Syrian Opposition Flag (Wikipedia)

Cross-posted at the SHARES Blog

In the last few weeks, a shared responsibility trap has arisen in relation to the conflict in Syria. On 4 June 2013, the Report of the Independent International Commission of Inquiry on the Syrian Arab Republic documented that anti-government forces have engaged in a wide range of violations of human rights and international humanitarian law. At the same time, several States are inching towards openly supplying the Syrian opposition with arms. On 27 May, the Council of Ministers of the European Union decided not to renew the arms embargo against Syria. On 14 June, the United States announced that it plans to provide weapons in response to its finding that Syria has used chemical weapons.

 States that are now considering supplying weapons to the opposition forces in Syria run a risk of falling into a shared responsibility trap. They may have noble motives in seeking to save the population from atrocities. They may even consider that they should act in the spirit of the responsibility to protect, and should exercise a shared responsibility to protect individuals against the Assad regime. But there is a twist to such noble aims. States that provide weapons to the opposition will eventually share the responsibility for whatever the opposition does with those weapons.

Flag of Syria (Wikipedia)

Of course, delivering weapons to opposition groups that aim to overthrow the sitting government of the Republic of Syria is wrongful in itself, irrespective of any wrongs that may be committed by the opposition. This was discussed in an earlier post by Dapo Akande. Depending on their nature and purpose, such delivery can be contrary to the prohibition on the use of force (article 2(4) UN Charter). This will also hold for the military action needed to enforce a no-fly zone that is now being considered. It could be argued that arms deliveries that would have as their sole purpose the protection of civilians (which appears to have been the aim of the EU Ministers) need not be contrary to the prohibition on the use of force. But the assumption that such deliveries can be clearly distinguished from other deliveries and be limited to protection purposes seems doubtful. In any case, this would not make them lawful, as arms deliveries would remain contrary to the principle of non-intervention in the domestic affairs of Syria. Arms deliveries to the opposition in Syria moreover may be contrary to UN Security Council Resolution 2083 (2012), which prohibits supplying arms to persons or entities linked to Al-Qaeda. It has been reported that a recent supply of weapons to the Syrian rebels by Qatar, with US approval, ended up being used by groups linked to Al-Qaeda.

The exceptions that in other cases may remove the wrongfulness of arms deliveries do not lead to a different outcome in this particular factual context. There is neither a Security Council Resolution that allows for such deliveries, nor consent of the Assad government (which, to the dismay of many Western governments, still qualifies as the government of Syria). Weapons deliveries cannot be qualified as a lawful countermeasure, also taking into account that the true aim of such deliveries would appear to be the overthrowing of the Assad regime rather than only ending the wrongs. As pointed out by Dapo Akande, nor does the label ´humanitarian intervention´, which was accepted by both the United Kingdom and the Netherlands as a potentially lawful option, provide a lawful exception. The fact that the US now throws chemical weapons into the equation does not make weapons deliveries lawful. Use of chemical weapons may lead to aggravated moral concerns, but there is no basis in international law for transforming a wrong into a right when chemical weapons are used.

All of this means that States supplying weapons will in principle be responsible for their own acts, quite irrespective of what the opposition does with such weapons.

However, the wrongs may become connected. It has been said (for instance, in Austria’s policy paper) that States that supply weapons to opposition forces may be complicit with the opposition forces. The argument is not an easy one to make. International law does not have a rule that provides for complicity of States for aiding non-state actors (unless perhaps a treaty provision applies, such as the Genocide Convention). The EU safeguards that have been built into the EU Code of Conduct on Arms Exports seek to prevent such complicity. They do not allow for trade in arms when there is a clear risk that the equipment might be used in the commission of serious violations of international humanitarian law, or where the export of weapons would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination. Violation of this Code of Conduct does not lead to responsibility under international law.

However, an assessment of the legal consequences of the supply of arms has to take a more long-term perspective. The ulterior motive would appear to be to secure the demise of the Assad regime and to propel the opposition into power. The Dutch government has outlined this scenario in a letter to the House of Representatives of 4 June. This states that ‘[t]he lack of legitimacy of the Assad regime, and the wide recognition of the [Syrian National Coalition for Opposition and Revolutionary Forces] as a legitimate representative of the Syrian people, has led the government to believe that supplying material to the [Syrian National Coalition for Opposition and Revolutionary Forces] in extraordinary situations and under specific conditions need not be contrary to public international law.’

As a matter of international law, this is a doubtful legal basis for considering the delivery of weapons to be lawful. Neither the legitimacy of a sitting regime nor the recognition of opposition forces as the legitimate representative of the people of Syria are relevant for the assessment of lawfulness of arms deliveries to the opposition (perhaps this may be different in the context of self-determination, as discussed by Dapo Akande).

But the letter does provide an interesting insight into the preferred, and perhaps expected, trajectory. The thought appears to be that in the process of eroding the legitimacy of an incumbent regime, and prior to the rise of a new regime that is considered to be the representative of the State, a grey zone exists in which providing support to rebels need not  be contrary to public international law. In the abstract, this is not an unreasonable position. However, a State that concludes that the process has indeed made sufficient progress and supplies weapons faces a double risk.

