I’d like to commend to our readers’ attention an excellent article by Yael Ronen in the most recent issue of the JICJ on the declaration lodged by Palestine accepting the jurisdiction of the ICC with respect to Gaza, raising the issue whether Palestine qualifies as a state in the sense of the Article 12(3) of the Rome Statute – final version here, SSRN draft here. Here’s an abstract:

On 21 January the Palestinian Minister of Justice lodged with the ICC Registrar a ‘Declaration Recognizing the Jurisdiction of the International Criminal Court’ over acts committed on the territory of Palestine since 2002. This article concerns three issues regarding the admissibility of this declaration, all of which are linked to the question of statehood. It first argues that the ICC Prosecutor may not assume the existence of a Palestinian state because the Palestinians themselves do not make a claim to that effect. It then examines whether under a purposive interpretation of Article 12(3), declarations should also be admitted from quasi-states. It argues that there is no justification for such a purposive interpretation, as the ICC Statute already contains an adequate mechanism to deal with exceptional situations such as that of the Gaza Strip. Finally, the article examines the consequences of the ICC Prosecutor engaging in questions concerning statehood and recognition. It argues that taking on the Palestine case would open up a Pandora’s Box and risk turning the ICC into a political playing field for aspirant entities in search of international status.

For what it’s worth, I am personally in broad agreement with Yael’s argument, even if I don’t think that it is in principle objectionable for the ICC or for its prosecutor to address issues of statehood purely as preliminary questions. For a different take than Yael’s, Alain Pellet has prepared a legal opinion arguing that the term ’state’ in Article 12(3) should be interpreted purposefully so as to allow the Palestinian declaration, even if Palestine is not a state as a matter of general international law – see more here on Bill Schabas’ blog. We’ll see, of course, what the Court ultimately makes of the whole thing.

The Editors of the Goettingen Journal of International Law have asked me to post their call for papers for a conference in Goettingen, Germany, in October 2010, at which Judge Bruno Simma will be the keynote speaker. Papers from the conference will be published in the Journal, and a limited number of travel grants is also available. Readers can find more details here.

I am happy to report that my friend, noted international law scholar and EJIL: Talk! alum Andreas Paulus has just been elected as Judge of the Federal Constitutional Court of Germany, the Bundesverfassungsgericht. He has most recently served as Professor of International Law at the University of Goettingen, and is a member of the EJIL’s Scientific Advisory Board.

Many congratulations to Andreas! He is sure to make a strong contribution at the Court, where his international law expertise may prove to be invaluable. And we might just get him to blog for us again sometime in the future.

The Al-Saadoon and Mufdhi v. United Kingdom (no. 61498/08) judgment by a Chamber of the European Court of Human Rights is now out (HUDOC). For our previous coverage, with links and background, see here and here. The shortest possible summary – the applicants won, and the Chamber judgment is a valuable contribution to human rights jurisprudence. Now for more detail.

Readers will recall that the basic question raised by the case is whether the transfer by the UK of the applicants who were in the custody of UK troops in Iraq to Iraqi authorities for trial violated the applicants ECHR rights, specifically the non-refoulement principle established by the Court in Soering v. UK, inter alia because there was serious risk of them being subjected to the death penalty. In Soering itself the issue was the surrender of the applicant to the US, where there was serious risk of him being subjected to the death penalty. However, the death penalty was at the time still not outlawed with respect to the UK by Protocols 6 and 13, and so the actual issue was inhuman treatment that the applicant would suffer as a consequence of the death row phenomenon. Likewise, without the two protocols, Article 2(1) ECHR specifically contemplates the death penalty, and it as such could not be held to be contrary to other provisions of the Convention, namely Article 3 prohibiting all forms of ill-treatment.

Now in Al-Saadoon we have the first merits judgment dealing specifically only with the death penalty and non-refoulement. The Court started its analysis by considering the developments in both treaty action and in its case law with regard to the death penalty since Soering:

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A Chamber of the European Court will deliver its merits judgment in Al-Saadoon and Mufdhi v. United Kingdom (no. 61498/08), the case dealing with detention and non-refoulement in Iraq, on Tuesday 2 March (press release here). For our previous coverage, see here and here. For more in-depth analysis of the various issues in Al-Saadoon, such as norm conflict and the UK government’s decision to disregard interim measures ordered by Strasbourg, see here. See also this article by Nehal in the JICJ, and this note in the ICLQ by Sarah Williams and Matthew Cross.

