Russia

The investigation by Special Prosecutor Robert Mueller into 2016 election interference and related matters is now in its 10th month. Among the ensuing indictments is the one announced last Friday, in United States v. Internet Research Agency LLC.

Asked for a Vox legal-experts-roundup about last Friday’s indictment of what I called “a baker’s dozen of Russian persons and entities,” I pinpointed 3 oft-repeated words, “and their co-conspirators,” as especially significant. Still to come, these words suggest, is a “mirror image” indictment, one likely to name some “Americans, fully subject to trial in the United States.”

Full comments here.

Following a raft of ratifications this week, the Arms Trade Treaty is 4/5 of the way toward entry into force.

Paying-the-priceDepositing their instruments of ratification on Tuesday were Australia, Austria, Belgium, Burkina Faso, Jamaica, Luxembourg, Saint Vincent and the Grenadines, and Samoa. They join 30 other countries that’ve become full members of the treaty since its adoption by the U.N. General Assembly on April 2, 2013. Ten more joinders are needed for the treaty to take effect.

In its 28 articles, the Arms Trade Treaty provides for states parties’ regulation of traffic in a range of arms, from battle tanks to light weapons. (Prior posts available here.) As indicated by the Control Arms poster above, regulating the latter is a principal aim of treaty proponents. (image credit)

Among the 5 permanent members of the U.N. Security Council (among them major arms-exporting states), Britain and France have ratified. The United States signed last September, but the treaty has not been presented to the Senate for consideration. China has not signed; Deutsche Welle reported this week:

‘China has indicated that it would consider signing if the US ratified, which is unlikely to happen.’

And in late May, the Voice of Russia reported that the Russian Federation would not sign, for the following reasons:

‘Russia considers this document to be not completely thought through. It also discriminates against the Russian military-industrial complex.’

page-06-image-UNHCR_v5.1_MapWith a hat tip to Colum Lynch of Foreign Policy, here’s the transcribed passage from today’s press briefing colloquy at which the U.S. Department of State confirmed that the United States now supports a referral of the situation in Syria to the U.N. Security Council:

QUESTION: Are you considering supporting a – UN Security Council authorizing a investigation by the ICC into war crimes in Syria?

MS. PSAKI: Ali, for you, let me check and see with her office if there’s more to convey on that. I do have something for you, Elise. One moment.

We do – the United States supports the referral to the ICC set forth in the draft resolution under discussion. We’ve long said that those responsible for atrocities in Syria must be held accountable, and we’ve been working with our Security Council colleagues on a draft resolution toward this end. We will also continue to support efforts to gather evidence to hold accountable those responsible for atrocities in Syria.

Go ahead.

QUESTION: Can you —

QUESTION: What changed your mind? I mean, originally, you had some concerns about whether this was the right venue to pursue accountability for Syrians.

MS. PSAKI: Well, obviously, we’ve remained concerned, continue to be concerned about the atrocities that we’ve been seeing on the ground. I don’t have any specific incident to point you to, just the ongoing gathering of what we’re seeing on the ground.

Reports are that the draft referral resolution – a draft that cannot take effect unless Russia and China decide to withhold vetoes – contains the same caveats that have drawn criticism with respect to Darfur and Libya. See, e.g., critiques in my articles (page 9 here, page 40 here, and pages 4, 8 here ; see too my posts here and here), as well as posts that NYU Law Professor Ryan Goodman published today, here and here. Spurring the latter was Lynch’s Wednesday scoop.

(credit for U.N. High Commissioner for Refugees October 2013 map of child refugees from Syria conflict)

PortraitAmid an agenda chockablock with briefings on global crises, there will be an open U.N. Security Council debate on children and armed conflict this Friday morning.

The debate will occur during the month that Luxembourg presides over the Security Council. (Though just 5 days old, Luxembourg’s Presidency already has been busy, with its U.N. Permanent Representative, Ambassador Sylvie Lucas (left), chairing multiple emergency Council sessions concerning Russia’s intervention in Ukraine.)

