Archive | International Law

Israel, Palestine, and Democracy

At Commentary, I have a new piece on the common argument that Israel must make a deal with the Palestinians to save itself as a democracy. Here is an excerpt:

The “democracy” argument has become the central justification of the diplomatic process, incessantly invoked by Secretary of State John Kerry and Israeli peace envoy Tzipi Livni. What makes the democracy argument effective is that it plays on deep-seated Jewish sentiments. Israelis are a fundamentally liberal, democratic people who desperately do not wish to be put in the role of overlords.

The problem with the democracy argument is that it is entirely disconnected from reality. Israel does not rule the Palestinians. The status quo in no way impeaches Israel’s democratic identity.

It is true that the Palestinians are not represented in the Knesset. But Israeli residents of Judea and Samaria are similarly not represented in the Palestinian Legislative Council. Simply put, both the Palestinians and Israelis vote for the legislature that regulates them. That is democracy (though obviously it does not play out as well in the Palestinian political system).

The Palestinians have developed an independent, self-regulating government that controls their lives as well as their foreign policy. Indeed, they have accumulated all the trappings of independence and have recently been recognized as an independent state by the United Nations. They have diplomatic relations with almost as many nations as Israel does. They have their own security forces, central bank, top-level Internet domain name, and a foreign policy entirely uncontrolled by Israel.

The Palestinians govern themselves. To anticipate the inevitable comparison, this is not an Israeli-puppet “Bantustan.” From their educational curriculum to their television content to their terrorist pensions, they implement their own policies by their own lights without any subservience to Israel. They pass their own legislation, such as the

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How Broader Acceptance of Universal Jurisdiction Makes it Look Worse

At JustSecurity, Ryan Goodman challenges the methodology of Amnesty International’s updated report of universal jurisdiction, which finds the vast majority of nations implement UJ in their legislation. Prof. Goodman argues Amnesty over-counts (see Kevin Jon Heller’s dissent).

Yet even if Amnesty’s numbers are accurate, they may actually paint a dismal picture of UJ.

The broader question is whether legislation is what we should be counting, rather than cases. As for the actual exercise of UJ, a comprehensive study by Maximo Langer has found only 32 such cases have gone to trial since World War II. Three-quarters of these involved defendants from three particular conflicts that had been made the subject of extraordinary international tribunals (Rwandas, Yugoslavia, Germany).

I discuss trends in UJ in Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends, forthcoming in the Notre Dame Law Review. State practice has been moving away from exercising UJ, and Kiobel is the latest example. As I write:

As a proportion of cases that qualify for UJ prosecution, the enforcement rate approaches zero. Of course, a major practical limitation for criminal UJ is obtaining custody over the world’s war criminals and genocidaires… Even given this limitation, the exercise of UJ is extremely rare. For example, in Britain the Home Office is aware of nearly 700-800 suspected war criminals residing in Britain; over 100 applied for asylum in 2012 alone. Yet the government only seeks to return those against whom there is credible information to their home countries. Indeed, while Britain provided a massive publicity boost for universal jurisdiction in the Pinochet case (which itself did not directly raise universality issues), it has only universally prosecuted two defendants – an Afghan paramilitary officer and a Nepalese colonel, both for torture. Both defendants resided in Britain, and had committed

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New Paper on International Criminal Court’s Jurisdiction over Israeli Settlements

My paper, Israel/Palestine — The ICC’s Uncharted Territory, has just been published in the Journal of International Criminal Justice. It explains that the International Criminal Court does not have jurisdiction over the oft-threatened and much-discussed Palestinian referral of Israeli settlements, despite the General Assembly’s recognition of Palestine as a non-member state. In brief, the relevant conduct does not occur “in the territory” of Palestine as required by Art. 12 of the Court’s Statute. Abstract here.

The article also provides perhaps the most comprehensive analysis thus far of the ICC’s territorial jurisdiction, which has thus far not caused much controversy, but could have significant implications for American forces in Guantanamo Bay, border incidents in the Koreas and elsewhere in Asia, and numerous other contexts.

The timing is fortuitous: Nabil Shaath, a top Palestinian official and negotiator, last week reemphasized threats to attempt to bring Israel before the ICC after the current negotiation period ends this spring. OK, not that fortuitous, as such threats come with considerable regularity, and it does appear this is Abba’s next move.

A separate article will explain why such a case might not satisfy the ICC’s requirement of dealing only with the gravest of the world’s atrocities. (I say might, because it is anyone’s guess; though the gravity threshold is a key component of the Court’s jurisdiction, it remains entirely undefined.) Thinking about calling it “When Gravity Fails” but that might be too cute. [...]