If the Assad regime does survive, which is increasingly likely, arms deliveries will be considered unlawful. In that case, the argument that the regime was at some moment no longer legitimate will not be a valid one under public international law. Weapons deliveries will then be wrong, aside from how the opposition uses the weapons.

But if the opposition forces do prevail, as is hoped by the States now considering the supply of weapons, another risk presents itself. No one will complain that the supply of arms has breached the principle of non-intervention. But the supply of arms may well result in a shared responsibility. Syria, as a State, can, on the basis of the principle laid down in article 10 of the Articles on the Responsibility of States for Internationally Wrongful Acts, be held responsible for wrongful acts committed by the then opposition groups.

This scenario exposes the shared responsibility trap. Driven by moral concerns that lead them to abandon their bystander role, States may start to supply weapons to the opposition, propelling the opposition to victory. But once that victory has been achieved, those States may share the responsibility for the acts of what were once the opposition forces.

The decision has drawn different reactions in the international law blogosphere. Eugene Kontorovich thinks the court got it right (acts not sanctioned by a State are private); Kevin Jon Heller is convinced that the court got it wrong (politically motivated acts are not private).* Whenever debates about the meaning of words in the treaty law definition of piracy break out, academics are irresistibly drawn to the work of the International Law Commission (1955-6), the earlier Harvard codification project (1932) and –occasionally – the even earlier work of the League of Nations (1926) on the topic. The point of this brief note is to suggest that when it comes to those historical materials, we lawyers often greatly overestimate their usefulness.

To begin at the beginning, where do these hotly contested words “for private ends” come from?** They do not in fact appear in any of the historic case law. Justice Story conducted a wide ranging review of the historic sources in a famous 18 page long footnote in the 1820 case US v Smith. None of the English, French or Latin authorities cited there (as far as I can translate them) contain any equivalent to the words “for private ends”. As far as I have been able to ascertain the words were first used in Joel Prentiss Bishop’s New Commentaries on the Criminal Law (8^th ed) of 1892, effectively as a synonym for animo furandi (intention to rob, now generally dismissed as being a necessary element of piracy).

The phrase was next picked up by Ambassador Matsuda in his draft articles and memorandum on piracy for the League of Nations Committee of Experts on International Law in 1926. Matsuda’s intentions in using the phrase were a little difficult to discern. But before we get to what he probably meant by these words, we need to appreciate the problem they were intended to address.

Put simply, there was a conflict in the authorities as to the status of belligerent insurgents in a civil war who committed acts against the shipping of foreign states on the high seas. The question of how to treat the status of insurgent naval activity under the law of piracy was resolved in different ways by different codifiers across the twentieth century. Confusingly, however, they used the same language to achieve subtly different ends.

Matsuda’s League of Nations draft articles excluded from the definition of piracy acts “acts committed with a purely political object”. One might think this created a very simple distinction based on the subjective motivation of the potential pirate. However, if one reads the explanatory memorandum and the League of Nations Committee debates on point a more complex picture emerges. Matsuda favoured an approach based on the objective character of the actions involved and whether they enjoyed State sanction. It became clear in the debates that what he favoured was a narrow exemption from this general rule for certain “purely” political acts. The difficulty is, it was never elaborated either by Matsuda or in debate, precisely what this was intended to mean.

The Harvard Codifiers took a different view in 1932. While they acknowledged that there was historic case law under which insurgents had in some cases been treated as pirates, they thought such cases better reflected a special rule of international law giving jurisdiction to the flag state of vessels attacked by Civil War insurgents unlawfully. A separate rule to this effect was included in their draft article 16. Their use of the words “for private ends” was intended to signal the presence of this special rule covering the situation and exclude such cases from the law of piracy. Importantly, in the Harvard Commentary’s own conception, this exclusion was only intended to apply in limited cases: ‘made on behalf of States, or of recognized belligerent organizations, or of unrecognized revolutionary bands’ (p. 786). The point is that the list did not reflect a general point about political motives, but a closed list of contentious cases.

It is also apparent from the historical context that virtually no consideration was given either to terrorists all political protesters as we now understand the concepts. (The League of Nations thought ‘anarchistic’ motives could be piratical.) The narrow exception to the general rule was only intended to deal with certain military or insurgent activities. Attempts to make arguments based on this historic material in cases like Sea Shepherd involves reasoning by analogy, one which in my opinion goes far beyond the intention of the classifiers.

However, while interesting, the intention of the codifiers is of quite limited relevance to the interpretation of UNCLOS. Such historic material falls well outside the usual range of resources a court or tribunal might have access to under the rules of interpretation found in the Vienna Convention on the Law of Treaties. Some of the commentary on point seems to presume that in the absence of anything else such materials can be treated as equivalent to preparatory works. The point in treaty interpretation, however, is to ascertain the intention of the drafters. In cases where the drafters left no supplementary materials of their own which are directly on point we are left only with the words they agreed upon – the treaty text itself.

