in the conflict.

Asia

• North Korea has called on South Korea to end “all acts of provocation and slander,” after it warned of “an unimaginable holocaust” if the South carried out military exercises with the United States.
• Myanmar authorities have denied any civilian deaths but confirmed a clash took place after a rights group reported several people including women and a child have been killed in an attack on Rohingya Muslims in western Myanmar.

Americas

• The United States has implanted devices in nearly 100,000 computers to spy on institutions such as the Chinese and Russian military, EU trade groups and agencies within Saudi Arabia, India and Pakistan.
• Afghan President Hamid Karzai has accused the United States of killing seven children and one woman in an airstrike, an incident set to further damage frayed ties between the two allies.

Middle East

• Inspectors from the IAEA arrived in Tehran to oversee implementation of a landmark deal between Iran and six world powers that puts temporary curbs on Iran’s nuclear program.
• An Iranian diplomat was killed in Yemen’s capital Sanaa when he resisted gunmen who were trying to kidnap him near the ambassador’s residence.
• Syria’s main political opposition group in exile agreed to attend internationally sponsored peace talks, and said for the first time three rebel fighting forces also wanted to take part.

Europe

• The trial in absentia of four Hezbollah members accused of murdering former Lebanese Prime Minister Rafik Hariri in 2005 has begun at the Special Tribunal for Lebanon in The Hague.
• Russian President Vladimir Putin has said gays should feel welcome at the upcoming Winter Olympic Games in Sochi, but they must “leave the children in peace”.
• An Islamist group from Russia’s north caucasus has threatened to attack the Sochi winter Olympics in a video published online.

[Dr. Chantal Meloni teaches international criminal law at the University of Milan is an Alexander von Humboldt Scholar at Humboldt University of Berlin.]

1. A new complaint (technically a Communication under art. 15 of the Rome Statute) has been lodged on the 10^th of January to the Intentional Criminal Court, requesting the Prosecutor to open an investigation into the denounced abuses committed by UK military forces against Iraqi detainees from 2003 to 2008.

The complaint has been presented by the British Public Interest Lawyers (PIL), representing more than 400 Iraqi victims, jointly with the Berlin-based European Centre for Constitutional and Human Rights (ECCHR).

The lawyers’ allegation is that grave mistreatments, including torture and other degrading abuse techniques, were commonly used during the six years in which the UK and Multinational Forces operated in Iraq.

According to the victims’ account the mistreatment was so serious, widespread and spanned across all stages of detention as to amount to “systemic torture”. Out of hundreds of allegations, the lawyers focused in particular and in depth on eighty-five cases to represent the mistreatment and abuses inflicted, which would clearly amount to war crimes.

2. This is not the first time that the behaviour of the UK military forces in Iraq is challenged before the ICC. In fact, hundreds of complaints have been brought on various grounds both to domestic courts and to the ICC since the beginning of the war. As for the ICC, after the initial opening of a preliminary examination, following to over 404 communications by Iraqi victims, in 2006 the ICC Prosecutor issued a first decision determining not to open an investigation in the UK responsibilities in Iraq. According to that decision, although there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhumane treatment, the gravity threshold was not met. Indeed the number of victims that had been taken into account at that time was very limited, totalling in all less than 20 persons, so that the Prosecutor found that the ‘quantitative criteria’, a key consideration of the ICC prosecutorial strategy when assessing the gravity threshold, was not fulfilled.

Therefore, what is there new that in the view of the lawyers warranted the re-proposition of such a request? In the first place it shall be noted in this regard that during the eight years that passed since then many more abuse allegations have emerged (see the Complaint, p. 110 ff.). Most notably, hundreds of torture and mistreatment allegations show a pattern – spanning across time, technique and location – which would indicate the existence of a (criminal) policy adopted by the UK military forces when dealing with the interrogation of Iraqi detainees under their custody.

In the words of the lawyers, “it was not the result of personal misconduct on the part of a few individual soldiers, but rather, constituted widespread and systematic mistreatment perpetrated by the UK forces as a whole”. Continue Reading…

Calls for Papers

• The European Society of International Law’s IEL group is holding a workshop on Sept 3, 2014 in Vienna. Their Call for Papers can be found here. Please note the 1st March deadline to submit proposals.
• The Organizing Committee of the 2014 Society of Legal Scholars’ PhD Conference, to be held at the University of Nottingham on 8th of September, 2014, are inviting the submission of abstracts. This year’s theme is ‘Judging in the Twenty-First Century’. Details of the event, the call for papers and how to submit an abstract can be found here.

Events

• Cardozo School of Law, the Center for Global Communication Studies at the Annenberg School for Communication at the University of Pennsylvania and the Price Media Law Moot Court Competition present an event: Snowden, Surveillance and the Pentagon Papers, on January 23, 2014 at the Cardozo School of Law in New York. More information can be found here; RSVP to cjones [at] yu [dot] edu

Announcements

• UNIDROIT has announced a vacancy for a Legal Officer. Applications are due no later than 10 March 2014.

Last week’s events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us.

In the past fortnight on Opinio Juris, Kevin wasn’t convinced by the Muslim Brotherhood’s argument that can accept the ICC’s jurisdiction on an ad hoc basis because it is still Egypt’s legitimate government. He also discussed the OTP’s motion to challenge Rule 134quater and the Trial Chamber’s decision to conditionally excuse Ruto from continuously attending his trial in The Hague.

Julian gave the US State Department an “F” over its handling of the visa fraud allegations against India’s Deputy Consul-General in New York. Julian was also doubtful about a recommendation for the US to accede to UNCLOS as a way to assert leadership and push back China’s claims in the East and South China Seas.

In two guest posts, Lorenzo Kamel compared the EU’s approach to Israel’s occupation of the Palestinian Territories with its approach to Northern Cyprus and Western Sahara. Further on Israel and Palestine, Eliav Lieblich discussed a recent court hearing in which Israel is trying to revive maritime prize law against a Finnish ship intercepted when it tried to breach the Gaza blockade.

We engaged in cross-blog dialogues with Kevin’s thoughts on Manuel Ventura’s critique of specific direction over at Spreading the Jam, and a discussion with EJIL:Talk! of the European Court of Human Rights’ decision in Jones v. UK, discussed on our end by Bill Dodge and Chimène Keitner.

In other posts, Duncan asked whether the interim agreement over Iran’s nuclear program was a secret treaty, Kristen shared reflections on UN law making, Deborah discussed the inaccuracy of attaching the “al-Qaeda” label too liberally and the political consequences of attaching such a label, and Peter pointed out a key provision on Obama’s NSA reforms (policy directive) allowing foreigners as well as Americans data protection with regard to bulk surveillance data.

If you want more to read, you can check out the AJIL Agora on Kiobel, mentioned by Julian, or read the new blog Global Military Justice Reform to which Deborah drew our attention.

Finally, I wrapped up the news (1, 2) and listed events and announcements (1, 2).

Have a nice weekend!

From the third paragraph of President Obama’s implementation of surveillance reforms (Presidential Policy Directive/PPD-28).

[O]ur signals intelligence activities must take into account that all persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and that all persons have legitimate privacy interests in the handling of their personal information.

The primary operative provision of the directive, section 2, adopts limitations on bulk surveillance data that “are intended to protect the privacy and civil liberties of all persons, whatever their nationality and regardless of where they might reside.” Likewise for section 4 and the safeguarding of personal information. (Protections for non-citizens are much more prominent in the operative instrument than in Obama’s Justice Department speech today, which unsurprisingly played to domestic politics more than international sensitivities, though it is there, too.) 

So Obama bought into a key Review Group recommendation. Whether or not one thinks the overall policy will suffice to rein in the NSA (a mixed verdict, at best), the fact that it applies to citizens and non-citizens alike strikes me as a pretty big deal – can’t think of an obvious precedent. As the biggest player on the global landscape, it will certainly contribute to the crystallization of an international right to privacy.

