Webinar Recap: “What in the world…is happening in Ukraine?”

By Sue Silverman

On March 7, the Diversity, Equity, and Inclusion Committee of the FCIL-SIS held its second webinar in a series on international events that may impact FCIL-SIS and the wider AALL membership, “What in the world…is happening in Ukraine?,” focusing on the history of the crisis and the current international legal framework addressing the crisis.  Lidiya Grote from the University of Louisville moderated the panel which included Professor Oona Hathaway from Yale Law School and Victor Rud from the Ukrainian American Bar Association.

Victor Rud provided a historical context for Russia’s illegal invasion of Ukraine.  Russia, the largest country in the world does not, as Rud explained, need more territory, nor is this a border dispute.  The reason can be traced back to a 1997 Russian army blueprint which proclaimed that wiping Ukraine off the map was integral to Russia’s larger goals of destabilizing Western democracies, including America and Europe. Ukraine is wholly different from Russia, with a distinct language and a democratic tradition that includes separate branches of government, checks and balances, and a separation of church and state all of which predates America’s own founding. Russia perceives Ukraine’s democracy as a threat and Russian media incessantly reminds its viewers of the necessity of wiping the nation of Ukraine off the face of the earth.  As such, the Russian military has targeted cities, cultural landmarks, and civilians.  Russia is also, as Rud explained, targeting the Ukrainian gene pool by deporting orphaned children and indoctrinating them in Russian culture. Rud emphasized that America’s role as a global deterrent is being tested and how America reacts to Russia’s invasion will be extrapolated by other actors to predict how America would react to other illegal invasions such as of Taiwan. 

Professor Oona Hathaway followed Rud’s historical overview with an explanation of how international law has shaped the global response, focusing on how the law has been used first for condemning the war, next as a basis for arming Ukraine, and finally, in initiating the process of prosecuting Russians and Belarussians for violations of international law. The current international order is rooted in post-World War II institutions and legal rules.  Russia’s unprovoked invasion of Ukraine is in clear violation of Article 2(4) of the UN Charter. In response, many observers fretted this could signal the demise of the post-World War II international legal order. Hathaway explained how international law has provided the foundation for condemning Russia’s invasion.  Though the UN Security Council remains paralyzed, the General Assembly passed a resounding resolution demanding Russia’s immediate withdrawal, as well as subsequent resolutions condemning the invasion.  The International Court of Justice and the European Court of Human Rights have also weighed in, proclaiming the invasion to be in violation of international law.

The General Assembly resolutions and condemnations from international courts have helped set the stage for sanctions and the arming of Ukraine by the United States and Europe.  International law has also served as a justification for isolating Russia through targeted economic sanctions, the exclusion of Russia from international sports, and the expulsion of Russia from the Council of Europe.  And finally, international law serves as a basis for prosecuting Russians and Belarussians for war crimes in the International Criminal Court, or through a separate international tribunal. Hathaway emphasized that while Russia put the international order at risk, what will determine the future of the international order will be how nations respond, which so far has been through international law.  The big question is whether that response will be sustained through what will likely be a long-standing war.  As Lidiya Grote pointed out, Russia’s strategy is to wear us all out.  

Both Rud and Hathaway agreed that any negotiated settlement in which Ukraine ceded territory to Russia or gave anything up would be in violation of the Vienna Convention on the Law of Treaties since any concession by Ukraine would have been made under duress.  Thus, the invasion of Ukraine is not just about Ukraine, it is about the future of international legal order.  If Russia can get away with its flagrant violation of Article 2(4), it will succeed in undermining the fundamental rules of international law.  

Event Recap: Ukraine Prosecutor General Andriy Kostin at Georgetown

By David Isom

Andriy Kostin, the Prosecutor General of Ukraine, spoke at the Georgetown University Law Center on February 1 to discuss his investigation of war crimes committed in the course of Russia’s invasion of his country. Georgetown Law’s Center on National Security (CNS) has been deeply involved in this project, having received a grant from the Department of State to support its efforts as the lead implementing organization of the Atrocity Crimes Advisory Group (ACA) established in May 2022. With additional remarks from Georgetown Law Dean William Treanor and Senator Dick Durbin as well as a discussion panel featuring Professor/Co-Director of Georgetown CNS/Georgetown-ACA Faculty Coordinator Mitt Regan, U.S. Ambassador-at-Large for Global Criminal Justice Beth Van Schaack, Georgetown-ACA Co-Principal Investigator/CNS Senior Director for International Justice Clint Williamson, and Georgetown-ACA Co-Principal Investigator/CNS Executive Director Anna Cave, the session offered a detailed look at the efforts to hold the perpetrators of war crimes and other atrocities in Ukraine to account.

