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Friday, February 7, 2014

Guest Post: Invoking the language of ‘savagery’ and ‘barbarism’ in international law debates



A decade after Iraq, the chemical weapons attacks against Syrian civilians in Eastern Damascus on 21 August 2013 sparked a political and public debate in the United Kingdom about the legality of military intervention. For international-law veterans of Kosovo and Iraq, the central question was familiar: in the absence of authorisation by the United Nations Security Council, would it be lawful to undertake military action against Syria?

Both camps claimed to have international law on their side. For its advocates, military action was necessary in order to uphold international law. ‘We cannot afford the weakening of the global prohibition against the use of chemical weapons’, wrote British Foreign Secretary, William Hague, in the Daily Telegraph. To intervene, Paddy Ashdown told the House of Lords, would be to act as a ‘bulwark for international law and above all to protect one of the few pillars of international law that has been in existence for 100 years and more – against the use of chemical weapons and against gas.’

The publication of a note on 29 August, setting out the British Government’s legal case was headline news. If the Security Council is blocked from acting, the note advised, the United Kingdom could take ‘exceptional measures’ to ‘alleviate the scale of the overwhelming humanitarian catastrophe’ by ‘deterring and disrupting the further use of chemical weapons’. This doctrine of humanitarian intervention would be available to the United Kingdom providing three conditions were met:

there was ‘convincing evidence of extreme humanitarian distress on a large scale requiring immediate and urgent relief’; it was ‘objectively clear’ that there was ‘no practicable alternative’; and any use of force was ‘necessary and proportionate to the aim of relief of humanitarian need’.

As the BBC’s legal correspondent, Clive Coleman, observed, this steered a course ‘very far’ from Iraq-styled regime change.


On the other hand, opponents argued that military action would undermine international law. Green Party MP, Caroline Lucas, warned the House of Commons that intervening without a Security Council resolution ‘would send a message to everyone else that international law can be ignored when it is inconvenient.’ International lawyers cast ‘legal doubt’ on the Government’s case. There is ‘very little evidence of state support’ for the doctrine of humanitarian intervention, Dapo Akande told the Guardian newspaper. Indeed, most states had rejected it. Even if it did exist, the British Government’s conditions were ‘too lax’. A rule of humanitarian intervention would not merely be about ‘deterring and disrupting’ the use of chemical weapons but about preventing and stopping their use. As there were still other options available – the General Assembly, the International Criminal Court — the legal conditions, Akande concluded, had not been met.

The media debate over the legality of intervening in Syria highlighted some perennial problems of international law: its indeterminacy; its unenforceability; its susceptibility to Great Power politics. Yet, by focusing on the question of legality, the debate also obscured another deeper set of questions (and problems) about the relationship between international law, humanitarianism, and intervention. Can humanitarian interventions be distinguished from the earlier history of imperial or illicit interventions? Does a focus on intervention to prevent human rights abuse in Syria divert us from seeing the ways in which our everyday interventions in the Arab world (the arms trade, the World Cup) legitimise repressive regimes and contribute to human rights abuse? How should we respond to the reappearance of a civilisational discourse that characterises the use of chemical weapons as ‘barbarous’ when, historically, that same discourse was deployed to justify the use of chemical weapons against colonial peoples? And does it matter that the humanitarian interveners of today are the colonial powers of yesteryear?

This last question is likely to resonate in Syria. August 2013 was not the first time that violations of the laws of war by a powerful, unelected government against the civilian population of Damascus had sparked an international outcry. From 18 to 20 October 1925, in response to a popular uprising against its rule, France bombarded Damascus, causing an estimated 1500 civilian deaths and widespread destruction of property, and precipitating a now famous exchange in the American Journal of International Law. For the international lawyer Quincy Wright, the bombardment of Damascus (as an undefended city) was a violation of the laws of war (in particular, the Hague Conventions of 1899). For US Army Captain Elbridge Colby, on the other hand, France had not violated the laws of war for the simple reason that the laws of war did not apply: civilised peoples (such as the French), Colby explained, were not bound by the rules of international law when engaged in fighting ‘savage tribes’ .

It is tempting to consign Colby’s response to Wright to international legal history – a footnote to international law’s colonial past. Yet, is there not a parallel between the argument Colby deploys in favour of unconstrained colonial warfare in Syria and those relied upon by contemporary proponents of humanitarian intervention? For Colby, the Syrian rebel is ‘the savage’ — denied the protections of the laws of war. For Hague et al, the Syrian Government is ‘barbaric’ — denied the traditional protections of sovereignty. In both cases, the language of ‘savagery’ and ‘barbarism’ is invoked to justify the Western bombing of Damascus.