Since 2013 Luxembourg also has held the Presidency of the Security Council Working Group on Children and Armed Conflict, the entity that administers initiatives begun in Security Council Resolution 1612 (2005) and reinforced by many subsequent resolutions. Indeed, Friday’s Security Council open debate is expected to end in the adoption of a new resolution on children and armed conflict.

According to a post at What’s in Blue, an online publication of the independent nonprofit organization Security Council Report, Luxembourg’s Foreign Minister, lzJean Asselborn, will chair the debate. Scheduled speakers include: U.N. Secretary-General Ban Ki-moon; Under-Secretary-General Leila Zerrougui (right; prior posts), the Special Representative to the Secretary-General for Children and Armed Conflict; UNICEF Executive Director Anthony Lake; Under-Secretary-General Hervé Ladsous, Director of Peacekeeping; and a former child soldier, Alhaji Babah Sawaneh of Sierra Leone.

The afternoon before the debate, the Luxembourg U.N. Mission and UNICEF will launch a “Children Not Soldiers” campaign.

mjidTo be held at U.N. headquarters in New York, the campaign launch and debate will occur just days before other key U.N. events. According to the schedule available here, children will be the focus of March 12 and 13 meetings of the U.N. Human Rights Council, meeting this month in Geneva, Switzerland. The schedule includes a daylong session on children’s rights, as well as presentations by: Under-Secretary-General Zerrougui; Najat Maalla M’jid (above), the Special Rapporteur on the Sale of Children, Child Prostitution and Child santosPornography; and Marta Santos Pais (right), the Special Representative to the Secretary-General on Violence against Children.

arcsunShould nongovernmental organizations be friends of intergovernmental courts? Put another way, is there a role for the NGO amicus curiae in tribunal that states have set up to deal with international disputes?

These are questions that Western Ontario Law Professor Anna Dolidze explores these questions in her just-published, information-filled American Society of International Law Insight, “The Arctic Sunrise and NGOs in International Judicial Proceedings.”

Dolidze’s news hook is The “Arctic Sunrise” Case (Kingdom of the Netherlands v. Russian Federation), filed in late November with the Hamburg-based International Tribunal for the Law of the Sea. At issue was the seizure of Arctic Sunrise, Dutch-flagged ship owned by Greenpeace International, an NGO that, in its own words, “acts to change attitudes and behaviour, to protect and conserve the environment and to promote peace.” During a protest at the offshore oil rig Prirazlomnaya, Russia had seized the boat and detained its crew members on criminal charges. (credit for 2007 photo of the ship) They were not released till very recently.

While the matter was pending, Russia declined to appear before the law of the sea tribunal – though it did object to a Greenpeace petition to file an amicus brief due, Dolidze reports, “to the ‘non-governmental nature’ of the submitting organization.” The tribunal thus kept the brief out of the case file, even though its members and the parties were able to review the document. Dolidze’s Insight underscores the tension in this resolution, given Russia’s nonappearance, on the one hand, and the direct effect of the dispute on Greenpeace, on the other hand.

The Insight tracks other tribunals’ varied treatment of such petitions. Among the most restrictive is the International Court of Justice, another tribunal in which only states may litigate contentious cases; Dolidze cites ICJ Practice Direction XII, which handles amicus briefs much as ITLOS did in Arctic Sunrise. Among the most expansive is the Inter-American Court of Human Rights’ rule 41, which accepts such briefs within a specified timeline. Others – the European Court of Human Rights, the World Trade Organization dispute mechanisms, and the International Criminal Court – are in between. In sum, Dolidze writes:

‘Procedures allowing NGO amicus curiae briefs are currently more a norm than an exception in international judicial proceedings.’