Coming close to one year after Russia began its full-scale invasion of Ukraine, Kostin described the efforts to document Russia’s ongoing war crimes—which include weaponizing winter, sexual violence, torture, and the intentional shelling of civilians, utilities infrastructure, medical facilities, schools, and cultural institutions. Kostin stated that thus far, 65,000 incidents of war crimes have been documented by the International Criminal Court, Ukraine, and other states and multilateral entities. More than 9,000 civilians (including 459 children) are known to have been killed, with the actual number likely several times higher. 256 suspected war criminals have been identified thus far, with 25 already successfully prosecuted. Kostin added that Russia’s “persecutorial pursuit of civilians” demonstrates an attempt to destroy Ukrainian identity constituting genocide.

Representatives of the International Criminal Court are already on the ground in Ukraine investigating crimes, and national investigations are underway in 18 states (in addition to multilateral investigations). Establishing an ad hoc international criminal tribunal to hold the planners of the war responsible is a realistic option, but Kostin stated that the vast majority of prosecutions for war crimes will be held in Ukraine’s domestic courts.

From left to right: Beth Van Schaack, Andriy Kostin, Mitt Regan

Kostin described the types of support his office’s investigations needs most: a robust automated case management system; security for members of the prosecutor’s office; reliable Internet access (such as the SpaceX Starlink service that has already played a role in Ukraine’s war efforts); technical expertise to investigate physical forensics, ballistics (including studies of missiles and craters), crime scenes, digital forensics, open source forensics (e.g. using data found in “trophy” postings to social media to identify perpetrators), and forensic interview specialists; experts on international humanitarian and criminal law on the ground in Ukraine; and expertise on sanctions, reparations, and consequences for others that aid the Russian war such as oligarchs and members of the Wagner Group private military company.

In closing, Kostin stated that “Ukraine’s spirit of resistance stands strong on the battlefield and in the prosecutor’s office,” and that there should be no safe havens for those who have committed war crimes. He expressed “deep gratitude for the unwavering support from the United States government and the American people.”

During the Q&A that followed, Williamson (whose long career in prosecuting war crimes has included serving as a Trial Attorney at the International Criminal Tribunal for the former Yugoslavia and as the U.S. Ambassador-at-Large for War Crimes Issues) noted several distinguishing elements of the attempt to prosecute war crimes in Ukraine. First, efforts have proceeded in parallel both domestically (in Ukrainian courts) and internationally. Secondly, efforts to document Russia’s atrocities are occurring in close to real time as Ukraine liberates Russian-occupied territories, rather than attempting to reconstruct historical crimes after the fact. Thirdly, it is unique for an educational institution to be playing a leadership role (as Georgetown is) in efforts to prosecute war crimes and other atrocities.

More information (including a video recording of the event) is available on the Georgetown website.

Overview of the China International Commercial Courts

By Evelyn Ma

This post attempts to consolidate blog posts relating to the recent establishment of the two new international commercial courts in China (CICC) aimed at facilitating resolution of disputes arising from China’s One Belt One Road or Belt and Road Initiative.  The Supreme People’s Court of China’s “Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court” took effect on July 1, 2018.  The Provisions set out the scope and operation of the two CICCs: one in Xian, and the other in Shenzhen.  The CICC in Shenzhen will focus on “One Belt” disputes arising from infrastructural developments along the coastline of the maritime routes.  The CICC in Xian will address “One Road” disputes arising from projects on land. The new courts will house mediation, arbitration and litigation under the same roof.  They intend to deal primarily with “international commercial cases” where at least one party is a non-Chinese national or resident, or where the dispute has some minimal contact with a foreign country other than China.[1]

For the legal framework creating the two CICC courts, see here.

For an overview of the jurisdiction of the courts, see here, here and here.

For the development and viability of the courts as an alternative forum for international arbitration, see here and here.

For profiles of the judges, see here.

For observations on the functioning of the Expert Committee, see here.

