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EJIL: In this Issue (Vol. 28 (2017) No. 1)
This issue opens with the third entry under our annual rubric, The EJIL Foreword. In keeping with the rubric's mission statement, Laurence Boisson de Chazournes takes a broad and sweeping view of the proliferation and consequent pluralism of international courts and tribunals. In doing so, she argues that an 'overarching managerial approach' may be observed in various practices of both judicial and state actors, and notes still other methods that could strengthen this approach.
The next three articles in this issue address the processes of international law-making from a variety of perspectives. In the first regular article, Florian Grisel assesses the top-down processes informing transnational governance. Grisel utilizes the example of the drafting of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the involvement of the International Chamber of Commerce experts to illustrate how transnational expert networks can contribute effectively to the process of treaty-making. Taking on the involvement of non-state actors from another perspective, Nahuel Maisley argues that Article 25(a) of the International Covenant on Civil and Political Rights should be interpreted as giving civil society groups a right to participate in international law-making. In their article, Armin von Bogdandy, Matthias Goldmann and Ingo Venzke then address the implications of the proliferation of international institutions, advancing a theory of 'public international law' which regards such institutions as exercising 'international public authority' and seeks to take account of world public opinion in enhancing their legitimacy and effectiveness.
In a shift of topic, Natalie Davidson revisits the seminal Alien Tort Statute cases of Filártiga and Marcos. In exploring the historical narratives produced in these two cases, Davidson's article seeks to challenge some of the sanguine assumptions of international human rights lawyers and lay bare the 'deep foundations of violence' in the international system and US foreign policy. Relatedly, Alejandro Chehtman examines the moral and legal permissibility of the use of remotely piloted aircraft systems, challenging the intuitive view that the use of drones will contribute to making the use of force proportionate in a wider set of circumstances.
Roaming Charges in this issue pictures a place, within a thriving metropolis, where solitude is more common than connection.
This issue features an EJIL: Debate! centring on an article by legal philosopher Liam Murphy addressing a series of questions where legal philosophy meets 'Law Beyond the State'. The dialogue begins with a Reply from Samantha Besson, focusing on the role of consent in international law. Nehal Bhuta's Reply reconstructs the argument from Murphy's article, and the larger work from which it is drawn, and develops a criticism of his argument about the duty to obey international law. Christoph Möllers argues that Murphy seems to have 'missed the decisive point' in the recent development of international law, and expresses doubt that legal philosophy could cast light on the fragmentation debate in international law'. Lastly, Jochen von Bernstorff focuses on Murphy's discussion of the role of positivism and non-positivism in international law and his application of Dworkinian jurisprudential insights to international legal norms such as the prohibition of the use of force. Liam Murphy offers a Rejoinder to the reactions provoked by his article.
The articles in this issue close with a Critical Review of International Governance piece by Michelle Zang, examining the relationship between the Court of Justice of the European Union and the Dispute Settlement Mechanism of the World Trade Organisation.
We move away from our customary poem in The Last Page in this issue to reprint an excerpt from an interview with the late Adrienne Rich, who for many years was a prominent and politically engaged poet in the USA. She thoughtfully answers the very pertinent question: Does poetry play a role in social change?
New Issue of EJIL (Vol. 28 (2017) No. 1) – Out Next Week
The latest issue of the European Journal of International Law will be published at the end of this week. Over the coming days, we will have a series of editorial posts by Joseph Weiler – Editor in Chief of EJIL and by Marcelo Kohen, Professor of International Law at the Graduate Institute of International and Development Studies, Geneva. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:
The Case for a Kinder, Gentler Brexit; 10 Good Reads; Vital Statistics; In Memoriam: Vera Gowlland-Debbas; In this Issue
The EJIL Foreword
Laurence Boisson de Chazournes, Plurality in the Fabric of International Courts and Tribunals: The Threads of a Managerial Approach
Florian Grisel, Treaty-Making between Public Authority and Private Interests: The Genealogy of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards
Nahuel Maisley, The International Right of Rights? Article 25(a) of the ICCPR as a Human Right to Take Part in International Law-Making
Armin von Bogdandy, Matthias Goldmann, and Ingo Venzke, From Public International to International Public Law: Translating World Public Opinion into International Public Authority
Natalie Davidson, Shifting the Lenses on Alien Tort Statute Litigation: Narrating US Hegemony in Filártiga and Marcos
Alejandro Chehtman, The ad bellum Challenge of Drones: Recalibrating Permissible Use of Force
Roaming Charges
Places of Solitude
EJIL: Debate!
Liam Murphy, Law Beyond the State: Some Philosophical Questions
Samantha Besson, Law Beyond the State: A Reply to Liam Murphy
Nehal Bhuta, Law Beyond the State: A Reply to Liam Murphy
Christoph Möllers, Law Beyond the State: A Reply to Liam Murphy
Jochen von Bernstorff, Law Beyond the State: A Reply to Liam Murphy
Liam Murphy, Law Beyond the State: A Rejoinder
Critical Review of International Governance
Michelle Zang, Shall We Talk: Judicial Communication between the CJEU and WTO Dispute Settlement
Review Essay
Thomas Kleinlein, Jus Cogens Re-examined: Value Formalism in International Law. Review of Enzo Cannizzaro (ed.). The Present and Future of Jus Cogens; Robert Kolb, Peremptory International Law – Jus Cogens: A General Inventory; Thomas Weatherall. Jus Cogens: International Law and Social Contract
EJIL Editors' Choice of Books 2016
André Nollkaemper, Jan Klabbers and Jean d'Aspremont
Book Reviews
Anne Orford and Florian Hoffmann (eds), with Martin Clark. The Oxford Handbook of the Theory of International Law (Prabhakar Singh)
Lauge N. Skovegaard Poulsen. Bounded Rationality and Economic Diplomacy: The Politics of Investment Treaties in Developing Countries (David Schneiderman)
Marco Arnone and Leonardo S. Borlini. Corruption: Economic Analysis and International Law (Gerry Ferguson)
The Last Page
Adrienne Rich, Excerpt from an Interview
North Korea and the Law on Anticipatory Self-Defense
Media reports over the last few weeks indicate that the already tense relationship between North Korea and the United States is getting worse. Now that North Korea is nearly ready to test an intercontinental ballistic missile, the United States has said that it will get more confrontational. U.S. Secretary of State Rex Tillerson even suggested that U.S. military action against North Korea is "on the table." Such talk is sometimes part of a broader strategy to pressure other countries to negotiate, whether at the Security Council or elsewhere. But it can also be a precursor to war. And it comes at an acute time for the law on anticipatory self-defense.
As readers of this blog no doubt know, Article 51 of the UN Charter recognizes that states have an "inherent" right to use force in self-defense "if an armed attack occurs." There is an ongoing debate about whether and, if so, when Article 51 permits states to use force to avert an attack that has not yet occurred. Claims for interpreting Article 51 expansively—to permit defensive force even if the attack is only speculative—have been made with respect to "rogue" states that are developing nuclear weapons. In this post, I situate the North Korea case within that debate and explain why the United States might find it to be a particularly challenging case in which to press its expansive claim.
I. The Law on Anticipatory Self-Defense
A. A Restrictive Position
The majority view on anticipatory self-defense is probably a restrictive one: that anticipatory self-defense can be lawful only if an attack is truly "imminent"—as in, about to occur. Under this view, states may not use force unilaterally to nip in the bud latent threats or attacks that are still conjectural. They must instead address those situations using non-forcible means or by obtaining the UN Security Council's authorization.
That position finds support in various authoritative texts, including texts that specifically address situations involving the acquisition of nuclear weapons. In 1981, Israel bombed an Iraqi nuclear reactor that seemed ready to produce weapons-grade uranium. The UN Security Council "strongly condemn[ed]" the operation as a "clear violation of the Charter." In 2004, the UN Secretary-General's High-Level Panel on Threats, Challenges and Change likewise asserted that anticipatory self-defense is lawful "as long as the threatened attack is imminent" (para. 188). The Panel distinguished those cases from situations in which "the threat in question is not imminent but still claimed to be real: for example, the acquisition, with allegedly hostile intent, of nuclear weapons-making capability" (para. 188). It explained that non-imminent threats ought to be addressed without force or through the Security Council.
Indeed, the Security Council has repeatedly taken steps to prevent specific states from acquiring nuclear weapons. The Council has issued numerous resolutions condemning or authorizing sanctions against North Korea for conduct relating to its nuclear program. Likewise, the Council authorized sanctions against Iran, until it agreed to subject its program to stricter international oversight. And after the 1991 Gulf War, the Council imposed intrusive measures on Iraq to prevent it from obtaining nuclear weapons. This practice shapes expectations about the proper locus of decisionmaking authority. It suggests that the decision to sanction a state that might be acquiring nuclear weapons falls, at least in the first instance, to the Security Council, not to states acting unilaterally.
The debate surrounding the 2003 Iraq war arguably also supports that view. Part of the justification for the war was that the use of force was necessary to contain Iraq's nuclear program. The United States claimed to be acting pursuant to the Security Council's authorization. But most states disagreed with that claim and vociferously condemned the war. They did not believe that the Council authorized the use of force or that force without the Council's authorization was justifiable in this instance.
B. A Permissive Position
However, the restrictive position on anticipatory self-defense is being contested. As Michael Reisman and Andrea Armstrong showed in their 2006 article, several states have expressly claimed the right to use force in anticipatory self-defense, without limiting that right to truly imminent attacks. In December 2016, the United States drew on Sir Daniel Bethlehem's piece in the American Journal of International Law to articulate this legal position:
When considering whether an armed attack is imminent . . ., the United States analyzes a variety of factors. These factors include 'the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage.
Notice that "imminence" here does not have its ordinary meaning. By the United States' account, it would permit defensive force to prevent attacks that are still fairly conjectural.
In January 2017, the United Kingdom endorsed a very similar legal position. U.K. Attorney-General Jeremy Wright purported to limit the most expansive implications of the U.K. claim. He underscored that "[i]t is absolutely not the position of the UK Government that armed force may be used to prevent a threat from materialising in the first place." But his language just begs the question of when a threat has materialized. In the context of nuclear weapons, the threat could be said to materialize—and to justify defensive action—once a state that has demonstrated a hostile intent comes close to acquiring nuclear weapons. At that point, the risk of a potentially devastating attack increases. And waiting for the threat to become more operational might deprive the defending state of a meaningful opportunity to protect itself, without significant death or destruction. The U.S. and U.K. legal position thus creates space to justify anticipatory actions against states like North Korea.
To be sure, most states have not expressly endorsed that position. But as Jacob Katz Cogan and I have shown, most have also stayed silent in the face of actions that reflect it. Two examples are particularly relevant to the North Korea case. First, in 2007, Israel reportedly attacked a partially constructed nuclear facility in Syria. Although the UN Security Council condemned a very similar operation in 1981, states were almost completely silent about the 2007 action. Second, media reports indicate that Israel and the United States repeatedly attacked Iran's nuclear program, as the Security Council was pressuring it to accept more international oversight. These attacks varied in their severity, but at least some of them caused physical destruction or death. Again, the response was muted.
My point here is not that the permissive position on anticipatory self-defense is the best articulation of the law. My point is that the law on anticipatory self-defense is potentially in flux. It might already be shifting or might soon shift from the restrictive position toward the more permissive one. Moreover, for the time being, a state that uses force in anticipatory self-defense might be able to calibrate its action such that it falls in a legal grey zone—in which it foregoes the legitimizing effect of having the law on its side but also avoids the verbal or material blowback of a violation. The operation would not be widely accepted as lawful, but neither would it be widely treated as unlawful.
II. The Prospects for U.S. Strikes against North Korea
Given that the United States has itself advanced the permissive position on anticipatory self-defense, North Korea could present something of a test case. The United States might try to exploit the legal grey zone or press for its position on the law. Those moves are unlikely to succeed for at least three reasons. First, using force to curtail North Korea's nuclear program would be operationally difficult and present a serious risk of an escalation in violence. Antony Blinken, a State Department official in the Obama administration, recently explained:
Much of North Korea's nuclear complex is concealed underground, inside mountains or in places unknown to United States intelligence. Meanwhile, the country is making rapid progress with mobile missiles powered by solid rocket fuel that can be rolled out of hiding and prepared for launch in minutes.
Moreover, as Max Fisher put it, "[a]lmost any plan would bring a high risk of unintended escalation to all-out war, analysts believe." Thus, low-level, one-off operations—of the sort that were used against Syria and Iran—appear to be infeasible against North Korea. This matters from a legal perspective because other countries might have a harder time averting their gaze if the anticipatory action is a major military operation or risks triggering a broader war. Indeed, part of the justification for permitting anticipatory force in this context is that the operation mitigates the damage that would occur if the nuclear threat becomes more operational. That justification is less convincing if the anticipatory action itself causes or leads to enormous damage.
Second, the Trump administration has shown little interest in, and has at times been outright hostile toward, international law and international institutions. Those who have a stake in preserving these arrangements and who worry about their deterioration during a Trump administration thus have reason to push back against the United States—to resist an operation that they might otherwise tolerate because they view it as evincing a blatant disregard for the law. The 2003 Iraq war might be instructive. Once the United States indicated that it was prepared to go to war, no matter whether it obtained a contemporaneous Security Council resolution authorizing force, other states (both on and off the Council) were more intent on isolating the United States and demonstrating their own commitment to the Council's primacy in this area.
Third, the United States might now try to rally other states to support or tolerate a defensive operation. But this would require a serious diplomatic effort. The United States would likely have to persuade its allies that the alternatives to defensive force—including action through the Security Council—are either inadequate or infeasible. At the moment, the United States seems ill-prepared to undertake this effort. The U.S. State Department is, by many accounts, in disarray and sidelined from U.S. foreign policy decisionmaking. Moreover, Secretary Tillerson reportedly has isolated himself from career officials who might otherwise guide him in developing an effective diplomatic strategy.
III. Where Does This Leave Us?
To be sure, the United States might still use force to try to curb North Korea's nuclear threat. This scenario would try the jus ad bellum's resilience and the United States' commitment to it. Though the United States has violated the jus ad bellum before, it has also consistently engaged with and demonstrated its overall support for the regime. I argued last month that there are reasons to believe that the Trump administration will be different.
Alternatively, the United States might forego military action against North Korea. In this event, North Korea's nuclear program would still present a serious security threat. And again, the United States would be, at least for the moment, poorly positioned to lead a broad-based, multilateral initiative to contain that threat. Unless other countries step into the breach, the situation on the Korean Peninsula is likely to deteriorate even further.
The Evacuation of Eastern Aleppo: Humanitarian Obligation or War Crime?: A Reply
This post is written as a reply to the interesting contribution made by Elvina Pothelet on the topic of forced displacement in Syria. In her article, Elvina examined the legal foundation for the claim that the evacuation of Eastern Aleppo amounts to the war crime of forced displacement. I would like to build on this work, but distinguish my arguments in two respects. First, by also approaching the case from the perspective of a charge of crimes against humanity, under Article 7(1)(d) and second, by arguing that contrary to Elvina's interpretation, the 'ordering' requirement found in Article 8 (2)(e)(viii) should in fact be interpreted more liberally, in light of three counter arguments.
Forced Displacement as a Crime Against Humanity – Article 7(1)(d)
As with any assessment of this nature, it is undertaken on the basis of information freely available. With those responsible for displacing, in my view being the Syrian regime officials for their actions in Eastern Aleppo, not those who brokered or signed the evacuation agreement. With this in mind, I shall outline how the elements of Article 7(1)(d) are satisfied.
Contextual Elements
With respect to the contextual elements, the campaign launched by Syrian forces to retake Eastern Aleppo was an organised state policy. A legitimate question however, can be raised as to whether the civilian population was the primary object of the attack, (Kunarac Appeals Judgment para 91) or merely an "incidental victim of the attack'', (Bemba Confirmation of Charges para 76). Given the means and methods used in Aleppo, (Kunarac Appeals Chamber Judgment para 91) which are alleged to include "killing people, including women and children, on the spot in their homes and on the street," there is at least a reasonable basis to believe that the civilian population were the object of the attack. Additionally, even if legitimate opposition targets were based in Aleppo, 'a population remains civilian in nature even if there are individuals within it who are not civilians, as long as the population is 'predominantly civilian' (Bemba Trial Judgment para 153). The overall attack is widespread, having targeted multiple victims with considerable seriousness across a large geographical area. The attack's systematic nature is also satisfied by reference to the substantial resources employed and its organised nature. This organisation and use of state resources in a specific area similarly evidences a state policy beyond "spontaneous or isolated acts of violence" (Katanga Confirmation of Charges para 396).
