I want to call readers’ attention to a new — and very original — article written by one of my best Melbourne students, Ilana Singer, which has just been published in Criminal Law Forum. Here is the abstract of the article, which is rather wordily entitled “Reductio Ad Absurdum: The Kapo Trial Judgements’ Contribution to International Criminal Law Jurisprudence and Customary International Law”:

Several Jewish persons designated as concentration camp guards (Kapos) during the Holocaust were subsequently tried in Israel in the 1950s and 1960s for allegedly committing grave crimes. This article examines these trial judgements and considers their significance to international criminal law jurisprudence and customary international law. First, this article will delineate the trial judgements’ purpose, relevance and previous contribution to customary international law. Secondly, a comparative narrative of the judgements with recent case law from the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court will illuminate their potential contribution, specifically to the principles of modes of liability, criminal intent, and the defence of duress. The Kapo trial judgements may therefore continue to offer an extreme case example and a worthy source of common law for international criminal law jurisprudence and customary international law.

The article makes an important contribution to the regrettably scarce literature on the Kapo trials. Anyone interested in the Holocaust, the trials themselves, or war-crimes trials in general should check it out. The final draft of the article is available on SSRN here, and the article itself is available here.

• Ahead of Barack Obama’s speech on national security today, in a letter to Senator Patrick Leahy, US Attorney General Eric Holder admitted that the United States has killed four American citizens with drone strikes in Yemen and Pakistan. 
• The British House of Commons has passed legislation for same-sex marriage; now the bill goes to the House of Lords for a vote.
• The UN and World Bank chiefs are visiting the Democratic Republic of Congo in a push for peace and development amid fighting in the country’s east causing many to flee.
• A British soldier was hacked to death with a meat cleaver by two men in London in an apparent Islamist terrorist attack, stating that the soldier’s death was “an eye for an eye, a tooth for a tooth.”
• IMF Chief Christine Lagarde is in court in France today to be questioned about a €285 million ($366 million) arbitration payout to a supporter of Nicolas Sarkozy.

Noticing President Obama’s big speech tomorrow at the National Defense University on US counterterrorism policy, Commentary Magazine has decided to release today my new essay, “The Case for Drones.”  It will appear in the print journal in June, but has been posted with a free, open link on the website now.

A couple of caveats for OJ readers, if you’re inclined to read it (close relatives of mine have declined on grounds they’ve heard me on this too much already).  Commentary is a conservative magazine, and this is an argument for drones written with a particular audience in mind – conservative readers and Republican members of Congress in particular.  It’s an argument about effectiveness and ethics, not law as such; it’s an overtly politically conservative version of the much more centrist, principled, and neutral argument that, for example, Ben Wittes and I sought to make in the Oxford Union debate.  I hope that some folks still might find it useful as a thumbnail sketch in non-technical form of some of the leading arguments, objections, and replies in this debate.

By political here, I mean both conservative, but also strategic – it’s arguing to Congressional Republicans that they ought to be supporting the President in his basic drone policies, if for no other reason than that there might be a Republican president someday, and he or she ought to have the same national security tools available that the current president has.  Though I do agree with Harold Koh, Jeh Johnson, and other Obama former officials that there is room to “discipline” drones – the problem is to discipline their use and processes into something that has a sturdy and permanent legislatively blessed structure on a lot of fronts.  That’s political in the sense that it deliberately seeks to appeal to Republican self-interest as a matter of politics and strategic play.

The less political and strategic, more principled and neutral, version says that the President and Congress ought to be seeking something that Ben Wittes and I call “institutional settlement” – borrowing the term from other fields – in which the center right and center left undertake legislative reforms to process, accountability, oversight, secrecy, and other matters in order to leave the next president with something that is, in an important way, simultaneously less than pure executive discretion, but also more than it.  What’s given up in discretion is given back with the greater legitimacy and stability that comes from a centrist blessing by the Congress.  Ben Wittes and I put this notion of institutional settlement at the center of our new book, Speaking the Law: The Obama Administration’s Addresses on National Security Law.  The book is being brought out serially online and then will be published as a hardback by Hoover Institution Press.  We’ve just released Chapter 2.  (We are somewhat torn, though; our public spirit hopes that some important things will change with the President’s speech, while our narrow self-interest hopes we won’t have to rewrite bunches of things.)

OJ is an international law blog with an international and international law readership.  I realize that for many of you, the idea that any of the stuff in either the Commentary article or the Anderson-Wittes book represents the “center” must seem strange, even perverse.  There are probably few areas in the law where there is such a problem of parties talking past one another, ships passing in the night.  I don’t know that it can be avoided, however; parties begin from very different starting points on many, many different fundamental matters, so different that there’s not really room for argument.