Catriona Drew is a lecturer in the Law Department and the Centre for International Studies and Diplomacy (CISD) at SOAS, University of London, and co-director of the Centre for the study of Colonialism, Empire and International Law. Matt Craven is Professor of International Law, Dean of the Faculty of Law and Social Sciences and co-Director of the Centre for the study of Colonialism, Empire and International Law at SOAS, University of London. Catriona and Matt, alongside Stephen Humphreys, Andrew Lang and Susan Marks form the editorial team behind the London Review of International Law

The London Review of International Law is a new journal, published by Oxford University Press, which publishes highest-quality scholarship on international law from around the world. Reflecting the pace and reach of developments in the field, the London Review seeks to capture the ways in which received ideas are being challenged and reshaped by new subject-matters, new participants, new conceptual apparatuses and new cross-disciplinary connections.

Tuesday, January 28, 2014

The Specific-Direction Smackdown

On Thursday, an ICTY Appeals Chamber released a decision rejecting the specific-direction requirement for aiding and abetting, which until last week was binding precedent at the tribunal. No more. 

This jurisprudential controversy might be the most heated to have hit the tribunal during its entire tenure.  Judges are lining up on each side of the issue.  And one judge (Harhoff) wrote an email to his colleagues last year expressing displeasure with the specific direction standard, resulting in his ultimate disqualification on account of his alleged bias against the defendant.

The specific-direction standard applies in aiding and abetting cases where the defendants are remote officials rendering assistance to groups or organizations engaged in a mix of lawful and unlawful activities.  In February 2013, a different Appeals Chamber in Perišić quashed the defendant’s conviction, arguing that the defendant did not specifically direct his assistance to the illegal activities of the organization.  Perišić was a military official with the Yugoslav army, charged with aiding and abetting for assistance provided to Bosnia Serbs forces who committed atrocities in Bosnia and Croatia.  According to the Appeals Chamber, Perišić could not be convicted of aiding and abetting because there was insufficient proof that Perišić specifically channeled his assistance to the illegal activities of the Bosnian Serb militias.  Instead, he provided general assistance to the groups – assistance that he claimed he had every right to do because he was simply supporting their war effort.

In Stanišić and Simatović, an ICTY Trial Chamber followed the Perišić precedent and acquitted two Serbian intelligence officials on largely the same theory, arguing that there was insufficient proof that the defendants had specifically directed their assistance to the illegal activities of the group, as opposed to their lawful war effort.

Now, this entire line of precedent is called into question with the recent decision last week in Šainović et al., which explicitly declined to follow the Perišić line of cases and therefore concluded that the specific direction standard was flat-out wrong.  The court noted that the Special Court for Sierra Leone rejected the specific direction requirement in its Charles Taylor Judgement.  It also noted (correctly in my view), that the specific direction requirement could not be based on the Tadić judgment (one of the first trials at the ICTY).  First, Tadić was convicted of JCE, not aiding and abetting, so the ICTY’s discussion of aiding and abetting in Tadić was mere dicta.  More importantly (and this is myself speaking now), the Tadić judgment cited no legal authority for the proposition that aiding and abetting requires specific direction.  And finally, it seems just as plausible to me that the stray reference to “specific direction” in Tadić was actually a reference to a heightened mens rea requirement for aiding and abetting.

This sets up a situation where the case law of the ICTY is fragmented and uncertain. One Appeals Chamber in Perišić holds that the specific direction is required, while a different Appeals Chamber in Šainović holds that specific direction is not required.  And there is no procedural mechanism for en banc review of all judges on the ICTY Appeals Chamber.  It would seem that future cases dealing with specific direction will hinge entirely on which Appeals Chamber judges are selected to sit on the case.  That’s much too contingent for my taste.

What’s the solution to the problem?  Should the judges at the ICTY continue their specific-direction smackdown, dueling back and forth with each new case that presents the issue?  I don’t like that result either.  All of this points to a fundamental procedural defect of the ICTY: the inability to seek en banc review of the entire Appeals Chamber.  In fact, I’m surprised this situation has not arisen more often during the history of the ICTY. 

In the past, some scholars have argued that there needs to be a super-appellate body in international criminal law with jurisdiction to hear appeals from multiple tribunals to resolve conflicting holdings on matters of law.  I think that is unnecessary, and the fix with regard to specific direction is far more modest.  Everything would be solved if there was simply a provision to allow en banc review of an Appeals Chamber judgment on matters of specific questions of law.  The full Appeals Chamber could then hold a hearing on that question, seek additional briefing, and issue an en banc judgment. Every judge on the Appeals Chamber should get one vote to decide the fate of specific direction.


Without that procedural mechanism, we are left with the current state of affairs: radical uncertainty regarding the proper scope of aiding and abetting under customary international law.