Article 7(1)(d) – Deportation or Forcible Transfer of Population
The Krnojelac Trial Judgment (para 474) highlighted the important distinction between deportation and forcible transfer, holding that "[d]eportation requires the displacement of persons across a national border, to be distinguished from forcible transfer which may take place within national boundaries." (See here also). In the present case, the majority of those evacuated appear to have been moved to places within Syria, with some indeed already returning.
The Perpetrator Deported or Forcibly Transferred by Expulsion or other Coercive ActsThe ICC Elements of Crime note that the term 'forcibly' is "not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment." The Simić Trial Chamber (paras 125-126) concurred, noting:
The essential element is that the displacement be involuntary in nature, that 'the relevant persons had no real choice'. In other words, a civilian is involuntarily displaced if he is 'not faced with a genuine choice as to whether to leave or to remain in the area'.
A similar approach was taken in Prlić where the Trial Chamber (para 50) held that: "It is the absence of genuine choice that renders removal unlawful." Although in the case of the Aleppo evacuation, an agreement was signed to facilitate the evacuation of the civilians, that agreement cannot amount to relevant consent since as stated by the Naletilic Trial Judgment (para 523), "Military commanders or political leaders cannot consent on behalf of the individual." The link between the conduct and the resulting effect of forcing the victim to leave the area, (Ruto et al Confirmation of Charges para 245) is likewise satisfied by the bombardment of Aleppo leading to chronic food shortages, no water supply, and numerous civilian casualties.
Without Grounds Permitted under International LawThis provision relates to the power of States to enforce ordinary restrictions on the freedom of those who are lawfully present to move within their territory. (See Otto Triffterer's Commentary Article 7(2)(d)). The Kunarac Appeals Judgment (para 91) however noted "to the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the legality of the acts committed." Nonetheless, even if one accepts that there are legitimate opposition forces within Aleppo, the response of bombarding an area that ultimately forced the displacement of thousands of civilians, cannot be justified even if an appeal to IHL is made.
Lawfully PresentThe Elements of Crimes repeats the language found in Article 7(2)(d), therefore leaving the interpretation of the term lawfully present to the adjudication of the Court. For a potential guide, the Popović Trial Judgment (para 900) noted that: "What is important is that the protection is provided to those who have, for whatever reason, come to 'live' in the community—whether long term or temporarily … [it is not to] impose a requirement for 'residency'." The destruction to people's homes and schools highlights how this requirement is therefore easily satisfied.
This section, in similar vein to Elvina's post has analyzed the elements behind a potential prosecution for the forced displacement of civilians from Eastern Aleppo. In summary, the contextual elements being satisfied, a strong case can be made that members of the civilian population, lawfully present on the territory, were forcibly transferred, by coercive acts, without grounds permitted under international law.
Forced Displacement as a War Crime– Article 8(2)(e)(viii)
I shall now turn to addressing an issue raised within Elvina's post, that there requires an 'order to displace' in order to satisfy the provision of Article 8(2)(e)(viii).
Elvina's argument states that 'in order to constitute a violation and, a fortiori, a war crime in a non-international armed conflict (NIAC), displacement must not just be forced, it must be "ordered". Although reference is made to convincing arguments in favour of a 'broader interpretation on the basis of the object and purpose of IHL' I wish to expand upon and develop some of these arguments, with three points that I argue demonstrate why a strict interpretation of the provision is unnecessary.
First, despite the strict wording of the Rome Statute, the Pre Trial Chamber in Ntanganda (para 64) has in fact concluded that 'the conduct by which the perpetrator(s) force(s) civilians to leave a certain area is not limited to an order, as referred to in element 1 of the relevant Elements of Crimes […] should that be the case, the actual circumstances of civilian displacement in the course of an armed conflict would be unduly restricted'. It remains to be seen how the Ntaganda Trial Chamber will interpret this provision, or even develop its reasoning.
A second argument can be advanced, that given the harmonsiation of the law of armed conflict between international armed conflicts (IACs) and NIACs, it remains startling that the similar crime under Article 8(2)(vii) makes no reference to the requirement of ordering, yet Article 8(2)(e)(viii) does. Far from ignoring the intent of the drafters however, it is permissible to assess the broader context of the Statute, (VCLT Article 31(2)). In drawing on Article 8(2)(vii), an argument can be advanced that the term ordering should not be viewed as a rigid element of the crime, given that the clear intent of the drafters, with respect to Article 8(2)(vii) was not to include an ordering requirement. This form of 'effective interpretation' will naturally face critics, who outline a stricter interpretative method, but it would likewise not be the first time the ICC has ruled that a narrow interpretation of a principle would be 'absurd' and be against the backdrop of 'basic humanitarian considerations and common sense' (Lubanga Confirmation of Charges para 284)
Thirdly, one can invoke Article 31(3)(b) VCLT which permits the interpretation of treaties to be undertaken "together with the context […] [and] any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation". A study of military manuals reveals that even where States have adopted Article 8(2)(e)(viii) directly into their criminal legislation, (see – Canada, Crimes Against Humanity and War Crimes Act, 2000, page 26) their military manuals subsequently prohibit forced displacement in non-international armed conflicts without requiring that it be ordered (Canada's Law of Armed Conflict Manual 2001 § 1724). Other military manuals from Burundi and South Africa to Spain and the Netherlands place their emphasis solely on the forcible nature, over a direct order. National legislation from Colombia among many others also punish "anyone who, during an armed conflict, without military justification, deports, expels or carries out a forced transfer or displacement of the civilian population from its own territory." Given that states have interpreted the prohibition as not requiring a specific order, a narrower interpretation would be contrary to what I argue reflects the true customary understanding of the term. An agreement signed between the Government of The Philippines and the National Democratic Front of the Philippines, also emphasizes that "practices that cause or allow the forcible evacuations or forcible reconcentration of civilians" shall be prohibited, irrespective of the lack of an order.
Accordingly, despite what may seem the clear cut wording of the Rome Statute, the Court itself, along with state interpretation, evidences a consistent position that the war crime of forced displacement can be committed without a direct order to do so.
This post has outlined how a prosecution under Article 7(1)(d) for forced displacement might succeed, and in response to Elvina Pothelet's contribution, where I respectfully advance a differing interpretation of the ordering requirement found in Article 8(2)(e)(viii). The law on both points however, remains contentious and a fascinating issue for debate, one that in time might be answered by the judicial process itself.
For further reading outside of the Aleppo conflict, readers may also find this Amnesty Report on Forced Displacement in Northern Syria interesting.
Announcements: Duke University Law School Vacancy; Inter-American Human Rights Moot Court Competition; UN Audiovisual Library of International Law; Cognitive Sociology, Culture, and International Law
1. Duke University Law School Vacancy. Duke University Law School seeks to fill a Clinical Fellow/Supervising Attorney position in its International Human Rights Clinic beginning in the Summer of 2017. The advertisement with additional details is here.
2. Registration open for the 22nd Inter-American Human Rights Moot Court Competition. We are pleased to invite you to participate in this year's edition of the Inter-American Human Rights Moot Court Competition. Organized by American University Washington College of Law's Academy on Human Rights and Humanitarian Law, this trilingual Competition (English, Spanish and Portuguese) serves as an important forum for the analysis of international law and human rights. The event will take place from May 21-16, 2017, at AUWCL's campus in Washington, DC. Attorneys licensed in their own country can apply to participate as a Judge, evaluating written memorials, which can be done remotely, or participating in the oral rounds in DC. This is a great opportunity to interact and network with over 100 scholars, NGO experts, international organizations personnel and government officers from the all over the world, who volunteer to serve as judges in the Competition. As an additional bonus, all Judges are eligible for a partial scholarship to the Academy's Program of Advanced Studies on Human Rights and Humanitarian Law. Judges are not subject to any registration fees and can apply until May 1, 2017. Registration can be completed online at our website. For questions, feel free to contact us at iamoot {at} wcl.american(.)edu var mailNode = document.getElementById('firstname.lastname@example.com'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%69%61%6D%6F%6F%74%40%77%63%6C%2E%61%6D%65%72%69%63%61%6E%2E%65%64%75"); tNode = document.createTextNode("iamoot {at} wcl.american(.)edu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "email@example.com"); mailNode.parentNode.replaceChild(linkNode, mailNode); .
3. Additions to the UN Audiovisual Library of International Law. The Codification Division of the UN Office of Legal Affairs has added new lectures to the UN Audiovisual Library of International Law website, which provides high quality international law training and research materials to users around the world free of charge. The latest lectures were given by Ambassador Tommy Koh on "Straits Used for International Navigation" and Professor Simon Chesterman on "Asia's Ambivalence About International Law and Institutions: Past, Present, and Futures".
4. Cognitive Sociology, Culture, and International Law. iCourts (Faculty of Law, University of Copenhagen) is pleased to announce the Third Workshop on the Sociology of International Law to take place on 28-29 April 2017. For more information please visit the iCourts webpage. For any inquiries, please contact Sungjoon Cho at- scho1 {at} kentlaw.iit(.)edu var mailNode = document.getElementById('firstname.lastname@example.com'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%73%63%68%6F%31%40%6B%65%6E%74%6C%61%77%2E%69%69%74%2E%65%64%75"); tNode = document.createTextNode("scho1 {at} kentlaw.iit(.)edu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "firstname.lastname@example.com"); mailNode.parentNode.replaceChild(linkNode, mailNode); .
The International Legal Framework Regulating Armed Drones
Last week I had the pleasure and honour of delivering the International and Comparative Law Quarterly's Annual Lecture for 2017 together with Lawrence Hill-Cawthorne. Our lecture was based on an article – "International Legal Framework Regulating Armed Drones" – that we co-authored with Professor Christof Heyns and Dr Thompson Chengeta which was published in Volume 65 (2016) of the ICLQ. The article arose out of a project to support Christof's work in his capacity as United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions. We began the collaboration in the summer of 2013 in the lead up to Christof preparing a report for the 68th session of UN General Assembly on "Armed Drones and the Right to Life". The project commenced with an expert workshop organized by the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations and has concluded with this article which is an expanded version of the UN GA report.
As the abstract of the article sets out:
This article provides a holistic examination of the international legal frameworks which regulate targeted killings by drones. The article argues that for a particular drone strike to be lawful, it must satisfy the legal requirements under all applicable international legal regimes, namely: the law regulating the use of force (ius ad bellum); international humanitarian law and international human rights law. It is argued that the legality of a drone strike under the ius ad bellum does not preclude the wrongfulness of that strike under international humanitarian law or international human rights law, and that since those latter obligations are owed to individuals, one State cannot consent to their violation by another State. The article considers the important legal challenges that the use of armed drones poses under each of the three legal frameworks mentioned above. It considers the law relating to the use of force by States against non-State groups abroad. This part examines the principles of self-defence and consent, in so far as they may be relied upon to justify targeted killings abroad. The article then turns to some of the key controversies in the application of international humanitarian law to drone strikes. It examines the threshold for non-international armed conflicts, the possibility of a global non-international armed conflict and the question of who may be targeted in a non-international armed conflict. The final substantive section of the article considers the nature and application of the right to life in armed conflict, as well as the extraterritorial application of that right particularly in territory not controlled by the State conducting the strike.
The ICLQ and Cambridge University Press have kindly made the article free to access here from now until the end of April. Take a look to see what you think. As indicated by the abstract, the piece is wide-ranging and seeks to cover a lot of ground though much more can be said about each of the individual areas that we address.
In other drones related news, I have recently been appointed as a legal advisor to an Inquiry by the UK Parliament's All Party Parliamentary Group on Drones (APPG) into the emerging technologies of drones and the ways in which the UK works with allies with regard to use of armed drones. Under its terms of reference, the inquiry will make recommendations to ensure appropriate levels of transparency and accountability with regard to the use of armed drones. The APPG on Drones inquiry aims to build on the 2016 report of Parliament's Joint Committee on Human Rights on "The Government's policy on the use of drones for targeted killing". The APPG inquiry panel invites written submissions on all aspects of its terms of reference. The deadline for written submissions is next Friday 31 March 2017. Submissions may be made here.
The Right to Religious Freedom and the Threat to the Established Order as a Restriction Ground: Some Thoughts on Account of the Achbita Case
On March 15, 2016, the European Court of Justice (ECJ) heard two different cases, the case of Achbita and that of Bougnaoui. As noted here, while both cases had the wearing of the Islamic headscarf at work as a common factual background, the legal questions asked were different. The Achbita case, referred to the ECJ by the Belgian Cour de Cassation, concerned Achbita's dismissal from work as a receptionist. The dismissal took place after she refused to comply with a prohibition to wear the Islamic headscarf when dealing with customers. The Bougnaoui case, referred by the French Cour de Cassation, focused on a similar dismissal after she refused to abide by her boss' demands and take off her Islamic headscarf, following the relevant wishes expressed by one of the enterprise's clients. Nevertheless, the two courts brought different questions before the ECJ for a preliminary ruling. The Belgian supreme administrative court asked the ECJ whether such a ban from wearing the headscarf at work constituted direct discrimination. Its French counterpart focused on the client and whether his will not to have services provided by an employee wearing a visible religious symbol or attire contravened EU law.
On Mach 14, 2017, almost a year after the hearing of the cases, the ECJ issued its judgments (here and here). In the case of Achbita, the ECJ ruled that employers, coming to pursue a policy of political, philosophical and religious neutrality, have the right to prohibit their workers from adhering to a specific religious dress code or from wearing at work visible religious symbols. On the contrary, in the Bougnaoui case, the court's holding was that employers cannot discriminate between employees who wear religious symbols and those who do not, due to a customer's demand. Accordingly, while the Bougnaoui judgment closes the door to any potential restricton of religious expression at work, this is not the case with the Achbita one. The latter can be seen as introducing a possible infringement on religious freedom even if the Court ruled that employers have the option and not the obligation to impose such a ban on visible religious symbols. Through the granting of such an option, the ECJ sends the message that an individual cannot cite religious beliefs in order not to comply with generally set applicable norms.
This has been palpably demonstrated in domestic jurisprudence on both sides of the Atlantic. For example, in the Employment Division v. Smith, the U.S. Supreme Court held that two Native Americans had been justifiably dismissed from their work after the ingestion of peyote, a powerful entheogen. The fact that their religious beliefs sanctioned such an ingestion was not a valid ground for them to contravene the laws of the State of Oregon which prohibited possession and use of the particular substance. Similarly, in the case of Bull v. Hall, the UK Supreme Court held that the religious beliefs of a hotel keeper could not justify discrimination against same-sex couples and justify a policy according to which the hotel suites destined for married couples would be given only to heterosexuals.
At the same time, the Achbita case holds some differences. The question of non-compliance does not relate to an Act of Parliament or to a general principle of law, like that of non-discrimination. The normative background rather comes from the private initiative and the will of the employer to pose certain norms in his business according to which his employers must abide. In that sense, the Achbita judgment poses the legal question whether the private will and the setting of private norms similar to these governing the everyday life of a firm can ultimately restrict religious freedom. The question becomes more demanding once two things are taken into account: first, neither article 10 of the EU Charter of Fundamental Rights, read in conjunction with article 52, nor the European Convention on Human Rights, include the preservation of religious neutrality as a ground for restricting religious freedom. Article 9, paragraph 2 of the Convention contains a number of grounds for restricting religious freedom, including reasons of public order and health, or the respect for the rights of others, but not any reference to the preservation of religious neutrality. In that sense, the possible creation of new restriction grounds raises questions of judicial activism and imperils human rights' protection.
Secondly, the teleological reasons behind the imposition of such religious neutrality restrictions must be taken also into account. On this, Achbita and the other aforementioned judgments largely differ. In the latter, a policy of religious neutrality is imposed in the name of respect for legality and the rule of law. On the contrary, in Achbita, such a policy is linked with the subjective and ideologically-loaded perceptions of a firm's owner and his opposition to any change to his firm's image or to the dynamics at work. In that sense, by siding with such an employer, the Achbita judgment should be read as a wider ECJ attempt to crown the preservation of the status quo as a legitimate ground for the restriction of human rights and liberties. This resembles the approach the European Court of Human Rights has already taken on the matter.
In a number of cases, the Strasbourg court has appeared willing to protect individual religious freedom. Yet, such a protection is provided only to the extent that this freedom does not pose a threat to the existing socio-political status quo. For example, in the Dahlab case, the court refused to grant to a teacher convert to Islam the right to wear an Islamic headscarf at school, out of fear that the headscarf as an 'external, powerful symbol' would proselytise the students and disrupt the existing religious and, by extension, social harmony. Preservation of the social harmony is also a parameter stressed by the Court in its upholding of the French burqa ban in the SAS case. In the Sahin case, the disruption of the political harmony and of the existing political status quo of Turkey as a secular democracy were put, according to the Court, at stake. Along these lines, the Court sided with the State and prohibited Sahin from attending a Turkish university wearing the Islamic headscarf out of fear that this would peril secularism in Turkey. Similarly, through in its Achbita judgment the ECJ appears ready to acknowledge religious freedom, this is only to the extent that it does not hinder a person's quest to preserve the existing status quo in his enterprise, even if this status quo is one of religious neutrality. Emphasis is placed on the employer's 'I', not on the employee's 'thou'.