That’s a problem even where everyone admits the differences of starting points and the difficulties of finding points of engagement to debate.  It gets even worse where different positions can start out in the same language – but intend entirely different things by it.  So, for example, if you are the ACLU or a UN Special Rapporteur or someone coming from the position that this is just all substantively bad stuff, you might very well use the language of “reform” the drone program or “discipline” drones or something.  But your understanding of that is going to be very different from, say, the position in Speaking the Law; quite possibly, your understanding of reform functionally might all but eliminate the practice.  Which might perhaps be the right legal or ethical or practical approach – but that same language, as Ben and I use it, or as I rather imagine President Obama’s speech will use it, means instead, cabin it with more process, but fundamentally do so in order to make it permanent, not eliminate it. I don’t know that there’s much way to bridge that kind of fundamental gap between those in the debate.

Last December, the U.S. Senate failed to give consent to U.S. ratification of the Convention on the Rights of Persons with Disabilities (CRPD).  Since the election hasn’t really changed the composition of the Senate all that much, I kind of thought this treaty was dead, or at least dormant, for a while here in the U.S.  Maybe not!

Groups opposed to US ratification of the CRPD are saying that the Senate Foreign Relations Committee will hold hearings on June 4 to discuss ratification of the treaty.  And the critics are ready. In the latest critique, Iain Murray and Geoffrey McClatchey argue that the CRPD really does go beyond what U.S. law requires under the American with Disabilities Act by suggesting all entities must give all individuals accommodations, whereas the ADA has a number of important exemptions.  I am not sure about this, and it seems like a fairly technical matter that could be interpreted narrowly or broadly. Since the CRPD would be non-self-executing, I am not sure this would be a huge problem for Congress, which could easily say that the ADA is enough to comply with the CRPD.

More problematically, the senators who offered their opposition last summer in the SFRC committee hearings are deeply troubled by the refusal of the Obama Administration to clarify that the language requiring equal treatment in the provision of “health care” for “sexual and reproductive health” in the CRPD’s Article 25 does not include abortion services. Again, I think the practical impact is fairly small, but I don’t fault senators who are pledged to oppose expansion of abortion services to be worried about this.  Senator Marco Rubio’s proposed “declaration” to attach to advice and consent would seem to solve this.

The United States understands that the phrase “sexual and reproductive health” in Article 25(a) of the Convention does not include abortion, and its use in that Article does not create any abortion rights, cannot be interpreted to constitute support, endorsement, or promotion of abortion, and in no way suggests that abortion should be promoted as a method of family planning.

I don’t see this is a big deal, but if it would remove one obstacle to ratification and get the necessary votes, I don’t see why CRPD proponents wouldn’t just agree to take this language on.

Overall, I do think critics of the CRPD are overstating the likelihood that the treaty will have a meaningful impact on U.S. law and policy.  There could be an impact, but the institutional protection is that any changes required by the CRPD will have to clear Congress in the form of another statute. This is a non-trivial institutional protection.  Sure, the Disabilities Committee will probably crank out some interpretations of the CRPD that the U.S. Congress will disagree with, but the chances of those interpretations seriously affecting U.S. law seem fairly small.

On the flip side, I also think the proponents of the CRPD are exaggerating its benefits.  It may have some small impact on the practice of foreign countries, but there is little evidence it would lead to wholesale changes in other countries either.

As I have argued before, the potential problems in this treaty are just not serious enough for me to get worked up about it.  On the other hand, the benefits are not exactly large enough to get excited about either. Still, the upcoming battle for the CRPD is a proxy for the entire U.S. attitude toward the various U.N. human rights treaties. So it matters, even if this particular treaty is not a big deal.

• Top officials from India and China met in New Delhi in an effort to ease tensions between the two countries, while a “special envoy” from North Korea visited Beijing in an effort to reinstate some diplomatic ties between the two nations.
• In related news, Japan has been considering restarting diplomatic talks with Pyongyang, with a focus on the abduction of Japanese citizens and other issues.
• According to defense and prosecution lawyers, the trial of former Guatemalan dictator Efrain Rios Montt has likely collapsed after the country’s top court struck down his conviction for genocide. Jurist has more on the Court’s ruling.
• The UK has asked the European Union to place Hezbollah’s military arm on its terrorist group list, denying that this move has anything to do with Hezbollah’s involvement in the Syrian conflict.
• Foreign Policy investigates whether 3-D printing could be the answer to the world’s food shortages.

Professor Stefan Talmon of the University of Bonn and St. Anne’s College in Oxford offers one of the first serious attempts to defend China’s position on the UNCLOS arbitration brought by the Philippines.  In an essay published by the Global Times, China’s hawkish state-owned daily paper, Professor Talmon argues that all of the Philippines’ claims against China fall outside of the jurisdiction of the UNCLOS arbitral tribunal.

For example, the claim that China’s maritime claims in the South China Sea based on the so-called nine-dash line are invalid, the claim that China has unlawfully claimed maritime entitlements beyond 12 nautical miles around certain insular features and has prevented Philippine vessels from fishing in the waters adjacent to those features, and the claim that China has unlawfully interfered with the exercise by the Philippines of its right to navigation and other rights cannot be decided without touching upon China’s claim to historic title and rights within the area of the nine-dash line.