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Thanksgiving for Purported Pirates in Russia and the U.S.

It is a happy Thanksgiving for defendants in two very different piracy cases – the trial of Ali, a Somali education official arrested while attending an education conference in the U.S., and the crew of Greenpeace’s ship Arctic Sunrise, arrested by Russia last month while minding Russia’s business on an oil rig. I’ve written about both here before.

Both very different cases have one thing in common – aggressive charges of piracy for conduct that has never been treated as such.

Russia had arrested the Greenpeace provocateurs on the high seas for piracy, though their actions clearly did not constitute the crime. However, piracy is the only legal basis for seizing a vessel on the high seas. Afterwards,hooliganism charges were substituted for piracy, making the “Arctic 30″ a kind of international Pussy Riot.

Holland, the flag state, brought Russia before the International Tribunal for the Law of the Sea, which just ordered Moscow to promptly release the vessel and crew. While the latter are now out on bail (but must stay in Russia), Russia has announced that it will not comply with the prompt release order (see Julian Ku’s discussion). Interestingly, Russia had complied with ITLOS rulings in two prior cases. But that was before the U.S.’s withdraw from global power invited Russia to strut like a Power again. (And its neighbors have noticed, and already turned from the West and come to kiss the ring.)

I’ve written about Ali’s case before: he was charged with piracy on the high seas, though his only role was as an ex post negotiator. No one had ever been charged for “high seas” piracy for after-the-fact dry land activity – the essence of piracy is its location. And this is especially true in a universal jurisdiction [...]

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China Asserts Air Defense Identification Zone Around Disputed Pacific Islands

Julian Ku at Opinio Juris notes that while much of the foreign policy community is focused on the Iran deal, China has undertaken a significant political escalation of its dispute with Japan over the Senkaku (or Daioyu) Islands, by invoking a so-called Air Defense Identification Zone (ADIZ) around the disputed islands.  The Wall Street Journal and other newspapers reported on it yesterday, noting criticism from both Washington and Tokyo; the response from Beijing, Julian adds, is for the US to mind its own business.   The WSJ quoted a “senior U.S. official” saying Sunday that there would likely be a demonstration of American military resolve to continue operating in the area of the islands without Chinese interference. The unspecified display, added the Journal’s story, “isn’t likely to involve a direct military confrontation.”

That demonstration came Monday night in the form of two US military aircraft, on what the Defense Department described as long-scheduled training mission, according to NBC news:

“We will not in any way change how we conduct our operations,” Pentagon spokesperson Col. Steve Warren said, adding that the U.S. maintains that the newly expanded ADIZ is in international waters. Monday evening ET, two B-52 bombers took off from Anderson Air Force Base in Guam as part of an ongoing training exercise called Coral Lightning Global Power Training Sortie. The bombers were in the ADIZ for less than one hour, Warren said. This was a “long-planned training exercise,” and the U.S. did not inform the Chinese of their flight plan, Warren said. The flights occurred without incident, Warren said, adding that there was no reaction, no Chinese aircraft were spotted in the air, and the Chinese did not contact the U.S. military about the flight.

What’s an ADIZ?  Speaking loosely, it’s a zone of airspace beyond a coastal state’s [...]

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The EU Supports Exploitation of Resources in the Occupied Territories

The Occupied Sawahari Territories that is (aka Western Sahara).

Global Post runs my commentary today on the European Union’s new treaty with Morocco, which does everything the EU has been claiming in its increasingly hostile recent dealings with Israel that international law forbids. The EU’s position regarding Western Sahara is consistent with its practice in Northern Cyprus and elsewhere.

The European Union recently affirmed that there is no international legal problem in signing a deal with an occupying power that extends to the territory it occupies, or from foreign companies doing business in occupied territory.

It did so when it provisionally approved a fisheries agreement earlier this month with Morocco that extends into the territory of occupied Western Sahara, which is beyond Morocco’s recognized sovereign territory.

Moreover, the EU actually pays Morocco for European access to Western Saharan resources. On all these points, the agreement directly contradicts what the EU, in negotiations with Israel, calls fundamental principles of international law.

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New Paper: “Kiobel Surprise: Unexpected by Scholars But Consistent with International Trends”

My article on Kiobel v. Royal Dutch Petroleum is up on SSRN. It is forthcoming in the Notre Dame Law Review‘s Federal Courts Issue.