Such emphasis on the preservation of the existing status quo at all costs, even if this will lead to a restriction or violation of other people's rights, constitutes undoubtedly a conservative approach. Consequently, the particular judgment should be read also in a socio-political context.
Already under the first democratic regime in ancient Athens, the question whether man should be seen as 'good in nature' or as a cynical, self-centred being, has been a matter of debate between Socrates and the sophists. The former adamantly believed in man's benevolent character, while the latter held that people's viewpoints can change according to their interests. In modern times, the Socratic viewpoint has been endorsed in the stance liberal democracy has taken towards freedom, tolerance and human rights. Nevertheless, the particular viewpoint has equally been lately menaced through the voices heard around the world – from France, to the U.S. and Australia – against immigration and minority rights. Read in this framework, the recent judgment seems to place another nail in the coffin of liberal democracy's Socratic stance.
On this account, it will be interesting to see the impact the recent judgment may exert to the overall upholding of liberal values in Europe. With the extreme right lurking for its rise to power, so far, domestic European courts have been divided as to whether to unequivocally side with minorities and be understanding towards their religious needs. Thus for example, in Germany, in 2015, the Federal Constitutional Court ruled that a ban on teachers wearing Islamic veils at schools was not compatible with religious freedom and that veils did not pose a threat to the school's learning environment.
Nevertheless, despite such a decision, lower instance German courts have not been unanimous in awarding compensation to teachers who were discriminated against due to their wearing of such a veil. For example, last February, Berlin's Labor Court ruled in favour of a Muslim woman who had been rejected from a teaching job because she was wearing the Islamic headscarf. Interestingly enough, in that particular case, the State proposed to the applicant to wear a wig at school instead of the headscarf, because the wig was 'ideologically neutral.' The 'ideological neutrality' argument was ultimately not endorsed by the court. On the other hand, in August 2016, the Osnabruck Administrative Court held that a school had valid reasons not to allow teaching duties to a Muslim teacher who wore the Islamic headscarf.
In this framework, the judgment of the European Court of Justice may augment voices calling for further restrictions to minority rights. Ultimately, it may serve as the nightingale of a less liberal era not only in parliaments and governments but also in courts. Whether we will shout 'we are all Socrates,' is something that remains to be seen.
Azerbaijan: Is it Time to Invoke Infringement Proceedings for Failing to Implement Judgments of the Strasbourg Court?
A year ago, on 17 March 2016, the European Court of Human Rights issued a landmark judgment against Azerbaijan finding a rare violation of Article 18 of the European Convention on Human Rights, and the first based on the repression of human rights defenders as a result of their human rights activities. The Court found that the pre-trial detention of a prominent Azerbaijani human rights defender, Rasul Jafarov, was unlawful and aimed 'to punish the applicant for his activities in the area of human rights', in violation of Article 18 (restrictions of rights for a purpose other than the one prescribed in the Convention) and also Article 5 (the right to liberty). That same day, after having spent 15 months in a prison cell, Rasul Jafarov was released under the presidential pardon decree.
In finding the violation of Article 18, the Court took note of the totality of repressive circumstances in which Azerbaijani human rights NGOs operated and the numerous statements of high ranking Azerbaijani officials criticising those NGOs and their leaders, including the applicant, and concluded that Jafarov's case could not be viewed in isolation from this backdrop.
Earlier cases, such as Tymoshenko v Ukraine and Lutsenko v Ukraine, had found a violations of Article 18 due to the unlawful detention of political opposition leaders.
Although Article 18 cases are very rare in the Court's practice, the Jafarov judgment is the second one in which the Court has found Azerbaijan's actions in arresting its critics in violation of Article 18 of the Convention. In the case of opposition leader Ilgar Mammadov the Court established that his arrest and pre-trial detention aimed to punish him 'for criticizing the Government'. Ilgar Mammadov has remained in prison for more than four years serving a seven-year sentence on charges of organising mass disorder and resisting arrest after he criticised the Government's handling of demonstrations and unrest in the region of Ismayili.
Growing concern over Azerbaijan`s failure to implement `Article 18` judgments
Neither judgment has been fully implemented and both have been causing growing concern over Azerbaijan`s failure to comply, in violation of Article 46(1) of the Convention establishing the binding nature of the Court's judgments. A year after the adoption of the judgment in the case of Rasul Jafarov, the Government has failed to pay monetary compensation ordered by the Court. This comes as a new worrying development in Azerbaijan's compliance with individual measures, given Azerbaijan`s earlier record of timely payments.
Furthermore, the applicant's request to the Supreme Court to reopen a criminal case that led to his conviction on the basis of the Strasbourg Court's judgment was dismissed as groundless. Rasul Jafarov referred to the Criminal Code provisions allowing for a re-opening of a criminal case on the basis of the Strasbourg judgment as 'a newly found circumstance'. The Supreme Court, however, was of the opinion that the judgment only applies to pre-trial detention. It failed to address the Strasbourg Court's arguments under Article 18 stipulating the absence of any legal grounds for the applicant`s prosecution, which led it to be:
… unconvinced that such misconduct could have given rise to a reasonable suspicion that [the applicant] had committed a criminal offence. Neither the domestic authorities nor the Government were able to refer to any provision of the Criminal Code which specifically criminalises a failure to register grants. (para 125)
The same argument has been used by the Azerbaijani Government in its rejection of the repeated calls of the Committee of Ministers for the release of Ilgar Mammadov. Azerbaijan's failure to release him has become a real challenge to the Committee in its supervision of the implementation of the judgment, and to the whole Convention system. Azerbaijan's rejection of the Committee's position has sparked debates on the importance of states' collective responsibility in protecting the values and the credibility of the Convention system, and on the steps that should be taken against a member state that persistently fails to comply with its legal obligations. As Thorbjørn Jagland, the Secretary General of the Council of Europe (CoE) noted in April 2016, 'depriving a person of his or her liberty on the basis of a flawed judgment is an attack on the human rights system we have in Europe.'
In December 2015, the Secretary General decided to initiate a special inquiry into Azerbaijan's compliance with the Mammadov judgment under Article 52 of the Convention, the first such inquiry in relation to an individual case. In June 2016, the Committee decided to put the case of Ilgar Mammadov on the agenda of its weekly meetings, along with its quarterly Human Rights meetings (where the implementation of the Court`s judgments is discussed) until Mammadov is released. As neither course of action led to any meaningful dialogue with Azerbaijan or produced any tangible results, support for initiating infringement proceedings against Azerbaijan under Article 46(4) of the Convention is gathering momentum at the Committee (although at its most recent Human Rights meeting, this course of action was not taken).
Azerbaijan as a test case for infringement proceedings
Under Article 46(4), if the Committee of Ministers considers that a state refuses to abide by a judgment, it may refer to the Court the question of whether the state has failed to fulfil its obligation under Article 46(1). This mechanism was introduced by Protocol 14 in order to strengthen the measures available to the Committee of Ministers to deal with recalcitrant states, in particular in relation to cases concerning structural problems. However, to date, it has not been used, in part because of the two-thirds majority on the Committee of Ministers required to invoke it and the perception that it is a 'last resort' measure. However this is to miss the point that it was, in fact, introduced by member states as an intermediate measure to provide an alternative to the extreme step of suspension of voting rights or even expulsion. More broadly, there remains scepticism about both the utility and feasibility of using the infringement proceedings, lest it cause further resistance by states.
The Committee, however, may ultimately consider that it has no other choice but to initiate infringement proceedings in the case of Ilgar Mammadov. It is hard to imagine a more blatant and persistent refusal to implement a judgment, particularly given that the necessary individual measure, the release of the applicant, is not onerous on the State. As no previous intervention of the CoE had led to any positive outcome, infringement proceedings would send a strong political message to Azerbaijan that the CoE will not tolerate such disrespect of its values and the states' unconditional legal obligations.
The infringement proceedings would escalate the matter in respect of Azerbaijan's relationship to other Convention member states. As Christos Giakoumopoulos, the Director of the Human Rights Directorate of the CoE noted at the launch event of the European Implementation Network in December 2016, the Court's finding of a violation of Article 46(4) of the Convention would transform the matter from an individual human rights issue (as dealt with in the original judgment) into an issue of the international responsibility of a State Party vis-a-vis the other High Contracting Parties to the Convention.
Two Article 18 judgments, several other communicated cases relating to alleged violations of Articles 5 and 18 against Azerbaijan, and well-documented political persecution of the critical voices, including civil society, by the Azerbaijani authorities signals the existence of a systemic issue of the rule of law, one of the core values of the CoE. Against such a backdrop, the state's refusal to implement legally binding judgments and its acting in bad faith in complying with its international obligations raises serious questions about its willingness to abide by Convention norms. As Judge Helen Keller and Corina Heri recently argued, the very significance of the finding of a violation of Article 18 lies in the challenge it poses to undemocratic and even 'totalitarian' measures taken by states.
Such a situation leaves the Committee of Ministers and the CoE at a crossroads: are they prepared to use the tools available to them and take a firm stance to protect the very credibility of the Convention system that Azerbaijan's behaviour endangers? As the red line indicated by Article 46(4) was crossed a long time ago, it is for the 'collective responsibility' to ensure that such fundamental values as the right to liberty are secured in Europe. Should the infringement proceedings yield no tangible results, Azerbaijan could risk suspension or expulsion from the CoE. Article 3 of the Statute of the Council of Europe stipulates that every member state must accept the principles of the rule of law and respect for human rights, and collaborate sincerely and effectively in the realisation of the aim of the CoE. Under Article 8, a serious violation of Article 3 could lead to the state's suspension and a request for it to withdraw from the Convention system. Such an outcome should be of no interest to the Government of Azerbaijan, which has enjoyed the continuous expert support of the CoE for over two decades; it certainly would be of no benefit to Azerbaijani citizens, for many of whom the Strasbourg Court is often the only effective judicial remedy for their violated rights.
Hegemonic Cooperation or Succession? The United States' Emerging 'Abandonment', and China's Rising 'Defense', of the Global Order
Many international lawyers all over the world will doubtless have experienced a surge of surrealism over the past weeks, witnessing dramatic contrasts emerging between American and Chinese foreign policies seeking to redefine the global order – with the latter veering towards deepening strategic international cooperation around the world, and the former emphatic about the insularity of its 'America First' policy (read: 'walls' could be literal and figurative). In January 2017, Chinese President Xi Jinping gave a rousing defense of economic globalization at Davos, pointing to the inevitability and irreversibility of the global economy, where for China, "the right thing to do is to seize every opportunity, jointly meet challenges and chart the right course for economic globalization." A month later, American President Donald Trump delivered his Address to the US Congress stridently pronouncing the country's shift towards a "direct, robust, and meaningful engagement with the world…American leadership that is based on vital security interests…[where] partners must meet their financial obligations…[and where] America is willing to find new friends, and to forge new partnerships, where shared interests align." The historic first meeting this week between US Secretary of State Rex Tillerson and Chinese President Xi Jinping was the first high-level commitment towards greater joint cooperation between the United States and China, possibly suggestive of softening stances between the established hegemon and the rising world power in containing shared threats, such as North Korea's demonstrable nuclear ambitions.
The United States' emerging abandonment of the same postwar multilateral architecture it largely created – in favor of much thicker versions of protectionism, bilateralism, and unilateralism – is ironically taking place at a time when China is gaining confidence in rising to defend the global order and the enduring value of international institutions. It is nothing less than a sharp reversal of the "New Great Game" dynamics I observed four years ago, characterizing the United States as the "unipolar hegemon that incorporates international law justification as part of its operational code in international relations", and China as the "rising power whose operational code in international relations remains facially deeply sovereigntist but latently appears to be shifting towards some instrumental internationalism – quite consistent with the ideological hybridity bred by 'socialist modernization' or what Ronald Coase [described as] 'Chinese capitalism'." (at p. 370).
The Trump administration does not resonate the United States' historic use of international law justifications (or standard international legal cover) when furthering American strategic interests in the international system. In the past few weeks, for example, the United States released its 2017 Trade Policy Agenda and 2016 Annual Report of the President of the United States on the Trade Agreements Program which sets four broad priorities – "(1) defending US national sovereignty over trade policy; (2) strictly enforcing US trade laws; (3) using all possible sources of leverage to encourage other countries to open their markets to US exports of goods and services…and (4) negotiate new and better trade deals with countries in key markets around the world." (Agenda, at p. 2.) The Trump Administration has publicly announced it would ignore certain rulings of the World Trade Organization that it deemed to affect US sovereignty, withdrew from the US-led Trans-Pacific Partnership, and demands swift renegotiation of the North American Free Trade Agreement (NAFTA). Jack Goldsmith at Harvard Law School has called out the "Trump Onslaught on International Law and Institutions", capsulized by "a belief that international law does not reflect American values but threatens American institutions, and a related belief that "American peace, prestige, and prosperity were not being served by our foreign policy." The American Civil Liberties Union (ACLU) has repeatedly attacked the Trump Administration's travel and refugee bans as open violations of treaties ratified by the United States such as the 1951 Refugee Convention and its Protocol. The US State Department has been besieged by an unprecedented exodus of career senior officials – an obviously precarious situation for what Harold Koh used to call "the most outstanding international law firm in the world". [Harold Koh, "Foreword: America's Conscience on International Law", at p. xiii, in Michael P. Scharf and Paul R. Williams, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser, CUP 2010.] It is highly doubtful, at this point, if international law justifications and global institutions would have any enduring place in the future within the Trump Administration's 'America First' foreign policy canon.
In contrast, China has been deepening its engagement with the international legal system [See Jacques Lisle, China's Approach to International Law: A Historical Perspective, 94 ASIL Proceedings (2000), pp. 267-275], as it moves rapidly to consolidate its economic superpower status with technological competitiveness and expand its Silk Road Economic Belt and Maritime Silk Road ("One Road, One Belt") initiative of debt-financed infrastructure developments encompassing over 60 countries around the world. China has taken the lead in seeking to forge a powerful 16-country trade bloc through the Regional Comprehensive Economic Partnership (RCEP) and floating the idea of a Free Trade Area for the Asia-Pacific (FTAAP). China also won its very first investor-State arbitration this March 2017, successfully defending itself against a claim by South Korean investors (Ansung Housing Co. Ltd. v. People's Republic of China, ICSID Case No. ARB/14/25, Award, 9 March 2017. Tribunal composed of Prof. Lucy Reed (President), Dr. Michael Pryles, and Prof. Albert Jan van den Berg).
What would be most crucial in the "New Great Game" between the United States and China, is how both would possibly respond to demonstrable internationally wrongful conduct by the other in the future, and what contours would emerge from the tenuous United States-China cooperation recently initiated under the Donald Trump and Xi Jinping governments. Would there be policies of confrontation, accommodation, or strategic engagement between the United States and China, especially when a senior Trump Administration official has declared the "end of the Pivot to the Pacific", and US Defense Secretary Jim Mattis already belied any military action for Chinese assertions in the South China Sea?
In pondering these questions, it is worth recalling a 2012 essay by the famous American diplomat Henry Kissinger, The Future of U.S.-China Relations: Conflict is a Choice, Not a Necessity, where he presciently observed:
"Some American strategic thinkers argue that Chinese policy pursues two long-term objectives: displacing the United States as the preeminent power in the western Pacific and consolidating Asia into an exclusionary bloc deferring to Chinese economic and foreign policy interests. In this conception, even though China's absolute military capacities are not formally equal to those of the United States, Beijing possesses the ability to pose unacceptable risks in a conflict with Washington and is developing increasingly sophisticated means to negate traditional U.S. advantages. Its invulnerable second-strike nuclear capability will eventually be paired with an expanding range of antiship ballistic missiles and asymmetric capabilities in new domains such as cyberspace and space. China could secure a dominant naval position through a series of island chains on its periphery, some fear, and once such a screen exists, China's neighbors, dependent as they are on Chinese trade and uncertain of the United States' ability to react, might adjust their policies according to Chinese preferences. Eventually, this could lead to the creation of a Sinocentric Asian bloc dominating the western Pacific. The most recent U.S. defense strategy report reflects, at least implicitly, some of these apprehensions.
