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Resignation of Mugabe: A Military Coup or a Legitimate Expression of the People’s Will?

EJIL:Talk! - Tue, 12/05/2017 - 08:30

On 15 November 2017, following a rule of 37 years since the independence of Zimbabwe, President Mugabe was placed under house arrest by the army. A military spokesman appeared on state television to declare that the president was safe and that they were only “targeting criminals around him who are committing crimes that are causing social and economic suffering”. He further noted that this was not a military coup. Mugabe resisted stepping down for a week but then finally resigned on 21 November when the Parliament initiated impeachment proceedings. Mnangagwa, the former Vice-President, who was fired by Mugabe only a week before the military intervention, was sworn in as president on 24 November, and the military granted Mugabe immunity from prosecution.

As will be discussed below, the African Union (AU) has adopted an uncompromising approach towards military coups. However, in the very recent case of Zimbabwe it preferred a more cautious stance, which stands in contrast with its previous practice. The Zimbabwe episode demonstrates two important things. Firstly, the event proves that the practice of the AU is highly effective in that even if an army wants to overthrow a ruler, it now needs to find the most appropriate way to avoid the application of the AU’s sanction mechanism. Second, the AU did not adopt the same approach it had followed in many other cases, because the target of the military takeover was a long-established president notorious for his authoritarian rule. It can be concluded from the AU’s latest statement on Zimbabwe upon Mugabe’s resignation that it regarded the event as an opportunity for the establishment of a more democratic rule in the country. This approach suggests that some coups might be more democracy-promising than others.

The AU Practice on Unconstitutional Changes of Governments

Beginning in 1997 with its decision not to accord legitimacy to the military junta in Sierra Leone, the Organisation of African Unity (OAU) – the predecessor of the AU – started to build a solid framework against unconstitutional changes of government. The OAU adopted the Hararé, Algiers and Lomé Declarations respectively to emphasise the importance of democratic governmental change. The Constitutive Act of the AU, which entered into force in 2001, introduced in its article 30 a suspension mechanism for members whose government has been overthrown by unconstitutional means, and the African Charter on Democracy, Elections and Governance regulates in article 23, in great detail, five cases that constitute an unconstitutional change of government. With the exception of the cases of Tunisia, Egypt, and Libya during the Arab Spring, the AU has consistently implemented its suspension mechanism set up against unconstitutional changes of government as it can be observed in the cases of Togo, Mauritania, Madagascar, Niger and Egypt. In all these cases, the AU had a very resolute approach in suspending the state immediately following the military coup and did not lift the suspension until elections were held and the constitutional order was restored.

The recent events in Zimbabwe are not the first time that the AU was confronted with a situation where a ruler who is notorious for his authoritarian politics has been overthrown by the military. In 1992, Taya became the first democratically elected president of Mauritania. He was elected again in the 1997 and 2003 elections. Nonetheless, opposition groups questioned the credibility of the elections and measures were subsequently taken by the government to silence anti-government critics. In August 2005, the military overthrew Taya’s government. On the day following the coup, the AU condemned the unconstitutional change of government and suspended membership of the country from the organisation. The AU lifted the suspension only after the holding of parliamentary and presidential elections. A similar approach was adopted by the AU in Niger. Tnadja became the president initially in 1999 and then again in 2004 for a second term. At the time, the Constitution did not allow a president to run for the presidency for a third term. Nevertheless, Tnadja amended the Constitution through a referendum that extended his term for another three years and enhanced his presidential powers. The Constitutional Court declared that the amendments were in violation of the Constitution and this was followed by the dissolution of first the Parliament and then the Constitutional Court by Tnadja. In 2010, the military overthrew Tnadja from power. The AU was swift to condemn the coup and suspended the state from the organisation’s activities. The AU lifted the suspension only when elections were held and the constitutional order was restored. In 2013, the response of the AU was the same when the military overthrew Morsi in Egypt and it suspended the country from the organisation despite the abstention of many states, including the US and EU countries, to call the event a military coup. As it can be observed in these cases, the AU applied the suspension mechanism regardless of the prospective advantages of the coups and did not discuss whether the coup could be instrumental for the acceleration of the democratization process.

The AU and the Zimbabwe Episode

However, the case of Zimbabwe presents a rupture in the AU’s approach. On 15 November, Mahamat, the Chairperson of the AU Commission, when asked at a press meeting whether he considered what took place in Zimbabwe was a coup, avoided giving a straightforward answer and declared that the AU was opposed to unconstitutional changes of government, and that they were expecting the situation to be resolved through legal means. The following day, the Chairperson issued an official statement and called “all stakeholders to address the current situation in accordance with the Constitution of Zimbabwe and the relevant instruments of the African Union, including the African Charter on Democracy, Elections and Governance”. It is noteworthy that the Chairperson urged “all stakeholders” to abide by the Constitution instead of asking the military to release the President and restore the constitutional order. Rather than condemning the military takeover as it had done in many cases in the past, this time the AU adopted a more moderate approach and preferred to wait and see how the event would unfold. Finally, when Mugabe stepped down, the Chairperson declared that they “welcomed” the resignation and clearly did not qualify the event as a military coup. Indeed, the declaration referred to the events as the legitimate expression of the will of the people: “The African Union recognizes that the Zimbabwean people have expressed their will that there should be a peaceful transfer of power in a manner that secures the democratic future of their country. President Mugabe’s decision to resign paves the way for a transition process, owned and led by the sovereign people of Zimbabwe.” In contrast with its previous practice, the AU preferred to refer to the will of the people, rather than underlining the role of the military regarding the resignation of the elected president.

It is important to assess whether the situation in Zimbabwe can be considered constitutional and in compliance with the AU framework. Article 92 of the Zimbabwe Constitution stipulates that “the President and the Vice-Presidents are directly elected jointly by registered voters throughout Zimbabwe”. More importantly, when the President resigns, the Vice-President has the right to replace him until elections are held according to article 101 of the Constitution. Yet, in Zimbabwe it was not the incumbent Vice-President but a former Vice-President who replaced Mugabe after his resignation. The military acted very diligently to deter any potential sanction from the AU by not overthrowing Mugabe by force and in an abrupt manner. In fact, they stated that it was not a coup and that they were protecting Mugabe from criminals surrounding him, seemingly acting in the President’s own interests. They paved the way for his resignation and waited for him to do so. It is undeniable that there is a close link between the military’s intervention and Mugabe’s resignation, despite the military’s refusal to call this incidence a coup. Even if we accept that the military did not force the President to step down by using armed force, and that the resignation of Mugabe reflects his own will, the current governmental change is still not in accordance with the Zimbabwe Constitution. Although the military put considerable effort into easing the reaction of the international community, the governmental change was not conducted in accordance with constitutional rules and thus was is in violation of article 30 of the AU’s Constitutive Act, which prohibits unconstitutional changes of government. However, the AU abstained from making any statement about the compliance of the manner in which the new president rose to power with the AU framework. This indicates that the organisation changed its consistent practice of rejecting governments established by military intervention.

The AU’s practice regarding the change of government in Zimbabwe comes at a time when the AU is working towards consolidating its mechanism against unconstitutional changes of government. The Charter on Democracy, Elections and Governance creates individual criminal responsibility for coup perpetrators in its article 25. When the Malabo Protocol enters into force and the African Court of Justice and Human and Peoples’ Rights is established, the Court will have competence to try coup perpetrators. It is therefore still open to debate why the AU changed its long-established practice and tolerated, or even welcomed, the military intervention in Zimbabwe.

Election Rules for ICC Judges: A Balanced Bench Through Quasi-Quotas

EJIL:Talk! - Mon, 12/04/2017 - 09:00

At its 16th session starting today (Monday 4 December) in New York, the ICC Assembly of States Parties (ASP) will proceed to elect six new judges for the Court. In doing so, the ASP will follow a special procedure that has no precedent in any other international organization, and probably also not in any domestic context. Among the election officers of ICC States Parties, these rules are primarily known for being complicated, to put it mildly. What gets less attention though is the fact that these rules have also been quite successful in achieving their goal: namely of nudging States Parties toward electing a bench of judges that is balanced in terms of regional representation, gender, and legal expertise.

In previous years, I have had the pleasure of facilitating the review of these rules (which resulted in only minor adjustments). In that context, I was tasked to prepare an informal guide to the election rules, so that they could be more easily understood. Pasted below is the brief explanation of the election procedure contained in the guide, which also contains a more detailed commentary of specific provisions.

The idea behind the system (originally developed by my predecessor as legal advisor to the Mission of Liechtenstein in New York, Jonathan Huston) is quite intriguing. It came up as delegations at the ICC PrepComm – tasked with preparing the ground for the future sessions oft he ASP – were deeply divided over how to design the election rules for judges. Some wanted quotas for regions (as is the case for many UN bodies), some wanted additional gender quotas. Others wanted no such restrictions. And then there was also the binding requirement of the Rome Statute to elect a minimum number of judges with certain expertise (criminal law vs. International law).

To break the stalemate, Jonathan came up with the concept of “minimum voting requirements”. The trick goes as follows: quotas are not applied to the result (e.g. 50% of judges must be men/women), but quotas are applied to the voting process (e.g. States must vote for at least x men/women out of y candidates). This does not guarantee a balanced result, but makes such a result more likely, while giving greater freedom of choice to those voting compared to result-based quotas.

I think there can be no doubt that the rules have contributed to an overall balanced bench of ICC judges over the years. For example, no other international tribunal has ever had such a high ratio of female judges. This has even led to the situation that male judges were at risk of being underrepresented, which at the 2011 elections led to affirmative action for male candidates (!).

At the current election, by the way, five of the six outgoing judges are female. In order to prevent female under-representation, States Parties will therefore have to cast five of their six votes for women. This will make it quite likely that the bench of 18 judges will again be balanced in terms of gender.

Here’s the “executive summary” of the election guide:

The goal: a balanced bench of highly qualified judges

1. Every three years, the Assembly of States Parties (“Assembly”) proceeds to replace one third of the 18 judges of the Court, electing 6 new judges for non-renewable terms of 9 years. The nomination and election of judges is governed by a unique procedure that aims to ensure, as much as possible, that the bench of judges be balanced with respect to three criteria:

(a)  legal expertise (list A/B);

(b)  region; and

(c)  gender.

The tool: affirmative action through minimum voting requirements (MVRs)

2. The primary tool to achieve this goal is the use of the so-called minimum voting requirements (MVRs). The MVRs are brief, binding instructions that States Parties must follow when filling out ballot papers. They could for example read as follows:

(a)  vote for at least 2 candidates from Group X;

(b)  vote for at least 1 male candidate; and

(c)  vote for at least 1 candidate from list A.

3. The MVRs make it more likely that candidates that fulfill underrepresented criteria are elected, but – different from outcome quotas – they do not guarantee such an outcome. This is because the MVRs channel some of the votes to certain underrepresented criteria, but that in itself does not guarantee that any particular candidate receives the required two-thirds majority.

4. This is in keeping with the negotiation history of the MVRs, which were proposed as a compromise between those delegations that preferred fixed quotas (especially for regions, as is the case in many other elections) and those that preferred unrestricted elections.

The flipside: no clean slate

5. The MVRs have built-in rules that generally make sure that States Parties, when instructed to vote for candidates from a certain region or gender, are not forced to vote for a specific candidate. For example, the instruction “vote for at least 1 candidate from region X” only applies if there are at least 2 candidates from that region. In other words, underrepresented regions only benefit from affirmative action if they provide a real choice by nominating a certain minimum number of candidates. The same principle applies to any underrepresented gender.

The special one: even stricter rules for list A/B criterion

6. As mentioned above, the MVR system also applies to the two types of legal expertise that should be represented on the bench (list A: criminal law; list B: international law). The MVRs make it more likely that a sufficient number of candidates belonging to any underrepresented list be elected – but it does not guarantee so. This could lead to problematic results, since article 36(5) of the Rome Statute requires that at least 9 judges shall be elected from list A, and at least 5 from list B. Therefore, the procedure contains an “emergency brake” that guarantees that any election is not tilted too far toward either list A or list B. No such minimum quotas are proscribed in the Rome Statute for region and gender, making the list A/B criterion stand out.

The catch: MVRs for region and gender only during the first four rounds

7. The MVRs for region and gender apply only during the first four rounds. This number is not derived from any particular mathematical logic, but is simply a compromise that was struck to accommodate those delegations that preferred a less restricted election procedure. The MVRs for list A/B, however, are not limited to the first four rounds. They apply until the requirement of article 36(5) is fulfilled.

The fast track: judicial vacancies

8. The rules also determine how to proceed in case a judicial vacancy arises. This procedure is designed to be faster: Generally within about five months, a special election is organized to help the Court cope with the unexpected vacancy. The MVR system fully applies to such elections, with even stricter requirements: only candidates that fulfill underrepresented criteria, if any, may appear on the ballot paper. This may seem restrictive at first sight, but was also a compromise considering the practice in some other international bodies (which is often to keep the position with the same country that lost “its” member). Should the vacancy occur at a time when regular elections are being prepared, then the vacancy election can be held at the same Assembly session, thus benefitting from the existing pool of candidates running for election.

The problem: it’s complicated (primarily for the President)

9. The main drawback of the MRV system is that it can be complicated. The MVRs need to be calculated at various stages of the procedure: at the opening of the nomination period (to alert States Parties to underrepresented criteria, thus encouraging them to nominate candidates accordingly), at the end of the nomination period (in order to decide whether the period should be extended to encourage further nominations), and before each round of balloting (in order to print instructions for States Parties on the ballot papers). This calculation can be complex, given that the relevant rules are formulated in very generic terms and address a number of hypothetical scenarios. To make this determination is the responsibility of the President of the Assembly, with the assistance of the Secretariat.

The solution (primarily for States Parties): follow instructions

10. While the MVR system is somewhat complicated, this primarily poses a challenge for the President of the Assembly (supported by the Secretariat), as she or he is in charge of calculating the MVRs.

11. States Parties, in turn, mainly have the responsibility of following the instructions on the ballot paper itself. These instructions are not nearly as complicated as the rules themselves; in fact, they are typically rather straightforward (see the example above).

12. Ballot papers that do not follow all the instructions will be declared invalid. This is why the President of the Assembly, during each round of balloting, gives enough time to delegations to check if they cast their vote accurately.

The frustration: the duration

13.  Elections of judges have in the past often required many rounds of balloting. The main reason for this is the fact that candidates must reach a two-thirds majority to be elected. This can be a very high threshold to reach in a field of multiple candidates. This requirement stems directly from the Rome Statute (article 36(6)) and could only be changed through an amendment to the Statute (to be ratified by at least seven eighths of States Parties), which could in itself be an extremely lengthy process.

14. The MVRs actually speed up the process to some extent, since they channel votes to certain groups of candidates – but they generally only apply during the first four rounds. After the fourth round, a cut-off mechanism kicks in: The candidate having received the lowest number of votes is automatically removed from the subsequent ballot.