In addition, any measures taken by China against the Philippine vessels may also be subject to the “law enforcement activities” exception with regard to fisheries matters or may be excluded as an exercise of China’s sovereign rights and jurisdiction provided by UNCLOS.

The claim that China unlawfully occupies certain low-tide elevations in the South China Sea cannot be addressed without dealing with the question of sovereignty or other rights over these insular land territories.

Finally, declarations that certain submerged features form part of the continental shelf of the Philippines, that China has unlawfully exploited the living and non-living resources in the Philippines’ exclusive economic zone and continental shelf, and that China has interfered with the Philippines’ right to navigation and other rights in areas within and beyond 200 nautical miles of the Philippines cannot be made without engaging in sea boundary delimitations.

I have to admit I am not very persuaded by this analysis. In Prof. Talmon’s defense, the essay is very short and not an attempt to provide a deep legal analysis of the problem.  But the idea that any challenge to the nine-dash line is excluded from UNCLOS arbitration is hardly obvious to me, since the basis of China’s nine-dash line is very murky anyway. It is not an historic bay.  I suppose it could be an “historic title” within the meaning of Article 298, but that is hardly obvious. Under Prof. Talmon’s reading, any claim of historic title, even if it undermines all of the other principles of UNCLOS, are outside the jurisdiction of the UNCLOS tribunal.

Similarly, when the Philippines argues that something is a “rock” and not an “island” under the definition of UNCLOS, I don’t see how that requires a sea boundary determination?

Most importantly, I can’t see how Prof. Talmon can avoid the question of why China is not even bothering to make these jurisdictional arguments in the UNCLOS tribunal. It is an oddly disrespectful move, to say the least, for China to essentially boycott the tribunal. Does Prof. Talmon think the Philippines case is so weak that ignoring the arbitration is justified?

Still, it is worth exploring these questions, since the arbitral tribunal will likely do so. I would hope Prof. Talmon has a longer version of his views posted somewhere, and if not, he is welcome to do so here at any time!

• In the latest twist on the case, Guatemala’s highest court has overturned the May 10th genocide conviction against former dictator Efrain Rios Montt and reset his trial back to when a dispute broke out a month ago over who should hear the case.
• North Korea has released a Chinese fishing boat after having taken it from waters between the two nations.
• Pakistan’s presumptive prime minister has called for peace talks with Taliban fighters at war with the government. Foreign Policy offers a piece about why negotiating with the Taliban may be a good idea.
• Qatar’s emir said that the emergence of ‘people power’ from the Arab Spring uprisings had put Arabs in direct confrontation with Israel and made a resolution of the Israeli-Palestinian conflict more pressing.
• Justice in Conflict has a post regarding Indonesia and the ICC entitled Indonesia and the false promise of international justice.

[Jonathan Horowitz is writing in his personal capacity. He is the Associate Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program.]

When assessing the legality of drone strikes, attention is often focused on the State that carries out the strike—usually the United States.  On May 8th, for example, the U.S. Congressional Progressive Caucus Peace and Security Taskforce held a hearing on the United States use of weaponized drones abroad and heard testimony that detailed specific incidents of civilian harm and encouraged transparency, after-action investigations, accountability, and greater fidelity to traditional understandings of international law. (Harold Koh, the former Legal Advisor to the U.S. Department of State, made similar pleas around transparency during his May 7 speech at Oxford.)

These are all critical points that Congress and others should be hearing, but I would like to shift the focus—away from U.S. responsibilities and on to the responsibilities of the States that consent to the use lethal force on their territories.  This is part of the “drone” discussion (or, to be more accurate, the “extraterritorial use of lethal force outside an active battlefield” discussion) that has not received enough attention. Yet, it is worth exploring how the legal responsibilities of the consenting State interact with the notion of what I’ll call “transnational non-international armed conflict (NIAC) targeting.”

“Transnational NIAC targeting” occurs when a State, which is engaged in a NIAC in one country, targets with lethal force an enemy fighter who happens to be in another country.  Or, to quote John O. Brennan when he was Assistant to the President for Homeland Security and Counterterrorism, it is based on the notion that, “[t]here is nothing in international law that …prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.” (i.e., an Al Qaeda commander who is fighting the United States in Afghanistan but has traveled to Yemen seeking recruits and cash for arms.)

First, I should make clear that lethal targeting outside an active battlefield is, in certain circumstances, permissible under international law. For example, as a matter of jus ad bellum, a State can use lethal force against an enemy fighter abroad in self-defense, including one who is an imminent threat, provided the force is both necessary and proportionate.  (In fact, under the jus ad bellum, it makes no difference whether the individual is seen as an enemy fighter or not. All that matters is that he or she is attacked out of self-defense or he or she poses an imminent threat.) (See David Kretzmer’s EJIL article here on the typology of proportionality.)