No Chinese government officials have proclaimed such a strategy as China's actual policy. Indeed, they stress the opposite. However, enough material exists in China's quasi-official press and research institutes to lend some support to the theory that relations are heading for confrontation rather than cooperation…
If challenged, the United States will do what it must to preserve its security. But it should not adopt confrontation as a strategy of choice. In China, the United States would encounter an adversary skilled over the centuries in using prolonged conflict as a strategy and whose doctrine emphasizes the psychological exhaustion of the opponent. In an actual conflict, both sides possess the capabilities and the ingenuity to inflict catastrophic damage on each other. By the time any such hypothetical conflagration drew to a close, all participants would be left exhausted and debilitated. They would then be obliged to face anew the very task that confronts them today: the construction of an international order in which both countries are significant components.
The blueprints for containment drawn from Cold War strategies used by both sides against an expansionist Soviet Union do not apply to current conditions. The economy of the Soviet Union was weak (except for military production) and did not affect the global economy. Once China broke off ties and ejected Soviet advisers, few countries except those forcibly absorbed into the Soviet orbit had a major stake in their economic relationship with Moscow. Contemporary China, by contrast, is a dynamic factor in the world economy. It is a principaltrading partner of all its neighbors and most of the Western industrialpowers, including the United States. A prolonged confrontation between China and the United States would alter the world economy with unsettling consequences for all….
What this situation calls for is not an abandonment of American values but a distinction between the realizable and the absolute. The U.S.-Chinese relationship should not be considered as a zero-sum game, nor can the emergence of a prosperous and powerful China be assumed in itself to be an American strategic defeat.
A cooperative approach challenges preconceptions on both sides. The United States has few precedents in its national experience of relating to a country of comparable size, self-confidence, economic achievement, and international scope and yet with such a different culture and political system. Nor does history supply China with precedents for how to relate to a fellow great power with a permanent presence in Asia, a vision of universal ideals not geared toward Chinese conceptions, and alliances with several of China's neighbors. Prior to the United States, all countries establishing such a position did so as a prelude to an attempt to dominate China.
The simplest approach to strategy is to insist on overwhelming potential adversaries with superior resources and materiel. But in the contemporary world, this is only rarely feasible. China and the United States will inevitably continue as enduring realities for each other. Neither can entrust its security to the other — no great power does, for long — and each will continue to pursue its own interests, sometimes at the relative expense of the other. But both have the responsibility to take into account the other's nightmares, and both would do well to recognize that their rhetoric, as much as their actual policies, can feed into the other's suspicions….
The key decision facing both Beijing and Washington is whether to move toward a genuine effort at cooperation or fall into a new version of historic patterns of international rivalry. Both countries have adopted the rhetoric of community. They have even established a high-level forum for it, the Strategic and Economic Dialogue, which meets twice a year. It has been productive on immediate issues, but it is still in the foothills of its ultimate assignment to produce a truly global economic and political order. And if a global order does not emerge in the economic field, barriers to progress on more emotional and less positive-sum issues, such as territory and security, may grow insurmountable…"
The accusations of violations of international law, ironically, have been mutual, and at times, even ambiguous. The Trump Administration has previously threatened a trade war with China for alleged unfair trade practices, while China has objected strenuously to the lawfulness of US freedom of navigation operations in the South China Sea. US Senators recently proposed bipartisan legislation seeking to impose sanctions against China for its militarization of the South China Sea. Recently, notwithstanding the Philippines v. China arbitral award rejecting China's assertion of any supposed historic rights over Scarborough Shoal and finding that China had caused severe harm to the marine environment with its island-building activities, however, China announced it would start building "environment monitoring stations" over Scarborough Shoal. The announcement contravenes Chinese President Xi Jinping's supposed promise to Philippine President Duterte that China would never build an artificial island over the disputed Scarborough Shoal. While White House spokesman Sean Spicer had previously stated that the United States would "prevent China from taking over territory in international waters in the South China Sea", the mercurial Trump Administration – including US Secretary of State Tillerson – has so far been silent on the announced Chinese plans to build an artificial island over Scarborough Shoal. (Note that White House Chief Strategist Steve Bannon previously predicted in March 2016 that the United States "would go to war in the South China Sea in five to ten years.") Thus far, since the 12 July 2016 arbitral award in Philippines v. China, some scholars have reported that China appears to have already complied with some of the tribunal's rulings, while continuing not to comply with others. This nascent result – less than a year since the arbitral award was issued – is not at all unexpected, when one takes a wider lens (and longer time-frame) when examining the horizon of State compliance with international judgments.
Kissinger's observations, in my view, capsulize a neorealist pragmatism that will likely be observed by both the United States and China towards international law, its strategic uses (and disuses), and the utilitarian purposes of global institutions for nationalist interests. As the United States government under the Trump Administration signals a retreat from its traditional discursive approaches to international law justification, China has demonstrated its ability to selectively and strategically engage international law, global institutions, economic partnerships. It remains to be seen if today's initiative towards hegemonic cooperation between the United States and China – both of which appear to dismiss principles of international law at will or disengage from international cooperation as easily – could ultimately forge conditions for hegemonic rivalry, if not ultimate succession, given the reconfiguring constellations of nationalisms and populisms within today's international legal system under fire. Much remains to be seen on the myth systems and operational codes of both world powers towards international law and the future shape of global order. The "New Great Game" is still being played.
The ECtHR's Ilias and Ahmed v. Hungary and Why It Matters
The European Court of Human Rights delivered a judgment last Tuesday in the case of Ilias and Ahmed v. Hungary, finding multiple violations of the European Convention as a result of Hungary's border procedures and its treatment of asylum-seekers. The applicants, nationals of Bangladesh, spent over three weeks in the transit zone before being sent back to Serbia, considered a "safe third country" under a 2015 Governmental Decree. Both applicants were part of the first wave of asylum-seekers attempting to access Hungary after the entry into force of controversial new legislation in September 2015, which effectively led to the Western Balkans route turning towards Croatia over the course of the next few days.
In what constitutes its first verdict on Hungary's latest practice – which involves deprivation of liberty and almost universal forced return to Serbia on the basis of the safe third country concept – the Court found violations of Arts 3, 5 and 13 in conjunction with Art. 3 of the Convention, namely because the applicants had been subjected to de facto deprivation of liberty with no adequate safeguards for over three weeks, didn't have access to an effective remedy with respect to the conditions of their detention and ended up being sent back to Serbia without ever having the possibility of ill-treatment genuinely considered either by the asylum authority or the Szeged Administrative Court in their attempted appeals against the former's ruling. In finding violations, the Court generally agreed with more-or-less all of the applicants' arguments, however it did not agree with them that the conditions of their detention in the border zone reached the level of severity necessary for there to be a violation of Art. 3 in that respect.
The Implications
While the Ilias and Ahmed v. Hungary judgment doesn't break any new ground with respect to the Court's reading of the law, it is probably one of the Court's more important recent cases in light of its broader implications, political as well as legal. First of all, the Court's analysis of the new situation in Hungary following the legislative amendments of 2015 effectively calls into question the legality of Dublin returns to that country along the lines of M.S.S. v. Belgium and Greece (in case anyone was really still wondering if it was alright to send asylum-seekers back to Hungary). Furthermore, by analysing the conditions and asylum system of Serbia and determining the existence of a real risk of violations of Art. 3 in case of forced return there (particularly with respect to the possibility of chain refoulement), the Court actually sent a very clear message to the Serbian authorities themselves, giving local civil society a new resource to draw upon when confronting state officials and their obstinate mantra that Serbia has somehow been "more European than some European countries" in its handling of the refugee situation. In fact, the practice of Serbian authorities is just about identical to Hungarian practice when it comes to the automatic application of the safe third country concept and refusal to examine asylum applications in the merits, albeit deprivation of liberty is far less common.
In a nutshell, Serbia is guilty of almost the same lack of safeguards with respect to the forced returns procedure as is Hungary. This is consistently reported by numerous reports by civil society, UNHCR and is even addressed by the CAT's last Concluding Observations on Serbia. Therefore, it's likely only a matter of time before Serbia finds its name added by the ECHR to the hall of shame of Europe's asylum baddies.
There is also a third important component to the present judgment, which revolves around the fact that the situation of the present applicants is exactly the same as that of thousands of other refugees and asylum-seekers diligently abused by Hungarian authorities since, at the very least, late 2015. It is unfortunate that, mostly as a result of fear or ignorance or simply wanting to leave everything behind and move on with their lives, the vast majority of refugees and asylum-seekers in transit show very little willingness to commit to complex legal proceedings that could take years with potentially small compensation; as a result, asylum lawyers sometimes come across as overzealous, if not downright unscrupulous, in their pursuit of victims of human rights violations for "strategic litigation" (I have known lawyers who would have likely provided full room and board to potential applicants in their own homes, just to make sure they don't get out of touch before the case can be adjudicated). Nevertheless, in such cases where they do succeed, they provide for a situation where even the most hypocritical state officials have a hard time trying to justify their country's practice – and that goes for all of their victims, not just successful applicants.
Therefore, the Ilias and Ahmed judgment shows very clearly that a majority of asylum-seekers in Hungary have had their rights violated by that country's authorities, in a manner which is deliberate, widespread and systematic and targets the migrant population specifically. I use these words deliberately: it probably won't be long before someone seriously accuses Hungary of the exact same things Australia is currently coming under fire for.
What Comes Next
One should be careful not to attach too much practical significance to decisions by treaty bodies, even the more prestigious ones, such as the European Court. There can be very little doubt that populist, semi-authoritarian regimes which engage in this kind of abuse in order to satisfy their electorate are, in fact, aware that they're violating international law, which once again highlights the chronic problem of impunity for human rights violations. It would therefore be too optimistic to believe that this verdict could change Hungarian policy in the short run, let alone that of neighbouring countries such as Serbia.
In fact, the European Court itself is deserving of criticism to the extent it failed to indicate interim measures in line with Rule 39 of the Rules of Court and prevent the applicants' return to Serbia in the first place; whatever the appointed judge's reasoning may have been, the author of the present post cannot find any explanation for the Court's apparent reluctance to use its authority other than a desire to keep a low profile and stay under the radar at a time when the entire European establishment is being consumed by anti-immigrant hysteria. With all due respect to the Court, that is not part of its mission.
That being said, there is absolutely no doubt that the Ilias and Ahmed verdict represents a milestone in the protection of the rights of refugees and asylum-seekers taking the Western Balkans route. While it's unfortunate that the judgment comes at a time when the media's attention has long since "migrated" to other issues, it serves to validate civil society's criticism of policies adopted by several countries along the route, and may even intimidate some governments into taking genuine action to improve the situation. Now it's up to lawyers in Serbia to follow the example set by civil society in Hungary and re-double their efforts at litigating – they can hardly say there's no potential applicants to work with.
Announcements: CEILA Lecture; CEILA Book Symposium; CfS UCL Journal of Law and Jurisprudence; Conference on 'Law and Memory in Established Democracies'; Towards Utopia – Rethinking International Law Workshop; Conference on the Right for the State to...
1. CEILA Lecture on The Use (and Misuse) of European Human Rights Law in Investor-State Arbitration. The annual lecture of the Centre for European and International Legal Affairs (CEILA) at QMUL is being given by Prof José Alvarez (New York University Law School) and is entitled "The use (and misuse) of European Human Rights Law in Investor-State Arbitration". Professor Max Scherer (QMUL) will be chairing and Professor Zachary Douglas QC (Graduate Institute Geneva) is the discussant. The lecture is on 28 March 2017 (6.30-8pm) and will be followed by a drinks reception (8-9pm). See here for more details and to book a place.
2. CEILA Book Symposium on The Impact of International Organizations on International Law. A QMUL Centre for European and International Legal Affairs (CEILA) book symposium on Prof José Alvarez's new book The Impact of International Organizations on International Law with Professor José Alvarez (NYU), Professor Dan Sarooshi (Oxford), Professor Phoebe Okowa (QMUL), Professor Surya Subedi QC (Leeds), Dr Chanaka Wickremasinghe (FCO) and Dr Eirik Bjorge (Bristol) will be held on 27 March 2017. See here for more details and to book a place.
3. Call for Submission, UCL Journal of Law and Jurisprudence. The Editorial Board of the UCL Journal of Law and Jurisprudence is pleased to call for submissions for the second issue of 2017 on the theme of 'Crisis and the Law'. The Editorial Board welcomes submissions that engage with this general theme. It is broadly conceived, covering a range of political, economic, social, environmental and cultural issues, and leaves scope for any area of law or jurisprudence (domestic, regional or international) that is deemed to be crisis-related. Submissions could be theoretical, doctrinal or aimed at practice. Concretely, the Journal seeks to publish pieces that either articulate the concept of crisis within the law or how the law deals with current crises. We accept articles of between 8,000-12,000 words, case notes of 6,000-8,000 words and book reviews of 1,000-2,000 words. All submissions must comply with OSCOLA. The deadline for submissions is 14th April 2017. Manuscripts must be uploaded via the submissions section.
4. Conference on 'Law and Memory in Established Democracies'. Memory Laws in European and Comparative Perspective (MELA) and Humanities in the European Research Area (HERA) are hosting a conference on 'Law and Memory in Established Democracies' at the University of Bologna on 24 March 2017. See here for the programme of the conference.
5. Towards Utopia – Rethinking International Law Workshop. The Walther Schücking Institute for International Law at the University of Kiel is organising a two-day workshop entitled "Towards Utopia – Rethinking International Law". It is aimed primarily at young international lawyers (PhD students or post-docs) and aims to explore progressive, unconventional thinking, new ways of approaching and using international law, and different visions for the "law of the future". The workshop will be loosely structured around the utopian work of Professor Philip Allott, who has kindly agreed to join our discussion. Abstracts of around 750 words should be submitted to utopia {at} wsi.uni-kiel(.)de var mailNode = document.getElementById('email@example.com'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%75%74%6F%70%69%61%40%77%73%69%2E%75%6E%69%2D%6B%69%65%6C%2E%64%65"); tNode = document.createTextNode("utopia {at} wsi.uni-kiel(.)de"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "email@example.com"); mailNode.parentNode.replaceChild(linkNode, mailNode); by 8 May 2017. The full Call for Papers is available here.
6. Certain Issues Concerning the Right for the State to Regulate in International Law Conference. The International law and international organisations, the International economic law and the International administration Masters' second degree (Panthéon-Sorbonne University) are hosting a conference entitled "Certain Issues Concerning the Right for the State to Regulate in International Law" on 22 March 2017 from 2pm to 6pm.On Theory-Bashing: Why It Happens and What It (Probably) Says About Us
This post is a response (of sorts) to an earlier post made last month by Andrea Bianchi, in which he discusses the widespread aversion and prejudice shared by most international lawyers against the idea of 'theory' and the disempowering effects this attitude has had on the contemporary discipline of international legal studies. Whether or not one agrees with the 'most international lawyers' part of the claim, the argument Professor Bianchi presents deserves attention and careful consideration. It raises a whole series of important points, not least about the fundamental naivety of the assumption that law as a craft requires no special theoretical awareness on the part of its practitioners. At the same time, however, it also leaves out a number of questions that in a context like this one would, ideally, expect to be given as much, if not more, critical attention.
In this post, I propose to explore some of these questions. The argument offered below is intended to complement and develop Professor Bianchi's broader point, viz., that theory-bashing is a highly disconcerting tradition that has negative consequences not only for those international lawyers whose main field of work falls in the area of theoretical scholarship, but for the international legal profession as a whole.
Multiple meanings of 'theory'
To begin with, let us note, firstly, that in modern academic practice the term 'theory' is typically used in three fundamentally different senses:
- As a designation for a certain kind or genre of scholarly writing (as in 'Rasulov mostly does theory and not very well');
- As a synonym for 'a school of thought' or 'a relatively distinct scholarly movement' (as in 'the influence of the New Haven theory has certainly been overstated'); and
- As a shorthand for what one might otherwise call an orientating system of assumptions (as in 'based on what theory, Rasulov, did you come up with all this nonsense?').
In discussions that revolve around questions like 'who needs theory?', in international law as much as elsewhere, one often tends to lose sight of this multiplicity of meanings. Those who rail against 'theory' typically only have in mind theory in its first sense. Those who respond to these criticisms most angrily, for the most part, only focus on theory in the third sense. (In most international law circles, no one really cares today about theory in the second sense, and so I am not going to say anything more about it other than note that calling academic movements 'theories' is unforgivably reductionist and misleading.) Predictably enough, this tends to introduce all manner of confusion into the resulting discourse, an outcome that, all things considered, is as regrettable as it is revealing: any trained lawyer worth their law degree should have no difficulty recognising the fundamental non-equivalence of these three concepts.