It also reduces the importance of the Supreme Court’s 1990 ruling in Verdugo-Urquidez, which found non-US citizens outside the United States to enjoy no Fourth Amendment rights (and which no doubt supplied the key legal authority for NSA programs aimed at foreigners). That doctrine becomes less consequential as the net supplied by other sources of law rises below rights located in the Constitution. The absence of constitutional rights no longer translates into no rights. This is another front on which sovereigntist victories in the Supreme Court will be hollowed out over the long run by forces beyond its control. 

The decision was given orally, and no written decision is available yet. But here is what The Standard‘s online platform is reporting:

The International Criminal Court has conditionally excused Deputy President William Ruto from continuos presence at trial but with some conditions.

The judges outlined nine conditions during the Wednesday ruling. ICC Presiding Judge Eboe-Osuji in the oral ruling said: “The Chamber hereby conditionally excuses Mr Ruto from continuous presence at trial on the following conditions: As indicated in the new rule 134, a waiver must be filed. That’s one condition. The further conditions are these: in the case, two, when victims present their views and concerns in person, three, the entirety of the delivery of the judgement in the  case, four, the entirety of the sentencing hearing, if  applicable, five, the entirety of the sentencing, if applicable, six, the entirety of the victim impact hearings, if applicable, seven, the entirety of the reparation hearings, if applicable, seven, the first five days of  hearing starting after a judicial recess as set out in regulation 19 B I S of the regulations of the Court, and nine, any other attendance directed by the Chamber either/or other request of a party or participant as decided by the Chamber. The Chamber considers that the attendance of Mr Ruto pursuant to the requirement indicated in condition number  eight, being attendance and first five days of hearing  starting after a judicial recess, will require him to be present for today’s hearing and the next — sorry — starting  tomorrow and the next five days. However, in view of the need for Mr Ruto to deputise for the president of the Republic of Kenya during his absence from the country from the 16 of January 2014, Mr Ruto is excused from presence at  trial on the 16th and the 17th of January 2014. Mr Ruto shall, however, be present for the remainder of  the period indicated under condition number eight”.

Kenya shouldn’t get too excited about the Trial Chamber’s ruling. Remember: the Appeals Chamber reversed the Trial Chamber’s previous decision concerning Ruto’s presence and articulated a very different, and much narrower, interpretation of Art. 63(1) of the Rome Statute. The OTP was never going to win at the trial level; the Appeals Chamber is much more likely to take seriously the differences between Rule 134quater and the multi-part test it previously articulated and to consider whether the Rule is ultra vires.

We shall see.

NOTE: For more on the ruling, please see Alexander’s comment to my previous post. He raises the spectre — skeptically, to be sure — of the Trial Chamber refusing to grant leave to appeal. I agree that’s unlikely, but even the possibility foregrounds the irrationality of permitting a Trial Chamber to decide whether a party can appeal the Trial Chamber’s own adverse decision. Trial Chambers have routinely abused that power, particularly in the context of the legal recharacterization of facts under Regulation 55. I discuss a number of such instances in this essay.

The American Journal of International Law has posted electronic excerpts from its “Agora: Reflections on Kiobel”, which will be published in its next issue.  As a contributor to the AJIL Agora myself, I was fascinated to see the different takes that everyone had on the decision.  For the most part, contributors seem to read Kiobel the same way: as sharply cutting back or even eliminating the vast majority of Alien Tort Statute claims that are based on overseas conduct.  In general, the Agora seems to signify that the international legal academy is ready to move on from the ATS: to other jurisdictions like the Netherlands or Europe, to new statutory amendments to the ATS, to other non-litigation based mechanisms, or perhaps to state courts in the U.S.

As for my contribution, I was more interested in taking apart Kiobel’s resounding, unanimous, and surprising rejection of universal civil jurisdiction under the ATS.  I am in partial sympathy with the take of Professor David Moore, another Agora contributor who is more focused on US domestic law aspects of the ATS.  I think scholars and advocates have underestimated the importance of plain-vanilla separation of powers concerns in leading to the Court’s refusal to read the ATS as granting universal jurisdiction to federal courts.  Here is the opening from my essay (and make sure you check out the whole Agora):

The U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. has not ended future debate about the scope and impact of the Alien Tort Statute (ATS).2 But the Kiobel Court did resolve at least one issue with surprising unanimity: both the opinion for the Court by Chief Justice John Roberts and the main concurring opinion by Justice Stephen Breyer refused to interpret the ATS as authorizing universal jurisdiction. All nine justices rejected decades of lower-court precedent and widespread scholarly opinion when they held that the ATS excluded cases involving purely extraterritorial conduct, even if the alleged conduct constituted acts that are universally proscribed under international law.

In this short essay, I argue that the surprising death of universal jurisdiction reflects the triumph of the “separation of powers” critique of the ATS, which casts a skeptical eye on giving federal courts an independent role in the administration of both ATS lawsuits and cases involving international law more generally. I argue that this separation of powers critique of the ATS, which has found relatively little academic support, is a crucial reason why the Court unanimously rejected universal jurisdiction in Kiobel and why the Court may further restrict the ATS in future cases.

A subcommittee of the  U.S. House of Representatives’ Foreign Affairs Committee held a much-needed hearing to educate themselves on China’s recent activity in the East and South China Seas.  Professor Peter Dutton of the Naval War College, along with two other experts on Asian affairs, gave interesting and useful testimony on the nature of China’s maritime disputes with Japan, the Philippines, Vietnam, and other Asian countries.

There is a lot of interesting stuff here, but my attention was particularly caught by Professor Dutton’s recommendation (seconded by Bonnie Glaeser of the Center for Strategic and International Studies) that the U.S. ratify the UN Convention on the Law of the Sea (UNCLOS) as part of a multifaceted strategy to manage China’s sort-of-aggressive strategy to expand its power and influence in the region.  Here is Professor Dutton’s argument:

Accordingly, to ensure its future position in East Asia, the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. Acceding to the United Nations Convention on the Law of the Sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also re-energize its Limits in the Seas series to publicly and repeatedly reinforce international law related to sea and airspace. A good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s U-shaped line in the South China Sea as the basis for Chinese jurisdiction there. Others could be written to describe why China’s East China Sea continental shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.

I understand the force of this argument. The U.S. already adheres the key principles in UNCLOS, so joining UNCLOS will allow the U.S. to push back more effectively against China’s aggressive and expansionary activities.

But is there really any evidence that formal accession would change China’s view of the U.S. position on UNCLOS issues?  China is already a member of UNCLOS and other countries (like Japan and the Philippines) are also members of UNCLOS. But I don’t think UNCLOS has really bolstered their effectiveness in pushing back against China.  Moreover, as Professor Dutton explains, China has a radically different interpretation of its authority to regulate foreign ships and aircraft in its Exclusive Economic Zone under UNCLOS.  How will joining UNCLOS help the U.S. change China’s interpretation of UNCLOS?

As a practical matter, UNCLOS does have a way of compelling member states to conform their interpretations: mandatory dispute settlement in the International Tribunal for the Law of the Sea or in Annex VII arbitration.  But as China and Russia have demonstrated in recent years, these mechanisms are not likely to be a serious constraint, especially on questions that touch sovereignty (which is how China frames most of its activities).  I suppose if the U.S. joins UNCLOS, and subjects itself to UNCLOS dispute settlement, that might make a difference.  But I don’t think it would be a very large one (after all, Japan, China, and the Philippines are all already subject to UNCLOS dispute settlement, which has accomplished little so far).

I should add that the U.S. joining UNCLOS is hardly the most prominent of Professor Dutton’s recommendations.  His (and his co-panelists) had lots of good strategic policy recommendations.  I think the law may be important here, but I am skeptical that it will be as effective as he (and many analysts) are hoping.