Indeed, this very approach has admirably been employed in the recent decision in US v Ali (on aiding and abetting piracy), dismissing the relevance of arguments based on the idea that the Harvard codification project reflects the controlling intention of treaty drafters 50 years later.

Here I would come back to my basic point on this question: in law we usually do not contrast the word ‘private’ with the word ‘political’; the usual dichotomy employed is between ‘private’ and ‘public’. Precisely why having a political motivation of the type held by a protest group or terrorist organisation should exempt one from the law ordinarily applicable to violence on the high seas has never been satisfactorily explained to me.

As a final aside, someone will likely raise against me the Achille Lauro incident and the subsequent Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation as showing that the law of piracy did not apply to terrorist episodes (otherwise, why did we need the SUA Convention?). The most obvious retort is that the laws piracy did not apply to the Achille Lauro because the event occurred entirely aboard one ship. The ‘two ship’ requirement under the law of piracy was fully appreciated by the states that proposed the SUA Convention (Austria, Egypt and Italy) and was among the reasons cited for such a convention being necessary.

*In which, vanity compels me to note, one of my articles was cited.

**This blog post draws loosely on research to be published as: ‘Piracy and terrorism’ in Panos Koutrakos and Achilles Skordas (eds), The Law and Practice of Piracy at Sea: European and International Perspectives (Hart, forthcoming 2014).

- Professor/Associate Professor in International Law

- Assistant Professor in International Law (with a specialisation in Environmental Law).

For the first position, candidates must have a strong grounding in general international law and a specialisation in international organisations law such as United Nations law. In both positions, the capacity to work with colleagues from other disciplines is an asset. Further information is available here

The Antonio Cassese Initiative is very grateful to have received an una tantum donation from the ‘Stichting Praemium Erasmianum’.

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Jawad Ahmad is an attorney admitted in New York and is currently based in Singapore. From January to March 2012, Mr Ahmad worked as an intern at the International Bureau of the Permanent Court of Arbitration where he assisted Legal Counsel on legal research assignments concerning the Indus Waters Kishenganga Arbitration, but did not directly work with the Court of Arbitration. This post is derived from the Author’s forthcoming article in Arbitrational International – “Indus Waters Kishenganga Arbitration and State-to-State Disputes” Arbitration International Issue 3 2013.

On 18 February 2013, the Court of Arbitration (Court) rendered the Partial Award in the Indus Waters Kishenganga Arbitration between Pakistan and India. The Permanent Court of Arbitration in The Hague acted as Secretariat for the Court. The Court is expected to render the Final Award towards the end of 2013.

The case was brought under the Indus Water Treaty 1960 (Treaty) and it is the first time an arbitration has been initiated under the Treaty. The Treaty sought to divide the use of the Indus River System between Pakistan and India. With the involvement of the World Bank, the two countries were able to draw up the Treaty with specified rights and obligations. The Treaty allocated the Eastern Rivers exclusively to India and the Western Rivers to Pakistan. Each country has rights to develop its respected rivers for development purposes, such as hydro-electric power. The Treaty permitted India to use the Western Rivers for the purposes of generating hydro-electric power under an agreed framework. The current dispute involves India’s permissible use of the Western Rivers under the Treaty.

Water is an important economic asset for both India and Pakistan. Not only does it account for a large part of each country’s agricultural use, but also hydro-electric power. Investment in the Indus Basin Irrigation System is in the billions of dollars and it has contributed to 21 per cent of Pakistan’s GDP in 2009-10 (see Shahid Ahmad, ‘Water Insecurity: A Threat for Pakistan and India,’ Atlantic Council). India, with an enormous population, needs to expand its energy sources and is currently investing billions in developing dams along the Indus River system (see The Economist, Unquenchable thirst: A growing rivalry between India, Pakistan and China over the region’s great rivers may be threatening South Asia’s peace). The stakes in this arbitration is, therefore, very high for both countries.

Outline of the case

Pakistan filed for arbitration on 17 May 2010 under Paragraph 2(b) of Annexure G of the Treaty. Pakistan sought to contest India’s construction of the Kishenganga Hydro-Electric Project (KHEP) which is located in India-Administered Jammu and Kashmir. Among other issues, Pakistan argued that the KHEP would significantly reduce the power output of the Neelum-Jhelum Hydro-Electric Project (NJHEP). The NJHEP is Pakistan’s dam that is being constructed further downstream.

The Court was composed of Judge Stephen M. Schwebel, as Chairman; Sir Franklin Berman; Professor Howard S. Wheater; Professor Jan Paulsson; Judge Bruno Simma; Professor Lucius Caflisch; and Judge Peter Tomka. On 31 August 2012 the Court concluded the hearing on the merits.

Prior to the merits hearing, the Court conducted two site visits. On 22 June 2011 the Court visited the Neelum-Jhelum River and the KHEP and on 15 February 2012 the Court only visited the Neelum-Jhelum River. After the first sight visit in June 2011, Pakistan filed for interim measures seeking to halt any further constructions of the KHEP that would interfere with the flow of the river. On 23 September 2011 the Court issued an Order on Interim Measures. Among other determinations, the Court allowed India to continue works on the KHEP, but not with respect to any permanent works on or above the Kishenganga-Neelum River that could affect the full flow of the river to its natural channel.