Announcements: CfP Yearbook on International Investment Law and Policy; Maastricht Conference on Nationalism, Populism and Human Rights; UN Audiovisual Library of International Law; CfP Economic Constitutionalism 

EJIL:Talk! - Sun, 12/03/2017 - 10:00

1. Call for Papers – Yearbook on International Investment Law and Policy. The Columbia Center on Sustainable Investment (CCSI) is pleased to announce a call for papers for the edition of the Yearbook on International Investment Law and Policy covering 2017. Beginning with the 2017 edition, Part One of the Yearbook will include short pieces providing succinct overviews of recent developments and trends in international investment treaties and treaty policy; investor-state dispute settlement; institutional developments; and developments relevant to particular regions or countries. Part Two continues to include detailed analyses or short think pieces on central thematic issues in the contemporary discussions on international investment law and policy. Original contributions to be considered for publication in the Yearbook are accepted on a rolling basis until 1 February 2018. See here for further information. 

2. Maastricht Conference on Nationalism, Populism and Human Rights. This conference will be held on 11 – 12 January 2018 at Maastricht University Faculty of Law, the Netherlands. Keynote speakers: Prof Başak Çalı (Hertie School of Governance), Prof Jean d’Aspremont (Manchester and Science Po), Prof Theo van Boven (Maastricht). The full programme is available here.

3. New 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 Professor Christian J. Tams – “The League of Nations” and Dr. Jean Ho – “La responsabilité d’Etat et la rupture des contrats d’Etat”, “国际法对投资合约的保障”.

4. Call for Papers – Economic Constitutionalism: Mapping its Contours in European and Global Governance. The School of Law at the University of Portsmouth and the European University Institute (EUI) are organising a 2-day international conference to explore the function and nature of economic constitutionalism within broader constitutional processes in the European and global legal orders. The conference will be hosted by the European University Institute in Florence on 14 – 15 June 2018. The deadline for submission of abstracts is 28 February 2018. For more information please visit the conference webpage.

A “Compliance-Based” Approach to Autonomous Weapon Systems

EJIL:Talk! - Fri, 12/01/2017 - 08:00

A Group of Governmental Experts (GGE) on the topic of Lethal Autonomous Weapons (LAWS) concluded its first meeting in Geneva on 17 November 2017. The meeting was held under the auspices of the Convention on Certain Conventional Weapons (CCW) and built upon on three informal meetings of experts held between 2014 and 2016 (for reports of those meetings, see here). In December 2016, the Fifth Review Conference of the High Contracting Parties of the CCW had tasked the GGE “to explore and agree on possible recommendations on options related to emerging technologies in the area of LAWS” (see Decision 1 here and the agreed recommendations contained in this report).

At the heart of the debate is the question how States should respond to the emergence of such weapons. While some highlight legal, ethical or moral concerns of delegating life and death decisions to machines and advocate for a preventive prohibition of autonomous weapons systems, others pinpoint potential benefits for the way wars are fought in the future and deem any policy options, including regulation, to be premature.

As often in such multilateral discussions, it is hard to make progress and to get all States to agree on a common approach. The topic of autonomous weapon systems is no different. Indeed, perhaps it is particularly difficult because we do not yet fully understand what robotics and artificial intelligence truly harbor for the future of warfare, and for humanity in general. In an initial step, the GGE in its first session affirmed that international humanitarian law (IHL) applies to all weapons, including the potential development and use of autonomous weapon systems, and that responsibility for their deployment remains with States (see report here). This is a welcome step but obviously cannot be understood to exhaust the topic.

In an effort to generate momentum and identify common denominators, Switzerland presented a working paper at the beginning of the GGE, in which it is argued that ensuring compliance with international law, notably IHL, could and should be common ground among States and that this could form a constructive basis for further work. Accordingly, it should, at least as one element, be central to discussions of the GGE about autonomous weapon systems and should figure prominently in the report of the GGE as well as in the way forward. In the following, we recapitulate requirements for compliance with IHL and on that basis identify elements for a “compliance-based” approach aimed at advancing the debate within the CCW in an inclusive and constructive manner.

Ensuring compliance with international humanitarian law

IHL is the most relevant body of international law governing the development of autonomous weapon systems and their employment in armed conflicts and will therefore be the main focus of this section. This being said, other branches of international law, most notably human rights law, equally impose limits on the use of force in armed conflicts, and international criminal law governs individual criminal responsibility for violations. Moreover, any recourse to the threat or use of force by States is governed by the UN Charter.

There is general consensus that the potential development and employment of any autonomous weapon systems must remain in compliance with existing international law and, in times of armed conflict, particularly with IHL. The International Court of Justice (ICJ) was clear in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons that the established principles and rules of humanitarian law applicable in armed conflict apply to “all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future” (para. 86). Even though the treaty provisions regulating the conduct of hostilities do not expressly refer to new technologies of warfare as such, the development and employment of such technologies in armed conflict always must be in accordance with IHL. Customary IHL rules, in particular those related to the conduct of hostilities, equally apply to all means and methods of warfare. Indeed, it is a long standing principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited.

Against this background, three distinct issues should be considered: (1) the substantive provisions of IHL applicable to the employment of autonomous weapon systems in armed conflict; (2) the corresponding procedural rule of IHL requiring the conduct of legal weapons reviews as a means of ensuring conformity with international law; and (3) the issue of accountability.

Substantive IHL provisions

At the outset, it is important to distinguish between the lawfulness of a particular type of weapon as such (weapons law), and the lawfulness of the way in which it is being used (targeting law). While every weapon can be used in an unlawful manner, the inherent characteristics of certain weapons categories entail that their use – in some or all circumstances – is unlawful per se. The permissibility of all other weapons depends on their employment in conformity with IHL.

Under IHL, any weapon possessing one or more of the following characteristics is inherently unlawful : (1) the weapon is of a nature to cause superfluous injury or unnecessary suffering; (2) the weapon is indiscriminate by nature because it cannot be aimed at a lawful target or because its effects cannot be limited as required by IHL; (3) the weapon is intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment; (4) the weapon has been specifically prohibited in treaty or customary law. These criteria apply to all weapons, including new technologies such as autonomous weapon systems.

Of particular relevance for autonomous weapon systems is the prohibition of indiscriminate weapons. A weapon system would have to be regarded as indiscriminate if it cannot be directed at a specific military objective or if its effects cannot be limited as required by IHL and if, in either case, it is of a nature to strike military objectives and civilians or civilian objects without distinction. In other words, in order for an autonomous weapon system to be lawful under this rule, it must be possible to ensure that its operation will not result in unlawful outcomes with respect to the principle of distinction.

With regard to the lawful use of a weapon system, the principles governing the conduct of hostilities need to be considered. Most notably, in order to lawfully use an autonomous weapon system for the purpose of attack,  belligerents must: (1 – Distinction) distinguish between military objectives and civilians or civilian objects and, in case of doubt, presume civilian status; (2 – Proportionality) evaluate whether the incidental harm likely to be inflicted on the civilian population or civilian objects would be excessive in relation to the concrete and direct military advantage anticipated from that particular attack; (3 – Precaution) take all feasible precautions to avoid, and in any event minimize, incidental harm to civilians and damage to civilian objects; and cancel or suspend the attack if it becomes apparent that the target is not a military objective, or that the attack may be expected to result in excessive incidental harm. 

The employment of autonomous weapon systems in the conduct of hostilities also raises particular challenges with regard to the prohibition of the denial of quarter and the protection of persons hors de combat, i.e. the protection from attack of the wounded and sick and those intending to surrender (See Art. 41 of the 1977 Additional Protocol I (API) to the Geneva Conventions (GCs)). Any reliance on autonomous weapon systems would need to preserve a reasonable possibility for adversaries to surrender. A general denial of this possibility would violate the prohibition of ordering that there shall be no survivors or of conducting hostilities on this basis (denial of quarter) (See Art. 40 API).

Full compliance with IHL, however, is not limited to the rules governing the conduct of hostilities. Besides employing autonomous weapon systems as a weapon in attack, it is also conceivable that such systems could be used to perform other tasks governed by IHL, such as the guarding and transport of persons deprived of their liberty or tasks related to crowd control and public security in occupied territories. Additional specific rules need to be taken into consideration if autonomous weapon systems were to be relied on for such activities

Applying these requirements of lawful use to autonomous weapon systems is not without complexity. The Geneva Conventions of 1949 and their Additional Protocols of 1977 were undoubtedly conceived with States and individual humans as agents for the exercise and implementation of the resulting rights and obligations in mind. In addition, many pivotal rules of IHL presume the application of evaluative decisions and value judgements, such as the presumption of civilian status in case of “doubt” (See Arts. 50(1) and 52(3) API), the assessment of “excessiveness” of expected incidental harm in relation to anticipated military advantage, the betrayal of “confidence” in IHL in relation to the prohibition of perfidy, and the prohibition of destruction of civilian property except where “imperatively” demanded by the necessities of war (See Art. 23(g) of Hague Regulation IV and Art. 53 GC IV). The principle of precaution even expressly refers to “those who plan or decide upon” an attack (See Art. 57(2)(a) API), and the provisions establishing criminal responsibility for serious violations of IHL also are based on a manifest presumption of human agency (See Art. 49/50/129/146 GC and Part V, Section II API).

Furthermore, the overarching obligation of all belligerents to “respect and ensure respect” for IHL “in all circumstances” seems to imply a derived duty of exercising sufficient control or supervision over the development and/or employment of autonomous weapon systems to ensure full compliance with IHL and prevent outcomes that would be unlawful under existing international law. In accordance with this obligation, it is uncontested that preparatory measures must be taken to permit the implementation of IHL and implementation should be supervised (See Commentary to Art. 1 API (para 41) here and Art. 80 API, which requires that the High Contracting Parties and the parties to the conflict shall “take all necessary measures for the execution of their obligations”, “give orders and instructions to ensure observance” and “supervise their execution”).

Accordingly, given the current state of robotics and artificial intelligence, it is difficult today to conceive of an autonomous weapon system that would be capable of reliably operating in full compliance with all the obligations arising from existing IHL without any human control in the use of force, notably in the targeting cycle.

On this basis, the question, therefore, is not whether States have a duty to control or supervise the development and/or employment of autonomous weapon systems, but how that control or supervision ought to be usefully defined and exerted. Would it be sufficient, for example, to rely on superior programming and strict reliability testing to make an autonomous weapon system predictably compliant with IHL for its intended operational parameters? If so, would it be permissible to restrict human involvement to the proper activation of such an autonomous weapon system? This working paper does not seek to prejudge these questions.

However, it is useful to recognize that control can be exercised in various different ways, both independently and in combination. Arguably, in the future, a significant level of control could be exerted in the development and programming phase. Through testing and evaluating autonomous weapon systems in the course of weapons reviews, predictability and reliability of such systems can also be reinforced. Predictability and reliability can also be increased by restricting the autonomous weapon systems’ parameters of engagement in line with the system’s compliance capabilities. Depending on operational requirements and system capabilities, further control can be exercised through real-time supervision, or through an autonomous or human operated override mechanism aimed at avoiding malfunction or, alternatively, ensuring safe failure. Assessing, amongst others, these parameters in relation with existing weapon systems may contribute to a better understanding of appropriate means of ensuring compliance with IHL in the development and use of autonomous weapon systems for military purposes. As an illustration, those current weapon systems that are expected to operate with limited human control, such as certain booby-traps, are generally subject to severe restrictions as to the geographic area and mode of their use. The applicability of such restrictions with regard to systems with far greater and more sophisticated autonomy could be assessed in order to understand their relevance in terms of IHL compliance.

This overview of the relevant rules of IHL would be incomplete without reference to the Martens clause (see for instance the preamble of the CCW and Art. 1(2) AP I). The Martens Clause, which is part of customary international law, affords an important fallback protection in as much as the “laws of humanity and the requirements of the public conscience” need to be referred to if IHL is not sufficiently precise or rigorous. In its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the ICJ held that the clause “proved to be an effective means of addressing the rapid evolution of military technology” (see para. 78). Accordingly, not everything that is not explicitly prohibited can be said to be legal if it would run counter the principles put forward in the Martens clause. Indeed, the Martens clause may be said to imply positive obligations where contemplated military action would result in untenable humanitarian consequences.

Legal reviews

Under IHL, the substantive rules described above are complemented by a procedural rule. As with any other weapon, means or method of warfare, States have the positive obligation to determine, in the study, development, acquisition or adoption of any autonomous weapon system, whether their employment would, in some or all circumstances, contravene existing international law. In this regard the duty to conduct legal reviews, as specified in Article 36 of API, constitutes an important element in preventing or restricting the development and employment of new weapons that would not meet the obligations listed above (See ICRC Guide here and Working Paper by the Netherlands and Switzerland here). Moreover, adequate testing and reviews may also have implications on the level of State responsibility, including for malfunction of approved autonomous weapon systems.

The legal review of autonomous weapon systems may present a number of challenges distinct from traditional weapons reviews. Specifically, the question is how such systems and their specific characteristics can be meaningfully tested. Beyond the purely technical challenge of assessing IHL compliance of an autonomous weapon system, there is also a conceptual challenge related to the fact that an autonomous system will assume an increasing number of determinations in the targeting cycle which traditionally are being taken care of by a human operator. For example, in traditional systems, the principle of proportionality was to be respected by the operator. It consequently fell outside the scope of an Article 36 review. However, if an autonomous weapon system is expected to perform this proportionality assessment by itself, that aspect will need to be added to legal reviews of these systems. New evaluation and testing procedures may need to be conceptualized and developed to meet this particular challenge.

Given the special characteristics of autonomous weapon systems, a number of further measures could be recommended for incorporation into national review procedures. For example, one could imagine recommending that in some cases, particular safeguards against malfunction, such as the possibility of a human override, are built into autonomous weapon systems. Proper understanding of a system’s predictability, especially when it comes to interaction with other autonomous systems, could also be named as example. While the process of national legal reviews may require procedural and technical adaptations to fully capture the complexity of autonomous weapon systems, if rigorously implemented, it holds the potential of ensuring that all new weapons, means and methods of warfare are developed and acquired in compliance with international law.


Another important issue arising with regard to autonomous weapon systems is that of accountability, namely in terms of individual criminal responsibility and of state responsibility. Given that autonomous weapon systems possess no agency or legal personality of their own, the question of individual criminal responsibility focuses entirely on the responsibility of humans that are involved as operators, commanding officers, programmers, engineers, technicians or in other relevant functions. If the deployment of an autonomous weapon system results in a serious violation of IHL, and if that violation is the consequences of culpable fault on the part of a human being the latter may be subjected to criminal prosecution for war crimes or, depending on the circumstances of the case, also for crimes against humanity or genocide.