This as hot a case as it gets, and we’ll see what the Chamber does with it. It certainly moved very quickly, since it pronounced on admissibility only in July last year. Whatever the outcome, it is likely that the case will also be referred to the Grand Chamber. Analysis and commentary will follow!

Our readers are surely aware of the reemergence of the Falklands dispute on the international stage, provoked by the UK’s decision to allow oil exploration in the waters of the Islands, and the possibility that the oil deposits may be quite significant. Over at Opinio Juris, Julian Ku suggests that the UK and Argentina might well take this dispute to court, either the ICJ or the ITLOS.

In my view, this will simply not happen. Ever. I might well eventually be proven wrong, of course, but it seems to me that the Falklands dispute is, as a political matter, almost singularly unsuitable for judicial resolution. Here’s why:

First, the current oil exploration dispute cannot judicially be resolved on its own, since it legally entirely depends on who was title over the islands – the UK or Argentina. If it was Argentina who was the Islands’ proper owner, it would be perfectly within its rights to oppose the UK’s implementation of oil exploration by any non-forcible means. If, on the other hand, it was the UK who had title, then it is clear under the UNCLOS and other applicable law that it has every right to drill away, come what may.

Second, as for title, the issue is extremely complicated. To brutally simplify it, Argentina claims title either through succession from Spain, or by having occupied the Islands on its own shortly after gaining independence. The UK relies on prior discovery, effective occupation since 1833, and prescription. It also relies on the Islanders’ right to self-determination, which they’ve freely exercised by choosing to remain a part of the UK. This is, for example, how the UK’s Ambassador to the UN has just stated the UK’s position:

As British Ministers have made clear, the UK has no doubt about its sovereignty over the Falkland Islands, South Georgia and the Sandwich Islands. This position is underpinned by the principle of self-determination as set out in the UN Charter. We are also clear that the Falkland Islands Government is entitled to develop a hydrocarbons industry within its waters, and we support this legitimate business in Falklands’ territory.

Third, to be blunt, the British statement that they have ‘no doubt’ about their title over the Falklands is total rubbish. Privately (of course) they have every reason to doubt it. In fact, I think it would be fair to say that despite the UK’s de facto control for all these years, it is indeed Argentina that has a somewhat superior title over the Islands. Likewise, the Islanders’ claim to self-determination is dubious for various reasons, and UN practice with regard to the Falklands does not support it. For reasons of space and time I will not venture into this further, but there are two recent exhaustive treatments of the subject which are helpful: R. Laver, The Falklands/Malvinas Case (Nijhoff, 2001); R. Dolzer, The territorial status of the Falkland Islands (Malvinas): past and present (Oceana, 1993).

Fourth, following from three above, the UK knows full well not only that there would be a chance, but that there would be a good chance that it might lose a judicial dispute over the Falklands.

Fifth, the UK has invested an enormous amount of political capital in preserving its sovereignty claim over the Falklands, both internally and externally. It has fought a war over them, which still has a place in the national psyche. It has guaranteed to the population (if perhaps not the ‘people’) of the Falklands the right to determine their own fate. For the foreseeable future, it is politically inconceivable that the UK would be willing to renounce this claim, which it would have to be prepared to do if it submits the case to judicial resolution. Not to mention the fact that an oil bonanza would only render such an option less likely.

Sixth, as a matter of fact, the UK’s hold over the Falklands is strong. It’s military position today is far superior to what it was back in the day when the Argentine junta decided on its little adventure. Argentina has no practical way of forcing the issue.

In sum, because of (1)-(6), it is unlikely in the extreme that the UK would be willing to submit this case to a court. It would of course do so if Argentina would be willing to accept arguendo the UK’s title over the Islands, and thus narrow the dispute down to the current oil exploration issues. Yet Argentina has no interest in doing so, because it also knows that it would lose this dispute if title were out of the picture.