Theory as a genre of scholarship
The first thing that needs to be noted about this meaning of theory is that the practice of using the word 'theory' to describe a certain genre of scholarly writing has a fundamentally non-academic cultural genealogy. Neither culturally nor semantically does it seem to make any sense other than in the context of a broader conceptual relationship that connects it with the corresponding ideas of 'practice', 'practically relevant knowledge', etc. What is more, it is this latter cluster of concepts that plays the dominant role in this relationship: 'theory' is all that which is not part of 'practice', never the other way around.
Looking from this angle, it should not really come as much of a surprise that, used in its first sense, the concept of theory in the contemporary international law discourse invariably appears in the form of some kind of residual construction: to know what sort of scholarship counts as 'theory', one needs first to subtract from the general body of international legal scholarship all those writings that are otherwise deemed to be 'practically useful' or have some degree of 'practical relevance'.
This tradition of associating the concept of theory with forms of scholarly pursuit that lack immediate 'practical' usefulness or relevance is certainly not a new phenomenon. Nor is it a phenomenon that is limited only to international lawyers. Indeed, as a cultural pattern, it seems to carry an ideological baggage whose complexity and richness far exceeds the narrow field of any contemporary academic discipline. In genealogical terms, it can probably be traced to that traditional anti-intellectualism of the early bourgeois classes that Dickens and Nietzsche wrote about: an ethos born of self-celebratory philistinism mixed with all manner of inferiority complexes and barely suppressed ressentiment towards the old aristocratic classes, associated as these latter had become, as Veblen famously noted, with the phenomenon of conspicuously impractical learning. Acquiring any kind of background in 'theory', in this worldview, was essentially like studying a dead language. It was to show a yearning for all those things which the early bourgeois mind, with its values of industrial productivity, administrative efficiency, and the worship of market conquest, could not but recognise only as a sign of wastefulness, decadence, and the weakening of the fighting spirit. (Conversely, all learning that could help one advance the values of industrial productivity, etc., was deemed to be 'useful' and the knowledge that came from it 'practically relevant'. Notice what this implies about 'practice'.)
The fact that this mindset has spread across the wider social fabric should not be surprising: the morals of the hegemonic class always have a strong impact on those of the other segments of society. Its penetration into the modern academic culture, however, certainly casts a rather interesting light on the internal fault-lines traversing the modern academia's internal cultural landscape as well as the broader historical contradictions surrounding academia's general place and role in the broader social matrix of late capitalism.
In the case of international law, the most important of these contradictions can be seen most clearly in the implicit conception of the intra-disciplinary division of labour that underpins the anti-theoreticist enterprise described by Professor Bianchi in his post.
Theory-bashing and the ideology of academia's vassalage to 'practice'
According to the anti-theoreticist worldview, there exist, essentially, two main communities of international lawyers: practitioners and academics. The former apply law to solve real-world problems. The latter work in universities. The former hold their hand on the beating pulse of the international system. The latter spend their days teaching and doing research. The former hold the fort for all international lawyers and thus help advance the discipline's reputation in the external world. The latter hang in the back, enjoying the benefits thus won.
Note the heavy themes of parasitism and vassalage that infuse this discursive structure and the images it projects. The only reason why international law exists as a profession, on this view of things, is because the world needs international lawyers to provide it with legal advice. This service is delivered on behalf of the profession by its practitioner segment. The only reason why the academic segment of the profession exists, then, is because the practitioner segment has need for it: it requires academics to help it replenish its social base (training the next generation of practitioners) and fill in the gaps in its knowledge arsenal (research state practice and clarify doctrinal questions). Any activities engaged in by the academic segment that do not directly benefit the practitioners' cause are wasteful and go against the collective needs of the international law profession. Those academics who write 'theoretical' scholarship fall into this category. Those who don't, are to be praised and recognised as 'true' legal scholars.
There is not much one needs to say about this argument. The idea of academic vassalage is, obviously, ideologically charged. It projects a very particular picture of how power, recognition, and worth ought to be distributed within international law's social space. It also aggressively flattens out all the numerous differences within it that do not fit within its two proposed binaries: practitioners vs. academics, true vs. theoretical scholars.
It is also deeply mythologised in that it both underestimates and overestimates the role of the human element in the day-to-day realities of international law. It underestimates it by failing to acknowledge how influential 'in the real world' some academics can actually become (and that they become so influential precisely because they are seen as scholars, not as practitioners). It also overestimates it by assuming a kind of spontaneous integrity and intuitive wisdom on the part of the practitioner community that had last been seen in nineteenth-century naïve pastorals about 'noble savages' and salt-of-the-earth peasant muzhiks, a picture that seems no less ridiculous in its faux sentimentalism than it is fantastic.
The latent politics behind theory-bashing in contemporary international law, thus, is not really that latent at all. What stands behind it is a deeply conservative aspiration – to limit the scope for critical thought and to turn international law as a discipline and as a broader social phenomenon into an offshoot of some imaginationless tekhne: the 'science' of governance, the 'craft' of proceduralizing negotiations, the 'technology' of de-escalating disputes.
Like all reactionary ideologies, he ideology of academic vassalage is fighting a rear-guard action. Judging by recent trends, the movement of history is not really on its side. The days of confident anti-theoreticism are long gone. Not all international lawyers who rail against 'theory' nowadays do so out of a firm conviction that scholarship is the handmaiden of practice. Many of them, in fact, recognise the right of 'theoretical' scholarship to exist. They are just upset that there is so much of it today and that it has been so impudent in its dismissal of the vassalage model.
Theory as an orientating system of assumptions
When used in its third sense, the term 'theory' essentially represents the idea of an implicit framework of background assumptions, an internal conceptual framework behind a given act of international legal discourse. It is '[that] which allows what can be thought to seem internally coherent in its own terms.' (Fredric Jameson, The Political Unconscious 38 (2002)) Like gait in running, theory in this sense of the term can be said to be present behind every act of the international legal discourse. It is inscribed in the very moment of its realisation: ubiquitous, indispensable, and entirely unavoidable. So long as you participate in any kind of international legal debate, so long as you offer opinions or make claims about international law, you inevitably enact and give voice to (at least some kind of) a theory of international law. It does not matter whether it is an intelligent, interesting theory, or sophisticated theory. Just as it does not matter if you are conscious of the fact that you 'have' a theory and are 'acting' upon it. Like using good/bad grammar, you do not need to be conscious of 'doing it', to continue 'doing it'. It will happen either way, regardless of how you feel about it.
Put another way, every international lawyer, so long as they purport to participate in an international law conversation of some kind, will inevitably act as a practitioner of legal theory in this sense of the term. If this is the first time this idea has crossed your mind, enjoy it. Think of it as your equivalent of that episode in Le Bourgeois gentilhomme where Monsieur Jourdain learns he had been speaking prose all his life without ever being aware of it.
Note the obvious Koskenniemian parallel here: what we are looking at here is very similar to what in From Apology to Utopia Martti Koskenniemi describes in terms of of the 'native speaker competency' metaphor. It is essentially the name we give to that intuitive sense of how-we-can-make-this-work that we put in practice every time we set out to mould, sculpt, and fashion our starting givens – facts, potentially applicable rules and precedents, broader considerations of public policy, etc. – into 'legal opinions', 'expert views', 'claims', 'verdicts', 'decisions', etc. Theory in this sense of the term is not something that one declares as a manifesto or adopts as a formal creed. Rather, it is more like the Freudian unconscious, or, as the French philosopher Louis Althusser would say, a cause that can only be visible through its effects.
Conclusion: on taking 'theory' seriously
A different way of explaining the third meaning of theory would be to use the metaphor of technology. If we were to analogise international legal discourse to a process of production, so that the concept of the 'final product' would cover constructs like 'arguments', 'verdicts', 'insights', 'interpretations', etc., then, basing on what has been said earlier, the concept that would describe collectively all the various 'means of production' (intellectual tools, know-how, and protocols) that we would draw on when developing these 'final products' would be the exact equivalent of 'theory' in its third sense.
What might be gained from turning to such a metaphor? Consider the following argument made by Althusser in his analysis of the logic of scientific enterprises (Louis Althusser, For Marx 184-5 (1969)):
In the development of an already constituted science, the latter works on a raw material (Generality I) … by transforming this Generality I into a Generality III (knowledge) …
But who or what is it that works? What should we understand by the expression: the science works? [E]very transformation (every practice) presupposes the transformation of a raw material into products by setting in motion determinate means of production. What is [it that] corresponds to the means of production, in the theoretical practice of science? If we abstract from men in these means of production for the time being, it is what I call the Generality II, constituted by the corpus of concepts whose more or less contradictory unity constitutes the 'theory' of the science at the (historical) moment under consideration … We must rest content with these schematic gestures and not enter into the dialectic of this theoretical labour. They will suffice for an understanding of the fact that theoretical practice produces Generalities III by the work of Generality II on Generality I.
The argument Althusser outlines in this passage, as he himself admits it, is indeed rather schematic. But it helps throw light on one very important insight. The more conscious we are of the fundamental non-equivalence of Generality I (the raw materials from which we construct knowledge products) and Generality III (the respective knowledge products themselves), the more aware we become of the central role played in this transformation by Generality II (the totality of the various intellectual tools, protocols, etc. used in the production of these knowledge products) The more aware we become of the importance of Generality II, the more pressing, accordingly, becomes the need for us to find out the exact composition of the particular species of Generality II that we use in our own discourse. And the scholarly enterprise in the context of which we can best address this need is – yes, that's right, you already know the answer.
Ukraine v Russia at the ICJ Hearings on Indication of Provisional Measures: Who Leads?
From the day Ukraine submitted its case against Russia at the ICJ, one could expect that the case would be extremely politicized and difficult to adjudicate. Oral proceedings on the request for provisional measures held on 6th -9th March 2017 not only demonstrated that parties disagreed on the major points of the dispute, but also revealed that both parties had adopted "alternative facts", at times making it difficult to grasp if they actually had the same dispute in mind. Ukraine's position is that Russia violates ICSFT by continuing to support pro-Russian separatist armed groups in eastern Ukraine that engage in the commission of terrorist acts against the civilian population. Ukraine also claims that Russia pursues "policies of cultural erasure and pervasive discrimination" against non-Russian ethnic population in Crimea (see my blog). In its counter-arguments, Russia submits that the supply of weaponry originated from the old Soviet stockpiles inherited by Ukraine as well as the retreating Ukrainian army. Although widespread reports on the human rights situation in Crimea indicate marginalization of non-Russian ethnic population, as do the hundreds of pending individual applications before the ECtHR, Russia maintains that it is fully compliant with CERD and that "the views [of international organizations] on the status of Crimea often prejudge the attitude towards the situation in Crimea itself".
Oral proceedings provide valuable insights into Russia's litigation strategy. Russia maintains that there is no factual or legal basis for the ICJ to adjudicate, claiming that the issues between Ukraine and Russia relate to the legality of the use of force, sovereignty, territorial integrity and self-determination and therefore go beyond the jurisdiction of the Court. Russia accused the Ukrainian government of using the Court "to stigmatize a substantial part of the Ukrainian population" in eastern Ukraine as terrorists, and Russia as a "sponsor of terrorism and persecutor".
Prima facie jurisdiction
The ICJ has to be satisfied on a prima facie basis that its jurisdiction is well founded in order to indicate provisional measures. In relation to the fulfilment of jurisdictional prerequisites provided for in Article 24 of ICSFT, Ukraine argues that Russia ignored central issues to the dispute and therefore, it could not have reasonably been expected "to continue participating in fruitless negotiation sessions". In turn, Russia argues that Ukraine did not engage in negotiations bona fide, as the only objective it had allegedly pursued was to take Russia to the Court. Russia further submits that during the negotiations, when the parties were in the course of agreeing on yet another round of negotiations, Ukraine unilaterally walked away from the negotiations.
Regarding the parties' negotiations on arbitration, Ukraine submits that the parties were unable to agree on the organization of arbitration in the six-month period provided by the Convention. Russia claims that although it produced the full draft of an arbitration agreement, Ukraine never responded with specific comments on the draft (this was later denied by Ukraine). Despite different accounts of the attempted arbitration proceedings, it appears that the parties engaged in the negotiations. Nonetheless, they were unable to agree either on the arbitration setup or on the enforcement of a possible arbitral award. Of particular interest is that Ukraine suggested setting up an arbitral tribunal within the meaning of Article 24 of ICSFT by way of creation of an ad hoc chamber of the ICJ with subsequent enforcement of the future arbitral award through the UNSC under Article 94(2) of the UN Charter. Ukraine appears to have conflated an arbitral tribunal with the ad hoc chamber of the Court that delivers judgments of the Court but not arbitral awards that could be enforced through the UNSC. This begs the question if the arbitration mechanism within the meaning of Article 24 of ICSFT was attempted at all, given Ukraine's suggestion to institute the ad hoc chamber of the ICJ for the purposes of such proceedings.
With respect to Article 22 of CERD, Ukraine submits that despite extensive diplomatic correspondence and three rounds of negotiations, Russia "never provided straight and specific responses on the issues raised by the Ukrainian side". Russia maintains that Ukraine did not engage in bona fide negotiations and "abruptly decided to end the consultations" in December 2016. During the oral proceedings, Russia was advancing arguments on Ukraine's practice of discrimination of Crimean tatars prior to the annexation of Crimea, while providing examples as to how the situation regarding the protection of minority rights has improved after Crimea became part of Russia. Although the parties have placed different emphases on various factual circumstances surrounding the human rights situation in Crimea, there appears to exist a dispute between the parties on the interpretation and application of CERD, as the acts alleged by Ukraine are capable of infringing upon the rights enshrined in CERD (in the words of ICJ Georgia v Russia, Order on Provisional Measures, para 112). It should be sufficient at this stage that Ukraine attempted to initiate discussions with Russia on issues that fall under CERD (ibid., para. 114)
Plausibility of The Most Disputed Claims under ICFST
The most interesting part of the proceedings relates to the parties' exchange regarding the plausibility of claims under ICFST. Two major points of contention deserve particular attention. The first one relates to the prohibition of state financed terrorism that, as argued by Russia, was not contemplated by the drafters of the Convention. ICFST does not explicitly impose an obligation upon a state to refrain from rendering its support for terrorism, as it only speaks of an obligation in the prevention of the terrorism financing offences, as well as an obligation to cooperate in order to investigate and prosecute those offences. However, an obligation not to engage in the terrorism offences on the part of a state, although not explicitly mentioned, appears to be implied. In that respect, Ukraine was right to seek inspiration from the ICJ Bosnian Genocide case where the ICJ found that an obligation not to commit genocide follows from the expressly stated obligation to prevent the commission of genocide (ICJ Bosnian case, para 166). One can hardly disagree with the ICJ that it would be "paradoxical" if states were only under an obligation to prevent, but "were not forbidden to commit such acts" (ibid). Although the Genocide Convention is different from the ICFST, it would be logical if similar reasoning prevailed in the context of the present case, since an obligation to prevent the terrorism financing offences should imply the prohibition of committing such offences.
Another important aspect of dispute concerns the interpretation of mens rea with respect to the terrorist acts listed in Ukraine's application that Russia allegedly provided support for. Given that Ukraine alleges that specific incidents of shelling civilians, bombings in Kharkiv and shooting down of MH17 constitute the acts of terrorism within the meaning of Article 2(1) of ICFST that had been financed by Russia, it is unfortunate that Ukraine's counsel was ambiguous in addressing the mens rea standard for the crime of terrorism and did not spend more time on showing the linkage between the alleged acts of terrorism and knowing financing of such acts. It is clear from the wording of ICFST that an act of terrorism may occur in the context of an armed conflict if "the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act". In the context of ICFST, the 'peacetime' definition of terrorism was included as a catch-all definition of the primary offence with an added reference to an armed conflict. The mens rea in Article 2(1)(b) is twofold. First of all, it requires (1) the intent to cause death or serious bodily injury to a civilian; and (2) purpose to intimidate a population or pursue certain political objective (dolus specialis). With respect to the first limb of mens rea, the counsel erroneously stated that recklessness would suffice. As to the second limb of mens rea, the counsel merely stated that the attacks listed in Ukraine's application "would naturally intimidate Ukrainian civilians, and they arose in the context of a group that was seeking political concessions from their Government". Even at this preliminary stage, the counsel could have made more effort to demonstrate the existence of dolus specialis with respect to the alleged acts of terrorism, as the lack of plausibility in that regard would simply make all Ukraine's claims under ICFST fall apart. Ukraine might well follow the fate of Yugoslavia v Belgium where, at the stage of provisional measures hearings, the ICJ dismissed the Genocide Convention on a jurisdictional basis, since it was not satisfied that the bombings which formed the subject of the Yugoslav Application "indeed entail the element of intent, towards a group as such" as required by the definition of the crime of genocide (Legality of Use of Force (Yugoslavia v. Belgium), Order on Provisional Measures, paras 40-41).