Criminal culpability is self-evident in the case of intent. It is less so in the case of recklessness or (advertent) negligence, or of simple acceptance of a risk that violations will or may occur. With regard to war crimes, Article 85(3) AP I requires “willfulness”, with national practices varying as to the meaning to be given to this requirement. The International Tribunal for the Former Yugoslavia (ICTY) has stated that, as a matter of customary law, what it called indirect intent would be sufficient to fulfil the mental requirement (mens rea) (See ICTY, Prosecutor v. Tihomir Blaskic, Judgement of 29 July 2004, Appeals Chamber, para. 42). Conversely, the Rome Statute of the International Criminal Court does not foresee criminal liability for recklessness or dolus eventualis (Art. 30 Rome Statute), except in the case of command responsibility for the conduct of subordinates (Art. 28 Rome Statute). Conceptually, command responsibility does not entail the commander’s direct criminal responsibility for crimes committed by his subordinates, but for his or her culpable failure to prevent, suppress or repress crimes committed by persons (i.e. not machines) under his or her command and control. Strictly speaking, therefore, a commander’s failure to duly control autonomous weapon systems operating under his command is not a case of command responsibility within the contemporary understanding of this concept, but may constitute a direct violation of the duties of precaution, distinction, proportionality or any other obligation imposed by IHL. This does not exclude that, as the functions of human soldiers are increasingly “delegated” to autonomous weapon systems, it may become appropriate de lege ferenda to extend the commander’s supervisory duty, mutatis mutandis and by analogy, also to autonomous weapon systems operating under his direct command and control.

Overall, under current international law, whether or not there is an “accountability gap” for operators, commanders and other humans involved in the operation of autonomous weapon systems depends on the applicable mens rea standard. As a general assumption, the more significant human involvement in a specific autonomous weapon system operation is (such as humans “in the loop”), the easier it is to assign individual responsibility. This assumption may be relevant with a view to the general obligation of States to respect and ensure respect for IHL.  

The second dimension of accountability derives from general international law governing the responsibility of States for internationally wrongful acts. States remain legally responsible for unlawful acts and resulting harm caused by autonomous weapon systems they employ, including due to malfunction or other undesired or unexpected outcomes. The rules governing attribution of conduct to a State are pertinent in relation to autonomous weapon systems as with any other means and methods of warfare. Given that autonomous weapon systems lack legal personality in the first place, they cannot become agents in a human sense, whether state agents or non-state actors. The question of State responsibility therefore does not turn on the nature or capability of the autonomous weapon systems, but of legal and factual status of the person or entity deciding on its employment. A decision of a person or entity exercising public powers or governmental authority (e.g. the armed forces) to employ an autonomous weapon system in a given situation certainly would be attributable to the State (See Art. 4 et seq. of the Articles on State Responsibility for Internationally Wrongful Acts (2001) and Art. 91 API). The result is that States cannot escape international responsibility by a process of “delegating” certain tasks to autonomous weapon systems.

A Compliance-Based Approach

Given the consensus that existing international law applies to all weapon systems, including autonomous weapon systems, and that it has to be respected in all circumstances, an IHL “compliance-based” approach presents itself as a way forward for the CCW discussions. The approach would have three main parts:

Firstly, in order to advance our understanding of autonomy and its relation to IHL, States could, based on the proposed working definition, assess existing autonomous weapon systems and existing systems with limited autonomy in the targeting cycle. The specific parameters which make a particular system IHL compliant could be identified and examined. These could then be extrapolated to future systems with higher levels of autonomy, to gain an understanding of what features contribute to conformity with or – conversely – objectionability under IHL.

Secondly, reaffirm and spell out applicable international law, in particular IHL. While many provisions of IHL are well known in principle, there would seem to be merit in collating and clarifying, for ease of reference, the relevant existing provisions as they apply to autonomous weapon systems . Such an exercise would involve the three angles treated in this working paper, i.e. the substantive IHL provisions, legal reviews, and accountability. This working paper has also put forward the notion that – given the current state of robotics and artificial intelligence – the relevant question is not whether a certain level of human control is called for, but what kind and level of human involvement in each of the different phases ranging from conceptualization, development and testing, to operational programming, employment and target engagement. At the heart of the issue is the question: what is the right quality of the human-machine interaction to ensure and facilitate compliance with IHL?

Thirdly, still with a view to securing and facilitating compliance, identify best practices, technical standards and policy measures that, rather than being strictly part of applicable international obligations, complement, promote and reinforce them. For example, with regard to legal reviews, it could be of interest to identify standard methods and protocols for testing autonomous weapon systems that take into account their unique characteristics. In the same vein, should gaps in the chain of accountability become apparent, States would potentially want to discuss complementary or additional means of ensuring that individual accountability is maintained.

The above is not meant to exhaust the debate and is without prejudice to contemplating further regulatory responses as may be deemed required. Indeed, discomfort has been expressed by several States and civil society organizations that the delegation of “life and death” decisions to machines is unacceptable and would run against the principles of humanity and the dictates of public conscience. This highlights the importance of human dignity as one of the core values of our international community and as a key element underpinning many international instruments, notably the sources of IHL. While the question whether there should be limits to handing over certain functions to autonomous weapon systems is a legitimate and important discussion that has its place, it is a question that is very different from the one of compliance with existing international law.

In this sense, the “compliance-based” approach presented here is meant to be part and parcel of a broader “building block” approach that gives space for legal, military, ethical and other legitimate considerations to inform discussions on possible regulatory responses. There appears to be a continued interest in addressing all relevant aspects relating to autonomous weapon systems, notably technological definitions, military utility as well as legal and ethical aspects, under involvement of a variety of stakeholders.

An Eventful Day in The Hague: Channeling Socrates and Goering

EJIL:Talk! - Thu, 11/30/2017 - 07:00

Yesterday the ICTY delivered its very final appeals judgment, in the case of Prlic et al, finding all of the defendants – political and military leaders of Bosnian Croats – guilty of crimes against Bosnian Muslims, and affirming the sentences passed on them by the trial chamber (summary; judgment). Yesterday, also, one of the defendants in the case, Slobodan Praljak, a general during the Bosnian conflict but by formal training a rather eclectic individual with degrees in philosophy, sociology, and theatre from the University of Zagreb, committed suicide in the courtroom. He did so by standing up in the dock, loudly declaiming to the judges that: “Slobodan Praljak is not a war criminal and I reject your judgment with contempt” [yes he did that very nice thing of referring to himself in the third person], and then drinking a vial of poison in full view of the (visibly shocked) judges, and the cameras. The video of this dramatic one-upmanship of Socrates and Hermann Goering, the first (and hopefully last) for an international courtroom, is here.

Like in the Mladic case, the reaction to the judgment was predictably nationalist and predictably depressing. The prime minister of Croatia – a member state of the EU – completely rejected the judgment, saying that it constituted a grave moral injustice against the defendants and the Croatian people as a whole. So did the Croat member (and current chairman) of the Presidency of Bosnia and Herzegovina, who stated that Praljak was prepared to sacrifice his very life to show to the world and to a political court that he was in fact innocent. This martyrdom narrative is now bound to feed Croat nationalism for a long, long time. The principal reason for all this ire is not so much the conviction as such, but the Appeals Chamber’s confirmation of the finding at trial that the defendants participated in a joint criminal enterprise together with leaders from Croatia, including President Tudjman, whose purpose was to consolidate a Croat entity in Bosnia through the ethnic cleansing of Bosnian Muslims. This is also coupled with the findings about Croatia’s control over Bosnian Croat forces and the characterization of the armed conflict as international, i.e. inter-state, in nature.

What of the judgment more generally? It is very long (more than 1400 pages), longer than most ICTY appeals judgments. This is largely the product of numerous problems, errors in law and reasoning in the trial judgment – itself caused to no small degree by the peculiarities of the presiding trial judge (remember the Seselj acquittal? Yes, that guy.). Yet despite the many problems, and reversals on numerous points, the Appeals Chamber essentially endorsed the basic factual and culpability account of the trial judgment says that the totality of the crimes for which the defendants have been convicted suffices for the sentences they have been given. Throughout its judgment the Appeals Chamber is in a constructive, repair mode in relation to the trial judgment, especially when compared to the hypercritical deconstructivism in the Gotovina judgment.

There are many legally interesting issues in the case of broader import. First, the Chamber’s approach to the classification of the armed conflict in Bosnia and the scope of application of the Geneva Conventions. Second, similarly, the Chamber’s application of the law of occupation, and its finding that Croatia was occupying parts of Bosnia through its proxies. Third, and most controversially, its reversal of the majority trial chamber finding that the destruction of the Old Bridge (Stari Most) in Mostar constituted a war crime of wanton destruction of property not justified by military necessity. Judge Pocar dissented on this point very energetically. Essentially the Chamber found that (1) the bridge was a military objective, as it was being used by Bosnian Muslim forces; (2) therefore the destruction of the bridge could not be ‘wanton’, even if it was disproportionate in its impact on the civilian population under IHL; (3) the Trial Chamber found no other property destroyed in this event; (4) therefore an element of the crime was missing or unproved. The judgment thus does not directly engage with the ‘pure’ IHL proportionality question, as the majority and dissent did at trial. Finally, the analysis of JCE is very dense and fact-specific; one particularly interesting set of issues dealt with the inconsistent terminology used in the French original of the trial judgment and its impact on the relevant mens rea standard.

Some Thoughts on the Mladic Judgment

EJIL:Talk! - Mon, 11/27/2017 - 07:08

Last week the ICTY rendered its trial judgment against Ratko Mladic, the wartime military commander of the Bosnian Serbs (summary; the judgment itself is available here, in four volumes at some 2500 pages). The outcome was basically as I predicted in my previous post: Mladic was convicted on all counts except for count 1, genocide in Bosnian municipalities other than Srebrenica. He was sentenced to life imprisonment. Justice was done, and that is a very good thing; the nationalist reactions to the judgment in the Balkans were unfortunately also as predicted, and that is not. In this post I will briefly give a few thoughts on the two issues I raised in my previous post – the count 1 genocide acquittal and the shelling of the Markale marketplace in Sarajevo.

As for the former, the basic outcome here was the same as in the Karadzic case – the Trial Chamber unanimously found that no genocide was committed in Bosnian municipalities other than Srebrenica. The road taken to get to that outcome was, however, different. In the Mladic case the majority of the Trial Chamber (Judge Orie dissenting) found that the physical perpetrators of the killings in (some, but not all of) the municipalities DID have an intention to destroy a part of the Bosnian Muslim group as such (para. 3456 / p. 1764 et seq of the judgment, conclusion in para. 3526); however, they then found that this intention was not to destroy a SUBSTANTIAL part, as required by the jurisprudence of the ad hoc tribunals (para. 3527  et seq, conclusion in para. 3536).

This substantiality criterion has admittedly never been conceptually clear, or easy to apply in practice. Even so, the majority was probably in error here – essentially they inferred the intent to destroy from the massive scale of the crimes and the fact that individual victims were targeted on a discriminatory basis, i.e. they were killed because of their ethnicity. But that confuses killings on the basis of a discriminatory motive with an intention to destroy (a part, however defined) of a group, as such. The majority’s approach also invites problematic line-drawing with regard to how Srebrenica was in fact genocide, which essentially boils down to the number of people killed, or available to be killed, belonging to a certain ethnic group. (That said, I have personally never been comfortable with this arithmetic of genocide or with essentially morally arbitrary distinctions between genocide and crimes against humanity, which we are legally compelled to get into.)

By contrast, Judge Orie in his very brief dissenting opinion (the Chamber was otherwise unanimous on all counts, which is again a good thing), finds that the only reasonable inference that could be drawn from the evidence is that the physical perpetrators had the intention to displace Bosnian Muslims (killing many in the process) from certain areas, but not destroy them as a group. The Trial Chamber was unanimous that a genocidal intent could not be attributed by inference to the high-ranking leadership or members of the overarching joint criminal enterprise, whose purpose was ethnic cleansing rather than genocide (paras. 4234-4237).

As things stand, with unanimous trial chambers in both the Mladic and Karadzic cases finding on the facts that genocide was not committed in the Bosnian municipalities, I think it is unlikely in the extreme that this conclusion will be disturbed by the MICT Appeals Chamber on appeal, especially because the trial chambers are due some deference on their factual findings. (Not, again, that this will stop Bosniak nationalists from saying that the totality of the conflict was a genocide.)

On the Markale shelling, unlike in Karadzic, the Mladic Trial Chamber was unanimous that the shelling was perpetrated by Bosnian Serb forces. Reading through the judgment, it is clear that the defence strategy was to raise reasonable doubt as to the identity of the perpetrators by any means necessary. For that purpose it called a host of different factual and expert witnesses, virtually each of which had a different (conspiracy) theory as to what had actually happened. The Trial Chamber essentially demolished each of these witnesses in turn; perhaps the most amusing example (if a macabre one) was the testimony of defence expert Zorica Subotic who claimed that the shell that had hit the marketplace was planted on the scene rather than fired from Serb positions. Her basis for claiming so is that a particular piece of the shell could never be detached from it, but was found detached on the scene. This is what happened then (paras 2091-2092):

Subotić testified that the mortar shell that exploded at Markale Market was planted there. In this respect, the Trial Chamber observes with concern the lengths to which the witness was prepared to go to ‘prove’ that the evidence regarding the Markale market incident had been staged. One of the most disconcerting theories offered by the witness was her evidence that bodies at the scene of the explosion had been ‘staged’ or planted there for the occasion. This theory, besides falling squarely outside her area of expertise, rested on rampant speculation. … The witness’s basic claims were that (i) the mortar shell which hit Markale Market could not have fallen at the angle which other experts concluded it had, and (ii) that the tail fin of the mortar shell – also called the stabilizer – was planted at the Markale Market site after the explosion. The witness testified that she examined whether there were two stabilizers. The witness’s research on the Markale incident was based on examining photographs of the tail fin that was found at Markale Market and using a similar tail fin she had brought into court. On this basis, the witness drew her conclusions. The claim that the stabilizer was planted at the site was, in the witness’s opinion, supported by the fact that the mortar shell’s base charge could not by any kind of force before, during, or after the mortar shell exploded, be disconnected from the body of the stabilizer. To prove this point, the witness brought a stabilizer attached to base charge to court and stated that they could not be unscrewed from each other which, the witness claimed, was a technical matter not in dispute. When the charge was handed to the bench, the judges managed to unscrew the charge within a matter of seconds using a plastic ballpoint pen. For her research on the Markale incident, the witness used firing tables from 2001 and testified that she did not have firing tables from before that time. At the same time, the witness acknowledged that precise firing tables are essential to calculate matters such as a mortar’s velocity or its angle of descent.

And so forth. The judges found none of the evidence presented by the defence in this regard to be persuasive. Thus, 5 of the 6 ICTY trial judges who last looked at the matter thought that the shell was fired from Bosnian Serb positions. That should be good enough for anyone, but unfortunately it will not be so in the Balkans, where the conspiracy theories dispelled in the courtroom will continue to persist.

