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Beyond a Recitation of Sexual Violence Provisions: A Mature Social Science Evaluation of the ICC. Book Discussion

ejiltalk.org - Tue, 12/20/2016 - 09:00

Louise Chappell has penned a significant book – The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy.  Far removed from a recitation of expanded sexual violence provisions within the Rome Statute, or a reiteration of the constricted definition of gender, Chappell sharply defies how to tally whether the International Criminal Court has delivered upon a gender justice mandate that is inextricable from its very institutional legitimacy.  The book tenaciously grapples with Nancy Fraser’s tripartite model of gender justice that necessitates redistribution, recognition and representation in order to generate a transformative justice that can address transnational injustices in a post-Westphalian context.   The author applies a decidedly feminist institutionalism to examine the Court, an innovative judicial mechanism that has inherited legacies from the law and from other international tribunals and courts.  Starting with the vaulted design of the Rome Statute, the book explores the formal and informal functioning of the rules and of the Court as well as the nested or international spatial context in which the ICC operates.

Importantly, throughout this exploration, Chappell identifies as a critical friend, but not an identical twin of the “feminist international legal project” nor is she an adept of the linear triumphalist approach to transitional justice.  She refrains from any attempts to embody an androcentric reasonable person stance. The author acknowledges that the book under-develops the impact of inter-sectional fault lines other than gender, in its “captured” state.  It also consigns the gender jurisprudence to being synonymous with female-related sexual assault cases. Notwithstanding, through the deployment of finely honed theoretical frameworks emerge measured, human-centered and keen observations of the Court’s initial decade as a supra-national provider of gender justice. Two eminent themes that Chappell unwraps, legitimacy of female presence at international judicial mechanisms and ramifications of the Women’s Caucus’ negotiation of the Rome Statute and, another sub silentio theme, the verve of a complex feminist critique of the ICC, merit sustained public attention. 

Fraser’s just goal of positive representation and its corollary injustice, misrepresentation, according to Chappell, is central to comprehending the politics of gender justice at the ICC. The presence of professional females, especially judges, at international courts and tribunals has been written about by authors, such as Askin, who correlated the gender composition of a judicial bench to the gender-attentive jurisprudence it rendered, especially in regard to sexual violence holdings.  Misrepresentation, Chappell observes, is often harbored in the incessant inquiry into the legitimacy of the female voice, whether as a victim, a prosecutor, an expert or as a judge. Another facet of misrepresentation is disparaging the impartiality of female judges, such as encountered by Judge Odio Benito at the ICTY and the ICC.  Chappell aptly applies the insights of Anne Phillips who posits that an androcentric paradigm of impartiality logically leads to questioning not only “who” is represented on the bench, but the “legitimacy” of their views.  Misrepresentation is not an illusion.  It was manifest in the inane wrangling about the impartial and speculative value of gender expertise, that stifled the expert testimony of Binaifer Norowjee in Bemba. Although not used as an example by Chappell, but noteworthy, Judge Mumba’s impartiality in Furundzija, was assailed because she previously sat on the Commission for the Status of Women.  Ironically, the Furundzija appeals chamber, in dismissing that appellate ground, handed down the international law standard of judicial impartiality based upon a factual scenario that challenged, as biased, the feminist expertise of a female judge.  Today, the legitimacy of ICC, as shown in the detailed annex of ‘The Politics of Gender Justice’, depends in part upon the proven gender expertise of its judges. Yet, as Chappell cautions, vigilance for misrepresentation remains warranted.  Often, sex, meaning males or females judges, is substituted for gender expertise.

This book offers thoughtful insight into the pivotal contribution that the Women’s Caucus exerted on the drafting of the Rome Statute. Finally, the Women’s Caucus and its likeminded allies, in the post-Westphalian era, are saluted for having urged a transformative structural change upon international justice, by advocating for big ideas and insisting upon formal gender-attentive rules. Whereas the statutes of the ICTY and ICTR, formulated by the UN Office of the Legal Advisor, were reliant upon the ability of customary law to adjudicate gender crimes, the Rome Statute, could claim that gender justice formed part of its teleological objective.  Moreover, instead of the drafting process being a staid story, ‘The Politics of Gender Justice’ reveals its static nature by juxtaposing the strategic wins and failures of the Women’s Caucus drafting positions with the ICC’s mixed ability to deliver gender justice.  The politics of drafting treaties frequently lead to compromises perceived as losses.  However, not all losses are deemed fatal.  Chappell adheres to Oosterveld’s subtly voiced notion of “constructed ambiguities” that exist even in the face of a less than salient win or a terse compromise such as occurred with the definition of gender under the Rome Statute.

Certain drafting outcomes are only revealed in practice.  The Women’s Caucus proposed “dual track” to address sexual violence under both explicit sex-based provisions such as rape, and implicit provisions, such as torture, failed to be accepted by the Bemba trial or appellate chambers.  Moreover, the less than successful drafting proposals of the Women’s Caucus and the practice of the Court converge and are astutely discussed in the richly delineated section devoted to gender complementarity and the preliminary examination stage of cases at the ICC.  Chappell distills how a state’s criminal codes could lack provisions for substantive sexual crimes or for the corresponding procedural rules that assure gender justice at the national level. Nonetheless, such a situation would not necessarily trigger the ICC jurisdictional or admissibility safeguards.   Linking such gaps to the unsuccessful endeavors of the Women’s Caucus during the PrepComs reinforces a main tenet of the book, namely that the gender politics of the design or drafting of the Rome Statute inures consequences at specific time-bound operational stages of the ICC existence. Ultimately, Chappell is hopefully cautious.  She suggests that the ICC’s gender complementarity lacuna might prompt national gender justice constituencies to build gender accountability into their national criminal codes and consequently comply with the spirit of the ICC’s non-admissibility standards.

The book’s final chapter recognizes that the constant incremental steps instituted by Prosecutor Fatou Bensouda, such as specified policies for gender, preliminary examinations as well as her fervent public gender positive comments and her call to increase the enrollment of more African female lawyers on the list, augurs well for the ICC to render transformative gender justice. The book does not incorporate the more recent successful adjudication of the sexual assault charges, based on command responsibility, in the Bemba case or the confirmation of charges sexual violence charges for child soldiers in the Ntganda case.  Nor, according to Chappell, are significant cases victories to act as a panacea that detracts from implementing a multi-layered institutional project to achieve gender competence at the ICC. She likewise warns the gender justice communities against erroneous expectations, such as hailing the Lubanga trial chamber’s grant of reparations for sexual violence in the absence of having charged sex-based crimes.   In her opinion, mission creep diverts energy and could degrade the fragile gender legitimacy tentatively attained. Moreover she sees the fashioning of any consequential gender legitimacy as a collective responsibility to be born by the prosecution, the judiciary and constituent communities.  She avers that in its third decade, the Assembly of State Parties politically must commit to instituting a positive gender legacy at the ICC replete with securing optimum financing to execute the daily work of gender policies, such as recruitment of staff, appointment of in-house experts and deployment of resources to sexual assault victims.

The Politics of Gender Justice at the ICC’s evinces a mature social scientist approach to evaluating the ICC.  Her methodologically crafted gender lens situates the evolution of international criminal law’s gender politics. Although she characterizes the ICC’s current legitimacy as fragile, ultimately, Chappell envisions the ICC as able and willing to deliver a transformative gender justice legacy. Chappell advances that transformative gender justice occurs through a nuanced approach.  She values small consequential steps toward strengthening the gender mandate of the Rome Statute.  Steps and acts should remain subject to critical reflection, reform, or re-envisioning and resist complacency.  The Politics of Gender Justice at the ICC find compatible company in 2016 with releases of Prosecuting Conflict-Related Sexual Violence at the ICTY, an institutional review by the Prosecutor and practicing attorneys at the ICTY and the African Legal Aid’s book, The International Criminal Court and Africa. In the 2026 version of The Gender Politics of the ICC: Legacies and Legitimacy, the meaningful incorporation of intersections of gender such as ethnic, race, geographical region, religion, non-binary gender, age, disabilities, sexual orientation should inform and attune the gender justice examination.

Chappell has re-enforced, in sub silentio, by her convincing arguments, the audacity and necessity of a complex feminist critique of the ICC. It should become an analytical norm that complements the routine feminist assessment of the gender jurisprudence and that defies the international law critics who routinely omit gender, much less gender politics, as a critical criteria.

[The views and opinions expressed in this post are those of the author alone and should not be attributed to any other source]

The Politics of Gender Justice at the ICC: Legacies and Legitimacy

ejiltalk.org - Mon, 12/19/2016 - 14:00

The Rome Statute of the International Criminal Court provides the most advanced articulation ever of gender justice under international law. In designing this aspect of the Rome Statute, states were influenced by the Women’s Caucus for Gender Justice, a dynamic international feminist advocacy network who used the creation of the Court as an opportunity to challenge the existing gender biases of the law and ensure the (mostly negative) lessons from the existing tribunals for Rwanda (ICTR) and the former Yugoslavia (ICTY) were not repeated at the ICC.

The pioneering gender justice mandate of the Rome Statute has three core elements. The first element relates to recognition of a range of sexual and gender crimes commonly, but not exclusively, experienced by women in conflict settings that had never before been treated with equal gravity to other war crimes or crimes against humanity. The second element relates to the provision for fair representation of women on the bench, and of experts in sexual and gender based violence across all the organs of the Court. The third element relates to redistribution through the ICC’s innovative reparations and assistance mandate, and administered via the Trust Fund for Victims. Another unique aspect of the Statute – and one that has its own underlying gender dimensions – is the complementarity framework, ensuring that states maintain jurisdiction over international crimes unless they demonstrate an inability or unwillingness to do so.

With these provisions, states parties established a potentially ground-breaking Court, capable of overturning some of embedded gender legacies of the law. The question raised in The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy is how well in its early years has the ICC reached this potential? And, where the Court has missed the mark, what injury has it caused to its legitimacy with its key gender justice constituency?

Gender Justice Outcomes: Recognition; Representation and Redistribution

The argument presented in this book is that in its infancy, the ICC has produced a mixed record in terms of its gender outcomes, and that these outcomes vary across the three elements of its gender mandate. By far the most disappointing element is the one advocates worked hardest to secure in the design phase – improved recognition of gender and sexual crimes under international law. At the ICC, poor prosecution decisions, weak evidence, and conservative judging have combined so that by 2016 there has been just one successful sexual and gender based prosecution – in Bemba a case which considered a much narrower range of charges than originally sought. In other cases, sexual and gender based charges have either: never been laid, despite extensive evidence of these crimes; were poorly pleaded; met with a higher degree of scrutiny than other charges; or, failed to be recognised by the bench – even where they included similar elements to crimes that had been successfully tried in other international tribunals. To date the Court is yet to adjudicate on the crime of gender persecution, an inventive aspect of the Rome Statute.

In contrast to the recognition element, some headway has been made in relation to representation, especially in terms of including a ‘fair’ representation of women on the bench. Indeed, after the 2013 Assembly of States Parties judicial elections, women judges comprised fifty seven per cent of the bench. This was an outstanding result given the historic pattern of low numbers of women in international tribunals as well as national courts.  However, the subsequent elections have seen these numbers fall back sharply, to around thirty per cent, more closely aligned with the usual tolerance threshold for women’s representation in legal and political settings. While the presence of women on the bench sends an important signal about women’s capacity to adjudicate on matters of international significance, it does not guarantee more sensitive judging on sexual and gender based violence issues, and so it has proven to be the case at the ICC. Further, statutory provisions to place sexual and gender based violence specialists across the Court have not been fully implemented. The trend has been towards few, non-permanent or unfilled gender expert appointments, making it difficult to address the needs of women victims and those experiencing gender and sexual violence crimes.