Thursday, January 23, 2014

The Syria Report

A British law firm has released a new report detailing horrific violations of international humanitarian law that it attributes to the Syria regime. The report was released by the Carter-Ruck Firm, whose work was financed by the Government of Qatar.  The evidence in the report, mostly photographic, was smuggled out of Syria by a government defector.

The law firm employed three well-known international criminal lawyers to research and author the report:

  1. David Crane is the former chief prosecutor of the Special Court for Sierra Leone, and is now a law professor at Syracuse University in Syracuse, NY.  Crane was responsible for the indictment of Liberian President Charles Taylor, although the trial was conducted after Crane left the tribunal.  
  2. Geoffrey Nice worked for the Office of the Prosecutor at the ICTY.  In that capacity he served as trial attorney in the prosecution of Slobodan Milosevic.  He generated substantial controversy when he openly criticized his former boss, Chief Prosecutor Carla del Ponte, for her handling of confidential Serbian government documents that were made available to ICTY prosecutors preparing the Milosevic case but which were shielded from other cases, including the Bosnia v. Serbia genocide case heard by the International Court of Justice.  
  3. The third author of the report is lawyer Desmond de Silva, another former chief prosecutor at the Special Court for Sierra Leone. 


Apparently, the law firm selected these individuals as authors because they wanted individuals who could personally attest that this evidence was of the type and magnitude that could be presented to an international tribunal that could serve as the basis for prosecuting top Syrian officials.

The material in the report was provided by an individual known by the pseudonym “Caesar”.  The report itself does not include the bulk of the photographs – only a small number are included as examples so that the readers can get a sense of them.  However, the authors of the report reviewed the photographs in conjunction with forensic specialists who examined them and rendered evidentiary conclusions about them.

Specifically, the report concludes that the photographs represent evidence of systematic torture on a mass scale, including starvation as a means of torture.  According to the forensic examiners, a large number of the photographs show bodies that are severely emaciated.  A significant number of bodies also showed ligature marks consistent with strangulation.  Although wartime injuries, even those arising from lawful killings, are likely to be gruesome in nature, the report concludes that the type of injuries seen in the photographs suggest torture during interrogation in a way that could constitute war crimes and crimes against humanity.

Is there direct evidence that the crimes in question were committed by Syria government officials?  The source, Caesar, did not witness any torture nor did he witness the killings of the individuals.  He simply photographed the bodies after the individuals were already deceased.  However, the report infers that the large number of bodies in the position of Syria officials is only possible if the government was the agent responsible for the crimes. 

Why would the Syrian government order the creation of the photographs?  In a world of international scrutiny, this makes little sense.  The report provides a speculative answer.  First, perhaps the photographs were required as evidence in order to allow doctors to issue false death certificates that would conceal the true nature of the deaths. Second, perhaps the photographs were created in order to document, to those higher in the chain of command, that their orders regarding the detention and torture program were in fact carried out. 

What happens next?  It is unlikely that Syria will be referred by the Security Council to the International Criminal Court, since Russia and China would likely veto such a move, at least while the conflict is on-going.  An after-the-war referral might be a different situation, and perhaps Russia and China could be convinced to abstain in the same manner that the US abstained from the Darfur referral.

Perhaps the more likely situation is for the rebels to gain enough territorial control that the world community (minus China and Russia) feels comfortable recognizing the rebels as the legitimate government of Syria.  At that point, the rebels-qua-government could attempt to ratify the Rome Statute and self-refer the situation to the ICC Prosecutor for investigation, although there would inevitably be complex questions regarding whether this new, hypothetical Syrian government could grant the court jurisdiction over crimes committed before Syria ratified the Statute. 

However, it seems clear that a new Syrian government could grant the court retroactive jurisdiction by making an official declaration pursuant to articles 11(2) and 12(3) of the Rome Statute.


Monday, November 4, 2013

Symposium on Armed Conflict & Human Rights

The ASIL Legal Theory Interest Group will sponsor a one-day symposium on Friday, Nov. 8, entitled Theoretical Boundaries of Armed Conflict and Human Rights.  The event will take place at ASIL's Tillar House in Washington DC.  

The panelists will address, from a variety of disciplinary perspectives, the contentious interplay between IHL and IHRL.  