Separate from that, the notion that transnational NIAC targeting is permissible when the host State provides its consent is deeply problematic. This is because, at its extreme, it would permit a “shoot-to-kill” and “civilians-can-die-if-the-harm-is-proportionate” approach to attacking an enemy when that enemy is walking around in a State that is not party to the conflict. (Naz Modirzadeh and I discuss some of the issues relating to the idea of a transnational NIAC here and here.) Moreover – as Naz brought to my attention – while the United States may hold that transnational NIAC targeting is permissible outside an active battlefield, the Executive’s targeting approval process (see Mark Mazzetti’s 2012 story here and Gregory S. McNeal’s 2013 article here) perhaps signals internal discomfort with that position. If NIAC targeting is in fact applicable outside Afghanistan, why isn’t the transnational NIAC targeting process more akin to a normal, and far less onerous, wartime targeting process?

Some of the discomforts associated with transnational NIAC targeting (which is a more technical and palatable term compared to, but nonetheless brings with it the characteristics of, a “global war on terror”) are revealed, and addressed, when we analyze the constraints that international law places on the State that is purportedly giving consent, rather than focusing on the State that is using force.  This is where human rights law becomes important, because human rights law should inform the host State’s decision of whether it should provide its consent.

As noted above, the scenario we are discussing involves a foreign State using lethal force through the permission of the host State.  Also, in this scenario, the host State may or may not be a party to a NIAC, but if it is, the individual who the foreign State deems targetable under its NIAC is not an individual who the host State deems targetable under its (different) NIAC.  This being the case, we need to ask if the host State is automatically allowed to permit the foreign State to use NIAC’s targeting privileges on its territory? More simply, if the host State has no legal justification for targeting the person who the foreign State wishes to target, can the host State allow the foreign State to target that person? (A similar, but reverse, issue arose with respect to CIA’s first drones strike in Pakistan – when the CIA targeted an individual who Pakistan wanted eliminated but who was not a United States target.)

When making this determination, it is important to consider that the host State has human rights obligations that protect the right to life of the individual who the foreign State wishes to kill. At the same time, however, it cannot be ignored that the foreign State, which is engaged in a NIAC abroad, might claim it has the right to target the individual via the claim to a law of transnational NIAC targeting. But how do these two seemingly co-applicable interests interact, and which one ultimately prevails?

Human rights treaty law requires the host State to protect that individual from arbitrary deprivation of life. And because the host State does not consider the individual to be a NIAC target of its own, even though he or she would be a NIAC target of the foreign State, it seems the host State must continue to protect that individual’s right to life through the human rights interpretation of the word “arbitrary,” and not through the law of armed conflict’s much looser rules for when a person may be killed.  In other words, there is no justification for invoking lex specialis; the host State’s use of lethal force consent considerations must be informed by the law enforcement framework (i.e., lethal force is an exceptional measure of last resort).  For this reason, it would seem the host State must, as a legal obligation, not give its consent to the foreign State to use lethal force on its territory against that individual.  The foreign State, meanwhile, despite being in a NIAC, must respect the host State’s decision—provided the foreign State does not need to act in self-defense and the target does not pose an imminent threat.

To put it another way, in the context of transnational NIAC targeting, while the foreign State needs to make the jus in bello considerations about who it can target and how, it also needs to make the jus ad bellum considerations about whether it can use force and to what degree. These jus ad bellum considerations will, amongst several issues, have to be based on whether the host State grants the foreign State permission to use lethal force, and the host State’s decision to give its consent or not should have been heavily informed by it human rights obligations.

Critics of my analysis may say that it eviscerates the right to self-defense and/or the law of armed conflict.  Others may say it is wishful thinking to believe that countries with troubling human rights records will invoke their human rights obligations to place limits on transnational NIAC targeting. Often, indeed, the host state may be all too happy to have assistance in ridding its territory of dangerous and powerful groups, particularly when it knows all too well that its own weak legal system cannot possibly manage these individuals through a criminal law approach. Moreover, even if a host State does refuse to provide consent for human rights related reasons, foreign States could simply “override” the non-consent with claims to self-defense through the novel concept of “elongated” imminence.

With respect to the jus ad bellum, nothing in my analysis refutes the rule that a State can use lethal forces, when it is necessary and proportionate, in self-defense, including against an imminent threat. And with respect to the law of armed conflict, nothing in my analysis precludes the long-standing element of international law that permits a State that is engaged in a NIAC on its territory to invite a foreign State to assist militarily in the NIAC. This would grant, by extension, the foreign State the authority to engage in NIAC targeting.

Finally, while it is a fair point to claim that there are many countries that would not cite their human rights obligations to prevent transnational NIAC targeting, this is no reason to let them off the hook for this transgression or for leaving unchallenged the U.S.’s novel concept of “elongated” imminence.  And they certainly should not be let off the hook simply because invoking human rights law could put them in opposition to the national security priorities of a foreign State.  This begs the question, could the U.S. government allow Israeli security officials onto American soil to kill a suspected Hezbollah commander even if U.S. law clearly prohibited that act? I would hope not, and I think other governments should be held to that same standard.