Here is the abstract; comments on the article are welcome:

The unanimous ruling in Kiobel v. Royal Dutch Petroleum blind-sided the legal academy. The case involved one of the most contentious and dynamic aspects of U.S. foreign relations law, the Alien Tort Statute (ATS). Yet the Court surprised observers by deciding the case on grounds almost entirely ignored by the academy – the presumption against extraterritoriality.

Amazingly, despite an extensive academic literature on the ATS, the winning issue in Kiobel had never been examined in a law review until a 2003 student note. No court ruled on it until 2010. Indeed, the issue had not even been part of the litigation in Kiobel until the Court sua sponte raised it during oral argument. Finally, the Court’s unanimous endorsement of an extraterritoriality limitation came as yet another surprise to most observers, who predicted a split along more ideological lines.

The story of the extraterritoriality issue in ATS litigation is a case study in the path dependence of legal doctrine and of agenda-setting by the Supreme Court and the Justice Department. This Article examines the intellectual history of extraterritoriality arguments in ATS litigation, while placing Kiobel in a broader context of international trends in universal jurisdiction. The Article also considers possible reasons for this academic oversight. While normative approval of ATS litigation no doubted contributed to the neglect of the issue in the exciting early years of ATS litigation, its longstanding omission must also be attributed to broader intellectual factors. It demonstrates the power of sub silentio decisions: while courts had never dealt with presumption in ATS cases, most observers assumed the issue to have been

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International Law Imperialism vs. Proceduralism

My op-ed on the African Union and the International Criminal Court at the Georgetown Journal of International Affairs (also a good takes at EJIL:Talk and Dov Jacobs):

Let us distinguish between the broad currents in international legal thought – what I would call international law “proceduralists” versus “imperialists.” International law has traditionally been procedural–what counts is following the rules. If the rules enjoy respect, international law is considered a success. From this perspective, it would not matter whether the thirty-four African members of the Court quit or stay in. The Rome Statute provides rules for both entry and withdrawal, and thus doing the latter is value-neutral.

Yet, the ICC is the product of a different intellectual current. More specifically, it is a product of international law imperialism. This approach wants to increase the scope, power and prestige of international law and its institutions. It promotes the creation of more treaties, universal membership for treaties, and more international legal bodies exercising powers that previously would have been exercised by sovereign authorities, irrespective of whether the rules and institutions might not work well at first. Unlike proceduralists, imperialists think international law is on the whole a good in itself, capable of making the world a better place. Supporters of this current therefore proudly count the number of member states in the ICC—122 member states as of now—to demonstrate the global acceptance of the institution.

This number may still be cited after Addis Ababa and could lead some to consider the outcome of the summit a success for international law. Thus, Addis Ababa shows where the proceduralist and imperialist visions diverge. Imperialists may be relieved by the outcome of the summit, but proceduralists may consider it a defeat.

The ICC’s membership roll represents an increasingly hollow statistic. For one, the Great Powers

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Does Nigeria Share Responsibility for Pirate Attack on US Sailors?

Two Americans have been kidnapped off an oil supply vessel off of Nigeria by local pirates, according to breaking new accounts.

Nigeria, like many nations, has been making it difficult for private security contractors to work off its shores. For example, it has recently arrested 15 Russian sailors from a ship operated by a security company, and held them for a year before dropping charges. Such nations do not like private security because, I gather, they would rather force oil companies and shippers to pay for their state-provided security monopoly.

India has in recent weeks arrested a ship operated by a U.S. based security company, and is holding the crew on weapons charges. India in turn is probably particularly jumpy about these things because of the Italian Marines who accidentally killed some Indian sailors thinking they were pirates, leading to an ongoing conflict between the two countries. Of course, this underscores that private contractors certainly do not have a monopoly on excessive use of force.

However, countries have a duty to repress piracy, codified in Art. 100 of the United Nations Convention on the Law of the Sea. Private security is the most effective measure against piracy: i for example, no ship with private security has been successfully hijacked in the entire Somali pirate epidemic. Thus I would argue that nations that make it difficult for private security to operate are in breach of their duty under international law, not that that amounts to much.

There will doubtless be speculation about a “Captain Phillips”-style dramatic rescue. If the hostages have been take back to Nigeria, I hope Abuja does not raise difficulties about American assistance in a rescue, as there own efforts will likely result in a bloody mess.

[Updated w/minor correction.] [...]

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African States Not Quitting ICC, Just Undermining From Within

[This is en excerpt from an op-ed/short essay I've written on the AU action, which is available for publication...]
African Union leaders met in an extraordinary summit in Adas Ababa last week to discuss their strained relations with the International Criminal Court (ICC), as it begins trying its first sitting head of state, President Uhuru Kenyatta of Kenya. Supporters of the Court breathed a sigh of relief when the event ended, as I had predicted, without a much-anticipated African countries quitting the ICC en masse in protest of its Africa-focussed docket.