Here is the full program:

8:30am - Breakfast (ASIL Tillar House)
9:00am - Introduction  - Donald Childress (Pepperdine) Chair, ASIL ILTIG

9:15am - Panel 1: Investigating the Tension Between IHRL and IHL

  1. Naz K. Modirzadeh (Brookings & Harvard): Folk International Law
  2.  Marko Milanovic (Nottingham & Michigan): Rethinking the Relationship Between IHL and IHRL
  3. Jonathan Horowitz (Open Society Justice Initiative): Ending the Global War: The Power of Human Rights in a Time of Unrestrained Armed Conflict

11:15am - Coffee 

11:30am - Panel 2: Morality and Legality at War

  1. Adil Haque (Rutgers): Laws for War
  2. Brian Orend (Waterloo): Post-War Vacuum: Filling a Law-of-War Gap with Human Rights Values

1:00pm - Lunch

2pm - Panel 3: New Approaches to Armed Conflict

  1. Janina Dill (Oxford): Forcible Alternatives to War: Legitimate Violence in 21st Century International Relations
  2. John Dehn (Loyola): Whither International Martial Law?
  3. Jens Ohlin (Cornell): Acting as a Sovereign versus Acting as a Belligerent

4:00pm - Coffee
4:15pm - Open Forum (All panelists and comments from audience)   
5:30pm - Closing comments: Jens Ohlin (Cornell)

The event is co-sponsored by Cornell Law School.

For more information, email Jens Ohlin at jdo43@cornell.edu.

Thursday, September 5, 2013

More on Harhoff (and a note about the Stakic Trial Chamber)

There are new developments in the Harhoff disqualification situation.  As others have reported, multiple parties have filed requests for clarification or reconsideration, including the Office of the Prosecutor, the other judges on Harhoff's trial chamber panel, and even Harhoff himself.  Clearly the situation is not over.

In this post, I want to consider some additional issues that I didn't discuss in my first post.

First, what was the meaning of Harhoff's reference in his letter to a personal or professional dilemma caused by the recent tribunal decisions that troubled him? The two judges on the disqualification panel who voted in favor of disqualification interpreted the phrase to mean that he would have trouble following the established tribunal jurisprudence as indicated by the Appeals Chamber.  In other words, Harhoff was having a moral dilemma because he was considering ignoring the law.  This strikes me as an unlikely interpretation of the statement.  It is more likely that Harhoff was considering either resigning his position, because he could no longer support an organization or institution whose law was becoming badly distorted, or he was considering making some other form of public statement of protest (such as the very letter he wrote) or a law review article.  Speaking out has consequences (as he learned) and that itself could be the source of the dilemma to which he refers.

Second, even if the statement were, hypothetically, to refer to a problem with applying this specific area of the law, would this be grounds of disqualification?  Certainly, there is no issue here with regard to the recent trial chamber decision in Stanisic and Simatovic, since there is no way that one Trial Chamber decision could be considered binding precedent on another trial chamber judge.  So let's consider the Appeals Chamber decisions in Perisic, for example.  The ICTY claims not to apply stare decisis, so previous decisions are, as a technical matter, always subject to revision.  That being said, Appeals Chamber decisions are binding precedent for lower Trial Chamber decisions, and a Trial Chamber judge should follow Appeals Chamber statements regarding the law.

But what should a Trial Chamber judge do if he thinks a set of rules are wrongly decided?  Isn't the only option to forge a new path and issue a contrary ruling, thus making a statement that if the Appeals Chamber is going to insist on its current path, it will need to reverse the decision.  Isn't this exactly what happened in the Stakic Trial Chamber?  Specifically, in Stakic the Trial Chamber refused to apply JCE, which at that point was clearly the law of the tribunal; the Trial Chamber noted that JCE was highly controversial and not explicitly referenced in the ICTY Statute.  Consequently, the Stakic Trial Chamber decided to apply co-perpetration based on Roxin's Control Theory.  On appeal, the Appeals issued a rather terse opinion rejecting this approach.  What was interesting was the reasoning of the Appeals Chamber.  It did not bother to justify the JCE approach, but rather simply reasserted that JCE was the settled approach of the tribunal and that the Trial Chamber's refusal to apply JCE was inconsistent with the settled approach.  Get with the program, they said basically.

Now here's the issue.  If you think that Harhoff should be disqualified for bias, do you also think that the entire Stakic Trial Chamber majority (Schomburg, Vassylenko, Argibay) should have been disqualified from future cases for its refusal to apply JCE?  But no one suggested this at that time (or at least I've never heard it said before).  So this seems inconsistent.  And the Stakic case is a situation where the Trial Chamber actually disagreed with settled Appeals Chamber rulings, rather than simply imply in a vague way that they might do so in the future (which is supposedly what Harhoff did).  So it seems that the argument for disqualification should apply in greater force for all of the Stakic Trial Chamber majority judges than it does for Harhoff.  

If this is the standard, then Trial Chamber judges are never going to be able to disagree with Appeals Court rulings and push the law forward in new directions.  Incidentally, although the Stakic Trial Chamber approach was never followed at the ICTY (after it was rejected by the Appeals Chamber), it became an important legal precedent for the adoption of the Control Theory at the ICC, thus resulting in a substantial development in the law.