There are a number of other interesting arguments advanced by Russia, in particular with respect to the absence of the element of discrimination regarding the alleged human rights violations in Crimea, as well as the absence of urgency to order provisional measures as they could interfere with peace processes (Minsk Agreements). All in all, it is a case to be watched, as it has the potential to offer answers on the interpretation of state obligations under CERD, although it is less likely that it will engage with a substantive discussion of Ukraine's claims under ICFST.
The 'Command Responsibility' Controversy in Colombia
The peace agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) guerrillas has led to complex legal debates. One key controversy has stood out as legislation to carry out the agreement moved forward: the "command responsibility" definition the Special Jurisdiction for Peace —the judicial system created as part of the peace talks— will apply to try army and FARC commanders.
This is not just a technical issue. Applying a definition consistent with international law will play a key role in ensuring meaningful accountability for army and FARC commanders' war crimes during their 52-year conflict. The issue has been part of a key debate in Colombia about how to hold officers accountable for so-called "false positive" killings.
Government forces are reported to have committed over 3,000 such killings between 2002 and 2008. In these situations, soldiers lured civilians, killed them, placed weapons on their bodies, and reported them as enemy combatants killed in action. At least 14 generals remain under investigation for these crimes.
Unfortunately, for now, this debate has been resolved in the wrong direction: on March 13, the Colombian Congress passed a constitutional reform containing a "command responsibility" definition for army officers that is inconsistent with international law. This post reviews the background and lead-up to this development.
Command Responsibility in the Original Peace Accord
The parties first announced an "agreement on the victims of the conflict" in December 2015. The agreement included "command responsibility" as a mode of liability for the Special Jurisdiction for Peace in two identical provisions, one applicable to army commanders and the other to the FARC:
"Commanders' responsibility for acts committed by their subordinates must be based on the effective control over the respective conduct, on the knowledge based on the information at their disposal before, during and after the commission of the respective conduct, as well as on the means at his reach to prevent it and, if it has already occurred, promote the relevant investigations" (my translation).
Human Rights Watch, the organization where I work, expressed concern that the definition could be interpreted in a manner inconsistent with international law.
Mens rea. As Kai Ambos has recently noted, the mens rea requirement in the definition was unclear. Under international law, including article 28 of the Rome Statute, a commander's knowledge of crimes committed by their subordinates may be either actual or constructive —that is the commander knew or had reason to know. The definition in the 2015 agreement did not explicitly include a reference to constructive knowledge. This raised questions as to whether it was meant to be included or not.
Some contended that the definition could be interpreted to be consistent with international law given the phrase "at their disposal." This language could be interpreted to emulate the language in the ICTY Appeal Chamber decision in the Čelebići case, requiring that the commander have information "available" that would have put them on notice of the crimes (para. 241). The lack of explicit language, however, created unnecessary ambiguity. And even assuming that interpretation, the definition would have still failed to clarify whether it encompassed the duty of commanders to remain informed. As the ICC pre-trial chamber noted in Bemba, "the "should have known" standard requires more of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information at the time on the commission of the crime." (para. 429. Compare with the ICTY Appeals decision in Čelebići, para. 226)
"Effective control." The definition required that the commander have "effective control over respective conduct," suggesting that commanders need to have control over the illicit acts of their subordinates —whereas under international law, commanders must simply have control over the military forces that carried out those actions.
Command Responsibility in the Revised Accord (and how the Government Back-Pedalled)
The parties in Colombia concluded a peace accord in September 2016. The agreement, however, was defeated by a slim margin in the October plebiscite. The parties quickly reached a new agreement with a range of modifications. One key modification was the addition of new language to the definitions of command responsibility applicable both for guerrillas and members of the armed forces:
[E]ffective control over the respective conduct means the actual possibility that the superior had to exercise an appropriate control over his subordinates, regarding the execution of the illicit conduct, as it is established in article 28 of the Rome Statute (my translation).
As we noted at the time, this new language seemed to solve the second problem outlined above —that is, the requirement that commanders had "effective control over the respective conduct." The language not only made explicit reference to article 28 of the Rome Statute, it also included language that was at least similar to the definition of "effective control" in the ICC's Trial Chamber ruling in the Bemba case (para. 188) and previous tribunal case-law: "'effective control'… requires the material ability to prevent or repress the commission of crimes or to submit the matter to the competent authorities."
Army generals protested the new language, including in a public letter to President Juan Manuel Santos that criticized the reference to the "controversial article 28." Stunningly, the government quickly announced that it had decided to delete the new language from the definition of command responsibility applicable to army soldiers. The definition for guerrilla commanders remained untouched except for a curious replacement of "article 28 of the Rome Statute" with "international law."
But even more surprising was the FARC's reaction. They announced they had "not permitted" the government to remove the language in the article referring to their commanders, in part, because they believed that the "command responsibility" definition would be "of concern" to the Prosecutor of the ICC, which has the situation in Colombia under preliminary analysis and could act as a court of last resort.
The Implementing Legislation (or how the Government Muddied the Waters Even More)
President Santos later promised the issue would be discussed with the military and solved in the implementing legislation. Implementing legislation, in the form of a constitutional change, which was introduced in Congress in December 2016 and, ultimately approved in March 2017, provides as follows with regard to army officers:
Commanders' responsibility for acts committed by their subordinates must be based on the effective control over the respective conduct, on the knowledge based on the information at their disposal before, during and after the commission of the respective conduct, as well as on the means at his reach to prevent and, if it has occurred, promote the relevant investigations.
Authorities should deem that there is effective control and command of the military or police superior over the acts of his subordinates, when they demonstrate the following concurring conditions:
- That the criminal action or actions were committed within the area of responsibility assigned to the unit under his command and according to the respective level, and are related to the activities under his responsibility;
- That the superior had the legal and material ability to give orders, modify them, and enforce them;
- That the superior had the effective capacity to develop and execute operations within the area where the criminal acts where committed, according to his specific level of command;
- That the superior had the material and direct ability to take the adequate measures to prevent or oomeepress the criminal acts of his subordinates, as long as he had the actual or updatable knowledge of the commission of these crimes. (translation and emphasis mine)
Days after this language was introduced into Congress, an op-ed by the ICC prosecutor Bensouda was published in the Colombian magazine Semana, noting that the definition "could be 'interpreted' as limiting the definition of command responsibility in the Rome Statute." Indeed, as Human Rights Watch noted, the definition makes no progress in correcting the flaws mentioned above.
Mens rea. The new language makes it harder to argue that the "command responsibility" definition includes the "should have known" alternative under the Rome Statute. By adding that the commander must have "actual or updatable knowledge of the crimes," the definition seems to require direct knowledge. ("Updatable" appears to refer to the commander's knowledge of a crime that has already been committed.)
Effective control. While the new definition may look like it clarifies that "effective control over the respective conduct" means effective control over the military forces, in fact, it departs from the standards established by international case-law. In part (d), the proposed definition replicates, in part, the definition of "effective control" under international case-law. However, it imposes additional requirements in (a)-(c), all of which must be proved concurrently. By contrast, under the case-law of international courts, including from the ICC trial Chamber's decision in the Bemba case (para. 188) and the ICTY trial chambers' decisions in Perišic (para. 188) and Delić (para. 62), these criteria are merely indicative, and are only some of a broad range of indicators of effective control, with proof of effective control largely case specific.
With the legislative process concluded, the next chance to fix the definition lies in the hands of the Constitutional Court, which will have to review the legislation in the upcoming weeks.
The Evacuation of Eastern Aleppo: Humanitarian Obligation or War Crime?
On March 1, the UN Independent International Commission of Inquiry on the Syrian Arab Republic ("the Commission") released a report on the horrific events that unfolded in Aleppo last year until it was captured by the Syrian governmental forces. The Aleppo report covers acts which may amount to violations of international human rights law or international humanitarian law (IHL), committed by all warring parties between 21 July and 22 December 2016. The Commission, whose reports will be instrumental for ongoing and future efforts to hold perpetrators accountable, should be commended for collecting and analyzing such an impressive amount of information in so little time.
The Aleppo report contains an appalling catalogue of allegations of egregious violations, including attacks against civilian infrastructures, hospitals, a UN/SARC humanitarian convoy and the use of chemical weapons. One allegation in particular caught the attention of the media: the Commission argues that the evacuation of eastern Aleppo amounts to the war crime of forced displacement. The Commission's claim may at first seem astonishing not only because it stands in stark contrast with the then prevailing narrative of a humanitarian evacuation designed to alleviate human suffering, but also because the evacuation was based on an agreement between the warring parties – which means that opposing parties would have jointly committed a war crime. This post examines, on the basis of publicly available information, the legal foundation of this serious allegation.
The evacuation agreement
The evacuation of the rebel-held parts of the eastern districts of Aleppo was agreed between the warring parties as part of a cease-fire deal brokered by Russia and Turkey on 15 December 2016. The fall of this key rebel stronghold marked a major victory for the government forces, but it also offered rebels a safe passage into other rebel-held areas elsewhere in Syria. By 22 December, more than 35,000 people had been evacuated from the besieged areas of Aleppo to Idlib province (for the most part) or to western Aleppo.
The evacuation was mainly portrayed as a humanitarian undertaking, designed to end, at long last, months of deprivation and suffering for the desperate residents of the besieged city. In fact, if the siege had the effect of starving the civilian population, the government forces were even under a legal duty to allow access to humanitarian relief – either by allowing civilians to leave the area or by allowing the free passage of foodstuffs and other essential supplies into the city.
Yet, the Commission describes the evacuation deal in strikingly different terms:
"None had the option to remain in their home. As warring parties agreed to the evacuation of eastern Aleppo for strategic reasons – and not for the security of civilians or imperative military necessity… – the Aleppo evacuation agreement amounts to the war crime of forced displacement" (para. 93)
Forced displacement in non-international armed conflicts
The evacuation of eastern Aleppo took place in the framework of a non-international armed conflict (NIAC) – or rather several NIACs – between the Syrian forces and different armed groups (the existence of a parallel international armed conflict (IAC) involving the US-led coalition in Syria is immaterial because these forces were not involved in the Aleppo events, so we can accept that NIAC law prevails over IAC law). In NIAC, ordering the displacement of civilians is prohibited under Article 17(1) APII and a corresponding customary rule. Only the latter applies to the Aleppo events because Syria is not a party to APII. This rule (Rule 129 B of the ICRC Study on Customary IHL) provides that:
"Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand".
Under Article 8(2)(e)(viii) of the ICC Statute, a violation of this rule may amount to the war crime of forced displacement, along the same wording.
On this basis, the displacement of civilians is prohibited in NIAC if 1) they are forcibly displaced, as opposed to voluntarily evacuated and 2) their displacement is not demanded by their own security or imperative military reasons. As a third consideration, one could add that 3) the displacement must not be required by another IHL rule, such as the obligation to evacuate wounded and sick.
An order to displace?
Whether displacement of civilians is prohibited under IHL revolves primarily around the delicate issue of its forcible character. Although not explicitly mentioned in Art. 17 APII and its corresponding customary rule, this condition derives from the reference to an "order to displace". Three elements must be taken into consideration.
First, determining whether displacement is forced can only be made on an individual basis: "what matters is the personal consent or wish of an individual, as opposed to collective consent as a group, or a consent expressed by official authorities" (Simic Trial Judgement, para. 128). In this regard, it is important to clarify that the adoption of an "agreement" between the warring parties has no impact on the voluntary nature of the displacement: the parties cannot consent on behalf of the individual (Naletilic Trial Judgement, para. 523) (and recent surveys highlight the feeling of many Syrians that the terms of local truces, such as the one concluded in Aleppo, are imposed on them). This being said, in Aleppo, the evacuation seems, by all accounts, to have triggered "mixed feelings among residents". For instance it is probable that relatives of rebels, who were given the possibility to move to other rebel-held areas, made the conscious choice to be evacuated with them. The Commission's statement that "[n]one had the option to leave" thus needs to be considered very carefully. If a war crime of forced displacement occurred in Aleppo, it was committed only in relation to those individuals who were ordered to leave.
The second difficulty lies in the meaning of "forcible" in the inherently coercive context of war. As is well established in case law and in the ICC Elements of Crimes, the term "'forcibly'… may include threat of force or coercion, such as that caused by fear of violence… or by taking advantage of a coercive environment". Thus, whether civilians left Aleppo voluntarily or forcibly must be evaluated against the background of a five-month siege, which pushed people towards starvation, depriving them of the most basic resources, including access to medical care in a city hit by daily bombardments. When faced with a choice (real or perceived) between leaving your house and all your belongings, or having virtually no chance of survival, can one really speak of a voluntary decision to leave? From that perspective, the living conditions imposed upon eastern Aleppo by the parties – and, in the first place, by the regime forces enforcing the siege as part of a "starve or surrender" tactic – can reasonably be considered to have led to forcible displacement.
However, and this is the third difficulty, in order to constitute a violation and, a fortiori, a war crime in an NIAC, displacement must not just be forced, it must be "ordered". The requirement of an order is specific to NIAC law (compare art. 17 APII with art. 49(2) GCIV, its rough equivalent in IACs) and is generally understood as entailing something more than the IAC prohibition of forcible displacement (see OUP Commentary, p. 1206). This being said, there are convincing arguments in favor of a broader interpretation on the basis of the object and purpose of IHL, according to which Art. 17 APII and Rule 129B prohibit forced displacement regardless of whether it was ordered or not. However, similar arguments are more delicate for the war crime of forced displacement in NIACs. The ICC Elements of crimes indeed make clear that Art. 8(2)(e)(viii) requires that "[t]he perpetrator ordered a displacement of a civilian population" and "was in a position to effect such displacement by giving such order" (emphasis added). In this respect, it will be crucial to clarify the exact content of the Aleppo evacuation agreement and how an order may have been communicated to civilians (according to the Commission: "Under the terms of the agreement… civilians had no option to remain", para. 104).
In any case, the role of humanitarian organisations has no bearing on the lawful or unlawful nature of the displacement (see e.g. Simic Trial Judgement, para 127). Humanitarian evacuation operations are clearly distinct, materially and temporarily, from the unlawful ordering of displacement by the parties. Humanitarian organisations help meet the most urgent humanitarian needs of civilians during their displacement; their neutral and impartial presence is also instrumental in reducing the risk that secondary violations (such as acts of violence) take place during the evacuation.
If the facts confirm the existence of an order to displace Aleppo's civilians, could it fall under one of the two exceptions to the prohibition?
Displaced for imperative military reasons or for their own security?
The first exception to the prohibition is if "imperative military reasons" so demand. This would include exceptional cases where the presence of civilians pose an impediment to military operations such that there is no other alternative than removing them temporarily. In Aleppo, no publicly available information suggests the existence of such overriding military considerations on the part of the regime or rebel forces. In fact, as the logical result of the deal was that Assad's forces would regain full control of Aleppo – which they reportedly did immediately after the evacuation – it is unlikely that any of the parties were anticipating major combat operations (and it would be difficult to argue that the evacuation was absolutely necessary for them to enter these parts of the city which were by then virtually emptied of most rebels).
Could it be argued that the evacuation of civilians was required for their own security? This can be the case for instance if "an area is in danger as a result of military operations or is liable to be subjected to intense bombing". In such circumstances, removing civilians from military objectives located in the city would even be required by Art. 58(a) API. Again, it is doubtful that the parties had reasons to believe that fighting would continue after the deal was concluded. Another argument on the part of rebel groups could be that they ordered the displacement of civilians to protect them from violent acts of reprisals from regime forces once the city would have fallen in their hands. However, this argument cannot be validly invoked by regime forces: as they were expecting to regain control over the eastern part of the city, they cannot justify forcible displacement on the basis of potential criminal activity by their own troops (for a similar reasoning see Stakic, Appeals Judgement, para 287). (Note that temporary displacement of civilians may be lawfully ordered to protect them from mines planted by the enemy, as found by the Commission in relation to the displacement of civilians from the Tishreen Dam and Minbij areas ordered by the SDF, see Conference room paper released on 13 March, at para. 91).
The obligation to evacuate wounded and sick v. the prohibition of forced displacement
Aleppo's ceasefire deal included the evacuation of the wounded and sick. Their case raises an even more delicate legal question as parties have an obligation to evacuate them under IHL. Should some of the wounded or sick civilians be considered to have been forcibly evacuated (in the broad understanding of the term) how should the obligation to evacuate wounded and sick be reconciled with the prohibition to forcibly displace civilians? The obligation to evacuate wounded and sick is absolute so there is an argument to be made that, although due consideration should always be given to the patient's will, the duty to evacuate wounded and sick – which forms the bedrock of IHL – would prevail over the prohibition to forcibly displace (including because making evacuations dependent on patients' will could easily be abused by belligerents to escape their obligations). This would be the case only for genuine medical evacuations, i.e. undertaken exclusively in order to care for the patient, and on the condition that his/her repatriation is effectuated as soon as feasible.