There have been some interesting developments in terms of redistribution. Where the Trust Fund for Victims (TFV) has been active via its assistance mandate in situation countries, careful and close attention has been paid to gender justice initiatives. This has included ex-girl solider education programs, reunification strategies for girl and women soldiers and children born of conflict-related rape, and targeted micro-finance schemes for women and men. The outcomes in regard to reparations are much less advanced. Indeed, the ICC’s reparations mandate is emerging as a major headache for the Court, and arguably one that seriously threatens its ongoing legitimacy with its gender justice constituency.

The Lubanga case illustrates the problem with reparations all too well. Four years after the Court handed down its first verdict in Lubanga, it is still struggling to finalise the associated reparations process. A significant part of the problem concerns the cascade effect of poor gender justice decision-making at the commencement of proceedings when the then Prosecutor, Luis Moreno-Ocampo, declined to include charges of sexual and gender based violence. Arguments made by the trial judges, the TFV and advocates such as the Women’s Initiatives for Gender Justice among others, about the need to include victims of sexual and gender based in the reparations, have been successfully countered in appeal by the Defence, contributing to the frustratingly slow process. Regardless of the final outcome, which still looks to be some way off, the very fact of that the reparations process has taken so long profoundly undermines the ‘do no harm’ principle upon which the ICC’s reparations principles are based. The delay has the potential to harm all victims of Lubanga’s crimes, but especially those of sexual and gender based violence whose interests have been marginalised throughout the entire case, and who face a particular risk of exposure to reprisals. Signs are that the reparation process in the Katanga case – where the verdict was handed down in 2014 – is moving equally slowly.

Gender Justice and Complementarity

As my co-authors Rosemary Grey and Emily Waller and I have shown, the ICC’s complementarity regime has also produced distinct, negative, gender outcomes. At the negotiating stage, states parties rejected arguments to include gender-specific rules in the complementarity provisions; negotiators suggested that giving the ICC the authority to assess the gender justice status of state laws as a step too far into the realm of state sovereignty. Without a formal gender justice rule to guide it, the Office of the Prosecutor which is responsible for preliminary investigations, appears to have paid inadequate attention to sexual and gender based crimes in its preliminary investigations to determine state action. The result has been an ongoing impunity gap in this area.

Gender Justice and Legitimacy

Overall, The Politics of Gender Justice at the ICC suggests that at this point in time, negative gender justice outcomes at the ICC  – in terms of a poor prosecution record, inadequate gender expertise, unresolved reparations and complementarity gaps  – outweigh the positive. This gap between the promise and the practice of gender justice has tested the ICC’s gender justice constituency belief in the Court’s legitimacy. These actors – who include feminist academics, legal advocates, and victims groups – have expressed concern about the ICC’s direction and capacity to secure and strengthen gender justice under the law. There have been some particular ‘crisis’ moments including the Lubanga and Katanga sentencing and verdict decisions, and a surprising decision in the latter case by the Prosecutor not to mount an appeal on gender grounds. Some have taken these instances as evidence that despite the trailblazing gender justice provisions of the statute, nothing has really changed; the gender legacies of the law appear as entrenched as ever.

However, there have been other ‘small wins’ and key interventions that counterbalance these outcomes and send a positive signal to the ICC’s gender justice community, at least enough to encourage many of them to maintain the struggle. Arguably the most important development came with the election of the second Prosecutor Fatou Bensouda, who entered the office with a commitment to strengthen gender justice accountability. True to her word, under Bensouda, the Office of the Prosecutor has made gender justice a priority, including through the development of a wide-ranging gender policy, which seeks to address many of the shortcomings preventing successful gender-based prosecutions and giving much greater attention to sexual and gender crimes in preliminary investigations. The Bemba verdict on Prosecutor Bensouda’s watch has been a significant ‘win’, despite the many limitations of that trial. A second important intervention came via Judge Odio Benito dissent in the verdict and sentencing in Lubanga. While her decision did little to alter the outcome of this case, Judge Benito’s important arguments about the need to consider the gender dimensions of child soldiers crimes have been reflected in charges in the Ntaganda case, and could yet prove influential.

As the early years of the ICC has shown, overturning the deeply embedded gender legacies of international law is no easy task. Even with the best rules in the world, the actors responsible for implementing these rules -prosecutors, judges, lawyers – sometimes work to resist change or more benignly, too easily forget ‘the new’ and remember ‘the old’. To realize its potential, and maintain its legitimacy in the eyes of its core gender justice constituency, the ICC must now redouble its efforts through gender-sensitive investigations, the collation of convincing evidence, targeted charges, bold judging, and adequate financing. External pressure from its committed gender justice constituency will be essential to securing these requirements. The closer the alignment between the ICC’s gender justice rules and practices, the stronger will be its foundations and the more robust its legitimacy. If past experiences are a window into the future, this alignment will not come easily, and it is likely to arrive in small, contentious steps. But the effort will be worth it if it results in a more complete understanding of, and accountability for, the consequences of war for women and girls and men and boys.

 

Book Discussion: Introducing Louise Chappell’s ‘The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy’

ejiltalk.org - Mon, 12/19/2016 - 09:00

The blog is happy to announce that this week we will be hosting a discussion on Louise Chappell’s book, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy. Louise Chappell is a Professor of Politics in the School of Social Sciences, University of New South Wales, Sydney Australia. She will start the discussion this afternoon by introducing the main arguments of her book. Comments by Patricia Sellers (Special Advisor for Prosecution Strategies to the OTP of the ICC), Valerie Oosterveld (Western Law), and Mark Drumbl (Washington and Lee University School of Law) will follow over the course of the week. The discussion will close with a response from Louise.

We are grateful to all of the participants for agreeing to have this discussion here. Readers are invited to join in; comments will of course be open on all posts.

Announcements: CfS Hague Yearbook of International Law; IntLawGrrls! 10th Birthday Conference; UN Audiovisual Library of International Law; Revista Latinoamericana de Derecho Internacional; CfP Polish Yearbook of International Law; 2016 Maastricht...

ejiltalk.org - Sun, 12/18/2016 - 14:00

1. Call for Submissions: Hague Yearbook of International Law. The Hague Yearbook of International Law announces that its 27th Volume has been published. The Yearbook now accepts submissions for its 28th volume; on any topic topic of public or private international law, written in either English or French. All articles have to be original, previously unpublished, submitted exclusively, and follow the Yearbook’s style guide. The deadline is 1 April 2017. Submissions should be made to: hagueyearbook {at} gmail(.)com var mailNode = document.getElementById('emob-unthrlrneobbx@tznvy.pbz-91'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%68%61%67%75%65%79%65%61%72%62%6F%6F%6B%40%67%6D%61%69%6C%2E%63%6F%6D"); tNode = document.createTextNode("hagueyearbook {at} gmail(.)com"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-unthrlrneobbx@tznvy.pbz-91"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

2. IntLawGrrls! 10th Birthday Conference. The blog IntLawGrrls: voices on international law, policy, practice, will celebrate its first decade with “IntLawGrrls! 10th Birthday Conference” on Friday 3 March 2017. The daylong event will be held at the Dean Rusk International Law Center of the University of Georgia School of Law, which is hosting as part of its Georgia Women in Law Lead initiative. Organizers Diane Marie Amann, Beth Van Schaack, Jaya Ramji-Nogales, and Kathleen A. Doty welcome paper proposals from academics, students, policymakers, and advocates, in English, French, or Spanish, on all topics in international, comparative, foreign, and transnational law and policy. In addition to paper workshops, there will be at least one plenary panel, on “strategies to promote women’s participation in shaping international law and policy amid the global emergence of antiglobalism.” The deadline for submissions is 1 January 2017, though papers will be accepted on a rolling basis. Thanks to the generosity of the Planethood Foundation, a fund will help defray travel expenses for a number of students or very-early-career persons whose papers are accepted. For more information, see the call for papers/conference webpage and organizers’ posts, or e-mail doty {at} uga(.)edu var mailNode = document.getElementById('emob-qbgl@htn.rqh-58'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%64%6F%74%79%40%75%67%61%2E%65%64%75"); tNode = document.createTextNode("doty {at} uga(.)edu"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-qbgl@htn.rqh-58"); mailNode.parentNode.replaceChild(linkNode, mailNode); .

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 Ludmila Nikiforovna Galenskaya on “Settlement of disputes in public and private international law” (in Russian) and Professor Gus Waschefort on “International Law and Child Soldiers”.

4. New Issue: Revista Latinoamericana de Derecho Internacional. Di Tella University, from Argentina, is delighted to announce that the fifth issue of the Latin American Journal of International Law (Revista Latinoamericana de Derecho Internacional -LADI-) is now available online. The Journal is the first Latin American publication devoted to promoting the discussion of general topics of Public International Law from different perspectives in the region. LADI’s fifth issue includes a special dossier on refugees, an interview with Professor Kevin John Heller, and translations to Spanish of articles by professors Chikin, Charlesworth, and Lauterpatch. The latest issue can be found here.

5. Polish Yearbook of International Law Call for Papers. The Polish Yearbook of International Law (PYIL) is currently seeking articles for its next volume (XXXVI), which will be published in June 2017. Authors are invited to submit complete unpublished papers in areas connected with public and private international law, including European law. Although it is not a formal condition for acceptance, we are specifically interested in articles that address issues in international and European law relating to Central and Eastern Europe. Authors from the region are also strongly encouraged to submit their works. Submissions should not exceed 12,000 words (including footnotes) but in exceptional cases we may also accept longer works. We assess manuscripts on a rolling basis and will consider requests for expedited review in case of a pending acceptance for publication from another journal. All details about submission procedure and required formatting are available at the PYIL’s webpage.  Please send manuscripts to pyil {at} inp.pan(.)pl var mailNode = document.getElementById('emob-clvy@vac.cna.cy-28'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%70%79%69%6C%40%69%6E%70%2E%70%61%6E%2E%70%6C"); tNode = document.createTextNode("pyil {at} inp.pan(.)pl"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-clvy@vac.cna.cy-28"); mailNode.parentNode.replaceChild(linkNode, mailNode); . The deadline for submissions is 31 January 2017. 6. 2016 Maastricht Prize for International Law. The Nominating Committee of the Maastricht Prize for International Law (formerly The Hague Prize for International Law) announces that the 2016 Prize has been awarded to Prof Pieter Jan Kuijper. The award ceremony was held on 8 December 2016 in Maastricht. The Committee especially stressed Prof Kuijper’s long and distinguished career in international and European law, in particular exploring the connections between these two fields. Congratulations! More information available here.

The Inevitable Benefits of Greater Clarity in Relation to Humanitarian Relief Access

ejiltalk.org - Fri, 12/16/2016 - 13:00

The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict is, as we know from the tragic images of human suffering in Syria broadcast almost daily, both timely and beneficial. Greater clarity on how international law frames the rights and obligations related to humanitarian relief efforts can only be positive. Indeed, this effort will ideally contribute to the objective of mitigating civilian suffering caused by the deprivations that seem almost inevitable during armed conflict.

It was therefore with great interest that I reviewed the Oxford Guidance. I was generally familiar with the effort, having discussed the project with several of the authors last summer. At that time, I expressed my strong support for any effort that aids in clarifying legal aspects of humanitarian relief efforts. Clarity in this area is, as many know, sorely lacking, which produces inevitable uncertainty as to when, where, how, and under what conditions humanitarian efforts may be conducted in the midst of armed conflict. This effort will ideally enhance the humanitarian effect of these efforts, which is an objective that no reasonable person could conceivably object to.

Still, even these best efforts are unlikely to completely bridge the gap between the aspiration of maximizing humanitarian relief efforts and the reality of achieving this aspiration in the complex and chaotic environment of military operations. So in this comment I will seek to focus on several aspects of the Guidance that I consider most significant to achieving the obvious primary objective of this effort: to reduce impediments that prevent or delay humanitarian relief operations and thereby exacerbate civilian suffering.