ICTY Due to Render Mladic Trial Judgment

EJIL:Talk! - Tue, 11/21/2017 - 18:53

The International Criminal Tribunal for the Former Yugoslavia will tomorrow render its very final trial judgment, in one of its most important cases, that of Ratko Mladic, the commander of the army of the Bosnian Serbs during the conflict in Bosnia. As with the case of Radovan Karadzic, the wartime president of the Bosnian Serb republic, there are few unknowns in Mladic’s case – he will be convicted, and he will spend the remainder of his life in prison, whether his sentence is formally that of life imprisonment or not (for our coverage of the Karadzic judgment see here, here and here). Let me nonetheless address two of the remaining uncertainties, and one clear certainty.

The first count of the indictment charges Mladic with genocide in several Bosnian municipalities in 1992; the second charges him with genocide in Srebrenica in 1995. And it is on the former that Mladic actually has a realistic chance – even a likelihood – of being acquitted. This is exactly what happened with Karadzic, and the ICTY has ‘only’ been able to find genocide in Srebrenica, not in any of the other municipalities. This whole issue was also of great relevance to the botched attempt to revise the 2007 Bosnian Genocide judgment of the ICJ earlier this year. That said, while in the Karadzic case the Trial Chamber deciding on a rule 98 bis motion originally found that Karadzic could not be convicted of genocide in the municipalities by a reasonable trier of fact – a finding later reversed by the Appeals Chamber – in Mladic the Trial Chamber’s rule 98 bis decision found that the prosecution did, in fact, make it out its initial evidentiary burden (see here, at p. 24). The possibility thus remains that the Mladic and Karadzic trial chambers will disagree on the existence of genocide outside Srebrenica; that possibility is relatively low, but it is not zero. The whole thing will in any event receive its judicial epilogue before the Appeals Chamber of the MICT.

Secondly, one difficulty with the Karadzic judgment was the factual 2:1 divide among the judges regarding the first shelling of the Markale marketplace during the siege of Sarajevo. As I explained in my Karadzic post:

[W]hen it comes to the siege of Sarajevo the Trial Chamber confirmed the overall picture of the terrorization of the civilian population as established in the ICTY’s previous cases, such as Galic. There is however one politically very big issue here – the two shellings of the Markale marketplace in Sarajevo, on 5 February 1994 and 28 August 1995, in which dozens of people were killed and injured. The standard Bosniak narrative is that the marketplace was deliberately shelled by the Bosnian Serb army to terrorize the civilian population; the standard Serb narrative is that the shellings were done by the Bosniaks themselves in order to demonize the Serbs and provoke an international military response (which the latter one did). The Trial Chamber found (starting at p. 1662) that both incidents were perpetrated by Bosnian Serbs. However, Judge Baird dissented (p. 2542 et seq.) with respect to the 5 February 1994 incident, finding that there was reasonable doubt that the Bosnian Serbs did not commit the attack. Clearly this opens the door for Karadzic to appeal (rightly or wrongly), but even more importantly the division in the Trial Chamber reinforces the divided realities lived by the different communities in Bosnia as well.

It will be interesting to see what the Mladic Trial Chamber decides on these two attacks.

Finally, one thing that is absolutely certain is how the trial judgment will be received in the former Yugoslavia. Again, absent massive judicial aneurysms Mladic is going to be convicted; there is no conceivable reality in which he walks from the courtroom tomorrow morning as a free man. That conviction will not, however, persuade any ethnic Serbs in Bosnia or Serbia who previously believed in his innocence that he is in fact guilty; rather, they will treat the judgment as yet another example of a Western conspiracy against the Serbs. For example, a 2011 public survey of the Serbian population commissioned by the Belgrade Centre for Human Rights found that 55% of ethnic Serbs thought that Mladic was not guilty of the crimes he was charged with by the ICTY, only 17% felt that he was guilty, and 28% did not know or did not want to give their opinion. I have no reason to believe that these results would be any different if the poll was conducted today (if anything they are probably worse), or that the trial judgment convicting Mladic would change anyone’s views. Similarly, if Mladic is – like Karadzic – acquitted on count 1, genocide in the municipalities, the negative reaction among Bosniak nationalists and victim groups is similarly going to be quite predictable.  (For more on this, see the series of articles I did on the impact of the ICTY and other criminal tribunals on local audiences – here, here and here).

That said, while the bottom line of the Mladic case is clear, there are bound to be various different legal and factual issues in the judgment that are worth exploring in more detail. We will have more coverage on the blog in the days to follow.

A Moving Conference: Rights, Justice and Memories of the City

EJIL:Talk! - Tue, 11/21/2017 - 11:20

Conferences rarely get reviewed (but see a recent such review here), but given the amount of time, money and carbon emissions that goes into them, we may wish to evaluate them. Moreover, in reviewing a conference, we can try to capture and share an experience that, unlike a book, cannot be picked up again.

The conference Rights, Justice, and Memories of the City that took place in Lviv, Ukraine, from 9 to 12 November, is worth an attempt at capturing. If allowed to pick only one adjective, I would choose ‘moving’. Unlike most academic conferences, the conference involved a lot of physical moving around: the opening lecture took place at the Ukrainian Catholic University; the workshop next day, Placeless/Placeness: Ideas of Rights and Justice in Eastern Europe, was at the Center for Urban History and in the city hall on the city’s beautiful main square; the Saturday included a discussion at the Mayor’s office, a three-hour city walk and an art performance in the Lviv Philarmonic; while the Sunday offered a visit to the nearby town of Zhovkva. These were not mere ‘excursions’, agenda items peripheral to the core business of seated discussion. Rather, they were key to what was being discussed throughout the conference, including during the walks: the role of a place in the development of ideas on rights and justice.

Inspired by Philippe Sands’s celebrated East West Street: On the origins of genocide and crimes against humanity (Weidenfeld&Nicholson 2016, published in Ukrainian in September 2017), this event connected Hersch Lauterpacht and Raphael Lemkin and their legal work to the socio-political context within which they developed. Historians provided brilliant insights into the need for members of minorities to think and act in a cosmopolitan way. Reut Paz outspokenly illustrated the significance of Lemberg/Lwów/Lviv/Lvov with an excerpt from the Eichmann trial, where Eichmann mentions that it was here that he saw something he had not seen before: ‘Blutfontänen’, fountains of blood springing up from the soil due to the extent of killing of Jews that had taken place. Sean Murphy explained how the International Law Commission was working on a draft convention on the prevention and suppression of crimes against humanity, a concept inserted in the Nuremberg Charter at Lauterpacht’s recommendation. And the Ukrainian Judge on the European Court of Human Rights, Judge Ganna Yudkivska, pleaded civil society to continue its fight for human rights in an environment of backlash.

Through their unique networks, convenors Sofia Dyak, Franziska Exeler and Philippe Sands had managed to bring together a group of lawyers, historians, political scientists, journalists, film makers, publishers, and relatives of the key protagonists, most of whom have some kind of connection to this region in the world. A remarkable number of people brought along relatives, whether children, spouses, or parents, in light of their connection to this place. It was thus that on the Saturday morning this motley crowd walked through the streets of Lviv, from the city centre to what once was the Jewish ghetto, and witnessed the unveiling of three memorial plaques, at the houses once occupied by Hersch Lauterpacht, Raphael Lemkin and Louis B. Sohn (not mentioned in Sands’s book, but honoured at Peter Trooboff’s initiative). It was very special to stand in front of the Lauterpacht house with one of his grandchildren and two of his great-grandchildren. It was equally special to see the plaque at Lemkin’s house unveiled by one of his relatives, accompanied by words of Judge Erik Møse, once president of the International Criminal Tribunal for Rwanda, to which Lemkin’s concept of genocide was so essential.

The conference was thus also moving in the emotional sense of the word. This was very evident during the performance of East West Street: A Song of Good and Evil on Saturday evening, during which Ukrainians and foreign guests alike were in tears. The music may have provoked some of this: J.S. Bach’s Erbarme dich can guarantee tears almost irrespective of context. But bass-baritone Laurent Naouri and pianist Guillaume Chassy also enthralled the audience with Rachmaninov’s Melodiya and a line from Leonard Cohen’s song ‘Anthem’, ‘there is a crack in everything, that’s how the light gets in’. The story, narrated by the actress Katja Riemann and international lawyer Philippe Sands, equally captivated the audience. While the performance may have had these effects, too, in the many other places where it has been staged, they are likely to have been intensified by the fact that this performance took place in the city where its story originated. This uniqueness was accentuated by the guest performance of world renowned pianist Emanuel Ax who returned to the city in which he was born in 1949 for the first time since he had left in 1956. Katja Riemann spoke her part of the script with characteristic strength, but seemed to be shedding tears when not in action. As colleague Cindy Wittke observed afterwards, to be uttering lines once spoken by Nazi Hans Frank in the shared German language, in this city, must be very confronting.

But now, what is next? How to channel all these emotions that have been powerfully evoked into something productive? The answer will vary from person to person. Some Ukrainian family friends told me that the conference, city walk and performance facilitated a discussion about the place’s history that has hitherto been difficult to have. Many Ukrainians, including the city’s mayor, acknowledge that that history is ‘complicated’, but at times that observation ends rather than opens a discussion. The city has experienced the extremes of twentieth-century European history: Soviet occupation in 1939-41; Nazi occupation in 1941-44, followed by Soviet reconquest in 1944. Each period came with its own violence, in each of which specific nationalities suffered even more than others. Whereas some Ukrainians saw Stalin as the ultimate evil, and Hitler as a ‘mere enemy’, for the city’s at the time large Jewish population, the German occupation was fatal – in some part due to Ukrainian collaboration with the Nazis. The Poles of the region in turn suffered from the forced ‘repatriation’ after the Soviet reconquest. The discussion about the region’s multinational history seems even more important now that the war in the country’s east spurs a nationalism that presses people to self-identify as Ukrainian at the expense of other identities, and thus again threatens diversity.

For many international lawyers, Sands’s book and the performance trigger an even stronger commitment to, and belief in, international criminal justice, a project to which both Lemkin and Lauterpacht made significant contributions. Mine is a different response. Neither the book nor the performance evaluated international criminal justice’s success or failure in resolving the fundamental injustices that Lauterpacht and Lemkin sought to address (see, more elaborately, my review here). One cannot know how they would have assessed today’s situation and what they would have advocated, but they might have expressed disillusionment (just as, remarkably, another founding father of international criminal justice, the late Cherif Bassiouni, did, just before his death, during an ESIL-sponsored conference in Kiev earlier this year). Therefore, rather than pursuing the remedies that these men advocated in their days, this conference encourages us to see those remedies in their context, and in turn, openly to address, with these same energy as these men, the injustices of our own times.

To me, the most moving element of this event was that it demonstrated, in discussions, during walks and through art, the strength of human connections and the pain of these connections being ruptured. In doing so, it showed signs of a shared humanity, as well as its painful limitations. The confrontation with these limitations can be productive: Michael Barnett has argued that moments of doubts in a shared humanity are the strongest triggers for humanitarianism, for caring of seemingly distant people. A personal visit to a psychiatric hospital just outside Lviv in the margins of the conference illustrated to me just one present-day limitation to the realisation of a shared humanity: patients spend months, years or decades inside an institution without ever getting a breath of fresh air, sedated on beds with ten in a room, or wandering through the corridors like living ghosts, waiting for the decades to go by, depending for nourishment on the purchasing power of 30 eurocents a day in a globalized economy. Is there a way in which international law could be a field that not just stands above people, assigns them rights and duties and judges them, but also fosters a true human connection with those on society’s periphery?  

Announcements: Teaching and Researching International Law in Asia; UN Audiovisual Library of International Law; CfP Contingency in the Course of International Law; Legal consequences of the Separation of the Chagos Archipelago from Mauritius

EJIL:Talk! - Sun, 11/19/2017 - 10:00

1. Teaching and Researching International Law in Asia. The Centre for International Law at the National University of Singapore will be hosting a conference from 21 – 22 June 2018 on “Teaching and Researching International Law in Asia” (TRILA). The broad purposes of the Conference are to assess the current state of teaching and research in international law in Asia, to identify commonly experienced challenges for teachers of international law in the region, and to formulate a programme of further action and activities to assist individuals in their teaching and research. The Conference will be preceded by a Junior Faculty Workshop on 20 June, which is directed at assisting junior faculty with their scholarship and efforts to publish. Further details about these events and information on how to participate are available here.

2. New Additions to the UN Audiovisual Library of International Law. The Codification Division of the United Nations Office of Legal Affairs has launched a Moot Courts section under the Research Library of the UN Audiovisual Library of International Law (AVL), which organizes lectures and legal instruments useful for preparing for the 2018 Charles Rousseau Moot Court competition in international law. All interested parties are welcome to visit the AVL’s Moot Court page.  Additionally, the following lectures have recently been added to the AVL: Mr. Ahmed Mahiou “Les priorités actuelles du droit international” and “Coopération et intégration régionale en Afrique”, Mr. Yves Nouvel “ Le standard minimum de traitement des étrangers en droit international”.

3. Call for Papers – Contingency in the Course of International Law: How International Law Could Have Been.  The conference, in Amsterdam from 14-16 June 2018, will ask a question that is deceptive in its simplicity: How might international law have been otherwise? We want to question the present state of international law by challenging its pretence to necessity and by better understanding the forces that have shaped it. Put simply with Robert Musil: “If there is a sense of reality, there must also be a sense of possibility.” Fleur Johns (UNSW) will give a public keynote and Samuel Moyn (Yale) will give a closing address. Please see here for more information. The deadline for the submission of abstracts is 1 December 2017. 

4. Legal consequences of the Separation of the Chagos Archipelago from Mauritius (ICJ Advisory Opinion). This event, on Monday 11 December 2017, discusses the upcoming proceedings concerning the latest request by the General Assembly for an ICJ Advisory Opinion in the case of ‘Legal consequences of the separation of the Chagos Archipelago from Mauritius’. The discussion will centre on the efforts before domestic UK courts as well as the public international law discussion concerning the Chagos Islanders and examine the merits of the case before the ICJ with international legal experts. The event is at the British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP. Find out more and book online here.

Remaking the World towards ‘Fair and Reciprocal Trade’? The Case for (More) Interdisciplinarity in International Economic Law

EJIL:Talk! - Fri, 11/17/2017 - 08:00

Geopolitical changes were on full display last week at multiple economic summits in Asia, where red carpet pageantry converged with the dramatic publicity of States brokering new deals at the regional meetings for the Asia-Pacific Economic Cooperation (APEC) in Viet Nam, the Association of Southeast Asian Nations (ASEAN) Heads of State Summit and the 12th East Asia Summit (EAS) in the Philippines, the side meetings of the China-led 16-country bloc drafting the Regional Comprehensive Economic Partnership (RCEP), the Japan-led Trans-Pacific Partnership-11 (recently renamed into the Comprehensive and Progressive Agreement for Trans-Pacific Partnership), with considerable focus on United States President Donald Trump’s 12 day tour in Asia for these meetings as well as for bilateral trade talks with Japan, South Korea, and the Philippines.  In Viet Nam, US President Trump suddenly renamed the Asia-Pacific into the “Indo-Pacific”, a deliberate policy strategy to define Asia beyond China’s growing hegemony into a sphere of alliances built with India, Japan, and other Southeast Asian countries.  