There were two substantives issues during the merits hearing:

1) The First Dispute was whether the KHEP’s inter-tributary diversions are permissible under the Treaty. Since the KHEP is a ‘run-of-the-river’ plant, power is generated by diverting water flow to a system of tunnels at lower elevation. According to Pakistan, this diversion interfered with Pakistan’s agricultural and hydro-electric use of the river further downstream and was not permissible under the Treaty.

2) The Second Dispute was whether India is permitted to use drawdown flushing to tackle sedimentation. This technique requires reducing the reservoir level below Dead Storage Level. According to Pakistan, the technique would enable India to control the volume and timing of the water flow further downstream and is not permissible under the Treaty.

As a procedural issue, the Court also addressed whether Pakistan had properly invoked the Treaty. Since the case concerned activities in the disputed territory of Jammu and Kashmir, it was disputed between the Parties whether Pakistan had invoked to Treaty to assert territorial claims in the area. This was crucial because under Article XI(1) of the Treaty it was prohibited to interpret any rights, claims or obligations that are not expressed in the Treaty.

Partial Award

After reviewing the drafting history of the Treaty, the Court found that each country’s respective territorial claims would be unaffected by the Partial Award. The Partial Award only determines the rights and obligations of the rivers. In conclusion, Pakistan was entitled to invoke the Treaty as it concerned India’s use and obligations of the rivers for generating hydro-electric power.

First Dispute – Whether the KHEP’s inter-tributary diversions are permissible under the Treaty

The Court found that the KHEP’s inter-tributary diversions are permissible under the Treaty. According to Article III(1) India has an obligation to ‘let flow’ all of the Western Rivers. However, there are exceptions listed under Article III(2) which allows India to use the Western Rivers for specific purposes. One of these exceptions is the generation of hydro-electricity.

Inter-tributary diversions are addressed in paragraph 15(iii) of Annexure D:

where  a  Plant  is  located  on  a  Tributary  of  The  Jhelum  on  which  Pakistan  has  any Agricultural  use  or  hydro-electric  use,  the  water  released  below  the  Plant  may  be delivered, if necessary, into another Tributary but only to the extent that the then existing Agricultural Use or hydro-electric use by Pakistan on the former Tributary would not be adversely affected. (emphasis added)

The Court found that a plain reading of the above paragraph reveals that the Treaty intended allowing the Parties to conduct inter-tributary diversions. Inter-tributary diversions were not intended to be a mere ‘occasional’ activity, but in fact an integral part to harness the full extent of hydro-electric power.

The Court turned to the drafting history of the Treaty to determine whether inter-tributary diversions are ‘necessary’. India had proposed the inclusion of the phrase ‘if necessary’ into the Treaty, which goes to show the significance India attaches to inter-tributary diversions. However, the Court recognized that this was not an open ended right but rather one whose extent had to be determined in each particular case.

With respect to the KHEP, the Court found that ‘necessity’ had to be evaluated against the ability to generate hydro-electric power. In order to effectively generate hydro-electric power, it required conducting inter-tributary transfers by using the difference in elevation between the tributaries.

Another crucial phrase in paragraph 15(iii) of Annexure D is “then existing Agricultural Use or hydro-electric use.” This goes to the heart of the First Dispute between the Parties. Upon reading the entire paragraph, the Court found that the use of the present tense words such as ‘is’ and ‘has’ supports an ambulatory interpretation. This would mean that India would regularly have to check whether Pakistan’s agricultural or hydro-electric use is not adversely affected. Pakistan argued for this interpretation.

However, the Court looked to the overall objective and purpose of the Treaty. The Treaty ensured that both Parties had rights and obligations concerning the use of the Western Rivers. It would be highly inefficient, not to mention extremely impractical, if India had to give way constantly to Pakistan’s use of the rivers after construction and design plans had been approved. This would have a severe impact on India securing project deals on the Kishenganga-Neelum River. As a result, a strict ambulatory interpretation of the phrase would not do justice to the intentions behind the Treaty.

India’s proposed interpretation was that a ‘critical period’ existed whereby India no longer needed to take Pakistan’s use into account and this was when India communicated a ‘firm intention’ that a specific project would go ahead. However, the Court found that determining an exact date for a ‘firm intention’ would be difficult in complex infrastructure projects.

A middle way was preferred. What is required, according to the Court, are facts demonstrating to a high degree of certainty that the project would proceed. This does not, however, mean the Parties have to ‘race’ to demonstrate that they made use of the waters first.

Consequently, it was important to determine which of the projects – India’s KHEP and Pakistan’s NJHEP – demonstrated significant steps to actualization. According to the Court, India had demonstrated to a high degree of certainty that the KHEP would actualize between the years 2004 and 2006. The same could not be said for the NJHEP. Pakistan was behind in the implementation and planning with the NJHEP. As a result, the Court found that India had a priority over Pakistan concerning the use of Kishenganga-Neelum River for hydro-electric power.