It seems that the true, “decisive point” of the Guidance is the discussion of consent: when and under what circumstances is a party to an armed conflict lawfully permitted to deny consent for the conduct of humanitarian relief operations? And as the Guidance indicates, there is no easy answer to this question. I’m sure the drafters would have preferred to propose an interpretation of international law that indicated an absolute obligation to facilitate such relief efforts when needed to avert severe humanitarian suffering. To their credit, they did not, because they cannot.

A military decision to allow humanitarian relief access in an operational area, like so many other decisions that implicate civilians, highlights the balance of interests central to the regulation of armed conflict. Dictates of humanity compels maximum access for such efforts. However, military necessity compels commanders to prevent or restrict such access when it will interfere with their efforts to bring an enemy into submission or otherwise achieve their military objectives. When this occurs, there are simply no absolutes. And, while I suspect that the Guidance drafters searched for some basis to propose an absolute obligation that conclusively prioritized the humanitarian objective of mitigating civilian suffering, the law simply cannot sustain such a rule.

Nonetheless, the treatment of the issue of consent, and the accordant question of what qualifies as an arbitrary denial of consent, hold the potential to make a significant contribution to implementing an effective balance between humanity and military necessity. Those aspects of the Guidance frame what certainly appears to be a presumptive obligation to facilitate humanitarian assistance. When understood in such terms, the humanitarian objective of the Guidance is advanced because it imposes a burden on the military commander to base any denial of access or significant restriction on access on credible objective operational considerations: will access actually impede or compromise the effectiveness of military operations.

Viewing the obligation to facilitate humanitarian relief access as presumptive is, I believe, completely aligned with the overall international humanitarian law framework related to civilian protection. At the very core of that framework is the obligation imposed on military commanders and the armed forces they command to, “take constant care” to mitigate risk to civilians. This obligation is codified in Article 57 (1) of Additional Protocol I, which provides that, “[I]n the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.” While this constant care obligation is most commonly associated with precautionary measures that must be integrated into the targeting process, there is no rational basis to consider this the exclusive focus of this obligation. Instead, as I have argued in a previously published article, the “constant care” obligation transcends the targeting process, and should influence every aspect of training, operational planning, mission execution, and accountability efforts.

I consider it inconceivable that feasible measures to mitigate the suffering and deprivations inflicted upon civilians as the result of armed conflict would not include a constant effort to reconcile operational and tactical effectiveness with facilitating access by humanitarian actors to those in need. By emphasizing that this is an obligation, albeit qualified; and stressing that arbitrary interference with such efforts is incompatible with this obligation, the Guidance will ideally contribute to the mindset of military actors when faced with access requests. Equally important is the impact this Guidance should have on military doctrine and operational planning. By emphasizing the obligation to justify denial of access with objectively credible operational and tactical considerations, commanders should endeavor to identify in advance the type of considerations that satisfy this requirement, and train subordinates of their obligation to facilitate humanitarian access in the absence of such justifications.

Still, as noted earlier, even this admirable and much needed effort will not eliminate the ability of military personnel to “game” the framework articulated in the Guidance. It is an unfortunate reality of regulatory norms that seek to balance competing interests – even norms that reflect presumptive obligations – that improper interpretation will undermine the ultimate interests these norms aspire to advance. In this context, interpretation of concepts used in the Guidance like “arbitrary denial”, or even what qualifies as, “inadequately supplied”, could easily expose civilians to unjustified deprivations and suffering. But this is a risk inherent in almost all such international humanitarian rules and norms, all of which rely on good faith interpretation and application for efficacy. Ultimately, efforts such as this reduce the opportunity for the manipulation of regulatory rules and norms by providing a more comprehensive and effective touchstone for assessing good faith.

It is apparent that this Guidance is important to contribute to the mitigation of civilian suffering in the future. But it should also be apparent that it is equally important because it will contribute to the efforts of armed forces genuinely committed to good faith implementation of international humanitarian law to better understand the relationship between their military mission and the efforts of humanitarian relief actors. While there will almost certainly be some debate as to the content of this Guidance, that very process will contribute to both these important objectives. Well done.

Humanitarian Relief Operations as Countermeasures: Overcoming the Withholding of Consent

ejiltalk.org - Fri, 12/16/2016 - 09:00

In the Oxford Guidance, the authors make a careful exposition of the legal framework relating to humanitarian relief operations in situations of armed conflict. Responding to the unseemly practice of some states impeding humanitarian relief operations, they make the compelling, practice-based argument that states have an obligation under international law not to arbitrarily withhold consent to such operations (pp. 21-25). That states have such an obligation does however not necessarily mean that humanitarian relief actors have a right to conduct relief operations absent such consent. The primary rules of international humanitarian law, in any event, while providing for the former obligation, do not provide for the latter right. Secondary rules of international law on state responsibility may come to the rescue here. As the authors of the Oxford Guidance correctly point out, the doctrines of necessity and countermeasures under the general law of state responsibility may also apply as circumstances precluding the wrongfulness of “third” states’ relief operations on the territory of the non-consenting state (pp. 51-55). In this post, I will critically reconstruct the authors’ application of the law on countermeasures. I will limit myself to countermeasures taken by third states. I have addressed the taking of humanitarian relief-based countermeasures taken by non-state humanitarian actors (NGOs) in an earlier publication. 

The main obstacle to a third state conducting relief operations as a countermeasure is that this state is not itself ‘injured’ by the territorial state’s withholding of consent. Indeed, the better position is that the non-relieved civilians are the injured parties, and that the state wishing to conduct the relief operation is a non-injured state. This begs the question whether in that capacity it is entitled to take countermeasures in the face of the territorial state’s arbitrarily withholding consent to the relief operation. The authors of the  Oxford Guidance take the ‘progressive’ position that they can.

It is recalled in this respect that the International Law Commission (ILC) left this potential entitlement deliberately open in Article 54 of its 2001 Articles on State Responsibility. Article 54 is essentially a saving clause that does not prejudice the development of an entitlement for third states to not only invoke the responsibility of another state in relation to violations of erga omnes obligations (by virtue of Article 48 of the Articles) but also to ‘take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached’. At the time of adoption of the Articles, the ILC was of the view that it appeared that no such entitlement was clearly recognized. In so doing, it left this open for progressive legal development. Later scholarship has cast doubt on the conservative attitude of the ILC and, analyzing at least in part the same materials which the ILC had before it, has come to the conclusion that there is ‘extensive evidence of state practice and opinio juris in support of a right to take countermeasures by states other than the injured as an integral part of customary international law.’ (Elena Katselli, The Problem of Enforcement in International Law: Countermeasures, the Non-Injured State and the Idea of International Community, London: Routledge, 2010, p. 207). Thus, as we write, if not as early as 2001, third states may well be entitled to take countermeasures as a matter of positive international law.

The authors of the report seem to concur. At the same time, however, they wonder whether conducting humanitarian relief operations without the consent of the relevant state can qualify as a countermeasure, the purpose of which is after all to induce the violating state to comply with its obligations (nr. 155). Arguably, by conducting the operations regardless of consent, third states are single-handedly creating compliance rather than inducing it. Intuitively, indeed, one would assume that the object (A) of a countermeasure taken by state X against state Y should differ from the object (B) of the obligation owed by state Y to state X. In contrast, in the case of humanitarian relief operations conducted without the territorial state’s consent, A and B coincide. Nevertheless, the coincidence of the object of a countermeasure and the object of an obligation is not excluded by the law on countermeasures. Important is that the state taking the countermeasure temporarily withholds performance of one or more obligations owed by it to the responsible state (cf commentary (6) to Article 49 of the ILC Articles) with a view to inducing the latter to perform its own obligations to the former or, in this case, the international community at large. These international obligations are not the same, although they may be synallagmatically related: the latter state is obliged to not arbitrarily withhold its consent to humanitarian relief operations, whereas the former is obliged to respect the territorial sovereignty of the latter in the absence of consent to intervene. At the end of the day, the third state’s non-performance of the obligation to respect territorial sovereignty, which is the flipside of its non-consent-based provision of humanitarian relief, is geared towards inducing the territorial state to comply with its obligation not to arbitrarily withhold consent. The third state then only conducts the relief operation until the territorial state consents to it. At this point factually the same operation continues but on another legal basis (norm-compliance rather than countermeasure).

This construction appears to be in keeping with the law on countermeasures, something which is also acknowledged by the authors of the Oxford Guidance. Still, they note that the proportionality requirement – part and parcel of the law on countermeasures – restricts the non-consent-based provision of relief to ‘the most extreme cases’, namely when the unlawful impeding of humanitarian relief operations ‘amounts to a particularly serious breach of international law’ (nr. 156). In so doing, the authors appear to import the notion of jus cogens into the law of countermeasures, a notion which under the Articles on State Responsibility normally only yields duties of non-cooperation and non-recognition (Article 41). From a doctrinal perspective, the authors do so by citing the general proportionality limitation of Article 51, which provides that countermeasures must take into account ‘the gravity of the internationally wrongful act’. The upshot is that third states may in principle be entitled to take countermeasures in the face of breaches of erga omnes obligations (i.e., the rule progressively developing Article 54), but that in practice such measures will only pass muster in case the said breaches also qualify as jus cogens violations. Such a reading raises the bar for the taking of lawful countermeasures, and it prevents the wrongfulness of violations of territorial sovereignty being too easily precluded. It constitutes a defensible compromise between those state interests embodied by the principle of non-intervention and the interest of civilians embodied by third parties’ right to offer relief to them in cases of need.

Taking Stock of the Law on Targeting, Part II

ejiltalk.org - Thu, 12/15/2016 - 10:00

On Monday, I used the recently released U.S. report on military operations to assess the law on targeting. I argued that the dominant mode for analyzing these operations — asking whether international humanitarian law (IHL), international human rights law (IHRL), or a combination of both regimes governs — is problematic. The targeting rules in each regime are context-dependent, so the rules that have been developed for one context would not necessarily require the same thing if they were extended to a different context. Focusing so heavily on the regime choice is not only unhelpful but can be counterproductive. It reinforces the idea that the regime choice is ultimately what determines the codes of conduct. And so, it makes it harder to develop the law for situations that fit neatly into neither regime. Today, I’ll use U.S. targeting policies to amplify on my argument.

U.S. Position on Targeted Killings

The U.S. position is significant precisely because it pushes past the stale IHL-versus-IHRL debate. The United States does not treat the regime choice as particularly relevant to question of which targeting rules apply.

The U.S. legal claim seems to be that, although IHRL might apply to certain cross-border targeting operations, IHL defines or supersedes what IHRL would require; IHRL does not have independent force. Yet for years now, the United States has made clear that it does not intend to exploit, in all contexts in which it says IHL applies, the expansive authorities that are usually associated with IHL. The United States claims that, outside designated areas of active hostilities, it generally will use force only when someone “poses ‘a continuing, imminent threat to U.S. persons’” and “only when capture of an individual is not feasible and no other reasonable alternatives exist to address the threat effectively.” (See p. 25 of the U.S. report.)

Here, the United States is defining new codes of conduct for situations that resemble neither the traditional law enforcement paradigm nor the traditional armed conflict paradigm. The standard that the United States articulates for these situations comes quite close to the standard that ordinarily applies under IHRL. Recall that IHRL generally permits lethal force only if someone poses an imminent threat and the state has taken reasonable steps to avoid depriving him of life. In addition, the U.S. standard comes close to the stricter interpretation of IHL that I discussed on Monday — the interpretation that would require states to consider capturing, instead of killing, people when feasible. Thus, the United States is downplaying the relevance of the regime choice and trying to develop codes of conduct for situations for which neither IHRL nor IHL has all the answers. (The European Court of Human Rights has arguably made moves in a similar direction.)