[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.]

The judgment issued by the Fourth Section of the European Court of Human Rights represents the latest installment in an ongoing conversation about the immunity ratione materiae of individuals accused of abusing their authority to commit serious violations of international law. As Philippa Webb has noted over at EJIL Talk!, the Chamber found the U.K. House of Lords’s analysis of the relationship between State immunity and foreign official immunity sufficiently persuasive to conclude that, despite patchy precedents and evolving trends, “[t]he findings of the House of Lords [in Jones v. Saudi Arabia] were neither manifestly erroneous nor arbitrary” (para. 214). My colleague William Dodge has blogged here about flaws in the Chamber’s reading of national case law, which repeats errors made by the House of Lords that I have discussed here and here. These critiques amplify those enumerated by Judge Kalaydjieva in her dissenting opinion.

Although Philippa’s point about the Chamber’s “re-integration” of State and official immunity certainly holds true in the context of civil proceedings (based on the Chamber’s acceptance of the argument that any civil suit against an individual for acts committed with state authority indirectly—and impermissibly—“implead” the State), the Chamber seems to have accepted Lord Bingham’s assertion (cited in Jones para. 32) that because “[a] State is not criminally responsible in international or English law, [it] therefore cannot be directly impleaded in criminal proceedings.” This excessively formalistic (and in some legal systems untenable) distinction led the Chamber to accept the proposition that, absent civil immunity for foreign officials, “State immunity could always be circumvented by suing named officials” (para. 202). Yet domestic legal systems have long found ways of dealing with this problem, for example by identifying whether the relief would run against the individual personally or against the state as the “real party in interest” (as the U.S. Supreme Court noted in Samantar).

As Lord Phillips of Worth Matravers, who participated in the House of Lords’s decision in Pinochet (No. 3) and in the Court of Appeal’s decision in Jones v. Saudi Arabia, wrote in his concurrence in the Court of Appeal (at para. 128): “the argument [that the state is indirectly impleaded by criminal proceedings, which was rejected in Pinochet] does not run in relation to civil proceedings either. If civil proceedings are brought against individuals for acts of torture in circumstances where the state is immune from suit ratione personae, there can be no suggestion that the state is vicariously liable. Continue Reading…

We are happy to announce that Opinio Juris and EJIL:Talk! will be providing reactions to the European Court of Human Rights decision in Jones v. United Kingdom over the coming days. The critical question in Jones was whether Saudi Arabia and Saudi officials enjoyed immunity from suit for allegations of torture. The Court denied petitioners claims, holding that “The weight of authority at international and national level therefore appears to support the proposition that State immunity in principle offers individual employees or officers of a foreign State protection in respect of acts undertaken on behalf of the State under the same cloak as protects the State itself.” (Para. 204).

Here at Opinio Juris, Chimène Keitner, Bill Dodge (both at the University of California, Hastings College of Law) and Ingrid Wuerth (Vanderbilt) will provide commentary. Over at EJIL:Talk! Lorna McGregor (Essex University), who worked on the case while she was Legal Adviser at Redress (an NGO that helps torture survivors), and Philippa Webb (Kings College London) will discuss the case from across the pond. They all have written influential pieces on the relationship between immunity and human rights.

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on a variety of immunities matters. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

In Jones v. United Kingdom, a chamber of the European Court of Human Rights (ECtHR) held that the United Kingdom did not violate Article 6 of the European Convention on Human Rights, which guarantees a right of access to court, by dismissing civil suits alleging torture on grounds of immunity. Jones and others sued the Kingdom of Saudi Arabia and some of its officials in UK courts alleging torture in violation of international law. In 2006, the House of Lords held that both Saudi Arabia and its officials were immune from suit under the UK’s State Immunity Act.

The ECtHR’s decision with respect to Saudi Arabia is not remarkable. In Al-Adsani v. United Kingdom, the Grand Chamber of the ECtHR held by a closely divided vote that international law did not recognize an exception to state immunity from claims of torture. Since Al-Adsani, the International Court of Justice has confirmed in Jurisdictional Immunities of the State (Germany v. Italy), that there is no exception to state immunity for human rights violations. What is remarkable is the decision in Jones to extend that immunity to foreign officials. In so doing, the ECtHR has effectively concluded that torture is an “official act” entitled to immunity from civil suit in the courts of other countries. That conclusion not only runs against current trends (as Philippa Webb has noted), it is also mistaken as a matter of existing customary international law.

Under customary international law, foreign official immunity takes various forms. Heads of state, heads of government, and foreign ministers (the so-called “troika”) enjoy status-based immunity (immunity ratione personae), which extends to all acts but lasts only during their time in office. Other officials—and all former officials—enjoy conduct-based immunity (immunity ratione materiae), which lasts forever but applies only to acts taken in an official capacity. (The immunities of diplomatic and consular personnel are governed by treaties: to oversimplify, diplomats have status-based immunity and consular officials have conduct-based immunity.) The foreign officials sued in Jones were not part of the troika, which means they were entitled to immunity under customary international law only if the conduct alleged was an “official act.”

It is important to bear in mind that customary international law permits States to grant foreign officials immunity from the jurisdiction of their courts that is greater than the immunity required by customary international law. In Jones v. United Kingdom, the UK House of Lords interpreted the State Immunity Act to extend the immunity of the State itself to foreign officials for any act attributable to the State. The question technically before the ECtHR was not whether customary international law required the UK to grant such immunity, but rather whether Article 6 of the European Convention on Human Rights prohibited it from doing so. It would have been possible for the ECtHR to conclude that the UK was within its rights to extend immunity to foreign officials alleged to have committed torture, even though such immunity is not required under customary international law. Instead, the court undertook to “examine whether there was a general rule under public international law requiring the domestic courts to uphold Saudi Arabia’s claim of State immunity in respect of the State officials” (¶ 201). In doing so, it got the analysis badly wrong. Continue Reading…

Excited to see news of a new blog by former National Institute of Military Justice head Gene Fidell on military justice systems worldwide. Here’s a description:

Developments in the field of military justice have been coming at an extraordinary pace for the last several years, both in the United States and around the world. Some of these developments have been wise, some have not. In some respects, there has been remarkable resistance to change. The purpose of this blog will be to identify and comment on developments in the reform of military justice from a national and global perspective.

Welcome to the blogosphere GMJR!

Standard Digital News, the online platform of The Standard, one of Kenya’s leading newspapers, published a long article yesterday entitled “Did State Parties Hoodwink Kenya, African Union on ICC Attendence?” Here are the opening paragraphs:

KENYA: Did the Rome Statute Assembly of State Parties hoodwink Kenya that the country’s chief executives would be excused from physical presence at their trials? This is the legal question some experts are raising after International Criminal Court Prosecutor Fatou Bensouda unveiled a shocker that Deputy President William Ruto must still show up at the ICC and face his accusers in the courtroom.

The Gambian-born prosecutor maintained that Ruto should not be tried in absentia despite recent amendments by the Assembly of State Parties (ASP) that were lauded by African Union as a major diplomatic victory for Kenya’s indicted leaders.

“The state parties amended the rules out of political pressure but in the end totally hoodwinked Kenya by handing over the discretion to the judges to decide only in exceptional circumstances,” said James Aggrey Mwamu, President of East Africa Law Society.

There is a grain of truth to this complaint: with its obsequious desire to placate Kenya, the ASP certainly didn’t go out of its way to highlight the fact that amending the Rules of Procedure and Evidence (RPE) instead of the Rome Statute left the new rules on presence subject to judicial review. That said, it’s not like the difference between amending the Rome Statute and amending the RPE is some kind of secret; after all, Art. 51(4) of the Rome Statue explicitly provides that “[t]he Rules of Procedure and Evidence, amendments thereto, and any provisional Rule shall be consistent with this Statute,” while Art. 51(5) provides that “[i]n the event of conflict between the Statute and the Rules of Procedure and Evidence, the Statute shall prevail.” Presumably, Kenya and the AU have lawyers capable of reading the Rome Statute — so if they believed that the OTP simply had to accept the new rules, they really have no one but themselves to blame.