Not all agree this is a good thing. Dolidze points to a 2007 article in which Melbourne Law Professor Robin Eckersley favored NGO participation for its “potential of creating a transnational space for dialogue.” But she also  quotes Arizona State Law Professor Daniel Bodansky’s 1999 caution that amicus litigation by nongovernmental organizations ought not to be conflated with public participation. Dolidze sees in the Greenpeace matter a timely opportunity to revive this debate.

unscMy colleague Beth Van Schaack, newly returned to academia after a stint as Deputy at the State Department’s Office of Global Criminal Justice, has posted at Just Security on what the presence of 11 International Criminal Court states parties on the U.N. Security Council could mean for ICC-Security Council relations.

In the past, states parties like Guatemala have used their seat to sponsor ICC discussions at the Council, she writes, and notes that the newest member will hold the Council presidency next month. That would be Jordan, whose Permanent Representative, Prince Zeid Ra’ad Zeid Al-Hussein, has worked for years on ICC issues and has served as President of the ICC Assembly of States Parties. (credit for 2009 photo of Council in session)

One nagging problem for the Court has been state noncompliance with ICC orders – in particular, of arrest warrants for fugitives like Sudanese President Omar al-Bashir – and to date the Council has done little to command compliance by U.N. member states. Another, Van Schaack writes, is the Council’s withholding of sanctions against persons accused by the ICC. Yet another  is the resolution boilerplate by which the Council:

► 1st, declined to contribute funds to aid the investigation and prosecution of the Libya and Darfur situations that it referred to the Court; and

► 2d, immunized any national of a ICC nonparty states (read the United States) from ICC investigation, even if the national were suspected of committing ICC crimes in the referred situation.

(And see here.) In theory, the large presence of states parties could change these dynamics. Or not: Van Schaack writes of criticism that states “‘forget’ that they are ICC members when they are elected to the Council.”

And there is also the matter of the Council’s 4 members who are not ICC states parties, China, Rwanda, Russia, and the United States. Their attitudes toward the ICC range from ambivalent to downright hostile, and 3 of them are permanent members able to veto Council resolutions. Van Schaack indicates that this may have contributed to a “zeitgeist,” an opening for the proposal that the Council ought not veto measures aimed at stopping atrocities. As I detailed in An old new idea to break P-5 impasse, the idea’s been around for more than a decade, but gained new steam when France, a  Council permanent member, embraced it this autumn. The other P-5 ICC state party, Britain, has yet to weigh in.

karimaLooking forward to tomorrow’s talk by Karima Bennoune, based on her book, Your Fatwa Doesn’t Apply Here: Untold Stories from the Fight Against Muslim Fundamentalism (W.W. Norton 2013). The event, which I have the honor of moderating, will be at 4 p.m. Thursday, November 14, in the Chapel of the University of Georgia, here in Athens. Details here.

The daughter of a University of Algiers professor/activist, Karima grew up in Algeria and in the United States. She was educated at Michigan Law, and was an Amnesty International attorney in London for a number of years before entering academia. She’s now a law professor at the University of California-Davis.

Since the onset of the so-called Arab Spring, Karima has traveled through dozens of countries, in Africa, the Middle East, Central Asia, Russia, etc. There she’s talked with many different people of Muslim heritage; in particular, with dissidents, journalists, musicians, artists, secularists, women’s activists, and similar “outsiders.” Her book recounts how 2 powerful forces – autocratic governments, one on side, and ideologues, on the other, have squeezed out hoped-for pluralism.

I first met Karima about a dozen years ago, not long after the terrorist attacks of September 11, 2001, when she gave a gripping talk at an American Society of International Law meeting. She’s written frequently on issues of human rights, terrorism, etc., in popular media like The Guardian and The New York Times, and at IntLawGrrls blog. Indeed, her September 11, 2011, IntLawGrrls post entitled “Why I Hate Al Qaeda” forms a basis for a chapter in her new book.