The Asia economic summits conveyed the implicit assumption that international trade and investment treaties had to be revised or rewritten towards “fair trade”, even if there were differing understandings of what that fairness meant.  US President Trump’s address at APEC demanded “fair and reciprocal trade” as part of his ‘America First’ policy, blaming trade agreements for serious US trade deficits with China and other countries. Canadian Prime Minister Justin Trudeau delayed agreeing to renew the TPP partnership under the aegis of the CPTPP, pushing for Canadian interests in ensuring strict environmental and labour standards in the agreement, and succeeding in suspending the problematic provisions in the intellectual property chapter which the US had originated in the TPP draft.  Newly-minted New Zealand Prime Minister Jacinta Ardern claimed victory with the suspension of investor-State dispute settlement clauses from the CPTPP, in favour of compulsory domestic court adjudication for any investment disputes.  In contrast, China took up the cudgels for globalisation and the established institutions and processes of the multilateral system, with Chinese President Xi Jinping firmly declaring at APEC that “economic globalisation is an irreversible historical trend…in pursuing economic globalisation, we should make it more open and inclusive, more balanced, more equitable and beneficial to all.”

The recent pronouncements by world leaders should be of considerable interest to international lawyers, given the heightened political and economic expectations placed on international economic agreements (trade and investment treaties), and what social outcomes they should (or should not) produce beyond the traditionally narrow objectives of liberalising foreign market access.  The international economic system is moving towards a multi-speed configuration of States oscillating between competing economic ideologies (e.g. resurgent new forms of “mercantilist protectionism”, revised ‘mainstream’ neoclassical economics, ‘new’ behavioural economics, among others); changing philosophies of government (e.g. the revival of authoritarianism and ‘illiberal’ democracies, leaning away from liberal democracies); evolving theories on the regulation of property, competition, and information given rapidly-developing technologies (e.g. artificial intelligence and the explosion of automation in supply chains, the domestic and transnational social impacts of the digital ‘sharing’ economy, climate change-driven restructuring to consumption patterns and production processes); and expanding understandings of domestic and transnational challenges to global public goods (e.g. environment, health, peace and security, among others).  Accordingly, there is an even greater burden for international lawyers (especially those that assist or advise States drawing up their respective visions for a new global economic architecture), to clarify and be transparent about how the political, economic, and social ends sought will be effectively met through the current and future mechanisms of international economic law and its institutions for governance and coordination.  Beyond the fog of press publicity, are we candidly and accurately communicating to the politicians the actual limits of international economic treaties, along with their potentials?  

In this post, I argue that international lawyers – especially international economic lawyers tasked with drafting, revising, critiquing, and building the new bilateral, regional, and global constellation of economic treaties – increasingly have to deepen interdisciplinarity, and not just in the sense persuasively observed by Tom Ginsburg and Gregory Shaffer as the “empirical turn in international legal scholarship” (106 American Journal of International Law (2012), pp. 1-46. Perhaps more fundamentally, international lawyers need even more interdisciplinarity, because we are at present hard-pressed to approximate, if not achieve, an idea of “fairness” in the international economic system’s treaties and institutions (no matter how contested that sense of “fairness” is, to begin with).  If we accept that the “fairness of international law” is legitimately our concern as international lawyers and scholars (as Thomas Franck famously argued), we should be more open to readily engaging the interdisciplinary assumptions marshalled in the reform and remaking of international economic treaties and institutions today.  

While we may not of course be the experts in these other disciplines, and we should, indeed, preserve the “relative autonomy” of international law (as Jan Klabbers cautions), some sharpening of our interdisciplinary sensibilities can nevertheless be useful in helping us to test the “good faith” nature of any postulation or assertion on the desired weight, form, content, and structure of our international economic treaties and institutions.  I use three examples of unstated assumptions in the debate over international economic treaties today that illustrate where interdisciplinarity is sorely lacking: 1) that international economic treaties can somehow erase trade deficits and permanently prevent trade imbalances; 2) that international economic treaties can anticipate and provide the most appropriate and suitable dispute resolution mechanism for the particular States parties to these treaties – for the entire life of these treaties – which is problematic with the growing depiction of a supposed ‘binary’ choice between investor-State dispute settlement mechanisms (ISDS) and local court adjudication (and/or political risk insurance); and 3) that international economic treaties can be designed to fully create desired social, environmental, labor, health, education, and all public interest outcomes.  I posit that while interdisciplinarity may show us that international economic treaties could be a correlative, if not possibly one of the causal, factors for desired outcomes, and that we can probably design them with sensitivity and vigilance towards controlling the negative externalities they cause and encouraging positive distributive consequences, the international economic treaty-writing (and rewriting) exercise is complex. We cannot – as politicians do – simplistically oversell or lionise these treaties as somehow the definitive “one size-fits all” solution to remake the world towards “fair and reciprocal trade”.

Trade Treaties as the Cure for Trade Deficits?

The seductive intuition to the United States’ current moves to renegotiate, terminate, revise, or reform trade agreements is that changing the terms of market access will somehow reduce, if not eliminate, US trade deficits with rivals such as China.  As reported by the Council on Foreign Relations, however, even among economists of different stripes, none have reached any definitive findings that the decisive actual cause of US trade deficits is the nature of its trade agreements. Rather, as the Cato Institute stressed:

“The most important economic truth to grasp about the U.S. trade deficit is that it has virtually nothing to do with trade policy. A nation’s trade deficit is determined by the flow of investment funds into or out of the country. And those flows are determined by how much the people of a nation save and invest – two variables that are only marginally affected by trade policy.” 

In March 2017, US President Trump ordered a “comprehensive study” of trade abuses that lead to trade deficits, which to date has not yet been declared to have been completed, much less publicly released.  Despite the absence of this information – and the positive finding that it is the capital, investment, and savings flows of a country that actually determine a trade deficit – the United States has nonetheless embarked on a policy of renegotiating or terminating its trade treaties such as NAFTA, KORUS FTA, and the TPP.  One can only wonder, despite the US Trade Representative’s stated objectives in these renegotiations, how international lawyers are drafting the new terms of US economic treaties.

ISDS, Local Court Adjudication, or Political Risk Insurance?

Various quarters immediately hailed victory when the resurrected Trans-Pacific Partnership Agreement (now CPTPP) considerably narrowed, if not de facto eliminated, investor-State dispute settlement clauses, making resort to local court adjudication compulsory.  There was no discussion in the press as to why local court adjudication in the 11 CPTPP countries (Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam) was held to be superior to any other form of dispute settlement, or why local court adjudication ought to have been the exclusive method for dispute settlement given the prospective long duration or term of this regional agreement.  The UN Conference on Trade and Development (UNCTAD) recognises a spectrum of dispute settlement options for trade and investment treaties, emphasising the importance of contextual fit, host State institutional environments, and policy coherence.  No such reasons, however, were furnished for the exclusive choice of local court adjudication in the CPTPP.  Similarly, in NAFTA renegotiations, a public letter signed by prominent academics advocated the elimination of investor-State dispute settlement, in favour of exclusively taking out political risk insurance. Considering that the United States insurance industry also suffered heavily and had to be bailed out from the accumulation of systemic risk in the 2008/2009 financial crisis, it was puzzling that the proposed dispute settlement mechanism put forward was to make political risk insurance compulsory for an industry that is itself reportedly also a source of systemic risk, and all the more so when one considers the  limitations on the effectiveness of such insurance policies.  Unlike current open multi-stakeholder debates on the EU multilateral investment court, neither the CPTPP or NAFTA renegotiations presented interdisciplinary evidence (whether from law, economics, statistics, political science, or other social sciences) on why their exclusive choices (e.g. local court adjudication or political risk insurance) were the most appropriate dispute resolution fit for the States involved in these negotiations. Again, one can only wonder at how international lawyers are helping to draft these renegotiated terms sans focused interdisciplinary dialogue and evidence-based results.

Trade and Investment Treaties and Desired Social Outcomes

While many of us do write on the negative social, environmental, labor, and human rights impacts from trade and investment treaties, it was riveting to see Canada push for a “progressive” revision of the TPP into the “Comprehensive and Progressive Agreement on Trans-Pacific Partnership”, which presumably contains Canada’s articulated preferences for trade agreements encapsulating environmental, labor, and social rights, as recently exemplified in the Canada-EU Trade Agreement (CETA).  

To date, however, it must be acknowledged that while the UN Office of High Commissioner on Human Rights (along with the Committee on Economic, Social and Cultural Rights) has spearheaded efforts to mainstream human rights into trade and investment agreements, there is still not much standardisation or methodological uniformity when it comes to arriving at the pragmatic details on how best to operationalise human rights into economic agreements, whether by requiring human rights impact assessments for these agreements (as proposed by UN Special Rapporteur Olivier de Schutter), rewriting trade and investment treaty provisions to inject human rights provisions directly, embedding human rights norms directly into foreign investment contracts, among others.  These proposals stand alongside rather incipient human rights compliance measurement methods (e.g. the OHCHR refers to human rights indicators) that have not yet been universally determined or fully tested, and which, correspondingly, could make it equally difficult to determine if the new “progressive” trade and investment treaties are indeed achieving desired social outcomes.

Moreover, even international human rights lawyers themselves perennially debate what compliance with human rights means for States facing different factual contexts. As UN Special Rapporteur on Extreme Poverty and Human Rights Philip Alston powerfully argued in a recent article, human rights in a “populist era” indeed requires even more introspection and openness by its advocates and scholars. To a certain extent, while international lawyers are drafting economic treaties in the hope of reaching this desired consistency with States’ international human rights obligations, they do need to engage interdisciplinary experts and methods, to verify (with actual data) if the treaty language and institutional design they are prescribing to States are indeed achieving desired environmental, labor, social, and human rights outcomes.


It is a unique time to teach and research on international economic law and development today, when so much of pending international developments are anchored on remaking the world order towards our shared (or different) conceptions of “fairness” in the international economic system.  On my end, I am often agnostic about the form of an international economic treaty (bilateral, regional, multilateral, among others) or its dispute resolution clause (arbitration, adjudication, negotiations, conciliation, insurance, among others), for the basic reason that my own early training in economics taught me to look functionally at these instruments and institutions as proposed tools to solve defined problems. The challenge is always to find the ‘right fit’ (or the best achievable fit, given a range of feasible options) for trade and investment treaties and their dispute resolution methods, given the short and long-term needs and problems of the State and non-State constituencies involved. Much of what appears missing from the public debates about trade and investment today may well be something as pedestrian as calling for more regular interdisciplinary engagement between international lawyers and experts in other disciplines. It is a  conversation worth having on a regular basis, if only to better inform the work of international economic lawyers and scholars, especially to make explicit our criteria for what constitutes “fair and reciprocal trade”.

Individuals, groups, families, communities, and populations – who are the real stakeholders and beneficiaries of trade and investment agreements – deserve straightforward answers on how their governments ‘legislating’ through trade and investment agreements are solving (or at least getting closer to solving) felt problems of poverty, inequality, disenfranchisement, and disempowerment.  Politicians can certainly use “fair and reciprocal trade” as a soundbite in international economic summits, but to international lawyers, it is the goal of “fair and reciprocal trade” that justifies even more interdisciplinarity to help check (as well as validate) our assumptions for rewriting the legal foundations of a new international economic system.

The Immunity of al-Bashir: The Latest Turn in the Jurisprudence of the ICC

EJIL:Talk! - Wed, 11/15/2017 - 09:00

On 6 July 2017, the Pre-Trial Chamber of the ICC issued a new decision in the case of Omar al-Bashir. The Chamber ruled that South Africa failed to comply with its obligation to arrest the President of Sudan by welcoming him for a summit of the African Union two years earlier. This decision did not come as a surprise because the Court had repeatedly ruled before that al-Bashir does not enjoy immunity from arrest and that all states parties have an obligation to arrest him. What makes the decision curious, however, is that the Chamber again adopted a new position on the immunity of al-Bashir:

  • In 2011, the Chamber found that al-Bashir does not enjoy immunity because of an exception under customary international law for the prosecution of international crimes by an international court like the ICC. According to the Chad and Malawi decisions, no sitting Head of State could ever claim immunity before the ICC (for reactions see: here and here).
  • In 2014, the Chamber revised its position and concluded that the Security Council implicitly waived his immunity in Resolution 1593. Al-Bashir would not enjoy immunity because the Council issued a binding decision under Chapter VII of the UN Charter obliging Sudan ‘to cooperate fully with … the Court’ (for reactions to the DRC decision see: here and here).
  • In it most recent decision of 6 July 2017, the Chamber found that al-Bashir does not enjoy immunity because the Security Council’s referral placed Sudan in a similar position as a state party. Al-Bashir would not possess immunity from arrest because of Article 27(2) of the Statute which provides that immunities ‘… shall not bar the Court from exercising its jurisdiction’.

In this post I examine the Chamber’s most recent decision on the case of al-Bashir and make a number of critical observations. This post serves as a follow-up to an EJIL:Talk!-post from 2014, in which André de Hoogh and I argued that the DRC decision wrongly assumed that the Council can remove immunities in an implicit manner and mistakenly conflated the obligation to waive immunities with their actual removal.

The South Africa decision is more sophisticated than the DRC decision by taking up the suggestion of Dapo Akande to treat Sudan like a state party. In my opinion, however, the Chamber’s new decision still does not resolve the matter of al-Bashir’s immunity in a legally convincing manner.

Two different turns to the Security Council

As a starting point, it is important to highlight the key differences between the two decisions. Both decisions turn to the Security Council, but in a slightly different manner.

In the DRC decision, the Chamber argued that the Security Council ‘implicitly waived [al-Bashir’s] immunities under international law’ (para. 29). When the Council referred the situation in Darfur, it obliged Sudan ‘to cooperate fully with and provide any necessary assistance to the Court’ (para. 2 of Resolution 1593). According to the Chamber, this cooperation requirement ‘was meant to eliminate any impediment to the proceedings before the Court, including the lifting of immunities’, because any other interpretation would render Sudan’s obligation to cooperate fully ‘senseless’ (para. 29). Al-Bashir would not enjoy immunity because the Council removed his immunities by using its powers under Chapter VII of the UN Charter.