• A senior Pentagon official told a Senate committee last week that the U.S. would be at war with al-Qaeda for 15 to 20 more years and said the military could target terrorists anywhere under the Authorization for Use of Military Force (AUMF) passed in 2001 after the Sept. 11 terrorist attacks.
  
• After France won some goodwill throughout Mali during the five-month offensive against al-Qaeda fighters, the European country is now pushing its luck with some allies by pursuing a political settlement with a separate group of Tuareg rebels.
• North Korea has launched short-range missiles again today, following three such launches yesterday.
• A senior judge for the Judiciary of England and Wales partially upheld Foreign Secretary William Hague’s request to withhold certain information from the investigation into the 2006 death of Russian spy Alexander Litvinenko.
• Lebanese Hezbollah militants attacked a Syrian rebel-held town alongside Syrian troops on Sunday and Israel threatened more attacks on Syria to rein the militia in.
• Over at Lawfare, a guest post discusses law, ethics and the Guantanamo hunger strike.

[Ingrid Wuerth is Professor of Law and Director of International Legal Studies at Vanderbilt University Law School.] 

Yes, this is another post on foreign official immunity, prompted in part by the Fourth Circuit’s decision in Samantar.  It responds to Professor Bill Dodge’s post here and contributes to the growing blog commentary on this topic summarized in my earlier post here.  I am grateful to Opinio Juris for hosting this discussion.

In this post, I focus on just one issue.  The Fourth Circuit’s decision in Samantar reasoned that jus cogens violations are not “private acts” but instead can constitute “official conduct” that comes within the scope of foreign official immunity.  Bill disagrees, arguing that conduct violating jus cogens can never be official for immunity purposes, but is instead always private.  Facts on the ground, State practice, and the purposes of immunity all suggest that the Fourth Circuit was correct.

As other commentators have emphasized, the perpetrators of human rights abuses do not generally operate privately, but instead “through the position and rank they occupy.”  It is their official position which allows them to “order, instigate, or aid and abet or culpably tolerate or condone such crimes as genocide or crimes against humanity or grave breaches of the Geneva Conventions.”  (Antonio Cassese, at 868).  Thus even for many people who strongly favor accountability in international fora (like the late Professor Cassese), it is hard to view jus cogens as somehow inherently private; one might call this a flies-in-the-face-of-reality argument.  (Dapo Akande & Sangeeta Shah, at 832 (further citation omitted)).  The House of Lords itself – in an opinion directly counter to Bill’s position –rejected the argument that jus cogens violations are not official acts for immunity purposes. Jones v. Saudi Arabia ¶ 19 (Lord Bingham) (“I think it is difficult to accept that torture cannot be a governmental or official act..”) id. at ¶ 85 (rejecting “the argument that torture or some other contravention of a jus cogens cannot attract immunity ratione materiae because it cannot be an official act.”) (Lord Hoffman).

What State practice does support the not-official-acts argument?  There is language in Pinochet that provides some support – but this aspect of the Pinochet case has been clearly rejected in the subsequent unanimous decision of the House of Lords itself in Jones.  The continued reliance on Pinochet for this point is baffling.  Similarly, the government’s statement of interest  in Samantar actually eschews the not-official-acts argument; instead it reasoned that Mr. Samantar was not entitled to immunity because of his residence in the United States and the lack of recognized government in Somalia capable of invoking immunity.  Consistent with the government’s submission, the 4^th Circuit rejected the not-official-act argument in the Samantar case.  This is State practice, but it does not support the not-official-act argument.  More evidence is marshaled here.

As I suggested in my prior post, I do think the TVPA and cases applying or relying on it could constitute State practice showing that those accused of torture (and perhaps other jus cogens violations) are not entitled to immunity (although perhaps on different grounds than those advanced by Bill), especially if the state entitled to immunity actually invoked it.  None of the U.S. cases denying immunity involved a state invocation of immunity (and neither did Eichmann or Nuremberg), but as I describe at 106 AJIL (at 751), the position of the Philippines government in the U.S. Marcos litigation from the early 1990’s counts as State practice that supports the not-official-acts position.  Whether courts will rely on TVPA-based reasoning now that the Supreme Court has held that Foreign Sovereign Immunities Act does not apply to these cases is unclear.  One variable is the government’s position on this issue – if the Obama Administration does adopt Bill’s view perhaps that might sway the courts – on the other hand, even if it does so, the inconsistency with the Bush administration may undermine the deference accorded the government.  Chief Justice Roberts and Justice Scalia made exactly that point in the Kiobel oral argument (at 43-45) and the issue is discussed in more detail in my forthcoming article The Supreme Court and the Alien Tort Statute: Kiobel v. Royal Dutch Petroleum.  In any event, the article mentioned above, Pinochet’s Legacy Reassessed, 106 AJIL 731 (2012), analyzes a large number of cases often cited to show that officials enjoy no immunity for alleged jus cogens violations, and finds little support for Bill’s “not-official-act” argument or for the “normative hierarchy” theory – another basis upon which many people have argued against official immunity for jus cogens violations.  Professors Curt Bradley and Larry Helfer have also surveyed immunity cases and find (at pages 245-46)  an emerging principle that “jus cogens violations committed by officials are governmental rather than private acts.”

