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Home Articles posted by Marko Milanovic

The Strangest ICJ Case Got Even Stranger, Or the Revision That Wasn’t

Published on March 13, 2017        Author: 

As Dapo explains in his post from this morning, the President of the International Court of Justice last week sent what was probably one of the weirdest letters to a government (and one of the weirdest related press releases) in its history, and it is only appropriate that it pertains to one of the Court’s strangest cases. The Court essentially dismissed in limine an attempt to make an application to institute proceedings for the revision of the 2007 Bosnian Genocide judgment, finding that the application was not made by an authorized state representative.

In a 2008 article, the late Vojin Dimtrijevic and I wrote about the strange story of the Bosnian Genocide case, a case which was more than any other, from its very beginning, subservient to its political context. It was a case pursued by a changing applicant against a changing respondent before a changing Court. It was a case which one part of the applicant state actively tried to subvert, which all segments of the political elite constantly miscast and misinterpreted, which witnessed some truly unprecedented procedural manoeuvres, and which was indeed from the Bosnian side not even funded from the state budget. So many hopes were pinned on it, that when the ultimately completely predictable and underwhelming, jurisdictionally severely constrained judgment was handed down, it was perceived by most Bosniaks as a massive disappointment and by most Serbs as a kind of exoneration, despite the finding of a violation of Article 1 of the Genocide Convention by Serbia. Today, after the Court’s swift termination of the revision application and the lapse of the time-limits for any further application, the case has gone away with finality, if only with a whimper.

Over on Just Security, David Scheffer, the ranking international expert in the revision team appointed by the Bosniak leader, Mr Izetbegovic, purports to explain to an equally expert audience ‘some realities’ behind the revision request. In so doing, he calls the President’s letter and a previous letter by the Registrar ‘shallow exercises that fail to explain the legal reasoning of their conclusions,’ and concludes that ‘History will not look kindly on the ICJ’s decision to reject the Application for Revision.’

Oh, please; history, humbug. History really won’t care one whit about this whole episode, which after a few days even the Bosnian and Serbian media won’t be writing about. And while I myself normally wouldn’t write critical comments about cases which I litigated and lost, or engage in debates with people who conversely think that it is sensible to do so, this kind of self-righteous, pontificating pooh-poohing of the ICJ is something I feel compelled to respond to. Here are, to quote Mr Scheffer, some (very hard) realities about this whole episode.

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Updated Rules for Contribution to the Blog

Published on March 2, 2017        Author: 

We have recently updated our rules for contribution to the blog, which interested readers may find here. This includes guidelines for submitting posts for publication and for commenting on the blog, as well as our moderation policy. Anyone interested in contributing to the blog should consult these guidelines carefully.

Filed under: Editorials, EJIL
 

The Curious Case of the Killing of Kim Jong-nam

Published on February 24, 2017        Author: 

The night is dark and full of terrors. But sometimes the terrors are just too damn funny. Consider the circumstances of the untimely demise of Kim Jong-nam, the elder half-brother of North Korean dictator Kim Jong-un, assassinated in Malaysia apparently at the orders of his imperial sibling.

  • He was not just poisoned (so very old-school), but was poisoned by VX, the most potent of all chemical warfare agents, which is 100 times more toxic than sarin; less than a drop on the skin can kill you. Being poisoned at the orders of your family is one thing; your family killing you with a weapon of mass destruction is another. (Remember, though, that time when Kim Jong-un had some officials executed by anti-aircraft guns. All around nice guy.)
  • The immediate executioners were two young women, one Vietnamese and one Indonesian; they claim to have been duped into doing this by North Korean agents and that they thought they were just pulling a prank on someone; Malaysian police reject this version of events.
  • The Vietnamese woman was a failed “Vietnam Idol” contestant in 2016; a panel of judges rejected her after she sang just one line: “I want to stop breathing gloriously so that the loving memory will not fade.” The Indonesian woman wore a t-shirt with an “LOL” sign while carrying out the assassination. ROFL.
  • The most likely method of delivering the VX was not the spray or liquid on the assassins’ hands, but a drop of the toxin on a cloth which was then touched against Kim’s skin.
  • The Malaysian special forces are guarding the morgue in which Kim Jong-nam’s body is being kept, after an attempted break-in, the purpose of which may have been to tamper in some way with the corpse.
  • North Korea refuses to accept that the person who was killed was Kim Jong-nam, while at the same time requesting the surrender of the body.
  • There is apparently such a thing as a North Korean Jurists Committee. And they made a real gem of a statement on the assassination which I commend to every, erm, jurist out there. Among other things, the statement claims that (1) Malaysia violated international law by carrying out an autopsy on a bearer of a DPRK diplomatic passport, who had ‘extraterritorial right according to the Vienna Convention;’ (2) that the autopsy was an ‘undisguised encroachment upon the sovereignty of the DPRK, a wanton human rights abuse and an act contrary to human ethics and morality’; and that (3) ‘DPRK will never allow any attempt to tarnish the image of the dignified power of independence and nuclear weapons state but make a thorough probe into the truth behind the case.’ So the violation of international law and human rights is not the person’s death but the investigation. Note also the oh-so-subtle reference to nuclear weapons. Creepy/scary, but still LMAO.