The Court did emphasize that Pakistan had a right for a minimum flow of water from India on the Kishenganga-Neelum River. However, the data that the Parties had submitted to the Court on this issue was insufficient and therefore requested further information. This had to be submitted by the Parties in June 2013 and the Court would then issue a Final Award towards the end of 2013.

Second Dispute – Whether India is permitted to use drawdown flushing to reduce the reservoir level below Dead Storage Level

Before turning to the merits of the Second Dispute, the Court addressed India’s objections to the admissibility of this dispute. India argued that Pakistan had not complied with the dispute resolution procedures outlined in the Treaty and, due to the technical subject matter, the Second Dispute could not be decided by a panel of arbitrators.

The Court dismissed both arguments and found that the Second Dispute was admissible. India argued that a neutral expert is required to resolve a technical question unless both the Pakistani and Indian Commissioner agree otherwise. To this the Court noted that neither of the Commissioners actually requested that the issue be referred to a neutral expert. Additionally, there was no restriction in the Treaty concerning the Court’s ability to address a technical question. Thus, the Court found that the Second Dispute was admissible.

With regards to the merits of the second dispute, sedimentation can accumulate at the bottom of the reservoir which can interfere with the flow. This is a common problem for dams and maintenance is required. There are a number of different methods utilized such as sluicing and flushing. Sluicing allows the sedimentation to flow out of the reservoir. Flushing involves drawing the water level in the dam down to the bottom and expelling the sedimentation by using the force of the river. Drawing down the water is required for both methods, but it is greater for flushing.

Pakistan argued that drawdown flushing would reduce the reservoir level below Dead Storage Level and this would allow India to control the amount of water flowing further downstream, contrary to the Treaty. India, however, argued that drawdown flushing was the most effective means to get rid of sedimentation and that it is permissible under the Treaty.

In addressing the Second Dispute, the Court turned to the object and purpose of the Treaty. A vital aspect of the negotiations was to prevent the storage of water and ensure that Pakistan received uninterrupted flow further downstream. That is why the Treaty also provided for design restrictions to prevent water storage. Paragraph 8(d) of the Treaty is vital on this latter point:

There shall be no outlets below the Dead Storage Level, unless necessary for sediment control or any other technical purpose; any such outlet shall be of the minimum size, and located at the highest level, consistent with sound and economical design and with satisfactory operation of the works.

The Court noted that the paragraph constraints the design of the outlets. These design restrictions would make no sense if they did not also apply to the uses of Dead Storage. If it was allowed to deplete the reservoir to Dead Storage Level then, according to the Court, it would make no sense to place design restrictions in the Treaty.

The purpose of the Treaty was to ensure both Parties are able to use the waters productively. It would make no practical sense if, by prohibiting drawdown flushing, it resulted in the inability to ensure adequate maintenance of the reservoirs. Nevertheless, the Court did recognize that there were other methods at India’s disposal to tackle sedimentation.

Paragraph 14 of Annexure D stated that the filling of Dead Storage should be in accordance with either Paragraph 18 or 19 of Annexure E. The Court noted that Paragraph 19 prohibited the depletion of the Dead Storage Level unless it was for unforeseen emergency. Tackling sedimentation was not an unforeseen emergency. Additionally, drawdown flushing was not necessary for the hydro-electric plant to function properly. There are other methods that India could consider such as sluicing, a viable option where the drawdown is not as severe.

Analysis

India is vindicated in its claim that the KHEP’s inter-tributary diversions are permissible under the Treaty. At first glance it might appear that India ‘won’ the dispute. This is especially the case if one takes the view that Pakistan’s ultimate objective was to prevent the construction of the KHEP. On the other hand, Pakistan was successful in preventing India from using drawdown flushing, since Pakistan was concerned about India having the ability to control the water flow further downstream. According to John Briscoe, this was Pakistan’s primary objective all along.

However, it is important to recognize that the case is not over. The Court is still expected to issue the Final Award later this year. In that Award the Court will decide on the exact scope of India’s minimum flow requirement. This is highly important and could have future implications with respect to both Parties use of the waters.

We can expect more disputes between the two states concerning other dams that are being planned along the Indus Rivers. As the first arbitration brought under the Treaty, the Indus Waters Kishenganga Arbitration should be recognized as a significant achievement. This is because the two rival nations sought to resolve their dispute amicably by utilizing the dispute resolution procedures under the Treaty, thus helping reduce political tension between them. One can only hope that the same approach will be followed in the future.

Subscribers have full access to the latest issue of the journal at EJIL’s Oxford University Press site. Let me also remind readers that, apart from articles published in the last 12 months, EJIL articles are freely available on the EJIL website.

Meagan Wong, PhD Candidate, Leiden University. She is currently a Visiting Scholar at the Lauterpacht Centre for International Law, University of Cambridge. She was accredited as an advisor to the Liechtenstein delegation at the most recent Assembly of States Parties to the Rome Statute of the International Criminal Court (Nov 2012).

