ASIL 2017 Recap: Claims against the United Nations: From Within and Without

By: Loren Turner

At 9:00 a.m. Friday, April 14, 2017, during ASIL’s annual meeting, a panel of international law experts assembled to address the accountability of the United Nations in its peacekeeping operations (or, in practical terms, lack therof).  The topic is getting increasing attention in light of recent evidence that U.N. peacekeepers caused the cholera outbreak in Haiti and sexually-abused children and women during peacekeeping operations in Central Africa.

The panelists were: Simon Chesterman, Professor of Law at the National University of Singapore; Andreas Vaagt, with the United Nations Secretariat, and Patricia Galvao Teles, with the International Law Commission.  Alejandro Sousa, senior legal adviser to the U.N. General Assembly, moderated the discussion.

Professor Chesterfield unpacked the concept of accountability into two inquiries: (1) to whom is the United Nations accountable and (2) for what?  In short, the answers are: (1) unfortunately, no one – yet; and (2) violations of humanitarian law.

In 1952, when there were 60 countries that comprised the United Nations, a committee of the American Society of International Law (referenced here) questioned whether the U.N. was subject to the laws of war.  After all, the U.N. was not, itself, a party to the Geneva Conventions or any other treaties.  It was not until the Kosovo intervention in 1999 that it was decided yes, humanitarian law applies to U.N. peacekeeping operations because: (1) the U.N. is an independent actor – separate from member States – when it exercises peacekeeping functions under the U.N. Charter (2) customary law supports humanitarian intervention in certain situations and the laws of war thus apply to the actors performing the humanitarian intervention and (3) the U.N. increasingly exercises state-type activities, such as in Kosovo when it set up panels to prosecute criminals and freeze assets.

Yet, despite theoretical application of laws of war to U.N. peacekeeping operations, the practical reality is that the U.N., as an international organization, has absolute immunity.  Additionally, individual U.N. officials have immunity as well.  When the U.N. admitted its role in Haiti’s cholera epidemic, victims brought suit in U.S. federal court.  The Second Circuit dismissed the case for lack of subject matter jurisdiction, finding the U.N. was indeed immune under Section 2 of the Convention of the Privileges and Immunities of the United Nations, which states “The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity…” So, victims in places where the U.N. operates, such as in Haiti, have no avenue to contest activities or hold the U.N. accountable.  The organization that is supposed to enforce the rule of law around the world is not itself accountable.

Mr. Vaagt spoke on behalf of the United Nations. He said enforceability of the rule of law related to personnel actions depends on member states. Once article V or VI of the U.N. Charter is invoked, the status of forces agreement (SOFA) between the U.N. and the host country applies.  Under the SOFA, the state(s) providing humanitarian personnel maintain exclusive jurisdiction of those individuals.  The concept of exclusive jurisdiction also applies to NATO forces going into NATO countries.  Once the U.N. refers a case to a state, it is up to the state to investigate and prosecute the offender.  General Assembly resolution 62/63 urged states to exercise that jurisdiction.  Yet, to date, despite approximately 100 case referrals, not a single state has pursued charges.  

As to the immunity of U.N. staff, only official high level U.N. officials have diplomatic immunity.  But, there are other U.N. employees who have functional immunity, which can be waived by the U.N. Secretary General.  Officially, the U.N. has a zero tolerance policy and Secretary-General Guterres recently released a strategy to end impunity for sexual exploitation and abuse system-wide.  It is too early to comment on the effect of that strategy. Regardless, unless waived by the Secretary-General, immunity stands.

Ms. Galvao Teles said that the issue of U.N. accountability is not a new one.  There are three strategies that have been raised to attempt a balance between immunity and impunity: (1) revise the 1946 Convention on the Privileges and Immunities of the United Nations; (2) envision a convention on the jurisdictional immunities of international organizations; or (3) tackle the immunity question within the context of “settlement of international disputes” to which international organizations are parties.  In Ms. Galvao Teles’s opinion, none of these strategies is appropriate.  It is risky to revise agreements that already contain good law.  Given the current international political climate, the Secretary-General says he is happy to have what we have rather than risk getting less.  Maybe it is not the rules that need to change, but the implementation.  We could clarify when a waiver of immunity would be appropriate.  We could define better the phrase “private claim.” We could explore a sanctions-type system to handle claims rather than relying on judicial resolution.  All of these are better options than revising an established treaty.  As to the second idea of envisioning something new?  Not going to happen.  What would it add?  Again, it is probably an issue about new strategies of implementation rather than the creation of new rules.  The last idea, the topic of tackling the immunity question within the context of settlement of international disputes, was added at the sixty-eight session of the International Law Commission.  Ms. Galvao Teles thinks it is more likely that the International Law Commission would provide draft clauses to address the issue of immunity – not an entire convention.