Both factually and legally Kim’s assassination resembles the 2006 killing by radioactive polonium of Alexander Litvinenko in London, ostensibly by Russian agents. This is in effect Litvinenko redux, except it additionally has that very special DPRK flavour of crazy. The legal issues are more or less the same. One possible violation of international law is the infringement on the sovereignty of the territorial state. Another is the violation of Kim’s right to life – the DPRK is in fact a party to the ICCPR (recall the denunciation issue some time ago), but Malaysia (and China) are not and cannot invoke the DPRK’s responsibility directly in that regard even if they wanted to, although they may rely on customary law. There’s also the issue of the ICCPR’s extraterritorial application to the killing of a person by a state agent; I have argued that such scenarios are covered by human rights treaties, assuming that there is proof of the DPRK’s involvement in the killing, which of course remains to be conclusively established.

 

 

Post-Truth and International Criminal Tribunals

Published on February 20, 2017        Author: 

With all the daily going-ons of our new era of resurgent populist nationalism, it’s no wonder that concepts such as ‘post-truth’ and ‘alternative facts’ are so very much en vogue, or that Orwell’s 1984 and other dystopian classics are once more hitting the best-seller lists. But the sad truth is that there’s nothing really new about ‘post-truth’, except that it is today afflicting developed, democratic societies that until now did not experience the phenomenon, or at least did not experience it in full force.

Trump photographed at Mar a Lago with Japanese Prime Minister Shinzo Abe during the news of North Korean missile launch. Photograph: Erika Bain. Source: https://www.theguardian.com/us-news/2017/feb/13/mar-a-lago-north-korea-missile-crisis-trump-national-security#img-2

Nor did post-truth start in these societies just out of the blue – it was preceded by decades of democratic de-norming, institutional erosion, increasing polarization and identity politics (think, for example, of how climate change became a point of polarized partisan politics in the US, or of the distorting power and influence of the (mainly right-wing) tabloid press in the UK).

Even in democracies politicians are not a species generally known for its love of the truth. It is no wonder then that in a favourable climate a sub-species of particularly cynical manipulators who are either ready to routinely lie outright or are just simply indifferent to the truth will emerge. Coupled with the natural inclination of the human mind to evaluate evidence in a biased way and to reason about it in a way that confirms pre-existing beliefs and protects one’s sense of identity, in much (most?) of the world post-truth politics are the rule, rather than the exception. Trump may be the most important exponent of the current wave of mendacious populism, but he is hardly avant-garde. For decades now, for example, many of the Balkan states have experienced their own ego-maniacal, soft-authoritarian mini-Trumps, and let’s not even mention all of the Putins, Dutertes and Erdogans out there.

Which brings me to my point. Post-truth and alternative facts have historically been perfectly standard when it comes to inter-group conflicts, especially in societies which are not genuinely pluralist. Pick any random group conflict in the world, and you are likely to find that each group lives and breaths its own particular truth. In our international legal community, many have thought that it is the role of international criminal courts and tribunals to generate the ‘real’ truths that will eventually garner acceptance in societies riven by conflict. Unfortunately, however, there is little evidence that such truth-generating potential is anything but theoretical.