And, of course, the OTP is challenging Rule 134quater. The motion is here — and it’s one of the best motions to come out of the OTP in quite some time. Two aspects are particularly worth mentioning…

Last week at the American Association of Law Schools (AALS) annual conference I had the honor of speaking on a panel on UN Law Making, with Mahnoush Arsanjani, formerly of the UN Secretariat, Kimberly Prost, Ombudsperson for the Al Qaida sanctions regime, and Pablo Castillo-Diaz, of UN Women.  A summary of the matters discussed by the panel is available here.

Our wonderful moderator Prof. Stephanie Farrior asked us to comment on perceptions and misperceptions about how international law is made.  Both the questions and the answers struck me as useful to those of us returning to the classroom in January.

Here are some of Stephanie’s questions:

• What misconceptions regarding law-making at the UN might students have?
• What players have a particularly notable influence on law-making?
• What developments, challenges, or other aspects of the work of the UN do you think are especially important for law professors to be aware of?
• What are the on the ground realities of law-making by the UN that law professors should know about?

As a general matter, I think UN outsiders (law professors and students included) are at a disadvantage when trying to understand UN law making.  One of the most common forms of UN law making comes through Security Council Chapter VII, resolutions that are binding on all member states under the UN Charter.  Two of the high water marks of Security Council law making power were the creation of ad hoc tribunals (ICTR and ICTY) under UN Charter Articles 41, and the passage of resolution 1373.

Security Council Resolutions, however, are usually crafted during informal negotiations in a heavily political context.  There is no “legislative history” as a result of this system.   The transparency critique of this process is longstanding.

How can you find out what the real story is if you’re not a UN insider?  Three sources of information that I consult regularly are:

• Security Council Report, an NGO which seeks to increase Security Council transparency.  It  is largely funded by non-Security Council members.  For example, see this interesting recent report on consensus in the Security Council,  that assesses voting patterns, decision-making rules and the role of consensus in the Security Council.
•  For historical debates, I look at the Security Council repertoire, although there is generally a 2-3 year delay.
• Finally, for current debates both the UN News website and the UN’s new document system portal has improved transparency considerably, making it much easier to obtain official statements than ever before.  As a general matter, the UN has made it much easier to watch open sessions of the Security Council, and now regularly webcasts these sessions here.

There is a common misperception that a Security Council Resolution can be read like a statute or a treaty.  I tell my students a much different approach is required.  Here are a few of the differences:

• Often resolutions are not drafted by lawyers, so the language is not chosen with the same specificity as that we would see in legislation.
• Sometimes what is not said in a resolution is more important than what is said, particularly if sensitive language has been deleted.  The refusal of some countries to permit language on the Responsibility to Protect into resolutions in Syria is an obvious example of this reality.
• There can be profound differences of opinion amongst Member States about the legal content of resolutions.
• Vague language is often an end result of the process, reflecting compromise somewhere along the way.
• Resolutions do not typically spell out the consequences of non-compliance.
• There is a code to the language of UN Security Council resolutions.  For example, it is much more significant if the Council demands a particular action than if it urges it.  Different levels of language in resolutions contain important legal signals.

How are the resolutions interpreted?   One of the challenges to UN lawmaking that became very apparent to me during my recent sabbatical study of UN sanctions is that the UN system doesn’t offer many ways to resolve ambiguities in interpretation and implementation.  UN sanctions on North Korea, for example, ban luxury goods, but the resolution did not contain a definition of what a luxury good is.  Some clarification was provided in a later Security Council resolution issues in March of 2013, some six years later, see this resolution, but this followed a long period of debate about how to interpret and apply this term.  Essentially, the definition of what constitutes a luxury good was left to the discretion of Member States.

The 1718 DPRK Sanctions Committee eventually issued an Implementation Assistance Notice dated 13 September 2013, to clarify and has identified the following items as constituting luxury goods: jewelry with pearls, gems, precious and semi-precious stones (including diamonds, sapphires, rubies, and emeralds), jewelry of precious metal or of metal clad with precious metal, yachts, luxury automobiles (and motor vehicles): automobiles and other motor vehicles to transport people (other than public transport), including station wagons, and racing cars.

Who can influence Security Council resolutions?

• Small states can have a big impact on UN law making if their representatives are strategic about using their time as non-permanent members of the Security Council, or during open debates, to push forward a certain issue – the inclusion of language on women, children and armed conflict, for example, were supported by smaller non-permanent member states.
• Emerging powers are also becoming important contributors to the conversation  – Brazil’s counterproposal on the Responsibility to Protect (entitled Responsibility While Protecting) garnered a lot of attention last year.
• Academics have played a very important role in defining the Council’s law making powers.  In the sanctions field for example, academics have been supported by some “best practices” states (including Canada, Switzerland and the Nordic Countries), receiving funding to do empirical work, participating in processes like Bonn-Berlin and Interlaken, and even helping to develop a new sanctions app.

Do you have any observations on the questions posed above?   Please chime in via the comments box if you do.

Well, it’s not exactly a secret treaty in the sense that yesterday, the news wires were abuzz about the fact that the United States, Iran and five other world powers concluded an agreement to implement Iran’s earlier November deal on its nuclear program.  But, what’s being held back is the actual text of the deal.  There’s not many details (the only story I found on this was here). Still, at this point it’s not clear whether or not yesterday’s implementing agreement is actually a treaty or just another political commitment like the deal last November?  Assuming it is legally binding, it’s also unclear as to why the text is not being released?  Is this just a temporary delay pending a good scrub by treaty lawyers of the final text and any language/translation issues?  Or, is it that some of the implementation agreements’ contents are being treated as classified by one or more of the participants/parties such that they have no intention of ever releasing the text?

Now, as I’ve written in the past, there’s a tendency among students of international relations to assume that secret treaties died with Woodrow Wilson’s fourteen points of light speech and its admonition for “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind.”  That view was codified, first in Article 18 of the Treaty of Versailles, and later (in a looser form) in Article 102 of the U.N. Charter (requiring Member States to register and allow to be published ”[e]very treaty and every international agreement” they make with the understanding that unregistered treaties may not be invoked before any organ of the United Nations).  But, as far as international law is concerned, reports of the extinction of secret treaties appear exaggerated.  As D.N. Hutchinson noted here back in 1993, Article 102 is most often honored in the breach, and has little relevance today to determining the legal status of an agreement (the ICJ appears to agree given its holdings in the jurisdictional phase of Qatar v. Bahrain).  Thus, I’m not terribly surprised by the idea that the text of the deal may be secret even if its existence is not (particularly given the ‘nuclear’ subject-matter).  Moreover, I don’t think the fact that Iran and these other States concluded it without making the text publicly available will deny it the status of a treaty under international law.

A more important question may be, given the reality of some significant Congressional hostility to the deal, whether keeping its text secret will prove problematic under U.S. law or the domestic law of any of the other State participants?  I can’t speak to the domestic law of other States, but on the U.S. front, I have my doubts. There are obvious questions as to what legal authority the United States has to conclude this implementation agreement (i.e. is it a sole executive agreement, or does the Obama Administration view some existing legislative authority as sufficient to treat it as a congressional-executive agreement?).  Assuming legal authority to conclude an implementation agreement, however, there is statutory authority for it to be done in secret provided the Executive Branch follows the appropriate procedures under the 1972 Case-Zablocki Act:

The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed. (emphasis added)

Simply put, U.S. law accepts and regulates secret treaties and other international agreements. Thus, I don’t think the fact of its secrecy will sway proponents (or opponents) of this deal one way or another.  Even so, I’m curious to know more about the Iranian implementation agreement.  Is it intended to be legally binding or a political commitment?  And, if it’s a treaty, what’s the Executive Branch view as to the legal authority to conclude it short of getting new legislation or going to the Senate under Article II of the Constitution?  I’d welcome comments from readers who know more details here than I do.