Assessing U.S. Operations

Of course, the fact that the United States has articulated a new approach to targeting does not mean that we should just accept it. We might still criticize the United States and hold it accountable on the merits for its decisions. For example, we might present and defend an alternative standard for assessing U.S. operations. (I have offered one way to extrapolate a standard from IHRL and IHL, but there are others.) Alternatively, we might question how the United States applies its standard in concrete cases. What are the criteria for determining that someone poses a “continuing, imminent threat” or that capturing him is unreasonable? And are U.S. targeting operations even effective at containing the threat?

Already, international and U.S. national security lawyers press those questions on the United States. But they also keep insisting that the regime choice matters — that what justifies particular results is ultimately the applicable regime, rather than the balance of values and considerations that are at stake in distinct contexts. (For examples, see hereherehere.) This focus on the regime choice is distracting and potentially counterproductive.

Let me end by anticipating and responding to three contrary intuitions. First, some readers might be uncomfortable with the law’s pliability in this area. Open-ended standards are often thought to be less effective at regulating states than are precise rules. This aspect of targeting law might be unfortunate, but it is unavoidable. IHL and IHRL both require context-specificity when assessing targeting decisions.

Second, because the United States claims to apply its “enhanced IHL” rules only as a policy matter, it preserves the discretion to deviate from those rules when it decides that the circumstances so warrant. Readers might claim that, if we insist that IHRL governs and establishes stricter rules, we could better hold the United States legally accountable for its decisions. In other words, we could strip the United States of the discretion to decide for itself when its enhanced IHL rules apply. As a practical matter, however, this insistence seems to have had the opposite of its desired effect. The reason that the United States so staunchly resists giving IHRL independent force in this area is not that that it intends to exploit the most expansive authorities under IHL. One reason is probably that it seeks to preserve some operational flexibility. A second reason is that it equates or is worried that others will equate IHRL with law enforcement rules. It is concerned that IHRL will be interpreted to require the same thing in, say, Yemen as in New York. Insisting that the regime choice matters keeps that concern salient and gives the United States incentives to continue resisting IHRL.

Finally, readers might chalk this up to U.S. exceptionalism. We should not develop a new analytic framework on targeting just because the United States has pressed a particularly assertive position. I suspect, however, that the United States is not alone in resisting IHRL’s application out of a concern that it will be equated with law enforcement rules. For example, that concern likely also animated the United Kingdom’s disappointing responses, in October 2016, to the British Parliament’s Joint Committee on Human Rights report and inquiries about the legality of using drones for targeted killings. As Shaheed Fatima has explained, the committee tried to focus the government on the regime choice, but in doing so, it just elicited a bunch of evasive answers. Likewise, the concern probably animates the persistent claims by militarily active states that IHRL applies extraterritorially only in very limited circumstances. And it might have driven the recent moves by FranceTurkey, and the United Kingdom to derogate from IHRL for certain counterterrorism operations. Treating IHRL as if it is a proxy for specific codes of conduct gives states perverse incentives to try to “opt out” of it — which, again, distracts attention from and gets in the way of the important project of trying to define when targeting is or is not justifiable.

The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: An Introduction

ejiltalk.org - Wed, 12/14/2016 - 13:00

Editor’s Note: This post is cross posted at Just Security.

As many current conflicts across the globe demonstrate, humanitarian access is a central challenge to the protection of civilians in armed conflict. Parties to conflict often impede the delivery of much needed humanitarian relief supplies exacerbating hunger, disease and want. However, insufficient attention appears to have been paid to the legal framework that applies to the provision of humanitarian relief in armed conflict. In his 2013 Report on the Protection of Civilians in armed conflict the Secretary-General instructed (at para. 80) United Nations Office for the Coordination of Humanitarian Affairs (OCHA) to analyse one aspect of the law regulating humanitarian relief operations: the issue of arbitrary withholding of consent and the consequences thereof. OCHA commissioned the Oxford Institute for Ethics, Law and Armed Conflict and the Oxford Martin Programme on Human Rights for Future Generations to conduct expert consultations to examine the rules and the options for providing guidance. We were honoured to lead this process of consultation resulting in the elaboration and drafting of the Guidance.

At the first meeting the experts unanimously agreed that it would not be possible nor, indeed, helpful to focus exclusively on the question of arbitrary withholding of consent. That element of the rules regulating humanitarian relief operations had to be put into its proper context. The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict tries to do precisely that. It presents in sequential order the rules regulating key steps of humanitarian relief operations. It consists of a narrative commentary setting out the law and Conclusions presenting the key elements of the rules. The Guidance seeks to reflect existing law and to clarify areas of uncertainty. Where the law is unclear or the experts expressed different views on particular issues, the narrative text of the Guidance presents the range of interpretations. Each Conclusion does not necessarily reflect the unanimous view of the experts consulted. In addition to setting out the law, the document also aims to provide some practical guidance as to how some of the legal obligations identified may be implemented by the relevant duty holders.

This post highlights four central questions addressed in the Guidance: (i) whose consent is required for the conduct of humanitarian relief operations in non-international armed conflicts? (ii) what amounts to arbitrary withholding of consent? (iii) what are the key elements of the obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief operations? and (iv) what the are consequences of unlawful impeding of humanitarian relief operations?

Whose consent is required in non-international armed conflict?

It is uncontested that consent is required before offers to conduct humanitarian relief operations may actually be implemented. The requirement of consent is explicit in both Article 70(1) of Additional Protocol I 1977 (AP I) (which provides that such operations “shall be undertaken, subject to the agreement of the Parties concerned in such relief actions”) and Article 18(2) of AP II (such operations “shall be undertaken subject to the consent of the High Contracting Party concerned”). What is less clear is whose consent is required in non-international armed conflicts? In particular, it is unclear whether, in a non-international armed conflict, the consent of the state is required for operations to bring humanitarian assistance to civilians in areas under the effective control of organised armed groups that can be reached without passing through territory under the state’s effective control – so called “cross-border operations”. This issue is dealt with in Section D of the Oxford Guidance.

Two treaty provisions are relevant. Common Article 3(2) of the 1949 Geneva Conventions (GCs) and Article 18(2) of Additional Protocol II 1977 (AP II). Common Article 3(2) GCs provides that an ‘impartial humanitarian body … may offer its services to the Parties to the conflict’. The provision is silent, however, as to whose consent is required. Some interpret Common Article 3(2) GCs as implicitly allowing humanitarian relief operations to be conducted if the party to which an offer is made, be it a state or an organised armed group, accepts it, regardless of the position adopted by its opponent. On this view, if the humanitarian relief operations do not transit through territory under the state’s effective control, its consent is not required.

Others have taken the view that the silence in Common Article 3(2) GCs with regard to consent cannot be interpreted in this manner, particularly in view of the significant infringement of territorial sovereignty that humanitarian relief operations conducted in its territory without a state’s consent would entail.

Article 18(2) AP II is more explicit on this issue, requiring the consent of ‘the High Contracting Party concerned’. While this appears to be a clear reference to the state party to a non-international armed conflict, it may be suggested that the state party to a non-international armed conflict is not “concerned” by humanitarian relief operations intended for civilians in territory under the effective control of an organised armed group. Consequently, its consent is required only if the relief operations must transit through territory under its effective control. On this view, if the territory under the effective control of an organised armed group can be reached from another country directly, the state’s consent is not required.

The majority of the experts were not persuaded by this interpretation of Article 18(2) AP II. First, the suggestion that a state is not ‘concerned’ by humanitarian relief operations taking place on its territory, even if it is in areas beyond its effective control, appears contrary to basic considerations of territorial sovereignty. Second, this interpretation would suggest that there may be circumstances where no High Contracting Party is concerned by a humanitarian relief operation, making the express reference to the consent of ‘the’ High Contracting Party in Article 18(2) AP II redundant.

In light of the silence of Common Article 3(2) GCs and of the specific reference to ‘the High Contracting Party’ in Article 18(2) AP II, the Oxford Guidance adopted a position that gave due weight to general principles of international law relating to a state’s territorial sovereignty but also to its responsibility towards the civilian population. The consent of the state in whose territory the humanitarian relief operations are intended to be conducted is always required. This state will, however, have a more limited range of grounds for withholding consent where relief is intended for civilians in territory under the effective control of organised armed groups.

Arbitrary withholding of consent

Despite the apparently absolute nature of the requirement that consent be obtained, it has been accepted that such consent may not be withheld arbitrarily. This principle prohibiting arbitrary withholding of consent is derived from (1) the need to provide an effective interpretation of the relevant treaty texts, which gives effect to all aspects of those provisions and does not render parts of them redundant; (2) the intention of those who negotiated the Additional Protocols, as reflected in the drafting history of the provisions; and (3) practice subsequent to the adoption of the Protocols. In other words, the principle prohibiting arbitrary withholding of consent to humanitarian relief operations, where the preliminary conditions for such operations to be undertaken are met, derives from the interpretation of the relevant treaty texts which best accords with Arts 31 & 32 of the Vienna Convention on the Law of Treaties dealing with treaty interpretation.

Although there is widespread acceptance of the principle that consent to humanitarian relief operations must not be arbitrarily withheld, (see for example the ICRC’s 2016 Commentary to Art. 3 the First Geneva Convention, paras. 832-839 & the Institut de Droit International’s 2003 Resolution on Humanitarian Assistance, Art. VIII) there is little clarity as to what constitutes arbitrary withholding of consent. There is no definition or guidance in any treaty and, to date, the precise meaning of the concept has not been addressed by any international or national tribunal, human rights mechanism or fact-finding body.

As we explain more fully in an article that has just been published [“Arbitrary Witholding of Consent to Humanitarian Relief Operations in Armed Conflict”, 92 Int’l Law Studies 383 (2016)], the notion of arbitrariness has a wide meaning in international law. While there is no single or all-encompassing definition, international humanitarian law, international human rights law and general principles of public international law provide guidance on the type of conduct that would justify the conclusion that an actor is acting arbitrarily in withholding of consent to humanitarian relief operations.

The Oxford Guidance, in its Section E, identifies three ‘headings’ of arbitrariness. Consent is withheld arbitrarily if:

(i) it is withheld in circumstances that result in the violation by a state of its obligations under international law with respect to the civilian population in question; or

(ii) the withholding of consent violates the principles of necessity and proportionality; or

(iii) consent is withheld in a manner that is unreasonable, unjust, lacking in predictability or that is otherwise inappropriate.

The legal bases for these categories are set out in Section E of the Oxford Guidance and in greater depth in the recent International Law Studies article. Examples of withholding of consent that would violate a party’s other obligations under international law and thus fall into the first category would include:

  • Withholding consent in situations where the civilian population is where the civilian population is inadequately supplied and the state intends to cause, contribute to, or perpetuate starvation.  This would violate the prohibition on starvation of the civilian population as a method of warfare [See Art. 54 API and Art. 14 APII].
  • Withholding consent to medical relief operations including on the ground that medical supplies and equipment could be used to treat wounded enemy combatants. The wounded and sick – including enemy combatants – must receive, to the fullest extent practicable and with the least possible delay, the medical care required by their condition.       No distinction may be made on any grounds other than medical ones. [See Art. 10 API & Art. 7 APII].
  • Selective withholding of consent to humanitarian relief operations with the intent or effect of discriminating against a particular group or section of the population. This would violate the prohibition on discrimination set out inter alia in Common Article 3 GCs; Article 75(1) AP I; Article 4(2) AP II; Articles 2(1) and 26 of the 1966 International Covenant on Civil and Political Rights (ICCPR) and Article 2(2) International Covenant on Economic and Social Rights (ICESCR).
  • Withholding of consent to humanitarian relief operations that violates fundamental human rights as applicable in armed conflict, most notably the rights to bodily integrity (the right to life, prohibition of torture, cruel, inhuman or degrading treatment) or prevents the satisfaction of the minimum core of relevant economic, cultural and social rights, such as the rights to an adequate standard of living, including food and water, and to health and medical services.