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A Trio of Blockbuster Judgments from the UK Supreme Court

Published on January 17, 2017        Author: 

This morning the UK Supreme Court delivered three important judgments dealing with various claims alleging wrongful acts by the UK when fighting international terrorism (UK Supreme Court page; Guardian news report). In Belhaj and Rahmatullah No. 1 the Court unanimously dismissed the Government’s appeal, and found that the claim against the UK for its alleged complicity in torture and mistreatment of the claimants was not barred by rules of state immunity and the foreign act of state doctrine (press release; judgment). In Rahmatullah No. 1 and Mohammed the Court unanimously allowed the Government’s appeals, holding that, insofar as the respondents’ tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort (press release; judgment). Finally, and perhaps of greatest interest to most of our readers, in Al-Waheed and Serdar Mohammed the Court, by 7 votes to 2 in a set of very complex judgments, held that British forces had power to take
and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention (press release; judgment). We will be covering these judgments in more detail soon.

I have only had the time to read Serdar Mohammed, which I am yet fully to digest, but here are some initial thoughts (we have of course extensively covered this case on the blog before). The two key judgments are those of Lord Sumption for the majority and Lord Reed for the minority; I must say that by and large I incline towards the latter. I am also troubled by some of the ipse dixit, rather casual references in the judgments of the majority justices to the lex specialis principle; the supposedly restrictive original intentions of the drafters of the ECHR with regard to its application extraterritorially and in armed conflict, which are in reality completely unknowable; similarly casual constructions of coherent narratives of a very messy field that confirm one’s own predispositions (e.g. that in Al-Skeini the Strasbourg Court unprecedentedly expanded the reach of the Convention to extraterritorial armed conflicts, when one could just as easily say that in Bankovic the Court unprecedentedly restricted the Convention’s reach); or the supposed unavailability of extraterritorial derogations, on which see more here.  That said, the judgments are thoughtful and rigorous even when one might disagree with them, which brings me to the Court’s main findings.

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What Is An Imminent Armed Attack? A Hopefully Helpful Hypo

Published on January 12, 2017        Author: 

Yesterday we had the privilege to publish the speech by the UK Attorney General, Jeremy Wright QC MP, setting out some of the UK Government’s views on the law of self-defence. The speech focused in particular on the criteria for assessing the imminence of an armed attack by a non-state actor, and essentially endorsed some of the principles set out in Daniel Bethlehem’s 2012 AJIL article. Thus, the Attorney stated in particular (following a speech by the US State Department Legal Adviser, Brian Egan, at last year’s ASIL meeting) that:

[Bethlehem’] Principle 8 on imminence, as part of the assessment of necessity, is a helpful encapsulation of the modern law in this area.

Sir Daniel’s proposed list of factors was not exhaustive, but included (at Principle 8), the following:

  • The nature and immediacy of the threat;
  • The probability of an attack;
  • Whether the anticipated attack is part of a concerted pattern of continuing armed activity;
  • The likely scale of the attack and the injury, loss or damage likely to result therefrom in the absence of mitigating action; and
  • The likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss or damage.

It is my view, and that of the UK Government, that these are the right factors to consider in asking whether or not an armed attack by non-state actors is imminent and the UK Government follows and endorses that approach.

In each exercise of the use of force in self-defence, the UK asks itself the questions that flow from that articulation. Questions like – how certain is it that an attack will come? How soon do we believe that attack could be? What scale of attack is it likely to be? Could this be our last clear opportunity to take action? And crucially – is there anything else we could credibly do to prevent that attack?

I don’t think the Attorney broke any new ground here, nor do I wish to dispute the accuracy or normative desirability of this analysis. But what struck me most about it is the lack of conceptual clarity, in particular the lack of clear delineation between the concepts of imminence, necessity and proportionality and the legal role that these concepts are playing. (I would highly recommend, in that regard, this piece in the AJIL by Dapo and Thomas Liefländer). For example, what is the work that the idea of imminence does here? Is its main purpose to delineate between permissible anticipatory and prohibited preemptive self-defence, which goes around the Article 51 Charter language ‘if an armed attack occurs‘? Or is imminence an aspect of the broader concept of necessity? And can a word such as imminence encompass non-temporal elements? Conceptual clarity matters because without a common understanding of the words we are using we cannot actually properly debate the soundness or desirability of any given approach. Without it, it is hard to even have a conversation.

So here’s a hypo that I hope might be helpful in this regard. Again, the point of the hypo is not to argue for any particular interpretation of self-defence, whether expansive or restrictive. It is only to help us understand how people use particular words, such as imminence, and for what precise purpose.