Hat Tip:  Orde Kittrie

[Eliav Lieblich is an Assistant Professor at the Radzyner Law School, Interdisciplinary Center (IDC), Herzliya; his book, International Law and Civil Wars: Intervention and Consent, has been recently published by Routledge]

While opinions are split whether U.S. Secretary of State John Kerry will be able to bring, in his recent efforts, any progress to the stalemated Israeli-Palestinian conflict, it seems that Israel has recently decided to take the conflict back to the 19^th century – at least legally. This time, we are talking about the revival of none other than age-old maritime prize law – a traditional body of the international law of war dealing with the belligerent capture of vessels and cargos.

The importance of maritime prize law peaked in the American Civil War, and steadily declined through the two World Wars into virtual disuse in the last decades. However, on the last week of December, the District Court of Haifa, sitting in its capacity as the Admiralty Court of Israel, held a first hearing in prize proceedings initiated by the State of Israel against the Estelle, a Finnish vessel, intercepted by the Israeli navy while attempting to symbolically breach the Gaza blockade in late 2012 (see the story, in Hebrew, here). The state requests the court to condemn the Estelle, which carried cement and toys, based on jurisdiction derived from the British Naval Prize Act of 1864 (!), and conferred to prize courts in Mandatory Palestine by the British Prize Act of 1939. At the time, Britain was interested in conferring such jurisdiction to courts in its colonies, protectorates and mandates in order to facilitate the condemnation of Axis maritime prizes captured in nearby waters. This power was never before exercised by Israel, which inherited the mandatory legislation upon its creation in 1948.

While the British prize laws are in essence jurisdiction-conferring rules, and deal mostly with procedure, the substantive norms of international prize law are derived from customary international law. Here lie the interesting aspects of the case. It is common knowledge, among those dealing with the nitty-gritty of IHL, that the process known as the “humanization of international humanitarian law” – as famously put by Theodor Meron – has generally not trickled to the law on maritime warfare. Prize law is perhaps a key example for this phenomenon.

For instance, while in ground warfare (and occupation) private property cannot be seized or destroyed absent pressing military necessity (for instance, Articles 23(g) & 52 of Hague Convention IV), private ships can be captured and condemned through proceedings in front of the seizing state’s prize courts, just for flying the enemy state’s flag. Essentially, thus, prize law doesn’t differentiate between the “enemy” state and its individual citizens, as modern IHL otherwise purports to do. In addition, “neutral” vessels can be condemned for carrying “contraband” – defined unilaterally by the capturing state – or, as in the case of the Estelle, for attempting to breach a blockade (for an attempt to state the customary international law on these issues see Articles 93 –104, 146, of the 1994 San Remo Manual). It should be added that the concept of blockade in itself seems like an outlier in contemporary law, since it can be looked upon, through a human rights prism, as a form of collective sanction against civilians.

Continue Reading…

Your weekly selection of international law and international relations headlines from around the world:

Africa

• Negotiators are still trying to reach a peace deal in South Sudan.

Asia

• China has destroyed more than 6 tonnes of illegal ivory in a bit to discourage poaching.
• China and Japan have resorted to naming each other Voldemort in the latest discussion over PM Abe’s visit to the Yasukuni shrine. Abe has meanwhile offered South Korea and China to explain the intentions behind his visit.
• Japan and the US have condemned China’s unilateral declaration of fishing restrictions in the South China Sea.

Americas

• “Jihad Jane” has been sentenced to 10 years’ imprisonment for her involvement in a failed plot to kill a Swedish artist over an offensive depiction of the Prophet Mohammed.

Middle East

• Former Israeli PM Ariel Sharon passed away on Saturday after eight years in coma. Haaretz has listed eight pieces to understand Sharon.
• Tunisia’s National Assembly has inserted gender equality in its draft constitution which will protect its existing laws on women’s rights that are liberal compared to its Arab neighbors.
• Qatar’s ambassador was summoned to Egypt’s Ministry of Foreign Affairs which considered an official Qatari press release critical of Egypt’s crackdown against the Muslim Brotherhood as interference in Egypt’s internal affairs. A new Egyptian constitution is expected to pass by referendum this week.
• Iraq’s ambassador to the US has said that the Obama administration could do more to battle al-Qaeda in Iraq, and has praised George W. Bush’s administration.
• The Friends of Syria have urged Syrian opposition groups to attend peace talks in Geneva later this month.
• A first shipment of chemical weapons left Syria this week for destruction.
• The interim nuclear deal between Iran and the West will enter into force on January 20.
• Iran’s President Rouhani will be the first Iranian leader in a decade to attend the World Economic Forum in Davos.

Europe

• William Hague, the UK’s Foreign Secretary, has criticized proposals from within his Tory party to renegotiate EU treaties to allow national parliaments the power to veto EU legislation.
• The European Center for Constitutional and Human Rights (ECCHR) and Public Interest Lawyers (PIL) have filed a complaint with the International Criminal Court to investigate alleged torture by UK troops in Iraq between 2003 and 2008. The UK has rejected the complaint as unnecessary since they have investigated allegations.

Oceania

• Anti-whaling group Sea Shepherd has accused Japan of whaling in New Zealand’s territorial waters in the Southern Ocean Whale Sanctuary.

• Oliver Windridge has started ACtHPR Monitor, a forum for news, comment and debate on the African Court on Human and Peoples’ Rights. Its first article is an in-depth interview with the court’s Registrar, Dr. Robert Eno. The website also contains an introduction to the court and our Country Tracker, designed to give prospective applicants and other interested parties a quick reference on the court’s jurisdiction. You can also find them on Twitter via @acthpr_monitor.
• The Institute for Migrant Rights and the Centre for Local Law Development Studies Faculty of Law, Universitas Islam Indonesia (UII) are launching the Indonesian Society for International & Comparative Law and the Indonesian Journal of International & Comparative Law (IJICL) of the Institute for Migrant Rights on January 21 at UII in Yogyakarta, Indonesia. The speakers for the event will include: Dr. Hamdan Zoelva, Chairman of the Indonesian Constitutional Court, Professor Ana Vrdoljak, Associate Dean of University of Technology Sydney Faculty of Law, Dean Philip McConaughay, School of Transnational Law Peking University, Shenzen. In addition, Dr. Adam Wallwork of the University of Chicago Law School will be presented the 2014 Ridwan Mukti Prize for his outstanding contribution to IJICL. For more information, please contact Mr. Aditya Rakhman or Ms. Erna Wati.
• The European Database of Asylum Law (EDAL) is holding an international conference on asylum law in Europe on January 17-18, 2014 in Dublin, Ireland. More information, and registration, is available here.
• The Yale Institute of International Arbitration is pleased to announce its next breakfast roundtable on The Future of Investment Arbitration in Latin America. It will be held the morning of April 2, 2014, from 8 a.m. until 9:30 a.m., at the New York offices of Debevoise & Plimpton located at 919 Third Avenue. Panelists are Meg Kinnear, Donald Donovan and Hugo Perezcano Díaz. Andrés Jana will moderate. The proceedings will be simulcast via video teleconferencing to various locations in the Americas and Europe. Registration is required, although there is no fee. CLE credit for the New York Bar is available. To register or obtain more information, simply contact Bradley Hayes.

Last week’s announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us. 