[For more information about this program, read the official recap on ASIL Cables].

ASIL 2017 Recap: Debate: Bombing Terrorist Revenue: Legitimate Military Strategy or War Crime?

Bombing Terrorist Revenue

By: Amy Flick

One of the Friday sessions at ASIL’s 2017 annual meeting was staged in the form of a debate on the question of whether the practice of targeting revenue sources of ISIL (like oil trucks and infrastructure and cash storage sites) violates international humanitarian law. The moderator, Christie Edwards of the American Red Cross International Humanitarian Law Division, began the program by explaining the debate format, with the speakers taking assigned positions which might, or might not, reflect their own views.

The affirmative side, supporting targeting of revenue sources as legitimate military objects, led off with Professor Ryan Goodman of New York University School of Law. He argued that it is lawful to target objects under current law, even if the law should be changed, and that under debating rules, the proof is on the negative team.  Article 52(2) of the Additional Protocol I of the Geneva Conventions, on general protection of civilian objects, limits attacks strictly to military objectives, with a definition of targetable objects as those making an effective contribution to military action. He cited Burrus Carnahan’s writings on Additional Protocol I, which include examples of economic targeting such as the destruction of raw cotton during the U.S. Civil War, and the more recent example of Afghanistan, where all 28 members of NATO have authorized targeting drug labs. Professor Goodman acknowledged that the prevailing academic opinion is that economic targets are not legitimate targets, but he called most of the analysis of the question in the academic literature superficial. He also referred to ICRC Commentaries requiring military control over an object as a limit. Since ISIL controls the oil fields and funds its operations and purchases weapons through the sale of oil, those qualify as legitimate targets. Where states have drawn the line is targeting people, even if they are working in revenue-generating operations, if they are not directly involved in hostilities.

Professor Laurie Blank, Director of the International Humanitarian Law Clinic at Emory University School of Law, argued for the negative side, and disagreed on the debate’s burden of proof, saying that the party describing a target as outside IHL protections has the burden of proof here. Because the object and purpose of the law of armed conflict is to minimize civilian suffering, the law of armed conflict limits targeting to military objectives and combatants. The first step in the process is to determine if the target is a military objective. Article 52(2)’s definition of targets is combatants and equipment. Donating money to a terrorist group does not make one a target, even if the money might be used for objects that might be used in conflict. Just because something is done frequently, or feels good, an argument for “morally legitimate” does not make economic targeting legal in the law of armed conflict. She argued that the risk of turning money into a military objective by nature is that the slippery slope leads to targeting agriculture, banks, and the environment.

Maj. Gen. Charles Dunlap, Professor and Executive Director of the Center on Law, Ethics and National Security at Duke Law School, returned to the affirmative side of the argument. Professor Dunlap disagreed with the slippery slope argument and said that the point of the debate is the narrow question of whether the target has a direct connection with objects on the battlefield. ISIL fighters regard monetary payments as income for jihad. Two-thirds of ISIL’s budget goes to paying fighters and buying equipment. He cited an article from The Atlantic from March 6, 2017 (which itself cites a February 2017 report from The International Centre for the Study of Radicalisation and Political Violence) that found that, when the oil fields were bombed, ISIL cut fighter pay by 50%, and many left the battlefield. An attack that removes fighters from the battlefield without civilian casualties serves the idea of international humanitarian law. U.S. forces even dropped leaflets to notify drivers before oilfields were bombed. Professor Dunlap stressed that these tactics are only used when it is shown that eliminating these economic targets will affect the battlefield. The alternative is for military operations on the ground to have to root fighters out from urban areas house by house.