The generally accepted purposes of immunity also undercut the not-official-acts argument.  Immunity is designed to protect the state, by ensuring that suit cannot be brought against its officials for conduct for which the state itself would be responsible under international law.  As Lord Hoffman wrote in the Jones case (at ¶ 12)

International law does not require, as a condition of a state’s entitlement to claim immunity for the conduct of its servant or agency that the latter should have been acting in accordance with his instructions or authority.  A state may claim immunity for any act for which it is, in international law, responsible, save where an established exception applies.

Under this view, the individual benefits from the immunity of the state, which may to choose to waive that immunity.  Denying that an individual’s actions are official, even when carried out as part of his official position, allows conduct for which the state is responsible to be adjudicated in foreign national courts, counter to the purpose of immunity.

There is a different way of thinking about immunity, however, and one that is consistent with Bill’s argument. Official immunity might be understood as protecting the individual defendant from substantive liability that ought to rest with the state.  Versions of this argument are explored by Roseanne Van Alebeek and Anthony Colangelo.  If one takes this view, then the immunity is in some sense that of the individual, not the state (which cannot waive it).  And if international law imposes substantive liability on the individual, as for jus cogens violations, then there is no immunity..  Some of the Nuremberg and Eichmann “immunity” precedent upon which Bill relies is best understood in this sense. 106 AJIL at 762.  Moreover, if immunity is a substantive defense, then there is indeed a tension between the attribution point and the 2001 Draft Articles on State Responsibility, article 58 of which expressly states that its rules on attribution are “without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State.”  If immunity is a procedural defense, however, one that does not go at all to individual responsibility but instead to available fora, then the purported tension – or what Bill calls a flat contradiction – disappears entirely.  Immunity as a substantive defense thus fits very well with Bill’s argument.  But there is almost no contemporary support for it.  Instead, modern State practice provides extremely strong support for the view that official immunity is derived from the procedural immunity of the state, which may choose to waive it.  Some of that State practice is described on pages 10-12 of an article entitled Foreign Official Immunity: Invocation, Purpose, and Exceptions.

Calls for Papers

• The Centre on Human Rights in Conflict is organising a workshop on Law, Faith and Historical Memory to take place in London (Stratford Campus, University of East London) on June, 12. More information is here
• The University of Wisconsin is inviting internationally acclaimed women scholars and advanced PhD candidates to the second conference on the Creation of International Law: Exploring the International Law Components of Peace, on April 4-5, 2014 as part of its Wisconsin International Law Journal annual symposium. The intention is to continue and expand the network of women scholars and practitioners that was launched in 2009 in Norway to support their engagement in public international law. The deadline for submission of abstracts is October 1, 2013. More details are here.

Upcoming Events

• The Canadian Bar Association’s International Law Section is organizing its 2013 International Law Conference on Friday June 7^th in Ottawa.  The title of this year’s conference is: Emerging Issues in International Corporate Social Responsibility, Corruption and Compliance. Socially responsible business practices and strict adherence to anti-corruption measures are increasingly required of Canadian businesses and organizations. This one-day conference will examine the pertinent legal issues in a holistic way and give participants tips and skills to deal effectively with them in practice.  Registration is available here.

Announcements

• TDM Journal has released a special issue on Corruption and Arbitration. The issue analyses new trends, developments, and challenges respecting the intersection between, on the one hand, allegations, suspicions or findings of corruption and, on the other hand, decisions by arbitral tribunals regarding jurisdiction, admissibility and the merits of commercial and investment disputes.

I want to call readers’ attention to a remarkable new report on international criminal justice authored by Daniel McLaughlin, a former legal officer at the ECCC, for Fordham’s Leitner Center for International Law & Justice. As the introduction states, the report is an attempt — a very successful one — to visualize information about the criminal tribunals:

There is wide awareness, though little true understanding, of the work of the international criminal tribunals.

International prosecutions of high-ranking civilian and military leaders, including former heads of state, on charges of crimes against humanity, war crimes and genocide, represent for many the ultimate condemnation of these individuals’ past actions and a measure of their fall from power. Yet, despite the tribunals’ grasp on the popular imagination, they are the subject of significant  misconceptions and confusion. Much of the media coverage dedicated to their work remains superficial, at best, and largely muddles over key distinctions between various tribunals, past and present. Conversely, the more informed scholarship is largely confined to specialty publications that remain inaccessible to most. In truth, many lawyers and non-lawyers alike lack a clear understanding of the role and functioning of these increasingly-pivotal international institutions.