Even in situations where consent to relief operations is withheld for a valid reason, and not contrary to a legal obligation under the first category above, doing so will nonetheless be arbitrary if it exceeds what is necessary in the circumstances, and thus is disproportionate. This is the second category of arbitrariness set out above. Limitations in terms of time, duration, location, and affected goods and services must not go beyond what is absolutely necessary to achieve the legitimate aim.

The third category of arbitrariness focuses on the manner or process by which consent is withheld. Consent is also withheld arbitrarily if it is withheld in a manner that is unreasonable, or that may lead to injustice or to lack of predictability, or that is otherwise inappropriate. A possible example would be a total failure to provide reasons for withholding consent. This would give rise to a lack of predictability and would make it impossible to assess whether there are valid reasons underlying the withholding of consent.

The obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief supplies, equipment and personnel

Once consent has been granted to offers to undertake humanitarian relief, parties to an armed conflict must allow and facilitate rapid and unimpeded passage of humanitarian relief supplies, equipment, and personnel throughout the territory under their effective control. While a number of recent conflicts have caused attention to be focused on the issue of initial consent to conduct humanitarian relief operations, however in the majority of cases it is at this stage that problems tend to arise. States have agreed to relief operations but then fail to do what is necessary for them to be conducted in a rapid and unimpeded manner. Apart from circumstances where specific conduct is required, the obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief supplies, equipment, and personnel may be discharged in a variety of ways, leaving parties discretion in its implementation. In its Section F, the Oxford Guidance sets out examples of how the obligation may be implemented in practice.

While parties must allow and facilitate rapid and unimpeded passage, they are, however, entitled to prescribe technical arrangements for such passage. Frequently reservations that parties may have about agreeing to humanitarian relief operations could be addressed by appropriate measures of control. Those measures may allow the parties to satisfy themselves that relief consignments are exclusively humanitarian, or that relief convoys will not be endangered or hamper military operations, or that humanitarian supplies and equipment meet minimum health and safety standards.

Such administrative procedures and formalities and other technical arrangements must be applied in good faith and their nature, extent, and impact must not prevent the rapid delivery of humanitarian relief in a principled manner. This means that the imposition or effect of such arrangements must not arbitrary within the meaning set out above.

In analysing whether impediments to humanitarian relief operations, including the imposition or effect of technical arrangements, are such as to amount to a violation of the obligation to allow and facilitate the rapid and unimpeded passage of relief supplies, equipment and personnel, the focus should not be on the bilateral relationship between the party seeking to conduct relief operations and the party impeding such passage. Rather, the key consideration should be the outstanding needs of the civilian population. In, other words, it is insufficient that the activities of a particular actor have been impeded. Instead, it is the impact on the civilian population, or segments thereof, of the impediments on all those authorised to operate that must be considered.

While it is states party to an armed conflict that are most likely to be in a position to take the more formal measures set out below, organised armed groups are under the same obligation to allow and facilitate rapid and unimpeded passage of humanitarian relief supplies, equipment, and personnel by taking all appropriate measures.

Consequences of unlawful impeding of humanitarian relief operations

The final section of the Oxford Guidance (Section I) deals with the responsibility under international law of the party (or persons) unlawfully impeding humanitarian relief operations, as well as the consequences of such unlawful conduct for those seeking to conduct humanitarian relief operations. Perhaps the most controversial aspect of the latter question is whether unlawful impeding of humanitarian relief operations means such operations can be conducted without the consent of the relevant state. Section I (2) of the Oxford Guidance states that there is no such entitlement that arises out of the prior unlawful conduct. However, humanitarian relief operations conducted without consent will be lawful where the United Nations Security Council imposes such operations by a binding decision under the UN Charter, as the Council did with respect to Syria under Resolution 2165 (2014) & 2258 (2016). Apart from such cases, humanitarian relief operations conducted without consent will not be unlawful only in extremely limited circumstances.

For states and international organizations, conducting such operations without the consent of the territorial state would violate the latter’s territorial sovereignty and territorial integrity. The wrongfulness of such conduct by a state or international organization may, exceptionally, be precluded in extremely limited circumstances of severe need if in such circumstances they can be justified under the principle of necessity or as countermeasures under the law of state responsibility or the law relating to the responsibility of international organizations. However, such operations must not violate the prohibition of the threat or use of force or seriously impair the territorial integrity of the state on whose territory they are conducted. It should also be noted with respect to international organizations that whether they can conduct operations on the territory of a member or other state, without the latter’s consent, will also depend on the rules of the organization, including its constituent instrument [see, for example, Arts. 22(2)b of the ILC Articles on the Responsibility of International Organizations].

The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: A Blog Discussion

ejiltalk.org - Wed, 12/14/2016 - 09:00

We are delighted to announce that, starting today and over the course of this week, EJIL:Talk! and Just Security are coordinating a blog discussion in relation to The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict. The blog posts are as follows:

  • “The Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: An Introduction” –  Dapo Akande & Emanuela-Chiara Gillard – EJIL: Talk! and Just Security
  • “Humanitarian Access from an Armed Non-State Actor’s Perspective” – Annyssa Bellal – Just Security
  • “Oxford Guidance on the Law Relating to Humanitarian Relief Operations in Situations of Armed Conflict: Some Comments on Arbitrarily Withholding Consent and the Status of the Guidance”  – Rogier Bartels –  Just Security
  • “Humanitarian Relief Operations as Countermeasures: Overcoming the Withholding of Consent” – Cedric Ryngaert – EJIL: Talk!
  • “The Inevitable Benefits of Greater Clarity in Relation to Humanitarian Relief Access” – Geoffrey Corn –  EJIL:Talk!

We thank all of the participants for their contributions, and we hope readers will enjoy the discussion.

What Will a Trump Administration Mean for International Agreements with the United States?

ejiltalk.org - Tue, 12/13/2016 - 09:00

On 20 January 2017, Donald Trump will become the 45th President of the United States. During the campaign, he spoke often about terminating landmark international agreements concluded by the Obama administration, including the Paris Agreement on climate change, the Iran nuclear deal, the Trans-Pacific Partnership and the normalization of relations with Cuba. Predicting what might actually happen in a Trump administration is difficult, because his statements as a private citizen, candidate and president-elect have been inconsistent. Should he wish to follow through on the campaign rhetoric to take immediate action on these issues, what can the president actually do unilaterally? Decisions to terminate these agreements raise questions under both international and domestic law. The United States is bound under international law when it becomes a party to an international agreement, and also has some limited obligations upon signature. Under US constitutional law, the presidency is at its most independent and powerful in dealing with foreign relations. While that power is not unlimited, soon-to-be President Trump could arguably fulfil all of those campaign promises without violating domestic or international law.

Paris Agreement on Climate Change

On 3 September 2016, the United States ratified the Paris Agreement on climate change which entered into force on 4 November 2016. The agreement was concluded under the auspices of the United Nations Framework Convention on Climate Change (“UNFCCC”) which was ratified by the United States in 1992 and entered into force in 1994. The Paris Agreement establishes no binding financial commitments or emissions targets. The states party are bound only to formulate and publish national plans for reducing greenhouse gas emissions to hold the increase in the global average temperature to “well below” 2°C above pre-industrial levels and pursue efforts to reduce the increase to 1.5°C. The United States is the second largest emitter of greenhouse gases in the world, and its participation in the Paris Agreement was critical to bringing other states, particularly China, on board.

President-elect Trump has declared man-made climate change a “hoax” perpetrated by China, characterized the Paris Agreement as “bad for US business” and said repeatedly during the campaign that he would pull the United States out of the agreement. In an interview with the New York Times on 22 November, he claimed to have an “open mind” about whether to remain a party. Depending on his views upon taking office, Trump could withdraw from the Paris Agreement, or possibly from the UNFCCC altogether.

Both actions would be legal as a matter of customary international law, under which a state may withdraw from a treaty where the agreement provides an express means for doing so. The Paris Agreement and the UNFCCC both contain such provisions. Pursuant to Article 28 of the Paris Agreement, a party may give notice to withdraw three years after the date the agreement entered into force, and that withdrawal will become effective one year later. Hence, the earliest effective date of a US withdrawal from the Paris Agreement would be 4 November 2020, just in time for the next presidential elections. Withdrawing from the entire UNFCCC would be faster, becoming effective one year after giving notice under Article 25 of the Convention. The US would remain a party to the Paris Agreement prior to the effective date of its withdrawal. Although the agreement does not contain any enforcement provisions should the United States fail to comply with its obligations during that period, several countries have suggested they might impose carbon tariffs on the United States in response.

As a matter of domestic law, because President Obama ratified the Paris Agreement by means of an executive order, which does not require approval of the Senate or Congress, once in office Trump could simply issue a new executive order withdrawing the United States from the agreement. The situation with respect to the UNFCCC is somewhat less clear. The UNFCCC is a treaty pursuant to Article II of the US Constitution, which means it was approved by two thirds of the Senate and then ratified by the president. The Constitution is silent on terminating treaties, and whether a president acting independently is able to withdraw from an Article II treaty is an unsettled question in US law, albeit not a new one. In 1979, President Carter withdrew the United States from the Mutual Defense Treaty with Taiwan. A group of senators sued the President, claiming that withdrawal required consent of two thirds of the Senate. The case, Goldwater v. Carter, reached the Supreme Court which found it non-justiciable as a political question not fit for courts to decide. In 2002, President Bush withdrew from the Anti-Ballistic Missile Treaty (“ABM Treaty”) with Russia. Again, members of Congress brought suit, and the case, Kucinich v. Bush, was also dismissed as a non-justiciable political question. Although no court has ruled on the merits of the issue, treaty termination appears to be considered the prerogative of the president, at least in the absence of specific Congressional legislation in opposition. In this case, the current Republican-majority Congress is unlikely to raise any such objection.

Iran Nuclear Deal

President-elect Trump has also repeatedly threatened to renegotiate or pull the United States out of the Iran nuclear deal, formally known as the Joint Comprehensive Plan of Action (“JCPOA”), declaring in March 2016 that his “number-one priority is to dismantle the disastrous deal with Iran.” Under the JCPOA, which was implemented on 16 January 2016, Iran pledged not to “seek, develop or acquire” nuclear weapons and to slow its development of peaceful nuclear energy technology. In exchange, the five permanent members of the UN Security Council, plus Germany (“P5+1”) and the European Union agreed to lift certain UN, EU and national sanctions relating to Iran’s nuclear program. Under the terms of UN Security Council Resolution 2231 endorsing the JCPOA, in the event any of the P5+1 determine Iran to be in significant non-compliance, they could invoke the so-called “snapback” provision to re-impose UN Security Council sanctions.

The JCPOA is not a legally-binding agreement under international or domestic law. Although the UN Security Council endorsed the deal, it did so with horatory language not creating an enforceable obligation on the parties, with the possible exception of the “snapback” mechanism. For the avoidance of doubt, the US State Department went so far as to emphasize that the JCPOA is neither an executive agreement nor a treaty, but rather a “political commitment.” As such, once in office Trump could declare that the United States no longer intends to comply with the deal and re-impose US nuclear-related sanctions that were lifted through waivers and executive actions by President Obama. Renegotiation would be considerably more difficult. As an agreement among seven states and the EU, which took ten years to negotiate, Trump would not be able to insist on better terms without the cooperation of the other parties, none of whom have expressed any interest in doing so.