Put the words “Al Qaeda” in a news headline, and you inevitably conjure a very particular idea in the mind of the American reader. “Al Qaeda” is the group that attacked the United States on 9/11. The group led by Osama bin Laden (now led, some might recall, by his successor, Ayman Zawahiri). The group we’ve been at war with for the past decade-plus, and that would gladly attack us again when it has the chance. It’s the group (legal-minded readers would add) whose members the President is authorized by the AUMF statute to detain indefinitely or target lethally. It’s a term, in other words, that has specific and powerful meaning in our political and legal life.

But the recent reporting on the takeover of Falluja in Iraq by an “Al-Qaeda-linked” group obscures a much more complicated reality than the one conjured by the brand name “Al Qaeda.” (Among the recent headlines: “Qaeda-Linked Militants in Iraq Secure Nearly Full Control of Falluja” in the New York Times; “U.S. Won’t Ship Iraq The Weapons It Needs to Fight Al Qaeda” (describing “Fallujah’s fall to al Qaeda”) in Foreign Policy.)

Read even a little bit past some of the headlines (ok, typically about ten paragraphs past, more often in a different story altogether) and one learns that the group that took over Fallujah is a radical Islamist group called the Islamic State of Iraq and the Levant, or the Islamic State of Iraq and Syria (ISIS). True, the same group (more or less) was once known as Al Qaeda in Iraq (AQI) (one of about a half-dozen changing names in the mix over the past decade), but the name changed again about a year ago to reflect the group’s growing aspirations and involvement in Syria as well.

Ok, but just because the group is now called ISIS rather than AQI doesn’t mean reports are wrong to call it Al-Qaeda-linked, right? Fair enough, a rose by any other name, etc. So how can one tell whether a group is actually Al Qaeda affiliated or not?

As Harold Koh reminded us at the AALS conference last week (great panel put together by the Section on National Security Law), what matters in the domestic legal sense (in the sense Congress and the Administration and courts have used it in interpreting the 2001 AUMF) is whether these groups are “co-belligerents.” While the term lacks anything like the certainty in international law that many administration lawyers seem to think it has, the Administration at least has adopted a multifactor test for what it thinks co-belligerency means: (1) an organizational affiliation such that Zawahiri’s Al Qaeda is capable of exercising a degree of command and control over the associated group; (2) evidence that the associated group has in fact “joined the fight”; (3) “the fight” that the associated group has joined is against the United States. If the group doesn’t meet those criteria, it doesn’t fit within the definition of the law.

Let’s start with organizational control. As best I can tell from published reports, one of the main sources of in-fighting amongst Islamist rebel group in Syria stems precisely from the fact that ISIS is not following orders from Zawahiri. Here’s Sarah Birke’s recent article (once again headlined, “How al-Qaeda Changed the Syrian War”) from the New York Review of Books describing the evolution:

[ISIS founder] al-Baghdadi decided it was time to merge [another radical Islamist group, Jabhat al-] Nusra, with Al Qaeda in Iraq, expanding the geographical spread of the organization, which doesn’t recognize national borders but seeks to unite the entire umma, or Muslim community of believers, under one rule. He declared the two branches would be known as the Islamic State of Iraq and al-Sham. Al-Sham refers to Greater Syria, the whole expanse of the Levant that holds a special place in jihadist thought for being the heart of the region and close to Jerusalem. But Jabhat al-Nusra’s leader Mohammed al-Jolani, who is Syrian, refused the merger, possibly because it had not been sanctioned by al-Qaeda’s chief, Ayman Zawahiri, who later ruled that the two groups should remain separate (a ruling ignored by the ambitious Baghdadi, leading some to consider ISIS outside al-Qaeda). In fact, while ISIS and Nusra share many aims, and both are well funded and trained, there are significant differences between the two groups. Jabhat al-Nusra stresses the fight against Assad, while ISIS tends to be more focused on establishing its own rule on conquered territory. Nusra has pursued a strategy of slowly building support for an Islamic state, while ISIS is far more ruthless, carrying out sectarian attacks and imposing sharia law immediately. And while Nusra, despite its large contingent of foreign fighters, is seen as a home-grown problem, Syrians at the border frequently described Da’ash as foreign “occupiers” in their country.

Indeed, while Zawahiri has been trying to assert Al Qaeda’s authority over both ISIS and its rival Islamist group Al Nusra, neither group has been a model of compliance. In a videotaped aired by Al Jazeera two months ago, Zawahiri blamed the leaders of both groups for acting without the knowledge of the central al-Qaeda leadership, and ordered the re-organization of jihadist efforts in Syria and Iraq by abolishing ISIS and giving Al Nusra sole responsibility for Syria. ISIS, however, has shown no sign of curtailing its Syrian operations. Indeed, Foreign Policy separately reports that ISIS arrested, and has probably killed, a Jabhat al-Nusra commander in the city of Raqqa. Despite all this, the Times in particular is fond of citing the “black banners of Al Qaeda” as evidence that ISIS, et al. remain tied to the same mast, as it were. But terrorist experts have regularly pointed out the popularity of the black flag with the white lettering among a range of Islamist groups across the region. As Aaron Zelin, co-author of a recent West Point Counterterrorism Center report, put it: “Just because they have a flag does not necessarily mean they are al Qaeda. Anybody could use a flag like that.”

Beyond all this, there’s no evidence I’ve been able to unearth that ISIS has in fact “joined the fight” against the United States. On the contrary, as Dan Byman recently reminded us: “AQI’s focus on Iraq’s Shi’a government and population was never in harmony with the Al Qaeda’s core’s focus on the United States and the West.” While ISIS’s radical Islamism, and of course regional sectarianism more broadly, may well have a host of troubling implications, it is far from the same kind of danger to the United States posed by a group – the Al Qaeda of 2001 the name still evokes – with both the means and the motive to attack the United States directly.

Which brings me back to the original point. Whether or not ISIS is lawfully subject to the use of force authorized by the 2001 AUMF – and I am so far unpersuaded that it is – use of the name “Al Qaeda” in headlines has political consequences in our public debate. If it’s really that Al Qaeda, political pressure to use force in Iraq (and everywhere else) will build. If it’s something else – a group with different aims, a different focus – then our strategy may well and wisely be quite different.

Journalists trying to report from the nightmare of Syria and Iraq are doing a brave and important service; more than one has died trying to do it. But the headlines are misleading. We should all read more about what’s going on in Syria and Iraq. And if we don’t know what or who, we should be able to read that, too.

It looks like the U.S. and India have worked out a sort-of deal to end the battle over visa-fraud charges brought against India’s deputy consul-general in New York Devyani Khobragade.  Yesterday, a U.S. grand jury indicted Khobragade on the visa-fraud charges, and shortly thereafter, Khobragade was allowed to leave the U.S. for India.  India is now retaliating by demanding the U.S. withdraw a U.S. diplomat from India.

From a purely legal perspective, this is a smart move by the U.S. since even if it had continued with the prosecution, Khobragade would be able to raise a variety of defenses based on her possible status as a diplomat accredited at India’s UN Mission at the time of her arrest, or at least her status at the Mission now.  I think those defenses are decent (though hardly slam-dunk) and, if rejected, would further inflame India as well as create unwelcome precedents for US consuls and diplomats abroad.

Of course, from a diplomatic perspective, it seems clear to me that this prosecution should never have been brought, or at least there should never have been an “arrest” (much less the strip-search).  Why couldn’t the U.S. have indicted her without arresting her, or even just demanded her withdrawal without indicting her?  That is effectively what has happened anyway, except that we also get a crisis in US-India relations like we haven’t had in decades.

I’m putting the blame here almost completely on the U.S. State Department. They (supposedly) had notice that this arrest was going to happen, and they did not take steps to head off a pretty serious diplomatic incident.  Dealing with foreign diplomats is at the heart of what they do.  And they couldn’t have predicted what happened here?  C’mon Secretary Kerry, hold someone responsible!

I’ve just finished my grades from last semester (yes I know, I’m late!).  But I have no problem giving the U.S. State Department an “F” here.