Dr. Evil is a very capable terrorist, who has decided to attack the United Kingdom, even though he has never done so before. He manages to get his hands on a mid-range cruise missile with a 150 kt thermonuclear warhead, in perfect working order. He places the missile launching system in a building in a Paris suburb, and uploads a video of himself to YouTube showing him arming a very specific firing mechanism. The missile is aimed at London, and will launch in exactly 30 days; there is no off-switch, code or remote signal that can disarm it. Absent forcible intervention in the causal chain, there is complete certainty that the missile will fire in 30 days and that it will destroy a substantial part of London.

Is this armed attack ‘imminent’ in any legally relevant jus ad bellum sense?

Note that this hypo is specifically designed to eliminate most of the real-world uncertainties about armed attacks – the reliability of the intelligence, the likelihood of the attack, not knowing the exact time, location or scale of the attack. In this hypo, we know everything with absolute certainty. And if you have a problem with the non-state actor nature of the attacker, we can easily turn him into a French state agent. Again, the main point here is that a causal chain has been set in motion which, without some further action, as its certain end has the destruction of London. Does this mean that the attack is ‘imminent’? If so, would it be imminent even if the timer was set to 60 days, 120 days, or 10 years? At what point (if any) is there a switch from an anticipatory to a preemptive scenario? When does imminence end, and necessity begins?

 

Trumpocalypse Now

Published on November 9, 2016        Author: 
Chappatte, The New York Times

Chappatte, The New York Times

Good morning, world!!! The Donald seems to have just grabbed the United States of America by her you-know-what. And so you, dear reader, are now thinking the unthinkable – oh how I miss the age of George W. Bush, a statesman, gentleman and a scholar (who apparently voted neither for her, nor for him). And you’re thinking – will he actually lock her up? Will that wall get built? Will Mexico pay? Will Muslims be prohibited from flying? Will, after everything, Jim Comey stay on as FBI Director? Will Nigel Farage emigrate to the US and become a cabinet secretary of some kind (silver linings etc.)? And you’re thinking – OMG how will Trump redecorate the White House, OMG Melania will be the First Lady, and OMG that orange guy is going to get the nuclear codes, seriously, is this s*!t for real? (Oh yes, it’s real.)

And, lastly, you’re thinking, what’s gonna happen to the international law project now – shall we overcome? What about the Paris Agreement? What about NAFTA? What about torture and basic human rights? What about the rule of law in America and abroad? Comments open below for any words of despair, wisdom or solace. In the meantime, I can highly recommend this series of posts by Ben Wittes on surviving a Trump presidency (here, here, and here). Good luck to us all – let’s now collectively go and watch a cat video or something to make the bad, bad man go away, at least until January.

 

 

Filed under: EJIL Analysis
 
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Ecuador Turns Off Julian Assange’s Internet Access

Published on October 19, 2016        Author: 

The world is an awful, terrible place. But sometimes it gives us a nugget so glorious that it really has to be savoured and appreciated. One such nugget is today’s news item that Ecuador had made a ‘sovereign decision’ to restrict the Internet access of Julian Assange, for many years a guest in its London embassy (Guardian and BBC reports here; our previous coverage of various legal issues regarding Assange here). Note the reason Ecuador gave for restricting Assange’s Internet access (which I imagine they are paying for, in any event): respect for the principle of non-intervention. Here’s the Ecuadorian government’s official communique (via Twitter):

In recent weeks, WikiLeaks has published a wealth of documents, impacting on the U.S. election campaign. This decision was taken exclusively by that organization.

The Government of Ecuador respects the principle of non-intervention in the internal affairs of other states. It does not interfere in external electoral processes, nor does it favor any particular candidate.

Accordingly, Ecuador has exercised its sovereign right to temporarily restrict access to some of its private communications network within its Embassy in the United Kingdom. This temporary restriction does not prevent the WikiLeaks organization from carrying out its journalistic activities.

Just consider, for a moment, how Assange, as a champion of the freedom of speech on the Internet, has found himself in cahoots with (likely) Russia – by any measure not the freest of societies – in actively influencing the forthcoming American elections, and how he is maintaining this activity from UK sovereign soil, protected by Ecuador’s unlawful grant of asylum. And then ponder the delicious irony of a state like Ecuador which, on the one hand, violated the principle of non-intervention vis-a-vis the UK by granting asylum to a fugitive from criminal justice, only to then invoke that very same principle vis-a-vis the United States in order to effectively limit Assange’s freedom of expression. Remarkable, isn’t it?