Despite Trump’s strong criticism of the JCPOA, the risk of alienating the other parties to the agreement, particularly Russia and China, is likely to be sufficient disincentive to tearing up the deal. That said, tensions are already building. On 1 December the US Senate voted to extend the Iran sanctions act for another 10 years. This is largely symbolic as most of the sanctions concerned have been waived in accordance with the JCPOA and will remain so unless Trump backs out of the deal once in office. The Obama Administration stated that this action does not change or breach the JCOPA, but Iran has called the extension a violation of the deal and said it would react, without specifying what it intended to do. It is worth noting, however, that even US withdrawal would not necessarily dismantle the JCPOA. The other parties have stated that they remain committed to the deal with Iran, whatever the United States decides to do. They could potentially keep Iran compliant with the carrot of ever-increasing business ties and the stick of threating to re-impose their own sanctions in the event Iran does not uphold its obligations.

Trans-Pacific Partnership

Throughout the campaign, President-elect Trump excoriated the Trans-Pacific Partnership trade deal (“TPP”) calling it a “continuing rape on our country.” On 21 November, Trump stated that he would exit the agreement on his first day in office.

The TPP is the largest trade agreement in history. It seeks to reduce tariffs and deepen economic ties among its twelve signatories who together represent approximately forty percent of the world GDP and a third of global trade: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam. The deal was signed in February 2016 after seven years of negotiations and would come into effect either two months after all parties ratify or upon the ratifications by six signatories representing 85% of their collective GDP. Should the United States choose not to ratify, the TPP cannot enter into force under either provision.

Under international law, a state party to the TPP would be able to withdraw under its Article 30(6), and that withdrawal would become effective six months after notice to the depository. Trump, however, intends to “issue a notification of intent to withdraw” before ratification and before the TPP has entered into force, akin to President George W. Bush’s “unsigning” of the Rome Statute of the ICC in May 2002. The possibility of giving such notice, after signature, of an intent not to become a party to the treaty, not to ratify, is contemplated in Article 18 of the Vienna Convention on the Law of Treaties and would remove the obligation to refrain from acting contrary to the object and purpose of the treaty.

With respect to US law, the TPP is a congressional-executive agreement requiring congressional approval for ratification, which it does not yet have. Congressional leaders have said they will not take up the agreement during the so-called “lame-duck” session before Trump is inaugurated, leaving the president-elect free to withdraw from the deal.

Cuba

On 28 November, three days after the death of Fidel Castro, referring to the normalization of relations with Cuba, Trump tweeted “If Cuba is unwilling to make a better deal … I will terminate the deal.” It is unclear what Trump would consider a better deal, but it is clear that he could reverse the work of the Obama administration regarding Cuba.

The US commercial, financial and economic embargo of Cuba was established and is enforced by several statutes. Accordingly, only Congress can actually lift the embargo, but the operative legislation was deliberately drafted to give the president wide discretion in enforcement. Within the limits of his discretion, President Obama has taken significant steps to open up the United States-Cuba relationship. For instance, he has restored diplomatic relations, reopened the US embassy in Havana and had Cuba taken off the State Department list of state sponsors of terror. He also eased travel and trade restrictions, permitted US banks greater access and made it easier for Americans to remit money to relatives in Cuba.

As president, although total reversal might be challenging in practice, in theory Trump would be able to undo these changes unilaterally, because they were achieved by executive actions, including executive orders, regulatory changes and presidential policy directives. International law is also no barrier to such action. Although the UN General Assembly has passed resolutions condemning the embargo for 25 years, with only the United States and Israel in opposition – or as of this October, abstention – such resolutions are not enforceable against UN member states.

.           .           .

In the absence of specific, consistent policy proposals, it is difficult to anticipate what steps Trump will take. To date, members of his transition team and nominees for cabinet posts include climate change skeptics, hawks on Iran and Cuba and opponents of free trade. On the other hand, Trump may be swayed by the considerable business support for these international agreements. The TPP, predictably, is widely supported by US business interests. More than 300 American corporations, including Starbucks, Nike, Levi Strauss, Du Pont and Hewlett Packard, signed a joint letter urging Trump not to withdraw from the Paris Agreement. American travel and tourism companies, including JetBlue, American Airlines, Carnival Cruise Lines and Starwood hotels, have all invested in Cuba since President Obama eased the embargo restrictions. US and international companies, including Boeing, have also slowly begun to reengage in the substantial Iranian market since implementation of the JCPOA. Ultimately, upon entering office, the President-elect will have to balance diplomatic and domestic interests that were not a focus of his campaign, and following through on pledges to withdraw from international agreements may prove more difficult in practice than in theory.

 

 

Taking Stock of the Law on Targeting, Part I

ejiltalk.org - Mon, 12/12/2016 - 12:30

Last week, President Obama released a report that outlines U.S. legal and policy positions on, among other things, operations that target to kill nonstate actors. (See here, here, here, and here for useful summaries of the report.) In October, the U.K. government addressed but largely dodged the targeting-related inquiries of the British Parliament’s Joint Committee on Human Rights. And over the past few months, the blogosphere has been abuzz with yet another round in the seemingly inexhaustible debate on how international humanitarian law (IHL) and international human rights law (IHRL) intersect in this area. So, now seems like a good time for some stocktaking.

One thing that stands out in all of this is that, despite significant developments in the practice over the past 15 years, much of the legal analysis is stuck in a rut. Most legal commentators assess targeting operations by first asking which regime governs — IHL, IHRL, or a combination of the two. For some time now, I’ve argued that that approach obfuscates, rather than clarifies, what’s at stake. It rests on certain intuitions about what each regime would require if its substantive rules applied. But these intuitions are contestable and often wrong. In other words, analysts tend to treat the regime choice as a proxy for the applicable codes of conduct, but it is a bad proxy. At best, then, their approach distracts attention from the questions that really matter — questions about what is or is not permitted. At worst, it gets in the way of meaningful regulation. I will unpack what I mean by this in two blog posts.

Identifying the Legal Framework

The traditional test for a non-international armed conflict — and thus for applying IHL to current operations against non state actors — requires that the violence reach a certain level of intensity. In September, Adil Haque argued against that intensity threshold. He claimed that an armed group’s organization and capacity to sustain military operations should suffice to trigger IHL. The practical effect of his proposal would be to apply IHL to early strikes that occur before any intensity threshold is satisfied. Because such strikes might also be governed by IHRL, Haque’s proposal provoked the most recent round in the IHL-versus-IHRL debate.

Jonathan Horowitz described Haque’s proposal as “dangerous” because it would “open[] the path for States to rely more regularly on IHL’s targeting and detention rules.” Horowitz’s worry was that these rules are more permissive, or at least more easily manipulated, than are the rules under IHRL. Deborah Pearlstein expressed similar concerns. In her view, “it is not possible as a matter of law to reconcile the basic human rights law prohibition on killing with the basic [IHL] acceptance of the power to kill as a first resort.” Here, Horowitz and Pearlstein resist IHL’s application because they assume that it would permit more deprivations of life and liberty. To his credit, Haque replied by trying to disentangle the regime choice from the substantive rules. He meant to leave open the question of which codes of conduct would govern under his proposal. But those questions are a large part of what’s at stake in the debate on the regime choice. People insist on applying (or not applying) a particular regime because they worry about the substantive consequences of that decision.

That worry is to some extent understandable. Clearly, the IHL rules for targeting people in high-intensity conflicts between organized armed groups that identify themselves as such are more permissive than are the IHRL rules that apply in classic law enforcement settings. But those are the easy cases and not really at issue in the IHL-versus-IHRL debate. For example, few would argue that the coalition that is fighting the so-called Islamic State in Iraq and Syria should be constrained by law enforcement rules. Likewise, few would say that New York City police should have the license to conduct themselves as if they are on a hot battlefield.

Things get complicated when we move outside each regime’s paradigmatic setting. This is where the IHL-versus-IHRL debate stands in for disagreements about the acceptable codes of conduct. But it is also where each regime is most unsettled and contestable. In these settings, it is misguided to assume that the regime choice determines or justifies particular substantive rules.

The Human Right to Life

Let me use IHRL to illustrate the point. IHRL is often said to prohibit states from using lethal force except as a last resort to contain an imminent threat. That standard applies in law enforcement settings in which states have considerable situational control, and the threats are relatively modest. But as it tends to be articulated, the standard does not fully capture IHRL’s fact-specificity even for these settings. In particular, the “last resort” requirement does not mean that states must pursue every available alternative before using lethal force. Rather, human rights institutions generally apply this requirement to mean that states must pursue reasonable measures, in light of the circumstances, to avoid taking a life.

For example, in Bubbins v. United Kingdom, the European Court of Human Rights (ECHR) held that U.K. police lawfully killed a seemingly armed intruder who refused to vacate an apartment. The police acted lawfully, even though they did not take every available precaution to avoid depriving the intruder of life. The police did not use a trained negotiator to try to end the siege, and they did not let the suspect escape and then try to capture him at a later point, when he would be off guard. Both of those options were available to the police and likely would have reduced the risk to the intruder’s life. The police acted lawfully, even though they forwent those options, because they acted reasonably to reduce the risk to life without compromising the police mission. They secured a perimeter around the apartment, used flood lighting to enhance their visibility, cautioned neighbors to stay indoors, encouraged the intruder to surrender, and so on. To be sure, people might disagree about whether particular measures — in this case, using a trained negotiator — were reasonably foregone or should have been taken. But that is the IHRL inquiry. It is heavily fact-dependent.

Because the inquiry is fact-dependent, it is not surprising that human rights institutions tend to apply IHRL more loosely when they assess killings outside law enforcement settings — when situations are more chaotic, and states have less control. In Isayeva v. Russia, the ECHR suggested that Russian agents could lawfully kill Chechen fighters, even absent the kind of imminent threat that IHRL usually requires. In Finogenov v. Russia, the court recognized that IHRL’s law enforcement rules could be relaxed when the circumstances so require — there, because Russia was pressed for time and lacked situational control. For similar reasons, the ECHR has indicated that IHRL might be more lenient when it is applied extraterritorially. A state that acts extraterritorially typically lacks the tools and institutions that, back home, allow it to achieve its legitimate security interests while satisfying strict human rights standards.

The point is that, even if IHRL applies outside ordinary law enforcement settings, its content will be fact-dependent. We still must answer the question of what IHRL requires in these circumstances. As I have explained elsewhere, a similar dynamic is at play on the IHL side of the ledger.

Moving Beyond the Regime Question

At the very least, then, the IHL-versus-IHRL debate is not really where the action is. The action is in defining codes of conduct for situations that resemble neither the traditional law enforcement paradigm nor the traditional armed conflict paradigm. To define these codes of conduct, we might draw on IHL and/or IHRL. But we should not assume that the regime choice determines the outcome.

I suspect that many readers will insist that it is still useful or necessary to identify the applicable regime before defining the appropriate codes of conduct. These readers might claim that, even if the regime choice does not necessarily lead to particular results, it might stack the deck in one direction or another, or help us frame the substantive question. Advocates who believe that more permissive rules are appropriate might push for IHL, while those who seek more restrictive rules might push for IHRL. I understand that impulse but think it has real costs. Insisting that the regime choice determines the substantive result reifies the content of each regime as it has developed for its principal context and makes it harder to adapt the law to new contexts — including many contexts in which armed force is now used.

Here is an example: although IHL is widely thought to permit states to target nonstate fighters as a matter of first resort, some have argued that IHL is better interpreted as requiring capture whenever feasible. Many who resist the stricter interpretation worry about applying it on active battlefields, when it could “inject potentially deadly hesitation into the targeting process.” In other words, they assume that, if IHL applies, it requires the same thing on active battlefields as it does in other settings, even though states in those other settings might reasonably capture people without much risk to their own agents or missions. The IHL-versus-IHRL frame reinforces that assumption by suggesting that the regime choice is ultimately what drives the substantive rules. By contrast, underscoring that the rules in each regime are contextually variable would make it easier to press for the stricter interpretation when the circumstances so warrant — in some but not all situations in which IHL applies.