In the South Africa decision, the Chamber stated that the ‘necessary effect’ of the Security Council’s referral is that ‘for the limited purpose of the situation in Darfur, Sudan has rights and duties analogous to those of states parties to the Statute’ (para. 88). According to the Majority of the Chamber (with Judge de Brichambaut dissenting), Article 27(2) ‘applies equally with respect to Sudan’, which would mean that the immunities of al-Bashir ‘do not apply vis-à-vis states parties’ (paras. 91-93). The Chamber added that ‘it is immaterial … whether the Security Council intended – or even anticipated – that … al-Bashir’s immunity as Head of State of Sudan would not operate to prevent his arrest’ (para. 95). Unlike the DRC decision, the Chamber did not see ‘a waiver in the Security Council Resolution’ (para. 96). Such a waiver would also not be necessary, because Article 27(2) applies to Sudan.

In short, both decisions turn to the Security Council, but do so in a slightly different manner. In the DRC decision, the Chamber based itself directly on the powers of the Council under the UN Charter. The Council would have implicitly waived al-Bashir’s immunity and for this reason Article 98(1) would not apply. In the South Africa decision, the Chamber reasoned that the Council created obligations for Sudan under the Charter, which are similar to those of a state party under the Statute. Al-Bashir would not enjoy immunity, because the application of Article 27(2) would remove that immunity.

From a legal point of view, both approaches raise different questions. The DRC decision triggers questions about the powers of the Council and about the interpretation of Resolution 1593:  Does the Council have the power to deviate from customary international law or to remove immunities in an implicit manner? Does Resolution 1593 contain an implicit removal of al-Bashir’s immunity or only an obligation to waive his immunity, and can the Court invoke an obligation to waive al-Bashir’s immunity under the UN Charter against its own states parties?

For the South Africa decision these questions are less relevant, because if Sudan is placed in a similar position as a state party under the Statute, it does not matter whether the Council can implicitly remove immunities or whether there is a textual link in Resolution 1593 for an implicit removal. The inapplicability of al-Bashir’s immunity would not follow directly from the text of the Resolution, but from the applicability of the Statute as imposed by the Council on Sudan. This approach is more elegant than the reasoning in the DRC decision in the sense that it envisages a scenario in which there are no meaningful differences between a ‘real’ state party and a non-party that is obliged by the Council ‘to act like’ a state party. Yet, the South Africa decision does raise a number of other questions – and problems.

The problems of the South Africa decision

The key assumption of the South Africa decision is that the Court must treat Sudan like a state party. In considering this assumption it is important to note that the ICC’s legal framework is not explicit on how the Court should act when the Council refers a situation in a non-party to the Prosecutor under Article 13(b). Presumably, the effect of a Security Council referral is that the Statute applies in its entirety (Article 1 of the Statute). However, if the whole Statute applies, does this necessarily mean that a non-party like Sudan should in all ways be treated as a state party? – No, not necessarily!

A problem with the Chamber’s assumption is that it turns a blind eye to the numerous provisions in the Statute that explicitly distinguish the legal position of a state party from that of a non-party. When the Statute only refers to a state party, or to a non-party, why would Sudan have to be treated by the Court as a state party? There is no textual argument in the Statute for treating Sudan as a state party. A referral does not transform a non-party into a state party, it only triggers the Court’s jurisdiction. As acknowledged in the minority opinion of Judge de Brichambaut, if a Security Council referral triggers the applicability of the entire Statute, it logically follows that the referral ‘also activates provisions relevant to non-state parties’, and that ‘such a referral need not necessarily render a non-state party analogous to a state party’ (para. 56).

That being said, the Council has created obligations for Sudan which are in some ways similar to that of a state party. Sudan has to cooperate fully with the Court. It has an obligation under the UN Charter to arrest al-Bashir, to waive his immunity and to cooperate in any other way that is requested by the Court in accordance with the Statute. When Sudan fails to fulfil this obligation, the Court can refer Sudan, as it has done, to the Council.

However, the question at hand is whether the Court is allowed, under the Statute, to treat Sudan as a state party.  Both the Statute and the Council’s Resolution (which accepts the distinction between states parties and non-parties) indicate that Sudan remains a non-party. As a non-party, Article 27(2) does not apply to Sudan in the same way as it does to a state party. The Court can invoke Article 27 vis-à-vis Sudan to exercise jurisdiction and issue arrest warrants against Sudanese state officials (i.e. on a vertical level). Yet, while Article 27(2) completely removes the immunities of states parties, the immunities of non-parties continue to exist on a horizontal level for as long as these immunities have not been waived by the concerned state (for a more detailed analysis on this point, see our previous post).

For as long as Sudan has not waived al-Bashir’s immunity, the Court is bound by its own Statute in the sense that states parties are able to invoke Article 98(1). The reason for this is that Article 98(1) specifically addresses the legal position of a ‘third state’, which refers to a state that is not a party to the Statute (see South Africa decision, para. 82). The Security Council referral creates obligations for Sudan, but these obligations do not amount to a complete removal of al-Bashir’s immunity and do not turn Sudan into a state party.

To argue that Article 98(1) does not apply, even if Sudan has to be treated in this respect by the Court as a non-party, one of the following propositions needs to be proven:

  • Al-Bashir’s immunity has disappeared because of an exception under customary international law (as argued in the Chad and Malawi decisions);
  • The Council has somehow removed al-Bashir’s immunity from arrest (as argued in the DRC decision);
  • The Court can hold Sudan’s obligation under the UN Charter to waive al-Bashir’s immunity against states parties (as suggested by Erika de Wet, see here);
  • Article 98(1) does not cover the immunity of Heads of State (as argued by Jens Iverson, see here);
  • Sudan is a party to another treaty (Genocide Convention) that includes a permanent waiver for al-Bashir’s immunities (as argued by Judge de Brichambaut in his minority opinion).

The Chamber did not defend any of these propositions in the South Africa decision. The Chamber acted solely and without proper explanation on the assumption that it had no choice but to treat Sudan as a state party. This assumption ignores provisions like Article 98 that explicitly distinguish the legal position of a state party from that of a non-party. In the application of these provisions, the Court should treat Sudan as a non-party. This means that Article 98(1) continues to apply, unless his immunities are waived, removed or made inapplicable in some other way.

The need for new solutions

Looking forward, there are several ways for the Court and its states parties to clarify the ICC’s rules on immunity in general and the matter of al-Bashir’s immunity in particular. A first option is a decision from the ICC’s Appeals Chamber. The hope was that South Africa would appeal the Chamber’s ruling (see here), but the Government of Jacob Zuma decided not to. Other states parties that have hosted al-Bashir, such as Jordan, and who will be subjected to non-cooperation proceedings ought to consider requesting the Appeals Chamber to settle the matter of al-Bashir’s immunity in a more conclusive manner.

A second option is the rendering of an advisory opinion of the ICJ. While a proposal for a request from the UN General Assembly to the ICJ previously failed to gain momentum, there is no doubt that the Court could help to clarify the rules on state and diplomatic immunity under customary international law (for a detailed analysis of this option see here).

Finally, a last option for the Court’s states parties is to specify the rules for the implementation of Article 97 and 98. Amending these provisions may not be realistic at this point in time, but recent discussions in the ASP have shown a willingness of states parties to specify the rules on the consultation procedure of Article 97. Discussions on this matter could form the first step in a longer political dialogue on the ICC’s immunity regime as a whole.

For the time being, however, Article 98(1) and the specific question of al-Bashir’s immunity remain surrounded by ambiguity and uncertainty. The Court’s judges have left many fundamental questions unanswered. In the absence of a judgement from the Appeals Chamber and/or an advisory opinion of the ICJ, lawyers and states can reasonably disagree on the scope of Article 98(1) and the obligation of states parties to arrest al-Bashir. In this sense, the ICC’s immunity regime remains ‘unresolved’.

A Danish Crusade for the Reform of the European Court of Human Rights

EJIL:Talk! - Tue, 11/14/2017 - 10:55

Tomorrow (15 November) Denmark will take over the rotating chairmanship of the Council of Europe (CoE). The CoE was established in 1949 and has since adopted numerous treaties, including the 1950 European Convention on Human Rights (ECHR). Denmark is a CoE founding member and has traditionally been a strong supporter of human rights. Yet the Danish Government has announced that the chief priority of its chairmanship will be the reform of the European human rights system. This announcement may come as a surprise to the readership of this blog. This post therefore summarises the vicissitudes that have led to the Danish Government’s initiative, and provides some early reflections on its expected impact.

Why does Denmark want a reform?

Immigration has long been a dominant theme in Danish politics. In the late 1990s, the Danish People’s Party (DPP) began to denounce immigration, multiculturalism and Islam as alien to Danish society and values. Since 2001, the DPP has supported various minority coalition governments and gained extensive influence on Denmark’s immigration policy, which is now one of the most restrictive in Europe.

Critique of the ECHR is not new in Denmark, where much debate has focused on the influence of the Convention on the deportation of the foreign criminals. In May 2016, the Danish Supreme Court delivered a judgment which reignited the debate, by preventing the deportation of a notorious convicted criminal and Croatian national, Gimi Levakovic. Despite Levakovic’s egregious criminal record, the Supreme Court found that his deportation would constitute a disproportionate interference with his right to respect for private and family life – protected both under EU law and ECHR. The Court justified its decision by emphasising that Levakovic had no real ties to Croatia, which he had not visited since he came Denmark at the age of three. It further noted that Levakovic had four children in Denmark, two of which were minors under his sole custody.

The decision by the Supreme Court caused a maelstrom. Public outrage was fuelled by the fact that Levakovic was a household name, after he had appeared on a 2015 Danish TV documentary, controversially titled: ‘The gypsy boss and his notorious family’. Politicians across the political spectrum have since called for reform of the European human rights system. The current minority centre-right coalition, consisting of three parties and supported by the DPP, adopted a political agreement in November 2016, which stated the need to:

critically review the way in which the dynamic interpretation of the European Court of Human Rights has broadened the scope of parts of the European Convention on Human Rights…

What would the reform entail?

The objective of the Danish Government’s proposed reform is somewhat unclear. The Government has published a list priorities, which include:

  1. The European human rights system in a future Europe
  2. Equal opportunities
  3. Involvement of children and young people in democracy
  4. Changing attitudes and prejudices about persons with disabilities
  5. Combating torture

The Minister of Justice has explained that the Government will use the chairmanship to focus on the European Court of Human Rights’ (ECtHR) dynamic interpretation of the Convention, which he thinks has gone too far. At a conference hosted by Copenhagen University, he referred to a controversial opinion poll showing limited public support for continued membership of the ECHR – unless it is reformed. This sentiment was reiterated by the Danish Prime Minister during a recent visit to Denmark by the CoE Secretary General, Thorbjørn Jagland. The Prime Minister said:

In Denmark… we have a critical debate about the expansive interpretation by the European Court of Human Rights, in particular on the question of the deportation of foreign criminals. It does not resonate with the general public understanding of human rights when hard core criminals cannot be deported. And I must admit, I cannot understand it…

He also suggested that national governments should have better means to influence the ECtHR’s interpretation of the ECHR. It is not, however, clear what he meant by this suggestion. The Prime Minister announced that the Government intends to propose a follow-up on the Brighton Declaration, which led to Protocol 15 introducing several amendments to the ECHR, including preambular references to the ‘principle of subsidiarity’ and the ‘doctrine of the margin of appreciation’. These amendments will enter into force once all CoE Member States have expressed their consent. According to the Danish Prime Minister, a declaration adopted under the Danish chairmanship would emphasise respect for local practices and the possibility for third party intervention in cases before the ECtHR.

Is there a need for reform?

The ECtHR has already been reformed in recent years. In 2015, a CoE report concluded:

In view of the positive results of the Court’s reforms so far, the challenge of clearing the backlog of non-repetitive priority and non-priority cases may entail allocating additional resources and more efficient working methods rather than introducing a major reform.

The report was adopted by the CoE Committee of Ministers in March 2016 and Denmark has struggled to garner support for further reform, with the possible sole exception of Hungary.

It also is worth pointing out that Art. 36(2) ECHR already allows third party intervention, but Denmark has only once intervened before the ECtHR, whereas other States have been more active. By comparison, last year alone Denmark intervened in 34 cases before the European Court of Justice. For this reason, ECtHR Judge Jon Fridrik Kjølbro has recently urged Denmark to engage more actively in Strasbourg. He and the Icelandic judge have openly questioned the need for further reform of the ECHR, noting that member States have a broad margin of appreciation in relation to deportation. Citing recent ECtHR decisions (Salem, Hamesevic, and Alam) Judge Kjølbro has pointed out that the court rarely second guesses national deportation decision, as long as there is evidence of a fair balance being struck between the individual’s rights and community interests.

What will happen next?

The first step in the Danish Government’s reform strategy is a High-level Expert Conference ‘2019 and Beyond – Taking Stock and Moving Forward from the Interlaken Process’, which will take place in Denmark on 22-24 November 2017. Little information on this conference has been made publicly available. Given the paucity of details provided by the Danish Government, it is difficult to predict what the proposed reforms will concretely entail. Quite recently, however, the Government seems to have changed tack. While criticism was initially focused on the ECtHR, the Prime Minister noted in the above-mentioned press conference that Danish courts might have over interpreted the ECHR. This analysis has received the endorsement of the Danish Institute of Human Rights. Only time will tell whether the Danish Government will continue to pursue their crusade against the European human rights system, or whether they will decide to target their attention towards domestic courts, instead.