In addition to 18 model (or “typical”) BRI infrastructure cases, the official website includes selections of summaries of additional “typical” arbitration cases involving a non-Chinese party.  One can also search in the cases module of PKUlaw (ChinaLawInfo) for more comprehensive search results of arbitration cases involving a foreign party. However, most do not come with English translations.

[1] Under Article 3 of the Provisions, an “international commercial case” is one which requires at least one of the following: one or both parties are foreign nationals; one or both parties reside outside of China; or the object of suit or legal facts that create, change or terminate the commercial relationship occur or occurred outside of China.

Book Review – Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law

By Jessica Pierucci

Robin Geiß, Andreas Zimmermann, & Stefanie Haumer (eds.), Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law (Cambridge University Press, 2017). 278 p. Hardcover $110.00.

Humanizing the Laws of War is an edited book born from a 150-year celebration of the International Red Cross and Red Crescent Movement in 2013. “The International Red Cross and Red Crescent Movement at 150: Developing and Clarifying International Humanitarian Law,” honored the movement by pulling together international humanitarian law (IHL) scholars and practitioners for a meeting in Berlin. The meeting led to this work memorializing the achievements of the International Committee of the Red Cross (ICRC) and its undeniable impact on IHL during the past 150 years, while also addressing the organization’s shortcomings and outside criticism.

The editors open the book with an introduction focusing on the interaction between the ICRC and the National Red Cross or Red Crescent Society within countries. They note the cognizable advantage to this structure with locals who know and understand the country being able to most effectively implement broader initiatives on the local level. However, the authors note the need for increased cooperation between the organizations to further the worldwide influence of IHL.

Part I discusses the ICRC’s influence on treaty making. In Chapter 1, Robert Heinsch gives an historical account of the development of the Geneva Conventions showing the ICRC’s intimate involvement in drafting the conventions, and thus framing the conversation, noting “[i]t is probably not exaggerated to say that there is no other field of international law in which a non-State entity has had such an impact on the norm-development process as well as on the dynamic interpretation of the respective rules.” (p. 27). Heinsch notes the ICRC has also authored commentaries on the Geneva Conventions and is currently updating those commentaries, further demonstrating the ICRC’s influence as a central authority on interpretation of the conventions. The second chapter furthers the discussion with Michael Bothe detailing the ICRC’s influence on the subsequent protocols to the Geneva Conventions of 1949 while acknowledging the protocols’ shortcomings, notably in nuclear and environmental fields.

Part II looks beyond treaties at the ICRC’s influence on IHL norm development. In Chapter 3, one of the editors of the 2005 Customary International Humanitarian Law study, Jean-Marie Henckaerts, describes the origin and addresses criticism of the study that laid out 161 rules of customary IHL, and is continually updated through additions of relevant state practice in the ICRC’s Customary IHL database. The origin story provides valuable context for understanding this expansive study and I appreciated the author’s direct discussion of criticism since the study’s publication. Chapter 4 similarly provides background and addresses critiques of the ICRC’s Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. Robert Cryer discusses the criticisms, but pushes back noting if the critical governments “wish to reject the ICRC’s view, the impetus is now for them to show that they can create (and get broad agreement thereupon) something better.” (p. 138).

Part III turns to the ICRC’s influence on weapons laws and international criminal law (ICL). Chapter 5 discusses the ICRC’s efforts in developing IHL norms and treaties on weapons that are by their nature indiscriminate or cause superfluous injury, such as chemical weapons and cluster munitions. Kathleen Lawand and Isabel Robinson share examples of the ICRC successfully serving as a catalyst for creating weapon-specific laws, but admits the ICRC has not been successful in all circumstances, particularly in the case of nuclear weapons. In Chapter 6, Carsten Stahn discusses the intersections of IHL and ICL, focusing in particular on interaction between the ICRC and international criminal courts and tribunals. Stahn shares how IHL and ICL are not mutually exclusive and further understanding of and development of their relationship could improve both fields.

Part IV, the conclusion, is authored by two of the editors, Robin Geiß and Andreas Zimmermann. They highlight the ICRC’s successes and prominence within IHL while also grappling with its failures. In particular, the authors note the need for a compliance mechanism or other means to increase IHL compliance and discuss barriers impeding compliance initiatives.

This review provides just a glimpse at the fascinating history of the ICRC discussed in the work. The book’s critical lens makes for an enlightening read allowing the reader to gain a broad understanding of the ICRC’s contributions to IHL laws and resources, and the current limitations of IHL and the ICRC. The heavily footnoted chapters allow readers interested in any of the topics covered to look deeper into history or criticism of the ICRC’s influence and IHL. This book would fit well in any library with an IHL collection.