Last month Dapo posted on this blog about where States Parties to the Statute of the International Criminal Court stand in the process of ratifying the Kampala Amendments on the Crime of Aggression. This is a follow-up to his post noting some recent developments with regard to the Kampala Amendments. Last week – on the 3 June 2013 – Germany’s Foreign Minister Guido Westerwelle deposited Germany’s instrument of ratification of the Kampala Amendments with the United Nations, thus making Germany the sixth ICC State Party to ratify the Amendments on the Crime of Aggression and the Amendments on War Crimes adopted in Kampala in 2010. One day later, Botswana ratified the Kampala Amendments see here. The significance of the ratification by these two States Parties is that Germany not only represents the first NATO member to ratify but was the first State whose leaders were convicted of crimes against peace. Botswana is the first African state to ratify. On 8 May 2013, Liechtenstein became the first country for which the amendments have entered into force, as Liechtenstein ratified the amendments a year previously (8 May 2012). Other countries that have ratified are: Samoa (25^th September 2012) here; Trinidad & Tobago (13^th November 2012) here; Luxembourg 15^th January 2013 here ; and Estonia (27^th March 2013) here.

As Article 15 bis (3) of the Kampala Amendments stipulates that at least 30 ratifications are needed by 2017 to activate the ICC’s jurisdiction over the crime of aggression, 23 more ratifications are needed. The Global Campaign for the Ratification and Implementation of the Kampala Amendments (“the Global Campaign”), initiated by the Permanent Mission to the UN in New York, in conjunction with the Global Institute for the Prevention of the Crime of Aggression, is leading efforts to ensure that the jurisdiction of the ICC over aggression is brought into effect as soon as possible.

One of the many marvels of the Kampala Amendments is that it demonstrates how small states can play an influential and significant role in shaping international law. It is widely acknowledged that the crime of aggression amendments would not have been adopted without the leadership of Liechtenstein. The ambassador of Liechtenstein to the United Nations (NY), H.E. Christian Wenaweser, was the President of the 2010 Review Conference and had steered the negotiation process ever since 2003, assisted by his legal advisor and Deputy Stefan Barriga. Post-Kampala, Team Liechtenstein is taking the next steps, by continuing to play an influential role in reaching out to States Parties to promote the activation of the Court’s jurisdiction over the crime of aggression. Smaller states can indeed make a significant difference.

In the course of informal engagement with delegates from States Parties at the most recent Assembly of States Parties meeting, many have expressed a clear political will and intention to ratify the Kampala Amendments. Some States Parties are still to formulate an official position with respect to the crime of aggression and are unable to comment, but nevertheless,  the spirit of cooperation and willingness to engage by the vast majority of States Parties towards the endeavour of activating the Court’s jurisdiction has been phenomenal.

According to the Status Report compiled by the Permanent Mission of Liechtenstein to the UN, the following countries are “actively working” on ratification:

Argentina, Australia, Austria, Belgium, Brazil, Chile, Costa Rica, Croatia, Cyprus, Czech Republic, Dominican Republic, Ecuador, Georgia, Greece, Italy, Lesotho, Malta, Panama, Peru, Portugal, Romania, Senegal, Slovenia, Spain, Switzerland and Uruguay.

In addition, the following States are in the “early stages” of the process:

Finland, Ghana, Guatemala, Japan, Latvia, Macedonia and Venezuela

Should and when these States Parties ratify the Kampala Amendments, there will be 30 ratifications. Therefore, the Status Report demonstrates that the activation of the Court’s jurisdiction is within reach! Ideally, State Parties intending to ratify should do so by the end of 2015.

With respect to the interpretation controversy regarding the scope of application of Article 15 bis that received some attention after Kampala (see the previous EJIL:Talk! posts by Dapo Akande here and here, and an article by Stefan Barriga trying to shed light on the issue here), it is of interest to note that the German Government, in its explanatory memorandum submitted to Parliament, did not raise the question how exactly the amendments apply to non-ratifying States Parties. A German Foreign Office official informally explained that this question was not important for States Parties that do in fact ratify.

The next issue to look at is the implementation of the Kampala Amendments, which was also raised by Dapo in his post here, where he said:

“A second unresolved question is whether States should implement aggression into their domestic law, and if so, with what jurisdictional regime.”

 The question as to whether implementation of the Kampala Amendments is necessary is  predicated upon the constitutional and administrative process of each State Party with respect to their individual practices on ratifying international treaties, e.g. for some States, it is a necessary pre-requisite to implement the substantive elements of the Treaty into their domestic legislation, or to amend current legislation to reflect the substantive elements of the Treaty prior to ratification. For others, it is not. Likewise, the question of whether it is a necessary to revise existing national legislation pertaining to the crime of aggression in the light of the Kampala Amendments is also a matter of internal state practice.

Regarding implementation, there does not appear to be a clear trend among the first ratifying States Parties. However, the following observations can be made: Liechtenstein, Samoa, Trinidad & Tobago and Botswana do not have domestic legislation criminalizing aggression, nor have they implemented the Kampala Amendments, which demonstrates that it is possible to ratify the Kampala Amendments without implementation or prescriptive jurisdiction over the crime of aggression. Luxembourg had ratified subsequent to adding the Kampala definition to its criminal code here. Estonia and Germany, in turn, already had domestic legislation criminalizing aggression prior to Kampala and did not amend them upon ratification.

