These past few months have seen the emergence, or rather the beginning of the emergence of the Obama’s administration’s policy towards the fight against global terrorism. A significant part of that policy is the new administration’s relationship towards international law. While some have pointed out (disapprovingly or not) that the Obama administration is continuing many of the policies of its predecessor, for example in relation to the state secrets doctrine, others have expressed much optimism, particularly in regard of some of the high-ranking appointments within the administration, such as those of Harold Koh or Anne-Marie Slaughter.

At this time it is of course much too early to tell whether the new administration will take international law into consideration seriously or not. Optimism may well be warranted, but it should in any case be a tempered, cautious one. The recent brief of the Obama administration in the Guantanamo litigation that we discussed earlier (see here and here) at best sent an ambivalent signal. On the plus side, the brief explicitly invokes international law, while its dropping of the term ‘enemy combatant’ is not only commendable as a matter of policy, but as Dapo explained also has implications on the question of targeting. On the other hand, the new administration basically retained the previous administration’s preventative detention standard, with a little bit of rebranding, even though this standard was simply conjured up out of thin air. Even more importantly, it retained the Bush administration’s position that the United States is engaged in some sort of global, amorphous armed conflict with Al-Qaeda, to which the international laws of war apply.

This last position is particularly troublesome. The Obama administration has dropped the ‘global war on terror’ or GWOT meme, now apparently redefining it as ‘overseas contingency operations’ (see more here and here, courtesy of Jon Stewart and the Daily Show). But the substance of the position is still the same, and we have still heard no explanation why this conflict is an armed conflict in the sense of IHL, outside the undisputed (and limited) non-international armed conflicts in Afghanistan, Iraq, and perhaps Pakistan. As was acknowledged at an excellent panel on closing Guantanamo at the ASIL meeting last week, this question is of fundamental importance, with wide-ranging implications on issues such as detention or targeted killings, and it still remains unresolved.

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Yesterday the Obama administration filed a brief with the US District Court for the District of Columbia regarding its detention authority of persons previously classified by the Bush administration as ‘enemy combatants.’ (Analysis by Deborah Pearlstein at OJ; more from the Lift). The brief now outlines the administration’s official position on the legal basis of the detention of suspected terrorists.

The brief has already made headlines because the Obama administration decided to scrap the rightfully much maligned term ‘enemy combatant.’ The one other notable legal development is that the administration also rejected the Bush position that it had inherent constitutional authority to detain these persons, but based its authority solely in a statute, the 2001 Authorization for the Use of Military Force (AUMF).

The substantive standard for detention offered by the Obama administration, however, is almost identical to the one offered by the Bush administration:

The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

(Brief at 1)

As explained by Deborah, the only difference is that the Obama administration requires persons to have substantially supported Taliban or Al-Qaida, while for the Bush administration support alone sufficed. This change is obviously nothing more than cosmetic.

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Today the International Criminal Court issues an arrest warrant for Omar al Bashir, the serving President of Sudan, for crimes against humanity and war crimes in Darfur. (The decision is now available here). The news were expected after a leak a few weeks ago. What came as a pretty big surprise, however, is that the Pre-Trial Chamber rejected the genocide charges against Bashir. Though many commentators, including myself, have expressed skepticism that the prosecution would be able to prove beyond a reasonable doubt the existence of genocide in Darfur at trial, the test for the issuance of an arrest warrant is much lower. Under Article 58(1) of the Rome Statute, all the prosecution had to prove to obtain an arrest warrant was that there were reasonable grounds for believing that the person in question committed the crimes charged.

It is a bit strange that the prosecution was unable to furnish such proof at this stage of the proceedings in respect of the genocide charge. Either that, or the judges themselves implicitly employed a higher standard. As a matter of policy, I certainly agree with the judges – it is better that the genocide charge is dropped now, than for a probable acquittal on the genocide charge to overshadow Bashir’s guilt on other charges after an eventual trial. Legally, however, the decision to reject the genocide charges could be somewhat suspect. (Similar thoughts from Kevin Heller, who rightly points out that the prosecution can appeal the PTC’s rejection of the genocide charge.)