We who are cosponsoring this event – the law school, its Rusk Center, and its student-run international law society, along with the International Law Students Association and the university’s African Studies Institute and Willson Center on Humanities – are delighted her book tour includes Athens.

p5Rather muted in the U.S. press is France’s recent call for “self-restraint” on its part and that of its veto-friendly partners in the P-5.

The P-5, of course, are the 5 countries with permanent membership on the U.N. Security Council. By U.N. Charter mandate, each of the 5 enjoys the right to veto a resolution authorizing intervention – even if the rest of the 15-member Council finds harm to international peace and security. As has been evident in the 2-plus years of Syria’s civil war, by exercising its veto a P-5 member can leave a matter run its course without international intervention no matter what the casualty count.

France has suggested a way out of this predicament. As stated in an op-ed that Foreign Minister Laurent Fabius published October 4 in Le Monde, in French, and in the International Herald-Tribune, in English, here’s the idea:

‘[T]he five permanent members of the Security Council – China, France, Russia, Britain and the United States – themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto.’

How to determine when the commitment is in play? It’s “simple,” Fabius wrote:

‘[A]t the request of at least 50 member states, the United Nations secretary general would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply.’

Fabius recognized “that objections of all kinds can be made,” and sought to deflect some of them with this caveat:

‘[T]his code would exclude cases where the vital national interests of a permanent member of the Council were at stake.’

It is not a new idea. As pointed out in an October 3 lecture at Georgia Law by Lee A. Feinstein, the former U.S. Ambassador to Poland who’s teaching here this semester, a similar idea appeared as Principle 3(D) of The Responsibility to Protect, the 2001 Report of the Independent Commission on Intervention and State Sovereignty, which launched the responsibility to protect concept.

What is new is that the show of support comes from a P-5 state itself. Yet it must be mentioned that France has vetoed far fewer times than most of its peers on the P-5. And those peers likely will be far less enamored of France’s idea, as Mark Goldberg posted at UN Dispatch.

What could draw those peers toward France’s idea? Perhaps an understanding that a P-5 member’s “vital national interests” are “at stake” whenever a resolution implicates the member’s client state. But then adoption would be hollow, for such a proviso would sap the proposal of its strength.

(credit for September 2013 U.N. photo by Mark Garten of, from left, British Foreign Secretary William Hague, French Foreign Minister Laurent Fabius, Russian Foreign Minister Sergey Lavrov, U.N. Secretary-General Ban Ki-moon, U.S. Secretary of State John Kerry, and Chinese Foreign Minister Wang Yi)

icjDevoid from much of the U.S. debate about whether to use military force against Syria is any exploration of nonviolent ways to condemn the use of chemical weapons and to push for an end to Syria’s multiyear civil war. (Prior posts.)

While it’s true that Russia, in particular, says it will veto action in the U.N. Security Council, we’ve not seen any public effort to apply effective pressure on Russia to do otherwise. No threat of a Western boycott of the Sochi Olympics – to hearken to one tool used during the Carter Administration – or any other action that similarly might sting the Putin regime. (By no means am I advocating a boycott, which does unwarranted harm to athletes. I mention it, rather, as an example of the kind of out-of-the-box thinking we haven’t seen voiced in this runup to a possible Syrian intervention. As posted months ago with respect to Syria, in this sense diplomacy hasn’t been tried.)

And while there’s been much hand-wringing over Russia’s apparent opposition to a Security Council referral of the situation in Syria to the International Criminal Court, we’ve heard no exploration of another Carter-era tool – a lawsuit in the International Court of Justice. (photo credit) My students and I have just studied that suit, brought against Iran after the November 1979 takeover of the U.S. Embassy in Tehran. The ICJ’s May 1980 decision in the Diplomatic & Consular Staff Case (U.S. v. Iran) pronounced the wrongfulness of Iran’s failure to protect the embassy and its personnel during and after the takeover. The court’s order that the two sides negotiate an appropriate remedy fueled a bilateral settlement which resulted in the release of the 52 U.S. hostages and the establishment of the Iran-U.S. Claims Tribunal, which to this day arbitrates disputes between the 2 countries.