Author’s Note: This blogpost draws on a forthcoming publication: Danmark og Den Europæiske Menneskerettighedskonvention (Ex Tuto, 2017) Denmark and the European Convention on Human Rights (in Danish)

For more information, see the collection of documents available at: https://sites.google.com/site/dkogeuroparaadet/artikler-om-dk-og-europaraadet (mostly in Danish)

New Issue of EJIL (Vol. 28 (2017) No. 3) Published

EJIL:Talk! - Mon, 11/13/2017 - 09:30

The latest issue of the European Journal of International Law (Vol. 28, No. 3) is out today. As usual, the table of contents of the new issue is available at EJIL’s own website, where readers can access those articles that are freely available without subscription. The free access article in this issue is Merris Amos, The Value of the European Court of Human Rights to the United Kingdom. EJIL subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Announcements: Financing and the Right to Science in Technology Sharing for the SDGs Workshop; EFTA Court President Lecture

EJIL:Talk! - Sun, 11/12/2017 - 10:00

1. Workshop on Financing and the Right to Science in Technology Sharing for the SDGs. The Department of International Law, University of Groningen organises the Workshop on ‘Financing and the Right to Science in Technology Sharing for the SDGs’ which will take place on 24 November 2017 at the University of Groningen. The Workshop is co-sponsored by ESIL Interest Group on International Environmental Law and Global Law Initiatives for Sustainable Development (gLAWcal). The detailed programme is available here

2. EFTA Court President Lecture – City, University of London 23 November 2017. The City Law School is delighted to invite you to a lecture organized by the Jean Monnet Chair in European Law on Thursday 23 November at 18.00 (registration starting at 17.30). Carl Baudenbacher, President of the European Free Trade Association (EFTA) Court, will speak on the topic of “Brexit: Within the Single Market, Without the European Court of Justice?”. The event will be chaired by Panos Koutrakos (Professor of EU Law and Jean Monnet Chair in EU Law, City, University of London). The event will take place at City, University of London, Oliver Thompson Lecture Theatre (Tait Building, Northampton Square, London EC1V 0HB), and will be followed by a wine reception. Attendance is free. You may sign up here

ICJ Elections 2017: UN General Assembly and Security Council Elect Four Judges to the ICJ But fail to Agree on a Fifth, yet again! + Trivia Question

EJIL:Talk! - Sat, 11/11/2017 - 11:50

On Thursday (Nov. 9), the United Nations General Assembly and Security Council elected four judges to the International Court of Justice (see UN Press Releases here and here). Judges Ronny Abraham (France), the incumbent President; Abdulqawi Yusuf (Somalia), the incumbent Vice-President; and Antônio Augusto Cançado Trindade (Brazil) were all re-elected. Nawaf Salam who is currently the Permanent Representative of Lebanon to the United Nations was also elected to the Court for the first time. They were elected in accordance with Articles 4 and 8 of the Statute of the ICJ which stipulate that judges are to be elected by the General Assembly and the Security Council meeting separately but concurrently. For a candidate to be elected each judge has to obtain an absolute majority in each of those organs, meaning that they need 8 votes in favour in the Security Council and, in 2017, 97 votes in the General Assembly. There are regular elections to the ICJ every three years, with five vacancies each time around. In the election held on Thursday, the General Assembly (GA) and the Security Council (SC) have, thus far, been unable to agree on the fifth judge to be elected to the Court, and voting has been suspended until Monday November 14. This scenario of the GA and SC being unable to agree in a single “meeting” (a term which has a special meaning for this purpose) on the list of Judges that are elected to the Court is relatively rare in the history of elections to the ICJ. However, that scenario has now occurred for a third successive time (after the events in 2011 and 2014 which I describe in the previous posts here and here).

This 2017 election has been particularly remarkable for a number of reasons. There were only six candidates for the five positions. However, and this is rare, all five judges whose terms were expiring had been nominated for re-election. What is perhaps most remarkable about this election, at least thus far, is that Judge Christopher Greenwood, the judge of British nationality, was not re-elected in the first “meeting”. The two remaining candidates for re-election, who must now fight it out on Monday are Judge Greenwood and Judge Bhandari (India), both sitting judges on the Court. Were Judge Greenwood not to be re-elected on Monday this would be a very significant break from the past with regard to the composition of the ICJ. It would be the first time that there would be no British judge on the ICJ (and I think there was a British judge throughout the period of the Permanent Court of International Justice as well). It would break the tradition of there being a judge of the nationality of each of the permanent members of the UN Security Council on the ICJ. Finally, were he not to be re-elected, this would be a departure from the tradition that the regional allocation of seats on the ICJ bench mirrors the regional allocation of membership at the Security Council. This is because the re-election of Judge Bhandari from India and the election of Ambassador Salam from Lebanon would mean that Asia gets one additional seat on the Court and the WEOG (Western European and Other Group) gets one fewer seat.

I have spelled out the procedure for the election of ICJ judges, including what happens if the GA and SC are unable to agree initially on who is elected, in previous posts (here and here) and I won’t repeat it all here. Suffice to say that it is usual that several rounds of voting are needed in the GA and SC before candidates are elected. It only when the number of judges that have obtained an absolute majority in an organ is equal to the number of vacancies that the President of that organ notifies the results to the other organ. If more than five judges obtain an absolute majority (and this is easily possible) then further rounds of voting are required. On Thursday, the first time that only 5 judges obtained an absolute majority of votes was in the fourth round of voting in the SC and in the fifth round of voting in the GA. Four of the five on that list were the same in both organs and were duly declared elected. However, Judge Greenwood obtained an absolute majority of votes in the SC but not in the GA, and Judge Bhandari obtained an absolute majority in the GA and not the SC. In a sixth round of voting in the GA, with only Judges Bhandari and Greenwood on the ballot to fill the remaining vacancy, Judge Bhandari obtained 115 votes to Judge Greenwood’s 76. In the fifth round of voting in the SC, with only Judges Bhandari and Greenwood on the ballot, Judge Greenwood obtained 9 votes and Judge Bhandari 6. It was at this point that voting was suspended till Monday. On previous similar occasions, voting has been suspended for weeks (2014), a month (2011) or several months (1956). This time, we have just this weekend for the intense diplomatic negotiations that will inevitably take place.

As noted in a previous post, in prior cases where the SC and GA have initially reached divergent results in elections for the ICJ there has been the “democratic tendency” for the SC to defer to the GA as the plenary organ. However, there are reasons to suggest that in this case the matter may not be so straightforward.

For reasons already alluded to, it would be a dramatic result if Judge Greenwood were to fail to be re-elected. The composition of the ICJ usually mirrors the regional allocation of seats in the SC. If two Asian judges were elected in these elections, the result would effectively be a reallocation of a WEOG seat to Asia. It is worth pointing out that the allocation of seats to regions in the ICJ does not result out of a rule but only out of tradition. With the SC (and also the Economic and Social Counci), the GA decided on the regional allocation when it voted for amendments to increase the size of those bodies [GA Res. 1991 (XVIII)A and 2487(XXVI)]. That regional allocation was then included in the GA Rules of Procedure [footnotes to Rules 142, 143 and 145] and is also set out in the voting papers when elections occur for membership of those bodies. With the ICJ, Article 9 of the Statute requires the electors bear in mind that “in the body as a whole the representation of the main forms of civilization and of the principal legal systems of the worlds should be assured.” However, there is no prescription in any rule as to how this is to be done but the tradition of regional allocation is an attempt to comply with the statutory prescription. Nonetheless, the regional allocation for the Court is not included in the voting papers given to electors and one only needs to study the arithmetic of the votes to see that individual electors do not necessarily vote according to the regional allocation. Former ICJ Judge Kenneth Keith, in an illuminating article [“International Court of Justice: Reflections on the Electoral Process” (2010) Chinese Journal of Int. L, para. 27 ] uses the 1999 election as an example and shows that:

“in the first ballot, the total number of votes for the two candidates who were seeking the Asian vacancy was 230 [with only 176 states voting], meaning that at least 54 States voted for both. Even in the second ballot when one of the Asian candidates did fall below the majority and was defeated, at least 44 States were still voting for both him and the successful candidate”.

The tradition of there being a Judge of the nationality of each P5 member is not an unbroken one. There was no Chinese judge on the ICJ bench from 1967 to 1985. However, this can be accounted for by the special position of China in that period. The beginning of this period maps was one where the nationalist government (in Taipei) represented China at the UN but was close to losing that representation to the communist government in Beijing. There might be some who question whether there should in fact always be a judge of the nationality of each P5 member on the ICJ bench given that a rule that may make sense on a political body like the Council (or made sense in 1945) is not easily justified on a judicial body like the ICJ . However, even if there were to be departure from this tradition, it would be a matter of regret if were the UK which suffered this loss first. The UK is not only a strong supporter of the Court but the only P5 member which has consistently accepted the compulsory jurisdiction of the ICJ, and always appeared in cases in which it is involved in at the Court (and other inter-state judicial bodies), which is not the case for other P5 members.

Let me conclude with a trivia question. As already mentioned, in this election all five judges whose terms were expiring stood for re-election. This is a rare occurence but I do not know how often this has happened and would be interested to know of other occasions when it has happened. If all five judges had been re-elected, which we now know will not happen, it would have meant that the composition of the ICJ bench did NOT change after a regular election. My question is this:

When has the composition of the ICJ Bench not changed after a regular election because all the judges whose terms were expiring were re-elected?

War crimes in Afghanistan and Beyond: Will the ICC Weigh in on the “Global Battlefield” Debate?

EJIL:Talk! - Thu, 11/09/2017 - 13:30

The ICC Prosecutor recently announced her decision to request an authorization to open a formal investigation into possible international crimes committed in connection with the conflict in Afghanistan. The outcome of her preliminary examination was long-awaited and expected to be significant because an investigation into the Afghanistan situation would cover all parties involved – that is, not only local actors but also the international coalition, including the US (US nationals would come under the jurisdiction of the Court if they committed crimes in Afghanistan or in any other State party to the Rome Statute).

The Prosecutor’s choice to subject some aspects of the Afghan conflict to judicial scrutiny despite the pressures deserves to be praised as an “act of bravery.” If the Pre-Trial Chamber authorizes this investigation, the road to justice will be long – many have already commented on possible issues of jurisdiction (e.g. here and here), admissibility (e.g. here and here), evidence-gathering and cooperation (e.g. here), etc. In this post, I want to focus on a potential effect of this announcement: the situation in Afghanistan may give the ICC an opportunity to weigh in on the debate over the global applicability of IHL. Fatou Bensouda intends to prosecute acts of torture committed in CIA detention facilities located in Europe, in connection with the armed conflict in Afghanistan, as war crimes. If she does, ICC judges will have to rule on whether IHL applied to those acts and hence more generally on whether IHL applies beyond the territory of a State where a non-international armed conflict (NIAC) is primarily taking place. The geographical scope of IHL remains one of the most vexing debates in international law (as was clear from a heated discussion on this blog and others, just a month ago) but the Afghanistan investigation may help highlight an overlooked aspect of it. Here is why.

The Afghan conflict, CIA black sites and IHL applicability

In its public announcement, the Prosecutor indicated that she will focus, in conformity with the ICC’s jurisdiction,

“solely upon war crimes and crimes against humanity allegedly committed since 1 May 2003 on the territory of Afghanistan as well as war crimes closely linked to the situation in Afghanistan allegedly committed since 1 July 2002 on the territory of other States Parties to the Rome Statute.”

War crimes “closely linked to the situation in Afghanistan” but committed elsewhere are most likely allegations of torture and other forms of ill-treatment committed as part of the infamous CIA’s “extraordinary rendition programme.” The programme implicated the rendition, detention and interrogation of terrorism suspects, with the support of at least 54 States. Some of them, like Poland, Lithuania and Romania, hosted CIA-run secret facilities where detainees were allegedly ill-treated. These three States are parties to the Rome Statute, and as a result, the ICC’s jurisdiction extends to their territory. In her 2016 Preliminary Examinations report, the Prosecutor had already mentioned her determination that “there is a reasonable basis to believe” that:

“War crimes of torture and related ill-treatment, by US military forces deployed to Afghanistan and in secret detention facilities operated by the Central Intelligence Agency, principally in the 2003-2004 period, although allegedly continuing in some cases until 2014” (para 198).

As to secret facilities outside of Afghanistan, the Prosecutor specifically mentions those located in the territories of Poland, Lithuania and Romania (para 199).

Looking into the future – and acknowledging that the prospect of an indictment of CIA operatives is distant, to say the least – if these crimes were ever to be prosecuted by the ICC, the judges would have to decide whether IHL applied to them. Indeed, even if the ICC has territorial jurisdiction in Poland, Lithuania and Romania, a distinct question is whether these acts come under the material jurisdiction of the Court and qualify as war crimes. Because war crimes are serious violations of IHL (under the Rome Statute and customary international law), this question preliminarily depends on whether IHL applied to these acts.

War crime courts have usually followed a two-prong inquiry to answer this question: 1) is there an armed conflict and 2) is there a nexus between the conduct and this armed conflict? That a non-international armed conflict (NIAC) involving the US (or two if the Taliban and Al-Qaeda are considered two distinct parties) existed at the time of the alleged acts of ill-treatment is beyond reasonable doubt. In addition, based on the “nexus” jurisprudence of the ICC and other international and national war crime courts, finding a sufficient nexus in this case should not raise any major issue. The Prosecutor would apparently focus on “individuals captured in the context of the armed conflict in Afghanistan, such as presumed members of the Taliban or Al Qaeda” transferred to these CIA-run sites. The victim’s affiliation with the Taliban or Al-Qaeda would indeed be sufficient to prove a sufficient nexus (actual membership would not be required; perceived support for one of the enemies of the US would be sufficient to meet the nexus requirement).

However, in deciding whether IHL applied to these alleged acts of torture, ICC judges would likely have to rule on a defense challenge that IHL did not apply there, beyond Afghanistan’s borders. The ICTY, ICTR and ICC (and other war crime courts) have had to decide on the geographical reach of IHL within the territory of States where a NIAC was taking place, but not beyond such territory (the ICTY’s jurisdiction extended only to the territory of the former Yugoslavia, the ICTR’s only to Rwanda and its neighboring States; the ICC, whose territorial jurisdiction is not so limited, has not had to rule on such a scenario yet). The prosecution of acts of torture committed in CIA-run sites in Poland, Lithuania or Romania would be the first time – to the best of my knowledge – a war crime court has to rule on the applicability of IHL to conducts linked to a NIAC occurring in another non-neighboring State. The same would be true if State courts decide to prosecute these crimes, acting under the catalytic effect of the ICC complementarity principle – on which Bensouda insists in her announcment.

State of the debate on the geographical reach of NIAC rules

As the “fight against terrorism” has taken a global dimension, the question of the applicability of IHL beyond the State where a NIAC originates has become more pressing. While IHL instruments are largely indeterminate on the issue, the debate has polarized, in a nutshell, around two main conceptions of IHL applicability.

The first approach considers that IHL is geographically limited based on national borders. IHL applies in the territory of a given State if an armed conflict exists there. For instance, if the US is engaged in a NIAC against ISIS in Syria and launches operations against an ISIS cell located in, say, Mauritania (a non-neighboring State), IHL would not apply to such operations until the threshold of a NIAC is met in Mauritania. This would be doubtful in case of a single drone strike for instance. (Many proponents of this first approach would, however, accept that IHL applies to operations spilling over the Syrian border, into a neighboring country). One question resulting from this territorially-based conception of IHL applicability is whether IHL is applicable to the territory of States engaged in an extraterritorial NIAC even when no hostility is occurring there. While States’ pronouncements on this issue are scarce, France seems to consider that IHL does not apply to its territory despite its armed forces being engaged in several NIACs extraterritorially. The ICRC favors the contrary view.

According to the second approach, IHL is, generally speaking, territorially unrestricted. IHL attaches not to territories but to the conduct of armed conflicts and their effects on individuals, irrespective of location (except, of course, when provided otherwise by specific rules, e.g. rules on occupied territories). The only condition to the application of IHL to a given act or ommission is the existence of an armed conflict and of a sufficient nexus to it. For arguments in favor of this approach see here and here. Critics have expressed fears that this would result in a “global battlefield” as States would be able to rely on the supposedly more permissive rules of IHL to conduct hostilities across the globe.

Moving forward from the “global battlefield” critic?