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While the recent conflict between Israel and Hamas was still ongoing, I was wary of commenting on what is a very contentious legal issue – whether Gaza is still to be considered as occupied as a matter of international humanitarian law, even after Israel’s unilateral disengagement from Gaza in 2005. I was wary of doing so primarily because the issue is a complex one, because these complexities can often get lost in the passion of the moment, and, well, because at the time I hadn’t yet done my homework. Even now I’d just like to offer some tentative thoughts, and point the readers to excellent new scholarship on the issue. The first work I’d like to strongly recommend is Yuval Shany’s article on Gaza, commenting on the Israeli Supreme Court’s Bassiouni decision, which is available on SSRN (h/t International Law Reporter).  The second is Yoram Dinstein’s book The International Law of Belligerent Occupation, which has just been published by CUP, and which promises to be one of the definitive works on the whole subject.

If you have been following the debates on Gaza closely, you will know that there are two reflexive answers to the question whether Gaza is occupied, on both ends of the spectrum. The first one is that of course Gaza still continues to be occupied by Israel. Israel controls all of the border crossings, the air, the sea, its soldiers can enter Gaza at will, so on and so forth. The second is that of course Israel no longer occupies Gaza. It has no actual, effective control of the place, which is the factual predicate for any occupation. It does not have troops on the ground and it is not running an administration of the territory. It is Hamas that has such control. Gaza is not under Israeli occupation, but under a siege and a blockade, and rightly so.

Now, before I get into the specific arguments on either side, it is important to explain why the issue matters, and why many in the human rights community in particular tend to (again, somewhat reflexively) adopt the first position. The answer is simple. Under IHL, a belligerent occupant has positive obligations to ensure the well-being of the civilian population, including the provision of food and other supplies. In a state of siege without occupation, however, the party to the conflict only has negative obligations not to interfere with relief consignments etc., and even these can be subject to military necessity. It does not have to provide food and supplies to the civilian population of its adversary (cf. Arts. 69 & 70 of Additional Protocol I). Indeed, to impose such a requirement would be manifestly absurd. The problem is of course precisely that the civilian population of Gaza is heavily dependent on Israel and need Israel not just to let humanitarian aid through, but also to provide electricity and other supplies of its own.

This is why the gentler souls among us international lawyers need to argue that Israel is the belligerent occupier of Gaza. It is the only legally certain way of assigning some positive obligations on Israel to provide for the civilians of Gaza – something that by the way I agree with entirely as a matter of policy. But the certainty is unfortunately only deceptive. Let me now turn to the specific argument and counterarguments.

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… this time from the department of shameless self-promotion: I’ve just posted on SSRN a draft chapter on the territorial application of the Genocide Convention and state succession in the forthcoming Commentary to the Convention edited by Paola Gaeta and published by OUP. Some of my blogging here was based on that piece, so maybe some of the readers would be interested in it. Comments are welcome.

Today a Trial Chamber of the ICTY delivered its judgment in Milutinovic et al, a case against a number of high-ranking political, military and police officials of the Federal Republic of Yugoslavia and Serbia regarding crimes committed by FRY/Serbian forces in Kosovo in 1998 and 1999. This is the first judgment delivered by the ICTY on Kosovo, since the Kosovo indictment against Slobodan Milosevic was never adjudicated on because of the death of the accused. Because of the scope of the case and the status of the accused, this is beyond any doubt one of the most important trial judgments to be delivered by the ICTY.

In its judgment, the Trial Chamber confirmed the existence of a broad campaign of violence against the Kosovo Albanian civilian population, causing the departure of at least 700.000 Albanians from Kosovo. The campaign was legally qualified as deportation, murder and persecution as crimes against humanity.