However, while less dramatic than a group defection from the ICC, the policies adopted by the special synod represent perhaps as profound a repudiation of The Hague-based Court. The African action exposes the weaknesses of the Court while further politicizing it.

The AU proclaimed that “no charges shall be commenced or continued before any international court… against any serving Head of State.” Their demand for immunity for leaders has one problem: it directly contradicts the Rome Statute, the treaty the serves as the ICC’s charter. Art. 27 provides a defendant’s leadership position is entirely “irrelevant,” and it notes this applies to heads of state “in particular.” Indeed, “ending impunity” for national leaders is the maxim of the Court. The AU leaders’ demand is not absurd – as they note, customary international law has traditionally provided head-of-state immunity. But the ICC is supposed to represent progress beyond such parochial and self-serving norms.

In short, the AU has endorsed violating the Court’s constitution while not quitting it. For the integrity of international law, this might be worse. When the United States quit the jurisdiction of the International Court of Justice, and when President Bush “unsigned” the Rome Statute, diplomats and international lawyers pointed out that this proves how seriously [...]

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New Report on EU’s “Settlement Guidelines” for Israel

The Kohelet Policy Forum, a Jerusalem think tank, has released a legal and policy analysis, by Prof. Avi Bell and myself, of the European Commission’s recent “settlement guidelines” – a ban on funding Israeli entities located across, or, more importantly, conducting any “activities” in the West Bank, eastern Jerusalem, the Golan Heights, and Gaza. I’ve previously explained how the Guidelines’ are not about either international law or the Palestinians, and how they contradict and undermine the EU’s own practices elsewhere.

Israel and the EU are currently in the throes of negotiations about the document. The paper presents important new information for discussions of business and academic activities in occupied territories.

The report is available here; and this is from the Executive Summary:

•The Israel Grants Guidelines adopted by the European Commission are singularly discriminatory
against Israel. They contradict international law as established in U.N. documents and leading
court cases, as well as the European Union’s own interpretations of international law.

• The EU provides aid and financial cooperation to numerous countries that maintain settlements
in what Europe considers occupied territory, such as Morocco, Turkey, and Russia. In none of these
cases has the Commission imposed limitations on the aid akin to the Guidelines for Israel.

• The Commission’s position that the Guidelines are mandated by international law are further belied by EU programs that provide grants specifically for settlers in belligerently occupied territory, such as the EU’s programs in Turkish-occupied Northern Cyprus.

• Under international law, there are no prohibitions regarding organizations engaging in “activities” in occupied territories, yet the Guidelines bar funding solely on the basis of such “activities.”

• In pretending that the Guidelines fulfill the requirements of international law, the Commission
exposes the EU to legal challenge for EU funding of

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Belgium’s Remarkable Capture of Pirate Ringleader

Belgium has captured a senior Somali pirate kingpin in a remarkable operation. The leader of a pirate group, he had long been sought for hijacking a Belgian vessel in 2009. Now, undercover agents lured him and an associate to the Low Countries by pretending to be documentary film makers interested in making a movie about him.

The remarkable affair highlights some points about universal jurisdiction and pirate kingpins.

Belgium’s commendable efforts to catch those involved contrast highlights a big difference between universal and traditional jurisdiction: the bad guys have to be caught before being brought to justice, and no one wants to invest much effort in other people’s – or the “global community’s” bad guys.

Though there is a lot of talk about pirate kingpins, they almost never face prosecution, because catching them would generally require getting on the ground in Somalia. Indeed, this seems to be the biggest – and only – pirate boss yet captured.
The U.S. has caught and convicted one real pirate leader, responsible for a murderous attack on a U.S. yacht; he was apparently nabbed in Somalia by federal agents.

The Belgian case poses a fascinating contrast to a U.S. gambit to catch a pirate kingpin. Ali Mohamend Ali, whose case I’ve written about, was arrested while attending an education conference in North Carolina – he was an education ministry official (not a staged conference, a real one). But Ali wasn’t really a pirate, let alone a kingpin, just someone paid to negotiate the ransom. Two years after his arrest, his trial will begin in the D.C. Federal District Court, appropriately enough on Halloween, when lots of people get dressed up as pirates.

Ali himself is the subject of a documentary (in which I also appear) made before his legal troubles began; in the [...]