Cuban Law and Legal Research: A Snapshot During the Deshielo (Congelado?) – Monday, July 17, 2017, 9:45 a.m., Austin Convention Center, Room 18AB

By Julienne Grant

“The history of the United States and Cuba encompass[es] revolution and conflict, struggle and sacrifice, retribution and now reconciliation. It is time now for us to leave the past behind. It is time for us to look forward to the future together.”

-President Barack Obama, March 22, 2016, Havana, Cuba

 

“Therefore, effective immediately, I am canceling the last administration’s completely one-sided deal with Cuba.” 

-President Donald J. Trump, June 16, 2017, Miami, Florida

 

“Again, the United States Government resorts to coercive methods of the past, adopting measures to intensify the blockade, in force since February 1962, which not only causes damage and deprivation to the Cuban people and constitutes an undeniable obstacle to the development of our economy, but also affects the sovereignty and interests of other countries, inciting international rejection.” (Julienne E. Grant, translation)

-Declaration of the Revolutionary Government, June 16, 2017, Havana, Cuba

 

When I drafted a proposal last fall for an AALL program on Cuba, I envisioned a continuation of the dramatic deshielo (thaw) of relations between the U.S. and Cuba. Specifically, I assumed there would be a progression of the rapprochement that former President Obama alluded to in his speech in Havana on March 22, 2016.  What I didn’t foresee while crafting the program were the most recent proclamations by President Trump and the Cuban government.  Trump’s June 16^th announcement in Miami that backtracks some of the previous administration’s initiatives has halted the thaw a bit. As such, this program is perhaps more appropriately a snapshot during the deshielo congelado (frozen thaw). However U.S.-Cuba relations can now be characterized, though, Cuba is on the cusp of dramatic changes, and it’s a hot topic.

Please join Dr. Marisol Florén-Romero (Florida International University), Teresa Miguel-Stearns (Yale), and me (Loyola University Chicago) as we first explore this enigmatic jurisdiction from a law librarian’s perspective. Our program will include a brief overview of the somewhat unwieldly nomenclature of Cuban law, as well as a short assessment of English-language sources that can provide insight into Cuba’s legal landscape. In addition, Teresa will offer a quick summary of her experience purchasing legal materials in Havana last year.  Accompanying the program is a useful 26-page handout that will be available for download.

Our featured speaker, however, is Professor Jorge R. Piñon, whose talk is titled “Cuba Business Scenarios:  Challenges and Opportunities,” certainly a timely topic in what is an extremely fluid political and economic environment.   Professor Piñon is the Interim Director of The University of Texas at Austin, Center for International Energy & Environmental Policy, and the Director of its Latin America & Caribbean Energy Program.

Professor Piñon is also recognized as an expert on Cuba’s energy sector, as well as on the island’s future economic transitional challenges and opportunities.  He is an advisor and a member of the Cuba Task Force at The Brookings Institution and co-author of “Cuba’s Energy Future: Strategic Approaches to Cooperation,” Brookings Institution Press, 2010.

Hope to see you on Monday for what is sure to be a lively, engaging, and enlightening hour!

 

The Social Responsibilities Special Interest Section Carbon Offset Project: Making a Difference in Global Climate Change

By Erin Gow

As the AALL 2017 conference approaches and you mark your calendars for all the great FCIL related sessions and events taking place in Austin this year, why not take a moment to consider contributing to the Social Responsibilities Special Interest Section Carbon Offset Project? This is a great opportunity to come together with librarians from other sections across AALL to make an international difference.

Climate change is a truly global issue, with international laws and treaties addressing a range of environmental issues that must be tackled beyond the borders of any single nation. This year the SR-SIS is providing an opportunity for everyone to make a difference to the international crisis of climate change by making a donation of just $6 to offset the carbon impact of travelling to the 2017 AALL conference. In addition to making a difference by offsetting carbon emissions, this year’s project also has a direct impact on the lives of people in Uganda, by providing cook stoves that are safer and cleaner than the toxic fires many families currently have to rely on to cook their meals. Visit www.aallnet.org/sections/sr/projects/Travel-Offset-Project.html to find out more about the project and to make a donation.

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

Portraits UNPGA70 Staff

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?

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 strike.  There 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].

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