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.