The final speaker of the debate was Professor Jens David Ohlin of Cornell Law School, arguing for the negative side. He started with a declaration that “slippery slope is an understatement.” Article 52(2)’s not having used the word “direct” does not mean that it allows revenue-producing site bombings. There must be a causal nexus to the military outcome, and it must be relatively certain that destruction of the target confers a military advantage. Bombing to demoralize the civilian population is not enough of a military nexus; bombing coal and steel plants is. Three steps are needed with economic targets to show a military purpose: a revenue-generating product is produced; the product is sold; and the revenue is used to buy weapons. This is not enough to establish a causal connection a stay within the requirement of conferring a definite military advantage.

On rebuttal, Professor Goodman reiterated that current law allows the slippery slope, even if the law should be changed. The travaux for Protocol I dropped “direct objects” and allowed indirect objects. Just as steel is turned into tanks, money creates fighters, and could even be traded directly for arms, eliminating one of the three steps. Rule 8 practice includes oil storage sites as military targets, as well as dual purpose structures like bridges; it does not allow bombing agriculture, with a disproportionate effect on civilians, or the World Trade Center, as an example of a structure too indeterminate to military objectives.

Professor Blank stated that she found assurances that there are limits and that states will be careful as insufficient. Making law for “bad terrorists” is not why a practice is allowed, because it becomes justifiable for other groups.

Professor Dunlap’s response was that the law requires care to be taken. Military forces must collect a lot of data or they cannot target, and IHL does not matter to groups who do not follow the law. The current situation in Syria and Iraq has seen a collapse of reciprocity. If we can eliminate fighters and weapons without civilian casualties, and there are no good other options, we should do it.

Professor’s Ohlin’s final response was that the affirmative side has argued that international law permits anything that is not prohibited, but IHL requires a presumption of civilian character, with proof that a target is a legitimate military target. The parties agree that analysis requires a definite military advantage; the disagreement is over what is definite.  He contended that the affirmative side distinguished unfairly between small and large powers based on how much of the economy must be crippled by the destruction of a target to diminish the combatant’s military capacity. Professor Blank agreed that the rules must be the same for state and non-state actors; targeting rules cannot be different based on whether the parties are good or bad.

[To watch the video of this program and others from ASIL’s 2017 annual meeting, visit ASIL’s YouTube channel.  For another recap of this program, visit ASIL Cables].

ASIL 2017 Recap: International Law and the Trump Administration: National and International Security

By: Loren Turner

During these first 100 days of a Donald Trump presidency, the American Society of International Law (ASIL) has led efforts to bring together experts from both sides of the political spectrum to talk about international law under the Trump administration. ASIL has produced a series of freely-available webinars that analyze the Trump administration and (1) the future of international agreements; (2) U.S. engagement with the United Nations; (3) U.S. participation in global trade agreements; and (4) the future of environmental agreements.

On Thursday, April 13, 2017, during ASIL’s annual meeting, experts assembled once again to discuss international law under the Trump administration, but this time through the lens of national and international security.  The program was certainly timely, as it occurred the same day we learned the United States had dropped the “Mother of All Bombs” on Afghanistan and accidentally bombed allies in Syria.

Benjamin Wittes of the Brookings Institution served as moderator to a panel of three experts on international law and politics: Shireen Hunter of Georgetown University’s School of Foreign Service; John Bellinger, legal adviser for the U.S. Department of State and the National Security Council during the George W. Bush administration; and Elisa Massimino, the President and Chief Executive Officer of Human Rights First.

In her opening remarks, Shireen Hunter identified herself as the voice of “political realism.”  She said laws are the outcomes of social and political processes.  Law is important but it is politics that change things and the laws change when society and politics change.  International law succeeds when there are common interests.  For example, even during conflict, the mail still gets delivered.  Maritime trade continues because those common interests remain.  But international relations and the rule of law are based on power.  Those nations with power, use that power to get what they want and there is no enforcement mechanism that stops them.  Saddam Hussein bombed Saudi Arabia with impunity.  Russia annexed Crimea and the international community did nothing to stop it.  No one abides U.N. Security Council resolutions, which are supposed to be binding.  The ideal is to implement the rule of law but the reality is that international relations is based on power and is skewed. We need a balance of power before international law is respected. We need creative ways of encouraging international cooperation and hence strengthening international law.

On the topic of human rights and Syria, Ms. Hunter said that she witnessed the abuse of human rights rhetoric when she served on the United Nations Human Rights Committee.  The United States would claim to honor human rights, but then sell bombs to nations that routinely violate human rights.  We had waterboarding under the Bush administration.  Trump doesn’t really care about the Syrian people.  Syria is a test case of which nation is going to be the next hegemon in that part of the world. Humanitarian intervention is a new phenomenon and it causes a lot of deaths.  Look at Libya, at Iraq.  Bombing Syria for humanitarian reasons is a smokescreen.  If the Trump administration wanted to follow international law, it would conduct an investigation to make sure Assad really did employ those chemical weapons.