It is also worth observing that some States Parties have implemented the Kampala Amendments in their domestic legislation without having ratified the Amendments (Slovenia, May 14^th 2012 here; Croatia, Jan 1^st 2013 here). As mentioned above, Luxembourg had also implemented the Kampala Amendments prior to ratification.

States Parties in which parliaments are currently considering revisions to criminal codes that include the Kampala Amendments include Czech Republic, the Dominican Republic, Ecuador, Peru and Venezuela. States Parties that are also expected to implement the Kampala definition include Belgium, Greece, Guatemala, the Netherlands and Uruguay.   (Information obtained from the Permanent Mission of Liechtenstein to the UN, see Status Report here)

With respect to the manner in which States Parties implement the Kampala Amendments on the Crime of Aggression into national legislation, it is at the discretion of the State as to whether to adopt the Kampala definition verbatim or whether to rely on the norms of customary international law. The inherent nature of the Rome Statute does not necessarily serve as a substantive legal document that imposes obligations on its State Parties to implement and codify the crimes under Article 5 into their domestic legislation. Rather, it is in the interests of the State Parties to do so with respect to the underlying principle of complementarity, as complementarity will not serve as a procedural bar to proceedings at the International Criminal Court if there is judicial inactivity on the domestic level.

The question of which jurisdictional regime should be implemented is the question of which jurisdictional bases should be codified by the State Party in its domestic criminal codes/legislation. Dapo’s argument is that the bases of jurisdiction should be limited to the nationality and territoriality principle. He appears to be apprehensive with respect to universal jurisdiction over the crime of aggression, see here and here.

My view is that ultimately it is the discretion of the State wishing to codify the crime of aggression to decide the jurisdictional scope that it wishes to prescribe over this crime. Indeed, some States Parties which already have the crime of aggression within their criminal legislation have also included what appears to be a broader jurisdictional scope beyond the nationality and territoriality principle.

For example, the Criminal Code of Lithuania here includes the crime of aggression (Article 110) and establishes ‘a possibility to prosecute a person despite his/her citizenship, place of residence, place of commission of the crime, or the punishability of the committed act under the laws of the place where the crime was committed, on the grounds of an international treaty’ (Art.7)

Lithuania does not appear to make any specific reference to customary international law and appears to refer only to treaty law. There also does not appear to be any specific reference to the crime of aggression, and as such, the scope of intended universal jurisdiction appears to be applicable to all crimes within the Criminal Code. Whilst on the other hand, the Criminal Code of Moldova here, which includes the crime of aggression (Article 139) appears to make a reference to the customary international law status of crimes against peace in the context of universal jurisdiction. Article 11(3) states:

If not convicted in a foreign state, foreign citizens and stateless persons without permanent domiciles in the territory of the Republic of Moldova who commit crimes outside the territory of the Republic of Moldova shall be criminally liable under this Code and shall be subject to criminal liability in the territory of the Republic of Moldova provided that the crimes committed are adverse to the interests of the Republic of Moldova or to the peace and security of humanity, or constitute war crimes including crimes set forth in the international treaties to which the Republic of Moldova is a party.

These two examples can be used to demonstrate how States have the discretion to codify within their national criminal codes the scope of jurisdiction to be applicable to the crime of aggression. However, this discretion must be consistent with international law. This means that a State that wishes to include the universality principle as a jurisdictional base must be satisfied that customary international law or treaty law provides for such rule of extraterritorial jurisdiction for the crime of aggression. However, in the absence of a treaty pertaining to the crime of aggression, whether an extraterritorial rule of jurisdiction over the crime of aggression exists can only be found in customary international law.

In conclusion, where we currently stand is that 23 more ratifications are needed by 2015 for the activation of the jurisdiction of the ICC over the crime of aggression to become a reality. In the light of the number of States Parties that have expressed the political will to ratify, it can be envisaged that the threshold of 30 ratifications will indeed be fulfilled.

Nothing in the Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognized, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the [ECHR] and by the Member States’ constitutions.

Article 51, which defines the Charter’s field of application, provides:

 The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the limits of the powers of the Union as conferred on it in the Treaties.

What if in, say, the implementation of Union law, it is found that the Union law violates a constitutional provision of the Member State protecting fundamental human rights?

Under the pre-Charter regime the resolution of such a conflict would proceed as follows. First, under CILFIT (Case 283/81 of 6 October 1982) the validity of the Union law would rest in the hands of the ECJ. A Member State court, even a court against whose decision there was a judicial remedy, would be required to make a preliminary reference for a finding of invalidity. Second, the ECJ would review the Union measure according to its human rights standards (informed, of course, by the constitutional traditions common to the Member States and the ECHR). The applicable human rights norm could not be dictated by the standard of level of protection of any given Member State (Hauer, Case 44/79 of 13 December 1979). If the ECJ were to find that the Union measure was not violative of human rights as defined by the ECJ, it would, by virtue of the principles of supremacy and equality of application of Union law, have to be followed by and within the Member States, even if a similar national measure would violate Member State constitutional provisions. There was a period in which some authors suggested that the ECJ would always have to adopt the highest level of protection to be found among the Member States. That nonsense has luckily been purged from most treatments of the subject matter.