The Commission's allegation must be taken very seriously, not only for accountability purposes if it is proven, but also because there is a real risk that such a finding will dissuade warring parties from concluding humanitarian evacuation agreements in the future (as encouraged, and even sometimes required, by IHL). Proving that the evacuation of eastern Aleppo constituted a war crime, at least in relation to those civilians who forcibly left the city, would require a prosecutor to prove the existence of an order to displace. This will be no easy task, but if the facts confirm this, there seems to be no reason justifying an exception to the prohibition – except arguably for rebel groups on the ground that it was required for the security of civilians. Most importantly, whether they were lawfully displaced or not, civilians have a right to return as soon as the reasons for their displacement cease. It will be important to monitor whether the parties comply with the clear terms of this legal obligation – especially because it may be an indicator of the criminal nature of the displacement itself.
The Strangest ICJ Case Got Even Stranger, Or the Revision That Wasn't
As Dapo explains in his post from this morning, the President of the International Court of Justice last week sent what was probably one of the weirdest letters to a government (and one of the weirdest related press releases) in its history, and it is only appropriate that it pertains to one of the Court's strangest cases. The Court essentially dismissed in limine an attempt to make an application to institute proceedings for the revision of the 2007 Bosnian Genocide judgment, finding that the application was not made by an authorized state representative.
In a 2008 article, the late Vojin Dimtrijevic and I wrote about the strange story of the Bosnian Genocide case, a case which was more than any other, from its very beginning, subservient to its political context. It was a case pursued by a changing applicant against a changing respondent before a changing Court. It was a case which one part of the applicant state actively tried to subvert, which all segments of the political elite constantly miscast and misinterpreted, which witnessed some truly unprecedented procedural manoeuvres, and which was indeed from the Bosnian side not even funded from the state budget. So many hopes were pinned on it, that when the ultimately completely predictable and underwhelming, jurisdictionally severely constrained judgment was handed down, it was perceived by most Bosniaks as a massive disappointment and by most Serbs as a kind of exoneration, despite the finding of a violation of Article 1 of the Genocide Convention by Serbia. Today, after the Court's swift termination of the revision application and the lapse of the time-limits for any further application, the case has gone away with finality, if only with a whimper.
Over on Just Security, David Scheffer, the ranking international expert in the revision team appointed by the Bosniak leader, Mr Izetbegovic, purports to explain to an equally expert audience 'some realities' behind the revision request. In so doing, he calls the President's letter and a previous letter by the Registrar 'shallow exercises that fail to explain the legal reasoning of their conclusions,' and concludes that 'History will not look kindly on the ICJ's decision to reject the Application for Revision.'
Oh, please; history, humbug. History really won't care one whit about this whole episode, which after a few days even the Bosnian and Serbian media won't be writing about. And while I myself normally wouldn't write critical comments about cases which I litigated and lost, or engage in debates with people who conversely think that it is sensible to do so, this kind of self-righteous, pontificating pooh-poohing of the ICJ is something I feel compelled to respond to. Here are, to quote Mr Scheffer, some (very hard) realities about this whole episode.
First, Mr Scheffer points to a supposedly intolerable inconsistency in the Court's approach, because it treated Mr Softic as Bosnia's agent without specific further appointment with regard to the revision request that Serbia had made in 2001, in which it (unsuccessfully) asked the Court to reconsider its 1996 judgment finding that it had jurisdiction in the Bosnian Genocide case. To that one could simply say that back then the main, merits proceedings were still ongoing and that no Bosnian official at the time indicated to the Court that upon his appointment in the main case Mr Softic should not be considered the Bosnian agent in the (previously already instituted) ancillary revision proceedings. Today, on the other hand, the final merits judgment was handed down 10 years ago, and the Court was bombarded by letters from various Bosnian officials (including the Serb member of the presidency and the foreign minister) telling the Court that Mr Softic was not duly representing the state.
Second, Mr Scheffer doesn't mention a similarly fraught episode during the main case, when in 1999 the then Bosnian Serb chair of the Presidency appointed a co-agent who went on to request a discontinuance of the case, a request which the Court rejected by finding that Bosnia had not unequivocally demonstrated its will to discontinue the case (see p. 74). Here, similarly, the Court simply wanted to know what the state actually wanted to do – that the Bosnian state can't get its act together due to internal politics is frankly not the Court's problem, nor should it be.
Third, the Court was perfectly aware that if it allowed the revision case to proceed now, the case actually had zero prospects for success. When I say zero, I don't mean just low or unlikely, but a zero 'unless a majority of the judges had a seizure' kind of zero. Even leaving aside the question of time limits for the discovery of new facts (which Serbia definitely wouldn't have left aside), and even assuming that the Court would have been willing to adopt some kind of 'creative' approach to this problem (which it most likely wouldn't have been), there simply was no clear and convincing new evidence that wasn't available in 2007 to the effect that genocide was committed in Bosnia in 1992 (i.e. in parts of Bosnia other than Srebrenica), no matter how 'creative' the revision legal team was. In particular, in both the Bosnian and the Croatian cases (and with virtual unanimity at that) the Court relied on the ICTY to establish the facts. In the intervening decade the ICTY couldn't convict anyone for genocide in Bosnia in 1992 – it most recently (unanimously) acquitted Radovan Karadzic at trial in that regard, and it is more likely than not that the same thing will happen in the Mladic case, which is based on more or less the same evidence.
Finally, this means that the pragmatic choice for the Court was actually easy – dismiss the case summarily now, by asking Bosnia a very simple, sensible question that is unlikely to ever be repeated in any future case (hi there! – is it really you who are making this request?), or spend the next several years handling an applicant state suffering from multiple personality disorder, in a completely futile exercise the outcome of which would never be in doubt, wasting everybody's time and energies. And at the same time, that exercise would have been providing constant fodder to nationalist politicians in the Balkans (like Messrs Izetbegovic, Dodik and Vucic), who would constantly be capitalizing on the proceedings and misrepresenting what the Court does in order to fuel their narratives of competitive victimhood and maintain their grip on power. Thus, the Court did what it did, and rightly so. It was, after all, not their first Balkan rodeo. I don't think that the judges can reasonably be criticized (let alone preached at in the name of history or the victims of genocide) simply because they didn't want to go for yet another, sordid, pointless ride.
Applications for Revision of the International Court of Justice Judgments: The Curious "Case" for Revision of the Bosnian Genocide Judgment
Last Thursday, the President of the International Court of Justice (ICJ) made a statement announcing that the Court was "not properly" seised of a request for revision of the Court's merits Judgment of 26 February 2007 in the Bosnian Genocide Convention Case (Bosnia and Herzegovina v. Serbia). The key question was whether the request for revision should have been considered as one made by Bosnia and Herzegovina and this depended on whether the person who made the request was to be considered as Agent for Bosnia. In coming to its decision not to take any action with regard to the request for revision, the Court concluded "that no decision has been taken by the competent authorities, on behalf of Bosnia and Herzegovina as a State, to request the revision of the Judgment of 26 February 2007 in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia)".
In effect, the Court rejected the request for revision on the grounds that the person who claimed to be the Agent for Bosnia, Mr. Sakib Softić, had not in fact been appointed as Agent by the state for the purpose of these particular proceedings. Mr Softić had been appointed the Agent for Bosnia, in 2002, in the original Bosnian Genocide Convention case. The present controversy surrounding his authority arose from the nature of the Presidency of Bosnia – the Head of State – which is not a single individual but rather composed of 3 individuals: one Bosniac, one Serb and one Croat. As it emerged from separate letters written to the Court by each of the members of the Presidency, no decision was made by the Presidency to request revision and only the Bosniac member of the Presidency, Mr. Bakir Izetbegović, was of the view that the appointment of Mr Softić as Agent in the original case remained valid.
Whether the Court was right to reject the "request" for revision in this case depends on whether a request for revision is to be considered as a new case as opposed to a separate phase of a previous case. If a request for revision is simply a separate phase of a prior case – a form of incidental proceedings – then the authority of the previous Agent would extend to that new phase as Agents exercise their functions throughout a case, unless they are replaced by the state. However, if a request for revision is a new case the Court would be right to require a new indication from the state as to who the Agent is, thus impliedly confirming that the state has authorised the initiation of those new proceedings.
In my view, the Court was right to hold, if only implicitly, that requests for revision are new proceedings and not simply continuations of a previous case. There is a qualitative difference between a request for revision (or indeed interpretation) of a prior judgment arising from proceedings that have essentially concluded with the case removed from the Court's list of pending cases, on the one hand, and the initiation of incidental proceedings (such as provisional measures for interim protection or making preliminary objections) in an on-going case, on the other hand. The initiation of incidental proceedings in an on-going case is no more than a question of litigation strategy in proceedings that would otherwise continue. The parties to the case are already locked into the litigation and the question is just one of how to conduct it. However, in the case of revision or interpretation of a merits judgment, the state in question faces the question of whether it wishes to resume litigation or not, in circumstances where it is not presently engaged in litigation. The taking of that step is far more significant, and it is only right to have substantive evidence that the person who claims to take this step on behalf of the state has indeed been authorised by the state to do so. The step being taken here is one which effects a new direction (even if a friendly one) in the relationship between the two states. Although a state may have chosen to litigate (or been dragged into litigation) with another state at one point, it should not lightly be assumed that it wishes to resume litigation many years after the case has essentially closed. It is worth recalling that requests for revision may be made up to 10 years after a judgment is given (Art. 61(5) of the Statute – the "Bosnian request" was made just a few days short of that 10 year deadline). In the case of requests for interpretation there is no time limit stipulated in Art. 60 of the Statute and such a request may be initiated many decades later (as happened in the Temple of Preah Vihear Case where the request was made nearly 50 years after the judgment was delivered).
Prior Practice With Regard to Requests for Revision of ICJ Judgments
In addition, the position that requests for revisions (and for interpretations of previous judgments) are different cases from the original proceedings is confirmed by the previous practice of the Court and of parties in proceedings for revision, as well as from the Rules of the Court.
There have not been many prior requests for revision of ICJ judgments. Prior to this year, only 3 applications for revisions of ICJ's judgment had been filed in the entire history of the Court. One of those 3 was the application by Yugoslavia for revision of the Preliminary Objections Judgment in the Bosnian Genocide Convention Case. Amazingly, the 2017 "Bosnian request" for revision was the second request for revision made in February 2017, following on from Malaysia's application (made on February 2) for revision of the Court's May 2008 Judgment in the case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore).
In each of the previous cases where a request for revision or indeed for interpretation of a previous judgment of the Court has been made, the Court has entered these new proceedings as a separate case in its list of pending cases. In addition, in these previous requests for revision and for interpretation, the parties have also treated the proceedings as a new case. We know this because, in these cases, the parties have not treated their previous appointment of a person as an ad hoc judge as automatically continuing, but have made new decisions regarding the appointments of an ad hoc judge, even though in some cases they have appointed the same person (see for example para. 55 of Malaysia's recently filed request for revision). If the parties and the Court had thought that the proceedings for revision and interpretation were simply another phase of the original case then the original appointment of ad hoc judges would simply have carried over. Unless those persons had resigned, the parties would not be entitled to change the appointment as there is no provision that allows a party to unilaterally remove an ad hoc judge that it has appointed and since the ad hoc judge is a member of the bench on equal terms as the permanent members.
Similarly, in the Application for Revision of the Judgment of 11 September 1992 in the Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) (El Salvador v. Honduras), where the original case was heard by a chamber of the Court, a new chamber was formed to hear the application for revision. This was despite the fact that Art. 17(4) of the ICJ's Rules provides that members of a Chamber shall continue to sit in all phases of a case, even after they have left the Court. Clearly this was not thought to be a new phase of the same case but rather a new case. Indeed Judge Oda who had been part of the original Chamber and who was still on the Court was not part of the new Chamber (for reasons explained in a Declaration appended to the Order forming the Chamber)
That requests for revision and interpretation of judgments are not merely incidental proceedings in on-going cases can also be seen from the fact that while Part III, Section D of the ICJ's Rules deals with Incidental Proceedings (Interim Measures of Protection, Preliminary Objections, Counter Claims, Intervention etc), the procedure regarding requests for revision and interpretation are in a different section – Section F, subsection 2
Once it is accepted that the request for revision is a new case, then it does follow that the appointment by Bosnia of an agent back in 2002 in relation to the original case is insufficient to authorise that person to initiate revision proceedings.
Yet Another Case of Inconsistency in the ICJ Decisions Relating to the Former Yugoslavia?
The decision of last week is another in the series of ICJ cases arising out of the break-up of the former Yugoslavia. Most unfortunately, one of the defining features of that series was the remarkable inconsistency in the ICJ's approach to the status of Serbia (formerly the Federal Republic of Yugoslavia). The decisions suggested that Serbia was both a party to the ICJ Statute that could be sued at the ICJ and not a party to the Statute and thus unable to bring a case in the same period of time (on which see these articles by Blum, p. 39 & (2009) 103 AJIL 264 and Fernando Lusa Bordin, (2011) 10 LPICT 315). David Scheffer, who was named as "Deputy Agent" in the "Bosnian Request" for revision, has pointed out, in a post on Just Security, that when Yugoslavia (Serbia) requested revision of the Preliminary Objections in the original case, Mr. Softić's appointment as agent in the original case seemed to have been accepted as carrying over to the Yugoslav request for revision. Thus there is again the spectre of inconsistency by the ICJ, though this time in favour of Serbia.
Another possible hint of inconsistency by the ICJ relates to how it dealt with whether the collective Bosnian Presidency had made a decision to initiate a case at the ICJ. In fact, Yugoslavia argued in the original case that the proceedings had not been authorised by the Bosnian Presidency but only by the President of the Presidency, Mr. Alija Izetbegović (who incidentally is the father of the current Bosniac member of the Presidency and the only member to support the application for revision). On that occasion, the Court rejected the Yugoslav argument that Mr Izetbegović was not the Bosnian head of state because, according to the Court, he had received international recognition as the head of state (see Bosnia Genocide Preliminary Objections Judgment, para. 44 and also the Provisional Measures Order of 8 April 1993, para. 13). It thus held that the original proceedings had been properly initiated by Bosnia.
However, despite the apparent inconsistency pointed out by David Scheffer, there are arguably good reasons for the Court accepting Mr. Softić as Agent in the previous proceedings for revision of the Preliminary Objections judgment while rejecting him in that role in this case. The differences are that in the prior revision proceedings, the original case in respect of which Mr. Softić had a valid appointment as Agent was ongoing (indeed he was appointed as Agent for that case just a few weeks before the oral hearings in the revision proceedings commenced), and Bosnia was respondent in the revision proceedings. Although the revision proceedings constitute a different case, where the original proceedings are on-going the consideration outlined earlier about revision constituting a different direction in the relationship between the parties does not hold in the same way. Also, as Bosnia was respondent in that earlier revision proceedings it was reasonable to assume that Bosnia had appointed Mr. Softić as Agent for the purposes of the revision proceedings as well, since the Yugoslav application would have been delivered by the Court to Bosnia which then presumably instructed Mr. Softić. There was no opposition by Bosnian authorities to displace that presumption.
Thus any inconsistency between the earlier revisions proceedings brought by Serbia and the present one is apparent only. In the present "case" there would seem to be good reasons to consider, in 2002, one person as an Agent for the purposes of revision proceedings brought against the State, but not an Agent for the purposes of initiating revision proceedings fifteen years later.
Announcements: Thessaloniki Summer Courses; Spaces and Places of the Journey to the UK – Conference
1. Third Session of the Thessaloniki Summer Courses. The Kalliopi Koufa Foundation for the Promotion of International Law and the Protection of Human Rights is pleased to announce the Third Session of the Thessaloniki Summer Courses to take place from 28 June – 7 July 2017 in Thessaloniki, Greece #thirdthessalonikisummercourses. The title of this year's session is "International Humanitarian Law: Current Developments and Challenges". The early bird application window is already open. For more information please visit the Foundation's webpage. For any inquiries please contact us on firstname.lastname@example.com.