This publication seeks to redress this knowledge gap by providing well-researched and accessible information for those wishing to more fully understand the international criminal tribunals and the conflicts over which they have jurisdiction. An informed public is an engaged public — and the issues that animate these tribunals, including delivering justice for victims of some of the world’s worst atrocities, are too significant to be discussed solely by a small cadre of international criminal law specialists.

Notably, this publication was created in partnership with graphic and information designers so as to reach a broader public. The designers’ visualizations present information regarding the tribunals and their underlying conflicts in a direct and accessible manner to a wide range of viewers, including those without a legal background. Beyond this democratizing function, information visualization also serves to reveal important data and trends that might otherwise go unnoticed in a more conventional format. Ideally, the following information, which is current as of January 2013, would be integrated into a continually updated interactive webportal dedicated to engaging a global public on issues of international justice.

In sum, this publication aims to facilitate a broader discussion of the international criminal tribunals’ notable accomplishments, as well as ongoing shortcomings.

I can’t do the amazing graphics justice, so just click through and download the report for yourself! It’s a must read — a must look? — for anyone interested in the tribunals.

This week on Opinio Juris, Kevin was surprised by an unexpected dissenter in Kenya’s request to the Security Council to terminate the ICC’s Kenya cases. He also analysed whether the ICC has jurisdiction over Israel’s attack on the Mavi Marmara and particularly whether the flotilla attack qualifies as a “situation”. He followed up with a post asking why the Comoros are represented by Turkish lawyers in their referral request and why the referral request was only filed now. He also examined whether the PTC could review an OTP decision not to investigate a situation referred to it.

Kevin called on the ICC to keep its website updated, and listed four errors in the description of NBC’s upcoming series Crossing Lines on the ICC Police Unit, poignantly illustrating why outreach by the ICC itself is important to avoid a distorted public understanding of the ICC.

Peter asked whether the Bangladesh Factory Safety Accord was a watershed moment in global governance, while Roger pointed out problems with the Accord’s arbitration clause.

Julian put the spotlight on the confusing legal background of the Senkaku/Diaoyu Islands dispute, and discussed whether California’s Armenian Genocide Law can be struck down on the basis of “field pre-emption”.

Bill Dodge provided another guest post on Yousef v Samantar, in response to last week’s post by Ingrid Wuerth.

Finally, we listed events and announcements and Jessica provided her weekday news wraps.

Have a nice weekend!

As Bill Schabas noted in his recent post, the Comoros referral raises interesting questions concerning the Pre-Trial Chamber’s power to review a decision by the OTP not to open a full investigation into a situation. Most people who don’t keep a copy of the Rome Statute in their back pocket probably believe that the OTP has complete discretion concerning such declinations. In fact, that is not the case. Here, in relevant part, is Art. 53 of the Rome Statute (emphasis mine):

Article 53Initiation of an investigation1.         The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a)     The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b)     The case is or would be admissible under article 17; and

(c)     Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

            If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

…

3.         (a)     At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

           (b)     In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

It is clear that Comoros would have the right under Art. 53(3)(a) to ask the Pre-Trial Chamber to review a decision by the OTP not to open a full investigation into the attack on the flotilla. And that would be true regardless of the OTP’s rationale for the declination: (1) lack of evidence that the attack involved a crime within the ICC’s jurisdiction; (2) admissibility concerns — which would turn on whether crimes allegedly committed during the attack were adequately grave and, if so, whether Israel was willing and able to investigate and prosecute those crimes itself; or (3)  the interests of justice.

But here is where things get interesting. If Comoros asked the PTC to review a decision by the OTP not to investigate the attack on the flotilla, thereby triggering Art. 53(3)(a), the PTC would have only one remedy if it disagreed with the OTP’s assessment of the merits of the referral — to “request the Prosecutor to reconsider that decision.” It could not order the OTP to open a full investigation into the attack. So if the OTP reconsidered its decision and again concluded that a full investigation was not warranted, that would be the end of the story.

Art. 53(3)(b), by contrast, would appear to put the PTC in a much more powerful position. According to that provision, the PTC could decide on its own to review the OTP’s decision not to act on the Comoros referral if the OTP determined that, despite the existence of an admissible crime in the Mavi Marmara situation, there were “nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.” In this scenario, the OTP’s decision would be effective “only if confirmed by the Pre-Trial Chamber.” In other words, it appears that the PTC could order the OTP to open a full investigation into the attack on the flotilla if it disagreed with the OTP’s conclusion that the interests of justice required declining to investigate.

Art. 53(3)(b) raises two difficult questions. The first is substantive: what does “interests of justice” mean? That is a very difficult issue, one beyond the scope of this post. Let me simply note here that the primary issue in the debate is whether Art. 53(3)(b) would permit the OTP to decline to investigate a situation on the ground that, though serious crimes were committed, the state in question had decided to adopt a non-punitive justice mechanism, such as a general amnesty, in order to promote peace and reconciliation. Art. 53(3)(b) reflects “creative ambiguity” on that question, according to scholars and individuals involved in the provision’s drafting. The OTP, however, has publicly stated that the “interests of justice” do not include the “interests of peace”; in its view, it is the Security Council’s role, acting through its Art. 16 deferral power, to assess whether non-punitive justice mechanisms should take precedence over ICC prosecutions. Most major human-rights groups agree with that position.