To wrap up for today: legal analysts who assess targeting operations tend to put too much stock in the regime question. This approach is not particularly helpful for, and might instead get in the way of, defining the codes of conduct for distinct settings. Later this week, I’ll elaborate on this argument by using as a concrete example U.S targeting policies.

Announcements: APPG on Drones Inquiry; CfP International Criminal Justice – Theory, Policy and Practice; New additions to UN Audiovisual Library of International Law; CfP Exploring the Human Element of the Oceans; New Blog, The Law of Nations; Berlin...

ejiltalk.org - Sun, 12/11/2016 - 11:00

1. APPG on Drones Inquiry. The APPG on Drones is launching a new inquiry into ‘The Use of Armed Drones: Working with Partners.’ The purpose of the inquiry is to analyse the emerging technologies of drones and the ways in which they are used when working with allies. The inquiry will build on the recent report of the Joint Committee on Human Rights. Inquiry panel members invite written submissions on all aspects of our Terms of Reference. From a legal perspective, inquiry members are particularly interested in: the applicable law to isolated uses of lethal force; the extraterritorial application of human rights law; the threshold for, and territorial scope of, NIACs; and legal issues arising out of increased interoperability and inter-state assistance.

2. Call for Papers – International Criminal Justice: Theory, Policy and Practice at the Socio-Legal Studies Association Annual Conference. The international criminal justice stream at the SLSA Annual Conference contains four panel sessions and invites submissions on all areas of substantive international criminal justice, whether on theory, policy or practice. The conference will take place at Newcastle University on 5 – 7 April 2017. Empirical work would be particularly welcomed and papers based on “works in progress” will be considered so long as the work is sufficiently developed. Both individual papers and panel submissions (of three related papers) can be submitted for consideration. Postgraduate students are also encouraged to submit abstracts. Selected papers from the conference will be published in a forthcoming edition of The Hague Justice Journal. For an informal discussion please email Anna Marie Brennan at Anna.Marie.Brennan {at} liverpool.ac(.)uk var mailNode = document.getElementById('emob-Naan.Znevr.Oeraana@yvirecbby.np.hx-29'); var linkNode = document.createElement('a'); linkNode.setAttribute('href', "mailto:%41%6E%6E%61%2E%4D%61%72%69%65%2E%42%72%65%6E%6E%61%6E%40%6C%69%76%65%72%70%6F%6F%6C%2E%61%63%2E%75%6B"); tNode = document.createTextNode("Anna.Marie.Brennan {at} liverpool.ac(.)uk"); linkNode.appendChild(tNode); linkNode.setAttribute('id', "emob-Naan.Znevr.Oeraana@yvirecbby.np.hx-29"); mailNode.parentNode.replaceChild(linkNode, mailNode); . Abstracts must be no longer than 300 words and must include your title, name and institutional affiliation and your email address for correspondence. For further information see 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 Daniel Bradlow on “International Law and International Financial Institutions” and Professor Mia Swart on “Reparations in International Criminal Law”.

4. Call for Papers – Exploring the Human Element of the Oceans: The Gender Implications of the Law of the Sea. The School of Law of the University of Milano-Bicocca is organizing a conference on “Exploring the human element of the oceans: the gender implications of the law of the sea” to be held on 25-26 May 2017 in Milano (Italy). The full Call for papers can be download here. Proposed papers should include an abstract of no more than 500 words and a CV with list of the publications by 31 January 2017. Notification of the selected papers will be made by 20 February 2017.

5. New Blog: The Law of Nations. Public and private international law and arbitration play an increasingly important role in the decisions of the English courts. From commercial cases to human rights claims, a huge range of public and private international law principles are now regularly applied by the English courts. The Law of Nations aims to provide timely analysis of English court decisions across the vast range of areas where international law issues arise. We seek to combine sharp analysis with lively commentary, perspectives from abroad, and the occasional guest feature and interview. We welcome all comments and suggestions. 6. Fellowships with the Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?“. The Berlin Potsdam Research Group “The International Rule of Law – Rise or Decline?“ invites applications for three Fellowships from 1 September 2017. Fellowships are for 12-24 months and the deadline for Applications is 31 January 2017. The Research Group examines the role of international law in a changing global order. Fellows will work at Humboldt University Berlin, although applicants are not expected to speak German. The Junior Fellowships are designed for applicants worldwide with a doctorate in international law or in international relations.  Applicants should have completed their PhD by 1 September 2017 and should not have pursued more than 2 years of postdoctoral research. For further information, including information on eligibility, please see here.

The United Nations’ Efforts to Restore a Reputation Tarnished by Cholera

ejiltalk.org - Fri, 12/09/2016 - 09:00

Overwhelming evidence demonstrates that UN peacekeepers are the source of a 2010 cholera outbreak that has infected nearly 800,000 people and killed more than 9,000 people. After refusing to apologize or provide redress to the individual victims for six years, the United Nations appears to be changing course. On December 1, UN Secretary-General Ban Ki-moon spoke to the General Assembly about the United Nations’ “new approach” to cholera in Haiti.

Ban’s remarks are notable both for what he said—and for what he did not. Ban finally apologized to the Haitian people. He outlined the steps the United Nations planned to take to combat cholera in Haiti, and to provide benefits, possibly including monetary compensation, to the individuals and communities that were most directly affected. Ban also spoke about the United Nations’ reputation: he urged member states to “seize this opportunity to address a tragedy that […] has damaged our reputation and global mission.” Now for the omission: Ban did not say that that the United Nations had a legal obligation to take any of these steps, even though the lawfulness of the United Nations’ conduct in connection with the cholera crisis in Haiti has been forcefully challenged.

It is these latter two points that I want to address. A couple of years ago, EJIL published an article of mine entitled Reputation and the Responsibility of International Organizations, which argued that international organizations have a strong incentive to cultivate and preserve reputations for being law-abiding. It drew on the cholera crisis in Haiti as a case study. Developments since then confirm the importance of reputation in motivating international organizations—and also highlight a crucial shortcoming of relying on reputation to keep such organizations in line.

Reputation serves as an important motivator for international organizations partly because it is so difficult to challenge the legality of IO action before any kind of court. National courts won’t decide such cases because IOs have robust immunities. International courts are sometimes technically available, but resorted to very rarely.

Instead, as I explained in my article, organizations’ actions, and the legal arguments that organizations make to defend them, are subject to scrutiny by scholars, legislators, IO officials, non-governmental organizations, and newspaper editorial writers, among others. International organizations are especially sensitive to this discourse, I argued, because credible arguments that international organizations  are not living up to their legal obligations can damage their reputations—and, by extension, their legitimacy. Preserving both matters to international organizations because their effectiveness depends on voluntary cooperation and support.

The United Nations’ response to cholera in Haiti can be understood in terms of these dynamics. As a legal matter, the United Nations’ response to cholera in Haiti is most vulnerable on the grounds that it is inconsistent with section 29(a) of the Convention on the Privileges and Immunities of the United Nations, which requires the United Nations to “make provisions for appropriate modes of settlement” of “disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party.” The United Nations denied a petition from Haitian cholera victims on the grounds that the dispute was not one of a “private law character,” and thus section 29 was not applicable. This position encountered profound skepticism—and received no support—in public discourse, both as of 2014 and since then.

As it turns out, national courts played an important role in this discourse, even though the Haitian plaintiffs lost on immunity grounds before both the district court and the court of appeals. The lawsuit kept the media and the legal community focused on the United Nations’ deficient response to the cholera crisis. During oral argument last March, the very first question from the court of appeals was about the United Nations’ response: “has anything been done to remediate this situation, has compensation been paid to the victims?”

Reputational concerns appear to have played a role in the United Nations’ decision to change course. Indeed, it is striking how prominently reputation has figured in recent exchanges. In August, a highly critical report by Philip Alston, the UN special rapporteur on extreme poverty and human rights, was leaked to the press. His report excoriated the United Nations’ response to cholera to date, and emphasized the urgency of restoring the United Nations’ damaged credibility, legitimacy, and reputation. The word “reputation” shows up three times in the Secretary-General’s written report on the United Nations’ new approach. And the Secretary-General again invoked reputation—twice, in fact—in last week’s remarks before the General Assembly.

Notably, the steps that the Secretary-General just announced to deflect this threat to its reputation could be characterized as fulfilling section 29’s requirements, albeit without acknowledging any legal obligation to do so. This refusal to acknowledge a legal obligation is unsurprising in light of past practice of international organizations. In my article, I canvassed the ways that international organizations sought to deflect charges that they were violating international law. Sometimes organizations ceased the challenged behavior; other times they took steps to come into compliance with the relevant norms. I found no cases where organizations acknowledged international obligations to take these steps.

Given this context, is it problematic that the United Nations didn’t acknowledge an international obligation to provide redress to Haitian cholera victims? In particular, what does it bode for the future? Given the high-risk situations in which the United Nations operates, another similar tragedy could occur.

If, by declining to acknowledge a legal obligation the United Nations sought to preserve flexibility for the future, I doubt it will succeed. The United Nations’ new approach to cholera in Haiti sets a standard against which its own future actions—as well as the actions of other international organizations—will be judged. Precedents need not legally bind institutions in order to be influential. The ICJ, for example, is not legally bound to follow its prior case law, but you wouldn’t know that from reading its opinions. The United Nations would be hard-pressed to justify treating a like situation differently. Should UN peacekeepers introduce another epidemic, I suspect that the United Nations would respond with something like the “new approach,” and would do so more promptly to avoid the firestorm it has experienced over its response to cholera in Haiti.

What worries me are the smaller-scale tragedies that may occur. Reputation as a mechanism for keeping international organizations in line depends on a range of sophisticated actors paying sustained attention to what organizations are doing. Over the past six years, cholera in Haiti has received attention that was high in both quality and quantity. Indeed, still more attention is needed to make sure that the “new approach” is actually funded and implemented. Smaller-scale tragedies will not elicit comparable attention. And without that attention, international organizations may be tempted to sweep embarrassing facts under the rug.

An international organization’s desire to protect its reputation can be a powerful and positive force. But it won’t always be enough.

SOGI Mandate Passes Third Committee Hurdle

ejiltalk.org - Thu, 12/08/2016 - 09:00

On 21 November 2016, the Third Committee of the General Assembly (GA) voted to uphold the United Nations mandate of the Independent Expert on sexual orientation and gender identity (SOGI) in a very closely fought vote. The decision represents a major stepping stone for the promotion of LGBTI rights, and provides much-needed reassurance regarding the ability of the Human Rights Council (HRC) – and the broader UN machinery – to adequately combat international human rights challenges.

Two main points of contention emerged during discussions leading up to, and during the day of the vote: 1) whether there is a legal basis for the mandate (the substantive argument); and 2) whether the GA has the power to override decisions made by the HRC (the procedural argument). It was the latter argument that generated the most discussion, and will therefore be the main focus of this post.

This post will begin with an analysis of what exactly happened on the day of the vote, and will be followed by an exploration of the two main arguments. The post will end with a discussion on what this vote could mean both in the short-term and long-term.

The day’s proceedings

When formally introducing the resolution to the Third Committee, the African Group had announced an oral amendment to OP2, stating that consideration of resolution 32/2 should be suspended until the 72nd session of the GA, a detail missing from the initial draft which had left it open to the criticism that the mandate was being suspended indefinitely. As noted by the representative for Brazil an optimistic reading of this amendment would have been misleading: specifying that this item will be revisited in one year’s time does not alter the far-reaching negative impact of the move. Furthermore, there are no reasonable grounds to think that the position taken by the African Group would change by next autumn.