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Today the Grand Chamber of the European Court of Human Rights delivered its judgment in A and others v. United Kingdom, App. No. 3455/05, the sequel to the Belmarsh case, [2005] UKHL 71, decided by the House of Lords several years ago. The applicants were detained preventatively as suspected terrorists by UK authorities pursuant to legislation passed by Parliament and a derogation from Article 5 ECHR made by the UK after the 9/11 attacks under Article 15 ECHR. The House of Lords declared the derogation incompatible with the ECHR, on the grounds that it discriminated between nationals and non-nationals, as it allowed the preventative detention only of the latter. Today it was the European Court’s turn to deal with numerous issues arising out of the applicants’ preventative detention.
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Consider the following scenario: state A commits an internationally wrongful act (say genocide) against state B, incurring responsibility for doing so and giving state B an entitlement to reparation. Before state B actually manages to obtain reparation from state A, state A dissolves into two new states, X and Y. What happens to A’s responsibility towards B? Does it devolve to X and Y, and how? Alternatively, what happens if A does not dissolve and manages to continue its international personality, but two of its smaller territorial units, X and Y, successfully secede from it, and become states in their own right? What then?

Both of these factual scenarios involve state succession, defined as change or transfer of sovereignty over a territory. The first scenario is one of dissolution. State A and its international personality have ceased to exist, and two new states have emerged. The second scenario is one of succession alongside continuation. State A is territorially diminished, but its identity and international personality remain the same. Again, however, two new successor states have emerged on the territory of their predecessor. The dissolution of Czechoslovakia and the Socialist Federal Republic of Yugoslavia are examples of the former scenario, while the best example of continuation and separation is the Soviet Union, which continued its existence as the Russian Federation, along a number of new successor states. (Note that a continuator state is often misleadingly termed as the successor state, even though there may be a number of actual successor states alongside the continuator.)

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Last week, the judges of the International Court of Justice elected Judge Hisashi Owada as the Court’s new President, and Judge Peter Tomka as its new Vice-President, each for a term of three years. The ICJ press release is here. Three new judges have also now assumed their seats on the bench, namely judges Greenwood, Cancado Trinidade and Yusuf, while three judges have departed the Court, namely former President Higgins, and judges Ranjeva and Parra Aranguren.

The most poorly run trial ever before the ICTY – the high profile proceedings against the ultra-nationalist Serbian leader Vojislav Seselj – has entered into what I can only call its metastasis. AP reports that today the Trial Chamber, by 2 votes to 1 (presiding Judge Antonetti dissenting), decided to adjourn the trial indefinitely, for fears that the integrity of the proceedings has been compromised. The most serious allegations involve witness intimidation by Seselj’s associates – indeed, Seselj himself has recently been charged with contempt of Tribunal for disclosed the identity of a witness in the most recent, 1000 page instalment in his endless, Mein Kampf-like book series that he (supposedly) writes while in detention.

The trial itself has truly devolved into a travesty, with the presiding judge in particular showing an incredible lack of ability to manage the self-representing Seselj. In short, Seselj was basically allowed to run his own trial. That Seselj himself is probably one of the most obnoxious and irritating human beings in all of creation is really not an excuse for the amount of incompetence that has been displayed at the ICTY (see generally A. Zahar, ‘Legal Aid, Self-Representation and the Crisis at The Hague Tribunal’, (2008) 19 Criminal Law Forum 241; G. Sluiter, ‘Compromising the Authority of International Criminal Justice – How Vojislav Šešelj Runs His Trial’, (2007) 5 Journal of International Criminal Justice 529)

There is for now no indication how the trial might find its way out of limbo. I won’t even try to explain what kind of impact these developments can have on the already abysmally poor public perception of the ICTY in the Balkans, Serbia in particular. (Not to mention the fact that poor Serbia (i.e. me; self-pity is the best kind of pity) is going to have to suffer through Seselj’s return to the country, probably sooner rather than later, and through his boasting that he actually managed to defeat the Tribunal.)  What is fairly certain is that no-one working in the ICTY – least of all the judges – will actually bear any consequences for this fiasco.