The second question concerns the relationship between Art. 53(3)(a) and Art. 53(3)(b) in a situation in which the OTP specifically — and exclusively — invokes the interests of justice to decline to investigate a situation, thereby potentially triggering Art. 53(3)(b). If the referring state asks for review under Art. 53(3)(a), is the PTC limited to asking the Prosecutor to reconsider her decision not to open a full investigation? In other words, if a state invokes Art. 53(3)(a), does that prevent the PTC from invoking the much stronger Art. 53(3)(b)? A literal interpretation of Art. 53(3) suggests an affirmative answer, because in such a scenario the PTC would not be reviewing the OPT’s interests of justice declination “on its own initiative.” That interpretation, however, doesn’t make much sense — it basically forces referring states to not challenge a declination in the hope that the PTC will be sufficiently outraged by the OTP’s “interests of justice” calculation to interject itself into the discussion. I see no principled justification for putting states in that situation.

The better reading, I would thus suggest, is that Art. 53(3) simply treats “interests of justice” declinations differently than declinations based on jurisdiction or admissibility. If the OTP declines a state referral on jurisdictional or admissibility grounds, the PTC must wait for a state challenge and can only order the Prosecutor to reconsider her decision. But if the OTP declines a state referral on “interests of justice” grounds, the PTC can order the OTP to open a full investigation as a result of the referring state’s challenge or on its own initiative. That interpretation may be difficult to reconcile with a literal interpretation of Art. 53(3), but it is the only interpretation that makes sense — especially given that OTP assessments of the interests of justice are likely to be far more contentious than OTP assessments of jurisdiction or admissibility. (Which is not to say that the latter are objective determinations!)

In conclusion, although Comoros could ask the PTC to review an OTP decision not to open a full investigation into the attack on the flotilla regardless of the OTP’s rationale for its decision, the PTC could order the OTP to investigate only if the declination was based on the interests of justice.

Stay tuned.

NOTE: The discussion in this post concerning the function of Art. 53(3) applies to Security Council referrals, as well. As the text of the provision makes clear, the Security Council has the same right as a state to challenge an OTP decision not to act on a referral. It is nevertheless difficult to imagine the OTP ever declining a Security Council referral.

Armenian-American groups are up in arms over the U.S. government’s decision to file an amicus brief against a California law allowing claims against insurance companies by “Armenian genocide victims.”  But they shouldn’t be. The law really involves an ongoing constitutional powers debate between the states and the federal government over foreign affairs, and the U.S. government is siding (not surprisingly) with its own powers.  What is more interesting about this case, in the wake of Kiobel, is how human rights groups will increasingly support state autonomy in foreign affairs (to allow human rights lawsuits) and how business and conservative groups will likely oppose it.

The California law had been struck down by a unanimous Ninth Circuit en banc panel on the grounds that it was preempted by federal government policies and constitutional powers over foreign affairs. The law extended a statute of limitations on insurance claims against insurance companies that do business in California for residents or non-residents who are found to be “Armenian genocide victims.”  Both the district court and the initial appellate court panel had found at least some parts of the law could survive a federal preemption challenge (as Roger described here), so the unanimous en banc panel decision was quite surprising.

The Solicitor General’s brief focuses mostly on the “field preemption” theory developed most recently in the U.S. Supreme Court’s decision in American Ins Association v. Garamendi. Field preemption describes a conflict between a state’s actions and the federal government’s “field”, such as foreign affairs.  Conflict preemption focuses on the idea that the federal government has made an express legal determination with which the state law conflicts (e.g. through a statute or treaty, or maybe an “executive foreign policy”). Where the federal government’s policy on the Armenian genocide is a fairly complex muddle, I don’t think there is much of a case for conflict preemption.

Field preemption analysis begins with whether the state law is regulating a traditional state interest or area.  Here, California claimed to be doing so because it was only regulating insurance, unquestionably a traditional state area.  But the Ninth Circuit rejected this claim noting that the law plainly is aimed at allowing Armenians from a particular foreign event (the Armenian genocide) to sue.

I am very skeptical of field preemption in this way, and I am not a fan of the way the Ninth Circuit questioned the motives of the California legislature. It is not their motives that matter, but whether it is a traditional state power.  And since this would give a cause of action in California courts against insurance companies already subject to California jurisdiction, I don’t think this is a very clear case of field preemption.  Nor should the fact that there is a foreign relations impact, by itself, turn this into a field preemption case.

If the Court denies certiorari, this will call into question other kinds of post-Kiobel lawsuits that might be brought under state law.  So I somehow think this issue is going to come back to the Court soon anyway.