On a purely legal level, it is particularly noteworthy that a state has essentially expressed its opinio juris to the effect that the customary principle of non-intervention requires it to prevent a private actor operating from a place within its jurisdiction from interfering with the electoral process of a third state by leaking the content of a campaign official’s private emails. I, at least, am not aware that the principle of non-intervention has ever been invoked by an (arguably) intervening state against itself in this particular way, and indeed as part of justifying the interference with an individual’s human rights. But this is an excellent example of how an old legal principle can keep evolving in different circumstances.

 

UK to Derogate from the ECHR in Armed Conflict

Published on October 5, 2016        Author: 

At the Conservative party conference this week, the UK Prime Minister and her defence secretary announced that the UK will derogate from the European Convention on Human Rights in times of armed conflict. I have written before that such derogations – if appropriately used – can be a valuable tool in regulating the relationship between human rights law and international humanitarian law, by providing much needed clarity and flexibility. I hence have no problem with the principle of the idea – indeed, I have argued in particular that the dicta of some of the judges of UK’s highest courts to the effect that the ECHR cannot be derogated from extraterritorially are not to be followed. I do have a problem, however, with how this derogation idea is now being sold to the British public and for what purpose. In that regard, my comments in this post are caveated by the unfortunate fact that the specifics of the derogation plan are yet to be published – we know that there will be a ‘presumed’ derogation, but not from which rights and under what exact circumstances.

Let me first deal with the political salesmanship. To start with, there’s the usual (and forgivable) pandering – Theresa May thus opens her pitch by saying that “Our Armed Forces are the best in the world” and that her government “will ensure that our troops are recognised for the incredible job they do. Those who serve on the frontline will have our support when they come home.” Oh, please. By what metric exactly are the British armed forces “the best in the world”? By their tactical combat effectiveness? By their actual achievement of specific strategic goals (in which they’ve been constantly hampered by the underfunding, underequipping and wishful thinking on the part of their political masters)? By their compliance with the law of armed conflict? The Chilcot inquiry’s findings with respect to the armed forces’ performance in Basra do not exactly support the “best in the world/incredible job” label.

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English Court of Appeal Decides Al-Saadoon Case on the ECHR’s Application Extraterritorially and in Armed Conflict

Published on September 14, 2016        Author: 

Last week the Court of Appeal of England and Wales rendered a unanimous judgment in Al-Saadoon & Ors v Secretary of State for Defence [2016] EWCA Civ 811. For extended analysis, see David Hart QC’s post on the UK Human Rights Blog here. Like the judgment of the High Court by Mr Justice Leggatt below, this judgment, written by Lord Justice Lloyd Jones, is exceptionally rigorous and well-argued. In a nutshell, the CoA basically endorsed almost all of the Leggatt J’s reasoning below, with one specific exception: while Leggatt J considered that under the ECtHR’s Al-Skeini judgment the personal conception of Article 1 jurisdiction as authority and control over an individual exercised by a state agent necessarily captures the use of lethal force against that individual, Lloyd Jones LJ held that he did not think that the ECtHR intended the principles articulated in Al-Skeini to go that far, and that it should be for the ECtHR to extended them thusly if it wanted to do so. He nonetheless agreed with Leggatt J in the application of the relevant principles to the facts, with most of the claimants being covered by the ECHR on a different basis.

The key paras of Lloyd Jones LJ’s reasoning are below the fold. In any event, in my view both of the judges have it right: limiting the personal principle so that it does not cover uses of lethal force (e.g. by a drone) would indeed be arbitrary, but in Al-Skeini the Court did in fact try to preserve the result of Bankovic and vaguely create a limitation of precisely this kind (see more here). And I can fully see why an English judge would think that this conceptual mess is one for Strasbourg to sort out – note, in that regard, the impact that cases that do not concern armed conflict (e.g. on extraterritorial surveillance) will inevitably have on this jurisprudence. What will ultimately happen in this regard is unclear, and will depend on the wider political context and the readiness of Strasbourg to find and follow the moral logic of Article 1 ECHR – but it’s clear that this case is headed first to the UK Supreme Court and then on to Strasbourg.

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