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The ICC Rules Libyan Case Inadmissible

The International Criminal Court today for the first time ruled a case inadmissible, and left the matter to domestic justice. Doubtless the anti-activist ruling has nothing to do with the confab of African countries today, called together by Kenya to discuss quitting the Court’s jurisdiction en masse in protest of the Court doing its job and hearing cases involving African countries that had had accepted its jurisdiction. Such a move, which I don’t think will happen, would be devastating for the court.

The case involved charges against Al-Senussi, Qaddafi’s former head of military intelligence and doubtless very terrible guy. He has been in Libyan custody for over 18 months, with an investigation slowly proceeding, but no clear end in sight. The ICC charged Senussi after the Security Council referred the Libyan situation to them during the civil war that lead to Qaddafi’s downfall. It is particularly notable that the Court dismissed the case here when it arose from a S.C. referral, which are rare and generally correspond to an extra level of seriousness.

The Pre-Trial Chamber (PTC) of the Court found the case satisfied the complementary principle – that is, the ICC can only act when the home state is “unable or unwilling” to prosecute. This principle is essential for international criminal justice, but has gotten little elaboration by the Court in its 11 years of existence.

Libya is certainly “willing” – there is no concern here of a sham prosecution to shield the former regime baddie from justice. It might not be “willing” to overcome the various turf, bureaucratic and inertia problems that it might face in staging a trial but that is not what willingness means, the PTC suggests. The bigger question is “able.”

This is a country whose Prime Minister just got taken for [...]

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What Russia’s Piracy Charges Against Greenpeace Mean for International Law

Amazingly, Russia has brought criminal piracy charges against the crew of the Greenpeace ship Arctic Sunrise, which it had arrested on the high seas. The piracy charges make a mockery of international law, for reasons I’ve discussed. Moreover, such clearly abusive and politicized piracy charges are quite unprecedented in modern history, as far as I can recall. Indeed, I am quite surprised by the charges; I had thought Russia would consider the arrest and initial detention sufficient harassment. (But I was more on the mark with my comparison to Pussy Riot – apparently supporters of the Dutch-flagged vessel are now calling it the Pussy Sunrise.)

The charges are significant for international law because historically nations have been extremely wary of pre-textual or politicized piracy charges. To be sure, nations often publicly accused their enemies of piracy – the U.S. in the Quasi-War constantly denounced aggressive French privateering as “piracy.” In the Civil War, President Lincoln also called the obviously-unrecognized Confederate privateers as pirates. But in these cases the matter would almost never proceed from propaganda to prosecution.

One of the more recent politicized invocations of piracy was the Santa Maria incident of 1961, when anti-Salazar forces hijacked a Portuguese cruise ship. Lisbon denounced the attackers as pirates and demanded their arrest. But because the attackers had come on board as passengers, it did not satisfy the “two ship” requirement, just like in the present case, and the international community did not support the piracy characterization. (The terrorists ultimately got asylum in Brazil.) The point is that looks a lot more like piracy than this, and even still did not meet the requirements.

An internationalist explanation would suggest that this is because nations understood that piracy charges are heavy medicine. It is one of the very few justifications for arresting [...]

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How the EU Continues to Fund Settlements in Occupied Territory

The EU recently issued guidelines blocking research and other grants to Israeli institutions with activities (archeological digs, etc.) across the Green Line. In the yesterday’s Jerusalem Post I reveal that the EU continues to actively fund settlements in occupied territory, against their own understanding of international law:

Under guidelines prepared earlier this summer, euros would not be allowed to go to Israeli entities located cross the Green Line – or to those that have any operations there. All Israeli entities applying for funding would have to submit a declaration that they do not have such operations.

Europe claims that such a move – unparalleled in its dealings with any other country – is mandated by international law. The EU does not recognize Israel’s sovereignty over the territories, and thus has an obligation to keep its money from going there. Those who celebrated the move said that Israel is finally paying the international price for its occupation.

Yet it turns out that despite the guidelines, the EU still knowingly and purposefully provides substantial direct financial assistance to settlements in occupied territory – in Turkish-occupied Northern Cyprus, that is. So the EU funds the occupation of an EU member state. . . .

Projects include study abroad scholarships for students at the numerous Northern Cyprus universities (imagine such funding for students at Ariel University!); developing and diversifying the private sector through grants to small and medium- sized businesses; various kinds of infrastructure improvements (telecom upgrades, traffic safety, waste disposal); community development grants, funding to upgrade “cultural heritage” sites, and so forth. They even put on a concert.

Amazingly, this information has never been discussed in the debate over the EU action. On the contrary, academic supporters of the EU measure have falsely stated that “There is no significant difference in the [...]

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