Why not pursue a similar course in the current crisis, in lieu of or in tandem with other avenues?

A possible vehicle for such a suit would be the 1984 Convention Against Torture. Article 1(1) defines torture as

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Surely, this definition is satisfied by the conduct alleged against the Syrian government: attacking civilians with chemical weapons – nerve agents that bring long-lasting injury or death to human beings – for the purpose of exacting punishment against or coercing capitulation by rebel forces.

The Convention Against Torture may serve as a vehicle for litigation because Article 30(1) contains a clause conferring ICJ jurisdiction:

Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

The United Nations’ online treaty database indicates that when Syria joined the Convention on August 19, 2004, it did not limit the effect of Article 30. That seems to open a path for a state party – if not the United States, which did place some limitations on its own joinder, one of the many other countries calling for action against Syria – to insist on negotiation of this dispute over chemical weapons use, with an eye to suing in the ICJ 6 months’ hence if negotiations come to naught.

An ICJ judgment that explores the relation of a chemical attack to the universal ban against torture could do much to enhance the current claim that such an attack crosses an “international redline.” Even if some snag prevented the issuance of a judgment as unequivocal as that in the Diplomatic Staff case (maybe a lex specialis concern, to name one), resort to negotiation/litigation might enable a more deliberate, less violent resolution to this grave situation.

salz7SALZBURG – I’m newly returned from this Austrian city, years ago my first European home during a semester abroad. Drawing me to the edge of the Alps was the Summer Session of Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law.  The overall theme for this 15th annual session, organized by Executive Director Astrid Reisinger Coracini, was the relationship of international criminal justice to the states and peoples of Africa. It was an honor to present a mini-course on “Children and International Criminal Law” to the scores of scholars and practitioners in attendance.

Other scores were on prominent salz1display throughout the baroque Altstadt. Concerts and opera, not to mention sculptures, paintings, and plays, filled indoor venues and outdoor squares – all part of the Salzburg Festival that runs through September 1. Though unschooled in opera, I was tempted to plunk down the considerable cost of a ticket to see Zubin Mehta conduct Verdi’s Falstaff just blocks away from Mozart’s birthplace. But then my colleagues William Schabas and Roger Clark, also there to teach at the summer school, alerted me to a more affordable option: an al fresco meal in front of a free Jumbotron broadcast of a 2004 Festival production of Strauss’ Der Rosenkavalier.salz5rosen

(As Schabas pointed out, this opera’s premise was not unrelated to my mini-course, for the libretto stresses the young age of the eponymous Kavalier, or member of the Austrian cavalry. By today’s standards the wily 17 year old was a child soldier.)

Echos of war could be detected not only in the strains of that just-before-World-War-I opera, and not only in the international criminal law classroom, but also in the news of the week. Likening foreign policy to salz8household intimacy, the media made much of the Entfremdung, or estrangement, between Vladimir Putin and Barack Obama, leaders of the countries that from the late ’40s through the late ’80s waged a Cold War (a period of conflict during which Austria had remained decidedly neutral). The paper’s account of sticking points between the 2 powers – nuclear disarmament; Snowden and spying; Syria; LGBT rights and the rights of dissidents like Magnitsky – made for quite a long détente to-do list.

salz7stagThat sobering morning note called for night-time levity. And so we visited a favorite local amusement, the 400-year-old Hellbrunn Palace. There a whimsical Prince-Archbishop, as Salzburg’s erstwhile rulers were called, had built a garden of fountains. Some are lovely; some, like that of a mask whose tongue darts in and out, are goofy. All entailed an element of risk. For the mischievous had builder rigged seats, steps, and sidewalks with sprinklers. They turned on and off at unexpected points, leaving everyone both drenched and delighted.salz6wasser