Article 53 seemed to call that orthodoxy into question since an implementing measure could be thought to fall within both the sphere of application of the Union and a Member State. Article 53 could, thus, suggest that the prior understanding would mean that the constitutional protection in a Member State would be restricted and/or adversely affected if it afforded more extensive protection than the Union standard applied by the ECJ.

In the recent Melloni case (Case C-399/11 of 26 February 2013) the Court addressed this precise issue and, not surprisingly, confirmed that one could not read Article 53 as changing the prior orthodoxy. A Member State cannot disapply a Union measure which conforms with European Union human rights standards for violation of its own human rights constitutional provisions.

There is, however, an intriguing ambiguity. What if the national court wishes to set aside the measure implementing Union law (and assuming that there is no alternative implementation possibility) for violation of the ECHR? In theory the question should not arise. Article 52(3) of the Charter provides that

 [i]nsofar as this Charter contains rights which correspond to rights guaranteed by the [ECHR], the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

In conducting its own review, the ECJ should, thus, when dealing with corresponding rights, ensure conformity. And should there be a case of non-corresponding rights, the ECJ has indicated often that it will ensure the compatibility of Union norms with the ECHR.

In Melloni, which concerned the right of a Member State to refuse the execution of a European arrest warrant in respect of individuals who were tried in absentia in the requesting state, the ECJ, with a clear nod to Article 52(3), did duly take a look at the Convention in Recital 50 of its judgment:

 This interpretation [of the relevant provisions of the Charter] is in keeping with the scope that has been recognized for the rights guaranteed by Article 6(1) and (3) of the ECHR by the case-law of the European Court of Human Rights.

Whether or not the interpretation by the ECJ of the relevant provisions of the Charter is in fact in keeping with the jurisprudence of the ECHR may not be quite as straightforward as the apodictic statement in Recital 50 suggests. But be that as it may, the more delicate question is whether a national court is required to accept as binding the interpretation of the ECHR by the European Court of Justice.

Paradoxically, I consider it easier from a constitutional theory point of view for a Member State constitutional court to accept that in relation to European Union norms its own norms must yield to those of the Union as a whole, even in matters of human rights, than for the same court to accept what it perceives as an erroneous interpretation of the Convention by the ECJ. Both as a matter of status and expertise the ECJ should have primacy in defining the content and scope of European Union norms. But neither as a matter of status nor expertise is it in a superior position vis-à-vis the constitutional courts of the Member States when it comes to interpreting the Convention.  The matter is aggravated by the notoriously telegraphic style that the ECJ adopts when dealing with the Convention jurisprudence – a style not designed to inspire confidence – as evidenced in the Melloni case itself. It is also not helped by the barely disguised historic hostility of the ECJ to the notion that it may have to submit, in matters of human rights, to the superior authority of the European Court of Human Rights.

What is the legal duty of a Member State court when it comes to the conclusion that the ECJ has erred in interpreting an international norm designed to protect individuals and that the rights of said individuals would be violated if it were to follow such an interpretation? Does it simply leave it in the hands of the individual to commence the arduous road to Strasbourg? Does it, instead, refuse to give effect to the Union norm which it finds in violation of the ECHR? Note that in doing so the national court would not be playing a chauvinist game, but would be concerned not to compromise the strictures of the Convention which bind it in a way that does not bind the EU as such.

The interested reader may find it is worth reading with care Recital 44 in Åklagaren (Case 617/10, of the same date as Melloni) in which the ECJ recalls, inter alia, that the ECHR

 does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law. Consequently, European Union law does not govern the relations between the ECHR and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of a conflict between the rights guaranteed by that convention and a rule of national law.

Should a Member State court accept an interpretation of the ECHR by the ECJ, which in its view would bring its jurisdiction into violation of an international obligation of the highest order, a risk which the ECJ does not have? (Did the ECJ shoot itself in the foot in Åklagaren?) Does its legal duty to the European Union legal order trump its legal duty under international law to the Convention system?

There clearly would be some mischief if Member State implementing measures were to differ based on a different understanding of the ECHR requirements.  No doubt the ECJ would trumpet its ‘essential feature of the EU legal order’ rhetoric and all the rest. But would it be less mischievous if, say, the ECJ’s interpretation of the Convention was the odd man out compared to the constitutional courts of the Member States? Or would it not violate an essential feature of a national legal order if domestic legislation falling outside the scope of Union law were to be interpreted by Member State courts according to one understanding of the Convention requirements, whilst implementing legislation of the Union followed a different understanding of the Convention?

I can see various plausible ways of thinking about this problem and also various solutions to the problem; my only disagreement will be with those who think it is an ‘easy case’. And, of course, the machinery of seizing Strasbourg, the only Court able to resolve authoritatively the meaning of the Convention, is extraordinarily cumbersome and not suitable for this type of situation. However, the new proposed Accession Protocol for the EU may offer interesting possibilities in this regard.