Manuel Ventura, the director of the Peace and Justice Initiative, has published two excellent posts at Spreading the Jam (here and here) that criticize the specific-direction requirement — and my defence of it. I cannot possibly address all of the points that Manuel makes, but I do want to respond to his understanding of the role that customary international law plays at the ICTY and his defence of the Special Tribunal for Lebanon’s (STL) analysis of the general definition of terrorism under customary international law.

Custom at the ICTY

As Manuel notes, the Special Court for Sierra Leone (SCSL) rejected Perisic‘s specific-direction requirement because it concluded that the requirement lacked an adequate foundation in customary international law. I criticized the SCSL’s position in a recent post, pointing out that the ICTY did not need to find a customary foundation for the specific-direction requirement:

Ad hoc tribunals are limited to applying customary international law because of the nullem crimen sine lege principle: relying on non-customary principles to convict a defendant would convict a defendant of acts that were not criminal at the time they were committed. The specific-direction requirement, however does not expand criminal liability beyond custom; it narrows it. There is thus no reason why the requirement has to have a customary foundation.

Manuel takes issue with my argument in an interesting way — by insisting that the ICTY can only apply legal principles that have a customary foundation, because customary international law is the only source of law that the Tribunal is empowered to apply:

But, says Kevin Jon Heller here and here, this is all irrelevant, as specific direction need not have a customary law basis since it only serves to narrow criminal responsibility rather than expand it. In his view only in the latter is nullum crimen engaged – the reason why the ICTY was mandated to apply customary international law. However, this view misses an important and very basic point. As he acknowledges, the mandate of the ICTY is to apply custom, and while it is true that nullum crimen is not engaged when criminal liability is contracted rather than expanded, it is also true that in not applying custom the ICTY is not applying the law it was specifically mandated and empowered by the UN Security Council to apply. If specific direction is not custom, then it is still applying something, but it cannot be called customary international law. In other words, it went beyond applying its governing law, and into a realm that is was not expressly empowered to go. In short, if specific direction is not customary, then it acted ultra vires and that is as problematic as a nullum crimen violation. It is not simply a bad policy decision that only engages ‘criminal law theory’.

There are two basic problems with Manuel’s argument. First, it is based on a misunderstanding of the ICTY’s mandate. Manuel claims that the Tribunal is empowered to apply one source of law and only one source of law: custom. But the Secretary-General’s report on SC Res. 808 does not say that. Here is the relevant paragraph about custom (para. 34)…

[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University’s History Department and a Visiting Fellow (2013/2014) at Harvard University’s Center for Middle Eastern Studies.]

My previous post analyzed the EU’s approach towards Northern Cyprus and Western Sahara. This post will focus on the Palestinian Territories and the EU’s approach towards Israel’s policies in the area.

The Palestinian Territories represent a “sui generis case” among most of the “occupations” currently in place in different parts of the world. Not only in consideration of how long this occupation has been prolonged, but also because it represents one of the rare cases in which a military power “has established a distinct military government over occupied areas in accordance with the framework of the law of occupation.”

In other somewhat similar contexts, such as, just to name a few, Abkhazia, the Turkish Republic of Northern Cyprus (TRNC) and East Turkestan, the occupying powers of these areas have created in loco nominally independent states (TRNC-Turkey, Abkhazia-Russia and so on), and/or are not building settlements in their “occupied territories” (Chechnya is just an example), and/or have incorporated the local inhabitants as their citizens: with all the guarantees, rights and problems that this entails.

Some scholars have stressed out that the Golan Heights and East Jerusalem have been (unofficially, in the case of East Jerusalem) annexed by the State of Israel and that despite this, the EU Guidelines (discussed in the previous post) are to be enforced in these territories as well. Therefore, according to them, the comparison with other “occupations” would show that the Palestinian case cannot be considered “sui generis” and that the EU approach on the issue is marred by incoherence. These claims deserve a short preliminary clarification.

Continue Reading…

[Lorenzo Kamel, Ph.D., is a Research Fellow at Bologna University’s History Department and a Visiting Fellow (2013/2014) at Harvard University’s Center for Middle Eastern Studies.]

On the anniversary of the International Day of Human Rights (December 10^th) the European Parliament approved a four-year agreement with Morocco to allow European boats to fish in territorial waters off Western Sahara. The EU does not recognize Western Sahara as part of Morocco. Furthermore, the occupation of Western Sahara represents a violation of the United Nations Charter prohibition of aggression and forced annexation.

Acting as a realist rather than normative power, the EU adopted an approach which contradicts some of its own policies applied in other contexts. This is particularly evident once that the fisheries agreement is analyzed in the frame of the recent (July 2013) EU guidelines barring loans (which constitute less than 10 percent of funds the EU allocates in Israel) to Israeli entities established, or that operate, in the territories captured in June 1967 (the “EU Guidelines”). The EU-Morocco deal applies not just to the area under internationally recognized Moroccan sovereignty, but to all areas under its jurisdiction, including the Moroccan-occupied Western Sahara. The EU Guidelines, on the other hand, apply to the West Bank, East Jerusalem, and the Golan Heights: all areas under Israeli occupation.

This inconsistent approach plays in the hands of some of the most active supporters of the occupation of the Palestinian Territories and represents a major blow for the EU’s international credibility. Eugene Kontorovich pointed out for example that the positions adopted by the EU in its negotiations with Israel over grants and product labeling are inconsistent with those it has taken at the same time in its dealings with Morocco and the ones applied in contexts such as Northern Cyrus, Tibet, or Abkazia/Ossetia. According to Kontorovich, the EU approach regarding Western Sahara “is consistent with all prior international law […] the EU is right about Western Sahara – which means it is wrong about Israel.” [italics added]

This post and its follow-up, which will be posted later today, argue that the EU is right about Israel and wrong about Western Sahara. Together, they discuss the EU approach to Israel-Palestine in a comparative way by first examining EU policy in Northern Cyprus and Western Sahara – two crucial cases often raised by critiques of EU policy towards Israel to highlight EU double-standards – before turning to the Israeli-Palestinian case itself in the second post.
Continue Reading…

Gidon Shaviv called it. The Muslim Brotherhood does indeed believe that it can accept the ICC’s jurisdiction on an ad hoc basis because it is still the legitimate government of Egypt:

Just how successful the ICC action will be is unclear. Egypt is one of the few countries that have not accepted the ICC’s jurisdiction. However, Mr. Dixon and other members of the legal team said the court can act if it receives a declaration from the government accepting the court’s jurisdiction in a particular case. They argued that Mr. Morsi’s government is the still only legitimate ruler in Egypt and it has issued that declaration to the ICC.

“We hope, and we have good reason to believe, that the court will take this declaration seriously,” said John Dugard, a human rights lawyer from South Africa who is involved with the case and who has also worked with the United Nations.

With respect to Dugard, I think the Brotherhood’s efforts are doomed to fail. Had the Morsi government filed its declaration while it was still in power (as in the Cote d’Ivoire situation), that would have been one thing. But it didn’t — and although there are interesting political questions about the legitimacy of the military-led coup/revolution, I don’t think there is much question that the Brotherhood is no longer the government of Egypt. A number of states have condemned the Egyptian military’s actions (see Wikipedia here for a nice rundown pro and con), but none to my knowledge have refused to recognize the Mansour government. And just as importantly, representatives of the Mansour government have continued to represent Egypt at the UN.

Readers who know more about the recognition of governments after coups/revolutions should feel free to weigh in. But even if I’ve understated the legal strength of the Brotherhood’s position, I still find it inconceivable that the OTP will conclude that it has jurisdiction over the situation in Egypt. At the very least, the OTP will likely do what it did with Palestine’s ad hoc declaration — say that the issue is for the Assembly of States Parties, not the Office of the Prosecutor, to resolve.