So, the only way forward are negotiations. Such negotiations could probably only be successful if title was kept out of the picture, in exchange for a deal on oil rights and a share of profits. The UK and Argentina had such an agreement in 1995, but Argentina repudiated it in 2007. Whether a new deal on those lines is possible today depends on various political considerations that I know nothing about. I am convinced, however, that little else is practically possible.

Anyway, those desperately wanting to see the Falklands dispute (or a simulacrum thereof) argued in court may wish to come to Washington, DC, from 20-27 March, for the international rounds of this year’s Jessup moot court competition…

Self-defense in response to armed attacks by non-state actors is undoubtedly one of the most interesting – and controversial – issues in modern international law. It is of great practical relevance, as for instance, with the ongoing use of drones for the targeted killings of suspected terrorists (a question I’ve discussed here), and has attracted a great deal of scholarly attention. Lindsay Moir has just published a book with Hart/Oxford that I’m sure will provide a strong contribution to the field. I would particularly like to draw our readers’ attention to the recent discussion in the EJIL provoked by Christian Tams’ excellent article on the use of force against terrorists, with responses by Federico Sperotto and Kimberley Trapp, and a rejoinder by Christian.

In this post, I would like to add a few thoughts on how the indeterminacy of state practice and opinio juris has caused an indeterminacy in the law, which I don’t think can be denied or removed by any legal analysis, no matter how exhaustive and competent.

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Part 1 available here.

Today’s testimony of Lord Goldsmith before the Iraq Inquiry (BBC report) was mostly focused on revisiting the revival argument for the invasion of Iraq. Lord Goldsmith gave a reasonably strong performance in defending his sudden change of position in the advent of the war, when he in the space of a few weeks or so first provisionally advised that Resolution 1441 was insufficient to revive the UNSCR 678 authorization to use force, only to come the other way around in his final advice just a few days before bombs started raining on Baghdad. Though my impression is that the Inquiry members were less impressed by his testimony than they were by the FCO legal advisors’ yesterday, it still cannot be said that the Inquiry exposed Lord Goldsmith as cravenly caving to political pressure or giving manifestly mistaken advice – he is far too good a lawyer for that to have been reasonably expected, let alone happened.

In short, his explanation of his change of position was as follows: it was the result of his combined discussions with Sir Jeremy Greenstock, the UK ambassador to the UN at the time, Jack Straw, and US legal advisors in Washington, who were all intimately involved in the drafting of Resolution 1441. Their account of the drafting history, which he took into consideration, was that the Americans had a so-called ‘red line:’ because they already thought that they had implied UNSC authorization to act and did not need Resolution 1441 for that purpose, they would have never allowed the adoption of this resolution if its terms held or implied that a further UNSC decision would be needed for the invasion to take place. Thus, because it would have been highly improbable that the resolution as adopted did this since the American negotiators were far too skilled to have allowed this, Goldsmith now thought that the better view was that the Resolution did not require a further decision, implicitly or otherwise, and that the revival of the prior authorization could properly take place.

Now, this is all extremely confusing, and both Goldsmith and his most persistent inquisitor, Sir Roderick Lyne, were running circles around each other for quite some time. Sir Roderick rightly pointed out that this argument presumes that the American negotiators could not have failed in their endeavours and that other parties did not have their own ‘red lines’, and also, as Michael Wood said yesterday, that it is somewhat odd to rely so much on essentially private accounts of the drafting history, rather than on the officially recorded public statements made by various state representatives in the UNSC after the adoption of Resolution 1441. These are all valid criticisms – but there is also a more subtle non sequitur here, which the questioning did not expose fully.

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Today was the start of an extraordinary week for assessing the impact international law had on the decision of the US, the UK and their allies in going to war with Iraq in 2003. The UK Iraq Inquiry today heard the testimony of Sir Michael Wood, the Foreign and Commonwealth Office Legal Advisor from 1999 to 2006, and Elizabeth Wilmshurst, the Deputy Legal Advisor at the time of the Iraq war, who resigned from her post once the invasion began (BBC report). Tomorrow the Inquiry will hear the testimony of Lord Goldsmith, at the time the Attorney General , empowered to give authoritative legal advice to the government, who ultimately, after much procrastination and indeed after shifting his own position, ruled the invasion to be lawful. On Friday it will be Tony Blair’s turn.