In the highly contested GA SOGI vote, some States chose not to vote along regional lines- it was the position of these States that ultimately proved decisive. 84 States voted in favour of the draft amendment, 77 voted against, 17 abstained, and 15 did not take part in the vote.

Significantly, a number of African states and member states of the Organization of Islamic Cooperation (OIC) elected to either vote in favour of the amendment or abstain. Had there been a bloc vote by the African States and the OIC, the amendment would not have passed.

Of particular note, South Africa- having failed to support the resolution creating the mandate in June 2016- voted in favour of the amendment, declaring that it was basing its vote on its “constitutional imperative”. Similarly, Cape Verde voted in favour, while Liberia, Rwanda and Somalia chose to abstain. Some African states such as Equatorial Guinea and Sao Tome and Principe did not take part in the vote.

Although the member states of the OIC overwhelmingly voted against the amendment (a total of 46 member states), a handful of members did not: some of whom voted in favour (for example, Albania and Turkey), while some abstained (for example, Guinea Bissau and Kazakhstan), or did not take part in the vote (Lebanon, Mozambique, Sierra Leone, Tunisia and Turkmenistan).  For a full list of States who voted against or abstained, see here.  The resolution, as amended, was then adopted with 94 votes in favour, 3 against (Belarus, Israel, and Mauritius), and 80 abstentions.

On the need for a deferral: the substantive argument

Ahead of the vote, the African Group – represented by the Permanent Representative of Botswana to the United Nations –maintained that suspension of resolution 32/2 was necessary in order to “allow time for further consultations to determine the legal basis upon which the mandate of the special procedures established therein will be defined.” In this regard, they submitted that there is “no definitional basis in international human rights law” for the concept of sexual orientation or gender identity, in the absence of which an international expert on this issue cannot be appointed.

It is true that there is no international treaty that spells out the need to protect people based on their sexual orientation or gender identity, but it is disingenuous to claim that this should result in a bar to the passing of a resolution. The need to protect individuals against discrimination has been prioritised over any alleged vagueness surrounding concepts that have formed the basis for human rights protections, such as freedom of religion or belief (see, for example, report of the former special rapporteur on freedom of religion or belief A/71/269). Indeed, the Norwegian delegate pointed out that there are a number of special procedure mandates that lack an explicit treaty based definition.

It must also be recalled that previous resolutions on human rights, sexual orientation and gender identity were adopted (see resolution 17/19 in 2011 and  resolution 27/32  in 2014), and that the central issue here is non-discrimination, a universally accepted legal principle.

On whether their proposal amounts to a challenge to the authority of the HRC: the procedural argument

The African Group argued that their proposal was “not in any way meant to question the mandate or authority of the HRC to create special mandates or special mandate holders….rather, the resolution seeks to allow member states time to come to [a] common understanding on the notion of sexual orientation and gender identity, given that international law is silent on this issue and that the mandate for the office is subsequently ambiguous.”

The African Group noted that the HRC is a subsidiary organ of the GA, which possesses the power to review HRC mandates – in doing so, the Group made reference to three instruments, two of which explicitly define the status of the HRC as a subsidiary organ (operative para.1 of GA resolution 60/251, the founding instrument, and operative para.3 of GA resolution 65/281) and Article.10 of the UN Charter, which states that the GA “may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organ provided for in the Charter”.

That the HRC is a subsidiary organ of the GA is made plain in its founding instrument and is not in dispute. However, two points are of material importance to any analysis concerning the relationship between the GA and HRC.

First, the HRC enjoys a great amount of procedural and substantive autonomy, as laid out in GA resolution 60/251– a necessary allowance that enables it to perform its primary function of promoting and protecting human rights globally.

Second, it should be indicated that the GA must carry out its functions in accordance with human rights (see Art. 13 of the UN Charter) – a fact that the African Group is clearly cognizant of, given that it has repeatedly asserted that sexual orientation and gender identity fall outside the scope of international human rights law.

Had the African Group’s submission been successful one could have reasonably predicted that future resolutions would be reopened, thereby creating further obstacles to the promotion and protection of human rights, and undermining the institutional authority of the HRC.

As it stands, the GA’s vote on the SOGI mandate may mean that the only precedent for reopening HRC resolutions (council resolution 24/24 on “Cooperation with the United Nations, its representatives and mechanisms in the field of human rights”) will be classified as an outlier (for further details, see here).

The role of special experts cannot be understated (see, for example, the Vienna Declaration and Programme of Action), but neither should it be misrepresented – concerns with respect to national sovereignty should be placated by the language used in 32/2, which underscores that the role of the expert is collaborative and supportive, and not adversarial.

What next? 

This may not be the end of the story, as there is potential for the revival of the African Group’s proposal in GA plenary. Based on general practice this would be unusual. However, the close vote on the 21st, and the real possibility that those who had abstained or did not take part in the vote may change their position, means that the issue is far from settled. Indeed, one of the precedents involving the overturning of a vote at this stage relates to sexual orientation and gender identity—although on that occasion it was to reverse a Third Committee vote, and thereby achieve a favourable outcome for the promotion of LGBTI rights.

Given the potential for a vote overturn, there must be continued efforts to call attention to the precedential nature of any vote to re-open agreements reached in Geneva in New York. Indeed, such a development, should it materialise, not only carries serious negative institutional implications for the UN human rights system, but presents several challenges, which may be condensed into the following three main points.

First, it increases the potential for politicisation of the debate, especially through linkages with issues unrelated to human rights—a consequence of a shift from a human rights specific setting to a forum with a more general mandate. Second, the decision-making process in New York is more opaque than that in Geneva- a function largely of the greater access that civil society enjoys to processes in the latter. Third, duplication of debates in New York further undermines recent efforts made to rationalise the division of work between New York and Geneva in regard to human rights. It may be the case that concerns over future moves to reopen sensitive resolutions can only be truly addressed by making the HRC a main body of the UN- this matter is set for a review beginning in 2021.

It must also be mentioned that some of the representatives of the African Group and OIC who voted against the approved amendment declared that they would disassociate themselves from the resolution, and would not recognize the independent expert. These pronouncements make clear the extent of the long-term challenges ahead.

However, while any celebrations may be premature, this vote at the very least underlines the fundamental importance attached to the protection of LGBTI rights, and should, it is hoped, mark the beginning of improved attention to, and action against, the suffering and discrimination endured by LGBTI persons worldwide.

Namur Declaration of 5 December 2016: An EU-Values Driven Path to Negotiating and Concluding Economic and Trade Agreements

ejiltalk.org - Wed, 12/07/2016 - 18:32

Distinguished scholars in political economy, international economic governance, economics and law, have weighed in on how international economic agreements must be negotiated (or renegotiated).  Paris School of Economics’ Thomas Piketty, Harvard Kennedy School’s Dani Rodrik, the EUI’s Marise Cremona, University of Oxford’s Paul Craig, among a whole corps of global experts, have just signed the landmark Namur Declaration of 5 December 2016.  (For the full list of signatories, see here.) The Namur Declaration sets forth key propositions for any EU negotiation of trade and economic agreements (particularly those forthcoming with the United States), stating that the EU should ensure that there is mandatory: 1) respect for democratic procedures; 2) compliance with socio-economic, sanitary, and environmental legislation; and 3) guaranteed public interests in any dispute resolution mechanism.

We reproduce the full text of the Namur Declaration below.

The heated debates generated in Europe by the signature of the CETA/AECG (Comprehensive Economic and Trade Agreement / Accord économique et commercial global) have revealed that the way the EU negotiates international economic and trade agreements as well as their content are challenged by an increasingly large segment of public opinion.

The propositions in this Declaration aim to meet the legitimate concerns of a growing number of European citizens. Inspired by the values of solidarity, democracy and progress that constitute the European Union, these propositions must, according to the signatories, become the standard in every negotiation of trade and economic treaties in which the EU and its Member States are stakeholders. ey will be subject to further developments as debates unfold.

This means that the EU is not in a position today to negotiate a balanced agreement with the United States, given the asymmetry between the partners, especially in terms of the degree of completion of their respective domestic markets and the unresolved extraterritorial issues of US law.

This also implies that the EU, together with its partners who are already engaged in negotiations, will have to seek in good faith ways to ensure the success of the already well advanced, let alone already signed agreements, in the spirit of this Declaration.

1. Respect for democratic procedures

In order to ensure that European economic and trade agreement negotiations respect the civil society’s legitimate demands for transparency and the democratic parliamentary control procedures,

  • Public analyses and contestation of the potential e ects of a new economic and commercial treaty should be conducted before establishing a negotiating mandate, in order to guarantee that it will contribute to sustainable development, the reduction of poverty and inequality, and the ght against climate change;
  • The negotiating mandates regarding mixed agreements should be the object of a prior parliamentary debate in the national and European Assemblies (as well as the regional Assemblies with equivalent powers), involving as much as possible representatives of civil society;

  • The interim results of the negotiations should be made public and accessible in due course, so that civil society is ensured full knowledge and a parliamentary debate can take place before closing the negotiations;

  • The «provisional application» of agreements should not be favoured, so that parliaments keep their full powers in the assent procedure of mixed agreements;

 2. Compliance with socio-economic, sanitary and environmental legislation
  • To ensure that the so-called “new generation” economic and trade treaties do not weaken the laws protecting the socio-economic, sanitary and environmental model of the EU and its Member States in any way, and that they contribute to sustainable development, reduction of poverty and inequalities and the ght against climate change,
  • The ratification of the key instruments for the defence of human rights, the core ILO conventions, the recommendations of the BEPS project (base erosion and pro fit shifting) and the Paris climate agreement shall be obligatory for the parties;
  • Quantified scal and climate requirements, such as minimum corporate tax rates and veri able targets for the reduction of greenhouse gas emissions should be included in such treaties;
  • Public services and services of general interest, as defined in the Parties’ respective legislation, should be fully excluded from the scope of such treaties;
  • The «negative list» method for de ning the scope of activities open to competition should be excluded, and the treaties should systematically include clauses allowing the Parties to resume public ownership of a sector without any condition other than those imposed by national legislation;
  • Standstill clauses should be included to prevent the Parties from lowering their social, sanitary and environmental norms to promote exports and attract investment. ese clauses shall be matched with sanction mechanisms, and Parties’ compliance with their obligations may in no case substantiate a claim for compensation by investors or other private economic operators;
  • Fair and elective cooperation mechanisms, should be included, especially regarding the exchange of information in the field of taxation of multinational companies and offshore companies;
  • Independent and regular socio-economic, sanitary and environmental evaluation mechanisms of such treaties should be established. The treaties should allow for their suspension (in the event of provisional application) and their periodic review in order to ensure they contribute to sustainable development, the reduction of poverty and inequality and the ght against climate change;

3. Guarantee public interests in the dispute resolution mechanism

To ensure that resolution of disputes between companies and States or other Parties to the treaties o er the highest judicial protection of the public interest,

  • The recourse to national and European competent courts should be favoured. International dispute settlement mechanisms should be established only insofar as they have certain advantages (in terms of the uniform application of treaties, speed and quali cation of judges), include transparency guarantees and an appeal mechanism ensuring the consistency of decisions;
  • The highest standards for international dispute mechanisms should be applied, in particular regarding the conditions for appointing judges, their remuneration, independence and impartiality, during and after the exercise of their mandate;
  • Judges should be guaranteed to be fully qualified to interpret and apply the economic and trade agreements in accordance with rules of international law, including human rights, labour and environment laws;
  • Equal access to international dispute resolution mechanisms, including through measures for SMEs and individuals aimed at alleviating the nancial implications of resorting to such mechanisms.These principles should enable the European Union to demonstrate that trade does not serve private interests to the detriment of the public interest, but that it contributes to bringing people together, to the ght against climate change and to sustainable development, particularly in the most disadvantaged regions.

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