If it were to adjudicate allegations of torture committed by the CIA in Poland, Romania or Lithuania, the ICC (or national courts) would have to take a stand in this debate. If judges follow the first approach, they will have to examine whether IHL applied in Poland, Lithuania or Romania. As no hostility occurred there, they will have to conclude that the NIAC threshold was not crossed there. A finding of war crimes would be possible only if they adopt the view -shared by the ICRC – that IHL is automatically applicable to the territory of States engaged in an extraterritorial NIAC. The three countries were indeed parties to the NIAC(s) against the Taliban (and other armed groups) at the time of the alleged crimes, as they were contributing troops to Operation Enduring Freedom and ISAF since early 2002 (Lithuania deployed troops under ISAF from October 2002 and OEP from November 2002 but had provided other kinds of support before). Then the judges would have to examine the existence of a sufficient nexus between this NIAC and the acts of ill-treatment.

Or they could adopt the second approach. In that case, once the existence of a NIAC is established, they would only have to address the nexus requirement. Because NIAC rules prohibiting ill-treatment contain no territorial limitation, the location of the incriminated conducts would not impact their analysis. In doing so, they would also leave the door open for the future prosecution of other crimes committed in the name of the global fight against terrorism, in connection to a distant NIAC. Indeed, if IHL applies across frontiers, it protects, for instance, anyone detained in connection to an armed conflict from ill-treatment, irrespective of where (s)he is being held. A breach of this IHL prohibition could then be prosecuted as a war crime by the ICC or non-territorial State courts (which otherwise would have no jurisdiction, unless the violation constituted another international crime, such as a crime against humanity), irrespective of whether the threshold of an armed conflict is met in the State where it occurred, and of whether the territorial State was a party to the conflict.

 The prospect of ICC and national proceedings over acts of torture committed in CIA-run black sites is a chance to expand the breadth of the debate on the geographical scope of IHL, zooming out from the recurrent focus on conduct of hostilities (CoH) rules. Critics tend to concentrate on the risk that if CoH rules can apply anywhere, States will feel incentivized to conduct hostilities everywhere. The risk of a “global battlefield” where some States feel entitled to use lethal force against ill-defined enemies across borders is real. But it remains to be seen whether this is not less a jus in bello issue than it is a jus ad bellum issue (related e.g. to overly broad definitions of the right to self-defense, to the fluidity of the notion of territorial consent or to  a lack of enforcement). The idea that States could invoke the more permissive rules of IHL to justify conduct-based targeting is also playing into the controversial view that IHL itself provides authorizations. At the same time, this CoH-focus may distract from the fact that global applicability would also concern rules protecting persons in the hands of parties to the conflict, such as Common Article 3. Critics will counter-argue that this is cold comfort because human rights law (HRL) provides largely equivalent protections including against all forms of ill-treatment. This being said, the concurrent application of IHL creates obligations not only for States but also for non-State actors (which remains a controversial issue under HRL). It also opens the possibility of war crime prosecutions and, as the ICC announcement just demonstrated, such prospect may be less hypothetical than it seems. While it remains less than clear that war will follow IHL, this may be one of the reasons why IHL should follow the war.

Those Who Live in Glass Houses….

EJIL:Talk! - Wed, 11/08/2017 - 09:00

The European Commission launched an infringement procedure against Poland over measures affecting the judiciary a day after the publication in the Polish Official Journal of the Law on the Ordinary Courts Organization on 28 July 2017. Though the infringement procedure is formally distinct from the ongoing ‘Rule of Law Dialogue’ and the recommendations issued just a few days before commencement of such procedure, it comes under the latter’s penumbra; both form part and parcel of the Commission Press Release (IP-17-2205). If the concern was ‘The Rule of Law,’ at least in some respects there is more bang than buck. The President of Poland blocked the most controversial parts of the new judicial regime in Poland, so that the infringement procedure was left with just two violations.    

The first concerns a different retirement age for male and female judges. It is not clear if this distinction in the Polish law is by design or inertia but the infringement seems clear: what is sauce for Sabena (RIP) cabin attendant geese should be sauce for judicial ganders. But important as any form of gender discrimination is, this item in the Polish legislation does not directly concern the more troublesome aspects of political control over the judiciary and its independence. Should Poland not correct this anomaly, it should be an easy case for the Court.

The second item in the infringement procedure is far more serious. In the Letter of Formal Notice (the first stage in infringement procedures) the Commission raises concerns ‘…that by giving the Minister of Justice the discretionary power to prolong the mandate of judges who have reached retirement age, as well as dismiss and appoint Court Presidents, the independence of the Polish Courts will be undermined’ (id.), allegedly contravening a combination of Article 19(1) of the TEU and Article 47 of the EU Charter of Fundamental Rights – a legal basis which is creative but not specious.

If indeed the prolongation of the mandate of a judge reaching retirement age rests in the hands of a Minister, the government of which he or she is part and acts and/or legislation issuing from which might be subject to judicial scrutiny by said judge, it may well consciously or otherwise impact, for example, his or her conduct prior to retirement or, no less importantly, give the appearance of lack of independence. I think this is indeed a serious matter impinging on the independence and appearance of independence of the judiciary. It is one thing to have scrutiny and approval of judges by democratic bodies at the moment of appointment. But once appointed, the independence of the judge from political actors must be as absolute as possible, and this dependency described in the letter of intent clearly compromises such.

But there is an irony in this complaint; some might even think a ticking time bomb. At least on two occasions proposals were put to various Intergovernmental Conferences to amend the Treaties so that the appointment of Judges to the Court of Justice of the European Union should be for a fixed period of time – say nine years – as is undoubtedly the Best Practice in Europe among higher courts where appointments are not until the age of retirement. Ominously in my view, the proposals were rejected. So that now we live under a regime where the prolongation of Members of the Court(s) (Judges and Advocates General) rests in the hands of national politicians whose decisions and legislation may come before such judges.

I am sure one can draw all kinds of Pharisaic distinctions between the Polish law and the European practice. I take cold comfort from the collegial and confidential nature of proceedings as a shield guaranteeing independence and the appearance of independence. 

There is clearly no such shield in the case of Advocates General. The old hands among you will remember from years past at least one much commented upon Opinion of an AG which gave the appearance of being compromised by this political dependence. AGs do not give Opinions in cases where ‘their’ Member State is a defendant in a direct action. But they frequently do in Preliminary References implicating directly or indirectly same. Far be it for me to impugn the integrity of any AG, present or past. But in this area appearances are as important as actual practice.

As regards judges, the shield, too, is far from a perfect answer to the appearance of independence. (This is often given as a reason why the European Court cannot entertain the idea of dissenting opinions lest judges be exposed to undue pressure or appear to be.) Leaks apart, in most cases the Court follows the outcome proposed by the Juge Rapporteur (though often with modified reasoning) which, given the concerns that are the subject of the infringement procedure, may result in a delicate situation, especially in chambers of three.

Also, recent practice (of 20 years or so) has seen Presidents serving for long terms. By not resubmitting their own national serving as President, a Member State can effectively terminate the mandate of the President of the Court.  

Thus, in the case of AGs egregiously and the Court as a whole and its President more obliquely, the situation is at its core cut from the same soiled cloth as is the situation in Poland about which the Commission rightly has taken action.

Hopefully Poland will correct this anomaly too in response to the infringement procedure before it winds its way to the Court. I would not like to be in the shoes of the Advocate General and the European judges should they ever be called upon to adjudicate the complaint, each one of them having already been or potentially could be in the future subject to a renewal process resting in the hands of politicians of the executive branch of their Member State – politicians whose actions they may have been called upon to pronounce in the past and may be called to pronounce upon in the future.

Be that as it may, in its forthcoming recommendations about its own future the Court should well consider proposing fixed-term appointments and rid itself of this cloud.


EJIL: In this Issue (Vol. 28 (2017) No. 3)

EJIL:Talk! - Tue, 11/07/2017 - 11:00

This issue opens with three articles addressing trade and investment in international law from different perspectives. In a valuable and timely contribution to the literature on the interpretation of investment treaties, Andrew Mitchell and James Munro consider whether the use of a third-party agreement in interpretation constitutes an erroneous application of the customary rules of treaty interpretation in the Vienna Convention on the Law of Treaties. Gracia Marín Durán then explores the respective responsibility of the European Union and its member states for the performance of World Trade Organization obligations, proposing a ‘competence/remedy’ model to help untangle this delicate question. And Sergio Puig and Anton Strezhnev investigate the legitimacy of international investment law, based on an experimental survey of 266 international arbitrators, concluding that there is strong evidence that arbitrators may be prone to the ‘David Effect’ – a relative bias to favour the perceived underdog or ‘weaker’ party when that party wins, through reimbursement of their legal costs.

The next set of articles in this issue focuses on human rights, with particular attention to the European Court of Human Rights (ECtHR). Merris Amos examines the continued value of the ECtHR to the United Kingdom, illustrating what might happen if the UK were to withdraw from the Court. Susana Sanz-Caballero investigates the scope of applicability of the nulla poena sine lege principle before the ECtHR, looking especially at the decisions in Kafkaris and del Río Prada to highlight the Court’s increasingly flexible approach to the concepts of penalty, foreseeability and enforcement of penalty. Oddný Arnardóttir argues that the Court has effectively used the margin of appreciation to engender an erga omnes effect for its judgments through the principle of res interpretata. Vera Shikhelman offers a fresh, empirical look at the work of the United Nations Human Rights Committee, exploring whether geographical, political and cultural considerations correlate with the voting of committee members. Lastly, Thomas Kleinlein addresses an important development in the ECtHR jurisprudence, positing that the Court’s legitimation strategy – comprising European consensus and the new procedural approach to the margin of appreciation – enhances the potential for democratic contestation and deliberation.

Roaming Charges in this issue takes us to the Negev Desert in southern Israel, where the photographer, Emma Nyhan, poignantly captures the ‘outsideness’ of a cultural minority, the Bedouins.

This issue features a lively EJIL: Debate!, centring on an article by Jonathan Bonnitcha and Robert McCorquodale, which addresses the concept of ‘due diligence’ in the United Nations Guiding Principles on Business and Human Rights. The authors criticize the uncertainty caused by two different concepts of due diligence invoked by the principles and suggest an interpretation of the Guiding Principles that clarifies the relationship between these concepts. John Ruggie (the author of the Guiding Principles) and John F Sherman, III, respond to the article, questioning the interpretive approach adopted by Bonnitcha and McCorquodale. The authors then offer a rejoinder.

This issue inaugurates a new rubric for the Journal, A Fresh Look at Old Cases. In the first entry under this rubric, William Phelan uses the writings of French judge Robert Lecourt to show how the legal philosophy he developed before his appointment to the European Court of Justice connects with the fundamental doctrines elaborated by the Court after his appointment. This discovery highlights what the Court was attempting to achieve in its ‘legal revolution’ of 1963-1964 and enhances our understanding of the EU’s essential organizing principles.

The articles section of the issue closes with a Critical Review of International Governance by Ekaterina Yahyaoui Krivenko who examines the jus cogens jurisprudence of the International Court of Justice as a means to analyse and appraise the potential for using feminist methods in the Court’s reasoning.

The Last Page poem in this issue, by Günter Wilms, was inspired by Georges Moustaki’s song ‘Sarah’ and presents a personal vision, both melancholic and euphoric, of the European Union 30 years after the Single European Act and 60 years after the signature of the Treaties of Rome.

New Issue of EJIL (Vol. 28 (2017) No. 3) – Out Next Week

EJIL:Talk! - Mon, 11/06/2017 - 11:15

The latest issue of the European Journal of International Law will be published next week. Over the coming days, we will have a series of editorial posts by Joseph Weiler – Editor in Chief of EJIL. These posts will appear in the Editorial of the upcoming issue. Here is the Table of Contents for this new issue:


Those Who Live in Glass Houses …; In this Issue


Andrew D. Mitchell and James Munro, Someone Else’s Deal: Interpreting International Investment Agreements in the Light of Third-Party Agreements

Gracia Marín Durán, Untangling the International Responsibility of the European Union and its Member States in the World Trade Organization Post-Lisbon: A Competence/Remedy Model

Sergio Puig and Anton Strezhnev, The David Effect and ISDS

Focus: Human Rights and the ECHR

Merris Amos, The Value of the European Court of Human Rights to the United Kingdom

Susana Sanz-Caballero, The Principle of Nulla Poena Sine Lege Revisited: The Retrospective Application of Criminal Law in the Eyes of the European Court of Human Rights

Oddný Mjöll Arnardóttir, Res Interpretata, Erga Omnes Effect, and the Role of the Margin of Appreciation in Giving Domestic Effect to the Judgments of the European Court of Human Rights

Vera Shikhelman, Geography, Politics and Culture in the United Nations Human Rights Committee

Thomas Kleinlein, Consensus and Contestability: The European Court of Human Rights and the Combined Potential of European Consensus and Procedural Rationality Control

Roaming Charges

Emma Nyhan, A Window Apart

EJIL: Debate!

Jonathan Bonnitcha and Robert McCorquodale, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights

John Gerard Ruggie and John F. Sherman, III, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Reply to Jonathan Bonnitcha and Robert McCorquodale

Jonathan Bonnitcha and Robert McCorquodale, The Concept of ‘Due Diligence’ in the UN Guiding Principles on Business and Human Rights: A Rejoinder to John Ruggie and John Sherman, III

A Fresh Look at Old Cases

William Phelan, The Revolutionary Doctrines of European Law and the Legal Philosophy of Robert Lecourt

Critical Review of International Governance

Ekaterina Yahyaoui Krivenko, The ICJ and Jus Cogens through the Lens of Feminist Legal Methods

Book Review

Lauren Benton and Lisa Ford. Rage for Order: The British Empire and the Origins of International Law, 1800–1850; Andrew Fitzmaurice, Sovereignty, Property and Empire, 1500–2000 (Prabhakar Singh)

The Last Page

Günter Wilms, L’Europe à soixante [Trent ans après l’Acte unique européen]

Announcements: CfP Cambridge International Law Conference; Immunity of State Officials Lecture

EJIL:Talk! - Sun, 11/05/2017 - 13:00

1. Call for Papers: 7th Annual Cambridge International Law Conference. The Cambridge International Law Journal is pleased to announce the call for papers for the 7th Annual Cambridge International Law Conference. The Conference will be held at the Faculty of Law, University of Cambridge, on the 3rd and 4th of April 2018. This year’s theme is ‘Non-State Actors and International Law’.  We welcome academics, practitioners and research students in presenting papers at the Conference. Prospective speakers are invited to submit abstracts of not more than 500 words in length, in addition to their CVs. The deadline to submit abstracts is Friday, 8 December 2017. Registration for the Conference will open in January 2018. Please see here for further information. 

2. Melland Schill Lecture – The UN International Law Commission: Lessons from the Topic Immunity of State Officials. Manchester International Law Centre has the immense privilege of welcoming Sir Michael Wood to deliver this year’s Melland Schill Lecture, with the title: “The UN International Law Commission: Lessons from the topic Immunity of State Officials”. The lecture is on 21 November at 17.30 in University Place, Lecture Theatre A. The lecture will be followed by a reception at 19.00 in the ground floor foyer of University Place. Please register for this event here


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