2. Spaces and Places of the Journey to the UK: Assessing the Legal Framework for People Fleeing Conflict Conference. The Conflict and Disasters Research Group (CONDIS), Lincoln Law School, and Birmingham City University are pleased to announce that their collaborative conference, 'Spaces and Places of the Journey to the UK: Assessing the Legal Framework for People Fleeing Conflict,' will be held on 10th April 2017 at the University of Lincoln. Registration and the full programme are available at the Online Store. We have a number of academics, including Keynote Speaker Professor Satvinder Juss (King's College London), presenting their research into the movement of people into Europe, particularly the UK. We are also joined by delegates of the British Red Cross and Newcastle City Council who will talk about human trafficking. In addition, Catriona Jarvis (former Judge) and Syd Bolton will be joining us from Last Rights to talk about their ongoing work. For any further queries, please contact Dr Christy Shucksmith (cshucksmith {at} lincoln.ac(.)uk var mailNode = document.getElementById('firstname.lastname@example.com'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%63%73%68%75%63%6B%73%6D%69%74%68%40%6C%69%6E%63%6F%6C%6E%2E%61%63%2E%75%6B"); tNode = document.createTextNode("cshucksmith {at} lincoln.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "email@example.com"); mailNode.parentNode.replaceChild(linkNode, mailNode); ).
Opening the Floodgates, Controlling the Flow: Swedish Court Rules on the Legal Capacity of Armed Groups to Establish Courts
A Swedish District Court (SD Court) has recently ruled that non-state armed groups have the capacity under international law to establish courts and carry out penal sentences, but only under certain circumstances. While the issue has been widely debated by legal scholars over the past decade (Somer, Sivakumaran, Hakimi), this may very well be the first time that any domestic or international court has made a definitive ruling.
The implications at stake are as clear as the facts of the case. A member of an armed group admits to executing enemy detainees, but argues his actions were lawful as he was carrying out a sentence to punish war criminals as a result of a fair trail of a legitimate (but non-state) court. Notwithstanding the veracity of the claim, does this act amount to summary execution or the execution of justice?
International Humanitarian Law (IHL) prohibits the passing of sentences without fair trail guarantees for acts or omissions related to an armed conflict. For armed groups, this poses two existential challenges to the establishment of criminal courts. First, common article 3 to the Geneva Conventions requires courts to be 'regularly constituted'. Second, the due process principle of legality (nullum crimen sine lege) requires that criminal offenses be established 'under the law'.
The SD Court quite remarkably rules that armed group may establish courts in principle, but then seemingly aware of the vast public policy implications of this decision, attempts to rein it in by imposing conditions on armed group trials that seem more attuned to the court's policy concerns than sound legal reasoning.
On the 1st of May 2012, the defendant, Haisam Sakhanh, joined a Syrian armed opposition faction known as 'Firqat Suleiman el-muqatila'. Three days later, eleven suspected members of the Syrian regime armed forces were captured. A Free Syrian Army Military Council ordered the release of two and the detention of the other nine. A Judicial Council was then convened. It consisted of three members who had previously served as judges in the regime prior to defecting to the FSA. Sakhanh was not present but heard from others that seven of the alleged perpetrators were found guilty of rape and murder of civilians and sentenced to death under existing Syrian law, while two others were acquitted. Sakhanh was ordered by his commander to carry out the death sentence. He argues that he agreed to do so under his presumption that the order followed the pronouncement of a sentence following a fair trial. Approximately 36 hours had elapsed between the time of capture and the carrying out of the sentence.
The SD Court first determines that the act took place in the context of a non-international armed conflict (NIAC), and then turns to the question of whether an armed group may establish courts. After accepting that the term 'regularly constituted court' from common article 3 may give the impression that only a state can establish courts, the SD Court finds that reference to the Additional Protocols and their commentaries indicates that the focus has shifted from how a court is established to whether it upholds fundamental procedural guarantees of impartiality and independence. This view is supported, particularly in the criminal law context, by reference to the Elements of Crime of the International Criminal Court.
The SD Court then rules that since IHL requires armed groups to refrain from inhumane acts such as murder and torture, it also makes demands on them to maintain discipline in their own ranks. Therefore, an armed group must be able to establish courts, but the legal capacity to do so is limited to i) uphold discipline in the actions of its own armed forces and ii) uphold law and order on a given territory under the condition that the court is staffed by personnel who were appointed as judges or officials in the judiciary prior to the outbreak of conflict, AND that the court applies the law which was in effect before the conflict, or at least does not differ substantially in a stricter direction from the law that existed before the conflict. Of course any trial must fulfil due process standards.
One can certainly understand the policy reasons for the SD Court's decision. Amid a chorus of calls for all parties to conflict to ensure respect for IHL and accountability for war crimes committed within an armed group's ranks, the SD Court likely did not want to be seen as closing this door to armed group internal accountability. As that door probably looked an awful lot like a floodgate, the SD Court likely felt compelled to manage the flow by imposing strict limitations. First, the ruling maintains the core integrity of the state's monopoly on justice, and more generally pushes back against an armed group's effort to gain legitimacy by displacing the state. Second, it mitigates against what one UN independent expert has called "a veneer of legality to what would better be termed vigilantism". Third, it reduces the chances that unqualified or partial judges will be appointed. Fourth, it ensures that populations will not be subjected to partisan laws, or for example religious laws that deviate from the state's legal foundations (although the tables could be turned in a conflict where a theocratic state faces secular opposition). Finally, it ensures that populations will not find themselves under two competing sets of law with which it is impossible to comply—for example, if an armed group imposes conscription, to refuse would run contrary to rebel law, while to comply would run foul of government law prohibiting insurrection.
Yet there are also compelling policy considerations against such existential limitations to armed group courts. First and foremost, it will be difficult for those engaging armed groups to sell this outcome. The state apparatus can capture and try rebel fighters for war crimes or even for merely participating in hostilities (as PoW status does not exist in NIAC), but armed group 'authorities' will be considered international war criminals if they do the same. And armed groups are often reluctant to apply the rules of their enemy, especially if the conflict is ideologically based. Second, the capacity of an armed group to administer justice depends on the somewhat arbitrary factor of whether it has access to regime judges (rather than whether judges are independent, impartial and competent). It may also put judges in harms way, as rogue regimes may prefer to see judges indisposed of rather than legitimizing opposition courts. Third, the assumption is that the state penal laws respects and protects human rights, which is often not the case and may be a root of the conflict (see Hungary statement below). Imagine if women are not protected from all forms of sexual violence under the law of the state? Fourth, the international community has called on armed groups to bring perpetrators of international crimes to justice (p. 5). In theory there are other options for armed groups such as handing over suspects to 3rd states, but in practice it is rare to find any takers. Fourth, armed group fighters accused by their own courts should be entitled to the same level of due process protection as others (par. 547). To rule that they may face sanction by a court from which others are immune is to diminish their protection before the law.
From a legal standpoint, the SD Court's analysis was a mixed bag. It did well in ruling that the archaic 'regularly constituted court' requirement of common article 3 has been replaced by the 'independent and impartial' criteria.
However, on the issue of an armed group's capacity to enact laws, the judgment seems to be derived from an erroneous—or at least incomplete—consideration of the term 'law' in the context of NIAC. The SD Court reasoned that, "it clearly follows from [the international customary law of legality] that it is only states, which in accordance with their respective constitutional rules, may impose criminal sanctions" (par. 30, my translation). This assertion may be true under human rights law in times of peace, where the state is the only game in town, but it does not hold up in the IHL of NIAC, where competing authority is the name of the game, and where the meaning of 'law' is all but clear. The ICRC commentaries to common article 3 (par. 692) and Additional Protocol II (par. 4605) contemplate the possibility of parallel state and armed group laws. In his seminal work on the law of NIAC (p. 561), Sivakumaran identifies the UK, Hungary and the USSR (arguably) as states that accept 'law' to also include armed group law. Hungary, lending credence to the policy argument against the SD Court ruling above, has stated that armed group law "may be more in harmony with the demands of the time and more humanitarian than the laws in force at the beginning of the conflict".
Another problematic aspect of the judgment is that the SD Court provides no justification for the requirement that judges must have been part of the state apparatus prior to the outbreak of hostilities.
The decision also has implications for the legal basis of detention in NIAC in light of recent jurisprudence. Surely it would be absurd if armed groups are granted the legal capacity to hold trials under certain circumstances but lack a legal basis to detain.
The SD Court should be commended for taking up the challenge head on. It could have simply ruled that due process cannot be achieved in 36 hours and ignored the existential issue of whether an armed group can establish courts (interestingly, in the case at hand, it seems that the armed group court allegedly meets the existential requirements as it purports to be composed of judges who defected and who applied Syrian law). The fact that there is now a decision for other domestic and international courts to consider and legal scholars to debate is commendable.
An alternative approach could be to use an analogy to the law of occupation as a starting point. According to articles 64-67 of the 4th Geneva Convention, an occupying power: i) is barred from promulgating new laws other than to comply with IHL (and arguably human rights standards), to maintain orderly government, or to ensure the security of the occupying power; ii) may establish courts to consider the penal provisions it enacted; and iii) must uphold the principle of legality by publicising new laws in the language of the inhabitants and not applying them retroactively. Of course there are many reasons to argue that armed group control of territory is not analogous to occupation by another state. Still, a substantive discussion on such questions should be welcomed.
In an ideal world, armed groups would not exist and would not establish courts. But armed conflict is the antithesis of an idea world. If legal norms are to have a chance of mitigating the harm of armed conflict, they must be non-prejudicial and realistic. Currently, an expert process established through the University of Manchester International Law Centre and the Syrian Legal Development Programme is working to develop guidelines for fair trial standards of armed group courts. While not a legal exercise, the aim is to provide practical guidance for armed groups and those engaging with them. This is good strategy even for those who prefer not to see a proliferation of armed group courts. The more armed groups are aware of the sophisticated processes they must have in place, the harder it will be for them to claim their own sub-par courts as fair. The SD Court judgment, which looks to be heading to appeal, makes the need for such an initiative all the more clear.
The Constitutional Frontiers of International Economic Law
The End of Mega-Regionalism?
The future of 'mega-regionals', like the Trans-Pacific Partnership (TPP) or the Transatlantic Trade and Investment Partnership (TTIP), has become doubtful since President Trump took office. Through decisions, such as the withdrawal from TPP, he is putting his rhetoric to 'Make America Great Again' in action. Yet, the idea to put national values first is not, I argue in a recent issue of the Journal of World Investment and Trade, so different from opposition to mega-regionals elsewhere. Both the 'new America' and opponents to mega-regionals in Europe speak in favor of disengaging from mega-regionals and replacing them with action by the nation state. At the same time, rejecting mega-regionals will result in sticking with the existing international institutional infrastructure that is widely regarded as insufficient to effectively regulate globalization for the better.
Despite similarities in their effects, there are important differences across the Atlantic. In the European Union, opposition most vocally comes from the left, not from the right. It also does not come from an elected executive, but from large numbers of citizens and opposition parties, as well as a smaller number of Member States, or even sub-divisions of Member States – think of Wallonia. And it is couched in entirely different vocabulary: Rather than speaking the language of nationalism and protectionism, opposition in the EU invokes constitutional values and rights – namely democracy, the rule of law, and fundamental rights – which are leveraged against mega-regionals and the institutions they come with, notably investor-state dispute settlement (ISDS) and regulatory cooperation.
Increasing Involvement of Constitutional Courts
Couching opposition to mega-regionals in constitutional language has important consequences: It brings in a different set of actors, namely constitutional courts. Following earlier examples in Latin America, the 13 October 2016 ruling of the German Constitutional Court on an application for an injunction against the Canada-EU Comprehensive Economic and Trade Agreement (CETA) brought by some 120,000 individuals is likely just the first of many court rulings in which international economic law encounters its constitutional frontiers head-on.
These frontiers will be further exposed in many more upcoming decisions, both in Member States and at EU level. The German Constitutional Court will have to decide on the merits of the constitutional challenge to CETA. Similarly, France's Conseil Constitutionnel has been seized to determine the constitutionality of CETA under the French Constitution. The Court of Justice of the European Union (CJEU) will rule on the compatibility of intra-EU investment treaties with EU constitutional law, decide on where the power to conclude EU trade and investment agreements resides (EU only or shared with Member States), and also assess the compatibility of CETA with EU constitutional law. These proceedings will bring some clarity to where some of the constitutional frontiers of international economic law lie. They will show whether there will be conflict or complementarity between the legal demands of constitutional legal orders and international economic agreements.
International Economic Law's Encounters with Constitutional Law: Conflict or Complementarity?
While international economic law and constitutional law have so far kept maximum distance from each other, this is changing fundamentally as international dispute settlement bodies increasingly touch on constitutional questions. Vattenfall's claim against Germany's nuclear power phase-out, and Philip Morris' arbitration against Australian and Uruguayan tobacco regulations, are just three prominent examples where the legal issues dealt with by investment tribunals also raise issues under the respective countries' constitution. Here, investment arbitration is functionally equivalent to domestic constitutional litigation – and may even run in parallel to constitutional court proceedings (as in Vattenfall).
In other cases, investment tribunals may even review whether constitutional law itself is in line with the state's obligations under international law (as in Pezold v. Zimbabwe). And in yet other cases, investment tribunals are called upon to apply domestic constitutional law directly as applicable law (as in the counterclaim in Burlington Resources v. Ecuador). Constitutional implications are also at stake as international courts and tribunals not only apply pre-existing international law, but to a considerable extent develop them. They thereby become important law-makers, but often lack equivalent mechanisms as those which control domestic courts. For all of these reasons, constitutional law and international economic law increasingly overlap, in important aspects.
This overlap will unavoidably prompt the question of which system has primacy. The answer, however, is less straightforward than one may at first think. All depends on perspective. For constitutional courts, the legal order that determines the relationship is constitutional law: International economic law only exists within the limits of constitutional law. This becomes particularly clear, when constitutional courts block mega-regionals as unconstitutional before they enter into force. By contrast, if one is asking an international court or tribunal, once its constituting agreement is in force, for its view on a State party's constitutional law, the perspective is different. Constitutional law, like any other domestic law, will not be accepted to justify non-compliance with international law. International economic law in that view is supreme.
Drawing Inspiration from the Relationship between Constitutional Courts and the CJEU
Such conflicts may lead to serious confrontations that can cast the effectiveness and legitimacy of both constitutional law and international economic law into doubt. What strategies then exist for all actors involved to avoid conflict, while staying faithful to their respective missions (that is, to protect constitutional or international economic law, respectively)?
Comparative approaches arguably prove incredibly helpful. In fact, the relationship between the CJEU and constitutional courts in EU Member States, as much as it is used to illustrate confrontation, is also a great example for mapping strategies of cooperation, in particular when putting emphasis on the common mission these courts share to ensure that public authority, whether exercised at the domestic or supranational level, stays faithful to shared constitutional values, such as democracy, the rule of law, and human rights. Certainly, in this endeavor, conflicts between the CJEU and Member States constitutional courts are conceptually unavoidable because both types of actors claim ultimate supremacy.
But in practice conflicts are rather limited (for more details see here): Constitutional courts limit their control to ensuring that domestic constitutional identity is not infringed and that acts of EU law, and the CJEU's interpretations of it, are not manifestly ultra vires. The CJEU, in its jurisprudence, leaves Member States and their constitutional courts a significant margin to implement important domestic constitutional values. Despite claiming supremacy, courts at both levels therefore exercise considerable deference and engage in a 'judicial dialogue' to mitigate conflict.
International courts and tribunals established under international economic agreements, as well as constitutional courts, can draw inspiration from that relationship. To start with, international economic law, to a considerable extent, shares constitutional concerns for subjecting government action to the rule of law and to honoring basic economic rights, while ensuring government policy space to pursue competing public interests. It can thus help states successfully implement public policies, including for good governance and sustainable development (for detail see here). When called upon to ensure that core constitutional principles are respected, constitutional courts should not automatically tag international economic law with suspicion, but be aware of shared objectives.
Conversely, international courts and tribunals must exercise deference and permit States the pursuance of constitutional values that do not frustrate the very objectives of international economic agreements. This also means, however, that international courts and tribunals should not grant carte blanche to all government action that comes under the cloud of constitutional law. In both respects, embedding an analysis of the boundaries of constitutional and international economic law in a comparative perspective to the relationship of constitutional courts in the EU may prove helpful to find solutions that are widely accepted.
Establishing Communication Channels and Interaction between Constitutional Judges and International Trade and Investment Adjudicators
All in all, the relationship between constitutional law and international economic law, as well as that between constitutional courts and international economic courts and tribunals, should reflect mutual respect and mutual control. To achieve this, mutual understanding and communication are key. This can be facilitated both through formal judicial interaction, for example the establishment of preliminary reference-type procedures, but also through informal means, such as joint conferences or regular personal meetings between constitutional judges and adjudicators in international trade and investment disputes. Such meetings have been central to fostering judicial interaction and mutual understanding of judges in European constitutional courts, the CJEU, and the European Court of Human Rights. Similar forms of interaction could and should also be developed in respect of international economic law and constitutional law, and their respective adjudication systems. In the end, this could enhance the potential of constitutional and international economic law jointly to contribute to the flourishing of democracy, the rule of law, and human rights.