John Bellinger first identified Trump as a danger to national security in a blog post he wrote for Lawfare in 2015.  In August 2016, he joined a group of 50 other former G.O.P. national security advisers to publicly state that “Trump lacks the character, values, and experience to be President.”  Mr. Bellinger said there is significant cause for alarm, but there may also be rays of hope.  According to Mr. Bellinger, there are some serious lawyers that could be joining the Trump administration and, if they do so, the administration may begin to settle down.  Mr. Bellinger noted, however, that Trump is dividing the country and that it is extremely destabilizing when Trump says he doesn’t support the international obligations of the United States.

As to the topic of Syria, Mr. Bellinger said that Trump might have recklessly gotten to the right place.  We all know the Syria strike is not legal under international law.  Is it justified though? One of the most troubling images associated with the Syria strike is the photo of Trump getting briefed about the strikeThere were no lawyers in the room.  Did international law inform the decision at all?  Mr. Bellinger would not have wanted to wait for the results of a full investigation to confirm Assad released the chemical weapons, but international lawyers need to be consulted before a reaction like this.

Elisa Massimino began her remarks with the question: we haven’t reached 100 days yet, right?  Feels like 100 years.  According to Ms. Massimino, the Trump administration’s budget proposal for the United Nations speaks volumes as to what the administration thinks of human rights and norms. The administration’s focus is on hard security.  Yet, the foundation of human rights is the best way to achieve peace and security in the world.

Ms. Massimino argued that the refugee policy is a huge threat to the national security of the United States and also our allies in Europe.  Additionally, the administration’s rhetoric on refugees, torture, and increased prosecutions for illegal entry, all pose real concerns to those who want adherence to international law and national security.  Trump’s tweets are a big deal and “we are really concerned.”  It is not a coincidence that Assad attacked civilians with chemical weapons right after the administration said that removing Assad was no longer a priority.

According to Ms. Massimino, the Trump administration’s slogan of “America First” is code for isolationism.  The America First campaign might mean America, alone.  Launching missiles is not a strategy.  When the United States withdraws, others scramble to fill the void, and these others (Russia, China, etc.) are putting forth alternative views of how the world should work and these views are not based on rules and norms that promote international law and human rights.

So, what can we do, as international law practitioners and academics?   Both Mr. Bellinger and Ms. Massimino urged audience members to get out and educate the American public – at local, regional, and national levels.  Explain the value of international law, especially how it helps people in their daily lives (airline travel, receiving mail, buying goods at reasonable prices, etc.).  According to Ms. Massimino, “this is our moment as international lawyers and it is up to us whether we can rise to the occasion.”

[Visit ASIL’s YouTube channel to access the full video of this program and others from ASIL’s 2017 annual meeting. For another recap of this program, visit ASIL Cables].

ASIL 2017 Recap: Grotius Lecture: Civil War Time: From Grotius to the Global War on Terror

By: Amy Flick

The American Society of International Law (ASIL) kicked off its 111th annual meeting in Washington, D.C. on April 12, 2017 with its 19th annual Grotius Lecture. The 2017 Grotius Lecturer was David Armitage, Lloyd C. Blankfein Professor of History at Harvard University, and Distinguished Discussant Mary L. Dudziak, Asa Griggs Chandler Professor of Law at Emory University School of Law.

The program was introduced by Camille Nelson, Dean of American University Washington College of Law. She remarked that Professor Armitage and Professor Dudziak have each published on the subject of civil wars. Since modern conflicts do not fit into a classical international law model of conflicts between states, a discussion between historians on whether international law applies to civil wars is an appropriate topic for annual meeting.

Professor Armitage’s book is Civil Wars: A History in Ideas, which Professor Armitage acknowledged was inspired by Professor Dudziak’s book War Time: An Idea, Its History, Its Consequences. Professor Armitage observed that civil war is a recent field of study. History has traditionally been separated into war and peace times, with war considered temporary, but with modern conflicts, it is difficult to determine when wars begin or end. Civil wars are not declared, they resonate even after a conflict ends, and they are prone to recur. Post World War II has been an age of civil wars, with 20 on average at any one time, and consequences arising from internal wars becoming international through intervention and outside combatants.