The Inquiry, which is advised on legal matters by the former ICJ President Rosalyn Higgins (for more, see Dapo’s earlier post), focused on the main legal rationale for the invasion – the so-called revival argument. In brief, this argument posits that Resolution 1441’s finding that Iraq was in material breach of previous Security Council resolution, and Iraq’s failure to take the final opportunity that the UNSC gave it to comply, revived the authorization for the use of force in UNSC Res 678, that was suspended but not extinguished by UNSC Res 687. The Inquiry’s investigation also raises many issues regarding the proper role of government legal advisors, that will be the main subject of this post.

The readers might recall our previous post on declassified memoranda on the lawfulness of the Iraq war by the US Department of Justice Office of the Legal Counsel, which like the Attorney-General in the UK provides authoritative legal advice to the executive. Like Lord Goldsmith, the OLC thought the revival argument to be correct, but it did so with far less caveats than their UK counterpart. On the other hand, it now transpires that the FCO Legal Advisor’s consistent advice had been that the revival argument just does not work on the text of Resolution 1441, which if properly interpreted requires further UNSC action. The Iraq Inquiry website now has several declassified memos and other correspondence from the FCO Legal Advisor to various government officials. (Incidentally, I don’t think that the US State Department Legal Advisor’s memoranda on the Iraq war have been declassified yet, unlike the OLC ones). These documents are invaluable for assessing the decision-making process in the lead-up to the Iraq war.

As Sir Michael’s testimony began, several new documents were declassified and were contemporaneously used by the Inquiry. The one which struck me the most was a letter by Jack Straw, then the Foreign Secretary, to Sir Michael in response to his legal advice that the invasion would be unlawful without further UNSC action, stating the following:

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Ken Anderson has an excellent, very interesting post regarding the US strategy of using drones for targeted killings of suspected terrorists in Pakistan and elsewhere (a topic we’ve addressed at the blog before). He argues that, as a matter of both law and policy, the current justification of the US government for its targeted killing practices is insufficient, because it relies far too much on IHL concepts like ‘combatant’ and IHL rules on targeting which are dependent on such concepts.

Such a justification is of course deeply problematic because IHL applies only in armed conflict, while the position taken by the Bush administration that the ‘war on terror’, or the US struggle again Al-Qaeda, is some sort of armed conflict unlimited in time and space to which IHL applies, is not very tenable. Unfortunately, the Obama administration has also used IHL in this way, if with some adjustments, while in Hamdan the US Supreme Court ruled that Common Article 3 was applicable and that the US is in some sort of global, amorphous non-international armed conflict with Al-Qaeda. (The Hamdan judgment is however quite unclear, and would bear other readings as well, such as that there is a non-international armed conflict between the US and Al-Qaeda in Afghanistan).

There has long been a consensus outside the US legal academia that IHL is inappropriate to regulate the fight against terrorism, outside specific situations where armed hostilities actually occur and have a certain level of intensity, as in Iraq or Afghanistan. For God’s sake, just how absurd would it be to look at the most recent Christmas/Underwear Bomber as some sort of ‘unlawful combatant’ in a global armed conflict?

Ken has thus valiantly argued on several occasions that the US government should desist from invoking IHL in this unconvincing manner, and that it should rely instead on its customary right of self-defense to justify the targeted killings of suspected terrorists:

That’s the legal authority that permits the US to strike at its enemies whether in a combat theater or not, in safe havens far away from any regular battlefield, and it is the traditional authority on which the US has always relied. And it is the authority on which the Obama administration is actually relying, if one looks to how it behaves. That is, if you asked US government lawyers twenty or twenty-five years ago on what basis the US would strike Al Qaeda targets in Somalia, the answer would likely be, customary law of self-defense — if a state is unable or unwilling to control its territory, the non-state actor safe havens are liable to attack.

Now, assuming that targeted killings of certain suspected terrorists are desirable in at least some cases as a matter of policy, is Ken’s self-defense argument for justifying them sufficiently persuasive? I respectfully submit that it’s not.

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