Your weekly selection of international law and international relations headlines from around the world:

Africa

• South Sudan peace talks were scheduled to start on Sunday in Addis Ababa, but were delayed once again.
• Congolese troops staved off armed attacks in Kinshasa by armed followers of a religious leader who is critical of President Kabila over his decision to make peace with Tutsi rebels in Eastern Congo.
• Al-Shabab has claimed responsibility for car bombings outside a hotel in Mogadishu, Somalia.

Asia

• Chinese police have killed eight alleged terrorists in its Western Xinjiang province, home to its Uyghur minority.
• Protests have broken out in Dhaka, Bangladesh, in the build-up to elections which have been denounced as fraudulent by 21 parties who refuse to participate.
• In his New Year’s speech, North Korea’s leader Kim Jong-un warned about nuclear disaster if war were to break out on the Korean Peninsula, and threatened the US.

Americas

• In editorials, the NYTimes and the Guardian have called for recognition of Edward Snowden as a whistleblower.

Middle East

• The Palestinian envoy to the Czech Republic was killed on New Year’s day in his own residence, allegedly as a result of an explosion of his safe. During their investigations, Czech police discovered illegal weapons.
• US Secretary of State John Kerry is in Israel to facilitate negotiations on an Israeli-Palestinian peace deal, he is reporting some progress although it is unlikely that a deal will be reached soon. The Christian Science Monitor reports that an offer of US troops to help secure the Israeli-Palestinian border may be on the table, although military sources consider it a bad idea.
• John Kerry has also hinted that Iran may play a role from the sidelines during the negotiations on Syria later this month in Geneva.
• There are signs that the Syrian civil war is spilling over into Iraq, with the al-Qaeda affiliated Islamic State in Iraq and the Levant (ISIL) taking control of Fallujah and Ramadi, prompting a counterattack by the Iraqi army. In Syria, rebels have launched an offensive against these groups

Europe

• Russia was found by Global Trade Alert to be the most protectionist nation of 2013.
• In Athens, gunmen opened fire on the residence of the German ambassador on the eve of Greece’s 6 months presidency of the European Union.
• Latvia became the 18^th member to join the Eurozone on January 1.
• Seven years after they joined the European Union, free movement finally became a reality for Bulgarian and Romanian citizens. The EU and local politicians tried to calm fears about the arrival of large hordes of immigrants in some of the wealthier EU members, such as the UK.

• The Cambridge Journal of International and Comparative Law (CJICL) will hold its Third Annual Conference on May 10-11, 2014 at the St John’s College Divinity School, University of Cambridge. This conference will explore approaches that question the traditional state-centric view of international and comparative law. The idea of universality suggests that international law applies equally and indiscriminately across domestic legal systems, and within sub-systems of international law itself. Cosmopolitanism conceives of the world as a single entity, with resonances between people irrespective of their location, nationality and culture, and asks how legal actors can access legal regimes beyond their state’s domestic framework.  Abstract submissions, no longer than 300 words and accompanied by a brief biography or CV, should be submitted online by January 26, 2014. More information is here.
• The European Law Journal, HEC Paris and the Center for Research on Transnational Law
  (CTL), Peking University School of Transnational Law (PKUSTL), Peking University
  Shenzhen Graduate School, are welcoming proposals for presentation at the 10th
  International Workshop for Young Scholars (WISH)/10ème Rencontre Internationale des Jeunes Chercheurs (RIJC), scheduled to take place in Paris in December 2014. Proposals must be written by doctoral candidates (or equivalent) who have not yet submitted their thesis or have been awarded their doctorate in the 12 months prior to March 15, 2014. More information is here.

Our previous events and announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us. 

If you’ve been away for the holidays, here is a summary of what we got up to at Opinio Juris over the break.

Kevin posted Banksy’s Christmas postcard, linked to his new essay on the legal recharacterization of facts at the ICC, and held another round in the Amnesty-Goodman-Heller debate on universal jurisdiction, and hoped the Muslim Brotherhood’s legal team would explain the basis for the ICC’s jurisdiction in their complaint. His post on NYU’s selective defense of academic freedom in response to the ASA’s boycott of Israeli academic institutions triggered a long debate in the comments.

Fair trial issues came up in Kevin’s post recommending Daphne Evitar’s discussion of the infringements with attorney-client privilege at Guantanamo and in Megan Fairlie’s guest post on the ICTY’s management of Judge Harhoff’s disqualification in the Šešelj case.

Duncan participated in a podcast explaining the importance of US treaty power with John Bellinger, Joseph Ellis and Nick Rosenkranz, and Julian took a break from teaching in Curacao to argue that the ICJ could have a role to play in resolving the diplomatic incident between India and the US over the latter’s arrest of an Indian diplomat in New York.

The end of the year made us reflect on the year that was: Peter listed nine trends from 2013 on citizenship and Chris rounded up the main themes and highlights for Opinio Juris in 2013.

Finally, Jessica listed events and announcements, and we wrapped up the news (1, 2)

Best wishes to all our readers for 2014!

So this is baffling:

The international legal team representing the Muslim Brotherhood has filed a complaint to the International Criminal Court, reported state-owned media agency MENA.

The team has previously said on 16 August and on 15 November that, following their investigations, they have gathered evidence showing that members of the “military, police and political members of the military regime have committed crimes against humanity”.

[snip]

The Brotherhood’s legal team includes former Director of Public Prosecutions of England and Wales Lord Ken MacDonald, South African International Lawyer and former UN Human Rights Special Rapporteur Professor John Dugard and human rights specialist Michael Mansfield.

A press conference will be held in London on Monday to detail further information concerning the complaint.

I hope the press conference will explain how the ICC has jurisdiction over the situation, given that Egypt has not ratified the Rome Statute. Doesn’t the Brotherhood’s capable legal team know that?

UPDATE: Gidon Shaviv suggests on Twitter that perhaps the Brotherhood will argue that it can accept the ICC’s jurisdiction on an ad hoc basis, because it remains the legitimate government of Egypt. That’s clever, but I would be shocked if the OTP would be willing to wade into that particular political thicket. If it refused to accept Palestine’s ad hoc acceptance, which I think would have been legally more straightforward (Shaviv disagrees), I think there is no chance it would accept the Brotherhood’s.

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

[Dr. Megan Fairlie is Associate Professor of Law at Florida International University]

A brief consideration of the history of replacement judges at the ICTY reveals an increasing disregard for the rights of the accused in favor of avoiding costly and time-consuming re-hearings. Initially, part-heard cases could not continue with a replacement judge without the accused’s consent. Then, as “consent was only a safeguard,” the rules were amended to permit the two remaining judges to independently decide when continuing a part-heard case “would serve the interests of justice.”

Now, the Tribunal’s mismanagement of its first ever judicial disqualification has taken the matter to a new low, with Vojislav Šešelj’s responsibility for war crimes and crimes against humanity set to be decided  by three judges, one of whom joined the case nearly two years after closing arguments were heard.

Although apparently united in their aim to see that the case continues no matter what, neither the Tribunal’s Acting President nor Šešelj’s newly constituted Trial Chamber can plausibly explain why allowing a new judge to enter the picture part-way through deliberations is in any way tenable under the ICTY Rules or compatible with Šešelj’s statutory guarantee of a fair trial.

Back in September, the Acting President decided that when a new judge replaces a disqualified one pursuant to Rule 15, Rule 15 bis should govern the procedures to be followed post-replacement. The latter rule permits ongoing proceedings to continue with a replacement judge pursuant to the accused’s consent or by judicial fiat. Problematically, however, 15 bis is limited to part-heard cases, a description that hardly pertains to the “more advanced stage” of Šešelj’s proceedings. As a result, the September order concluded that the provision ought to be applied mutatis mutandis.

The Šešelj facts, however, illustrate why this proposal was deeply flawed. Continue Reading…