Professor Armitage explored the history of the study of civil war, beginning with the Romans, who likened them to natural phenomena like volcanoes. Grotius distinguished between public and private wars, classifying civil war as a public war against the same state, and finding any peace preferable to civil war, with civil wars never categorized as just wars. By contrast, Vattel disagreed with Grotius on the existence of private war, and positing that a civil war could be a just war if evils within a state are intolerable. His book The Law of Nations influenced 18th and 19th century United States thought and was cited in the Prize Cases, 67 U.S. 635 (1862). “When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists, and hostilities may be prosecuted on the same footing as if those opposing the Government were foreign enemies invading the land.” The Lieber Code, though, did not distinguish between insurrection and civil war, and defined the 1860s U.S. conflict as a rebellion, not a civil war, allowing the suspension of habeas corpus.

Professor Armitage brought the lecture to the current era with the extension of the Geneva and Hague Convention protections to internal conflicts with Article 3 of the Geneva Conventions and the 1977 Protocol II. In discussing the current Syrian conflict, he addressed the problem of language. Assad has called the conflict of 2011-2012 an insurrection, not a civil war. The ICRC confirmed it as an “armed conflict not of an international character,” covered by international humanitarian law. Professor Armitage pointed out the political reluctance to call a conflict a civil war, with definite declarations and peace treaties, even though since World War II there have been more peace treaties for civil wars than for inter-state conflicts. He concluded by calling this an urgent moment in history to define what is a civil war and what we value, as more political disputes are being described as “civil wars.”

Professor Dudziak found the categorization of war in categories of civil war and its opposite inter-state war as useful, but remarked on another category of war, with examples from 1864 of the United States Civil War and the U.S. Indian Wars. The U.S. Civil War was considered a “real war” in legal history and treated as fitting in the Lieber Code definition of civil war as an appropriate example of the use of war powers. The carnage of the civil war created widespread suffering which the public had to respond to by creating a “community of suffering” and humanizing the other side. By contrast, the Indian Wars of the 19th century have not been considered civil wars. Native Americans were considered barbarians, outside the borders of civilization and outside non-combatant immunity. The Lieber Code limits did not apply to “savages.” The exception of uncivilized people from protection culminated in the Sand Creek massacre of the Cheyenne.

Professor Dudziak concluded by declaring that in the late 20th and early 21st centuries, peace is not a time, it is an identity for people isolated from the battlefield. The absence of shared suffering has created an American apathy about war. Ending on a more hopeful note, she asked “Wouldn’t it be great if people could be brought together in peace instead of suffering?”

[Check out ASIL’s YouTube channel for the full video of the 2017 Grotius Lecture. For another recap on this program, visit ASIL Cables].

 

EISIL Update

The Electronic Information System for International Law (EISIL), sponsored by the American Society of International Law (ASIL) experienced outages last week.  Upon request, Don Ford agreed to update the FCIL-SIS on his knowledge of EISIL’s status.

By: Don Ford

EISIL Update: In 2012, shortly after ASIL eliminated its librarian position, Barbara Bean (Michigan State University Law Library) and I volunteered to serve as EISIL’s general factota.  Barbara continued training EISIL editors and I continued accumulating potential new sources for EISIL.  However, since early 2013, ASIL has allowed no updating of EISIL because to do so might crash the EISIL system, which is superannuated.  This has caused the database to become seriously outdated, as no new content has been added, and existing content has not been updated.

Barbara and Don also tried to keep EISIL alive.  During the period 2012-2016 there were a number of discussions, both with Elizabeth Andersen, ASIL’s former Executive Director, and with Mark Agrast, ASIL’s current Executive Director, about migrating EISIL to a new platform.  In addition, repeated attempts were made to include EISIL within the broader framework of the ASIL website redesign project, to no avail.  This spring, Don and Barbara felt they had to recommend to ASIL that the database be suppressed until it can be properly updated.

An article on the history of EISIL and on the efforts to keep it alive will be published in the fall 2016 issue of the Informer, the electronic newsletter of ASIL’s International Legal Research Interest Group (ILRIG).  In the meantime, please let ASIL Executive Director Mark Agrast know your concerns.  He may be reached at magrast@asil.org.