• Four more nominations for the post of WTO Director-General have been received in the past few days: Herminio Blanco (Mexico), Ahmad Hindawi (Jordan), Amina Mohamed (Kenya) and Tim Groser (New Zealand).
• Russia’s Foreign Minister has stated that the Syrian government is unlikely to deploy chemical weapons as it would amount to political suicide.
• An Afghan policewoman has killed a NATO military adviser in Kabul.
• Islamists in Mali have destroyed more of the historic Timbuktu mausoleums.
• The US is reportedly considering opening trade talks with the EU on a trans-Atlantic partnership soon.
• Professor Andre Nollkaemper has a commentary piece about the latest ECtHR judgement El Masri v. Former Republic of Macedonia at EJIL:Talk!
• World governments have “upgraded” the global status of the United Nations Environment Programme (UNEP) by opening its governing body to all 193 UN Member States.
• Secretary-General Ban Ki-moon welcomed the passing of an “historic” United Nations resolution yesterday calling on countries to eliminate female genital mutilation, adding that the move was an important step towards a world free from violence against women.
• A federal judge approved the final class settlement order in BP oil spill case.
• Dozens of people were killed and many more wounded in a Syrian government air strike that hit a bakery where a crowd was queuing for bread.

Upcoming Events

• The ABA Section of International Law presents the 3rd Annual ”Live from L,” The Office of the Legal Adviser, U.S. Department of State Thursday, January 10th, 2013 12:00 PM – 2:00 PM US Eastern Time entitled: “International Lawyering for the U.S. Government in an Era of Smart Power: Emerging Issues for the Next Four Years.” More information and registration can be found by clicking here.
• The Oxford Brookes Law School is organising a workshop entitled Fundamental Rights in Europe: A Matter for Two Courts on 18 January 2013. More information can be found here.
• The Adelaide Law School presents Personal Property Security Law: Local and Global Perspectives on February 20-21, 2013.
• On April 5, 2013, the American University Washington College of Law will host the Inaugural Cherry Blossom Symposium on Intellectual Property and Federal Policy: Universal Access in the Digital Environment. The symposium will explore intersections between intellectual property and Federal disability rights policy. Abstract deadline is January 31, 2013. Abstracts should be submitted here or emailed to sflynn [at] wcl [dot] american [dot] edu.
• The International Max Planck Research School for Competition and Innovation and the Center for Law & Economics at ETH Zurich host the Fourth Workshop for Junior Researchers on the Law and Economics of Intellectual Property and Competition Law on June 10-12, 2013.
• Sciences Po Toulouse and the Research Committee on Sociology of Law of the International Sociological Association (ISA/RCSL) are holding a conference on September 3-6, 2013. The theme of the conference is Sociology of Law and Political Action.

Announcements

• The American Bar Foundation (ABF) invites scholars to join the ABF’s intellectual community for the 2013-2014 academic year. National and international scholars on leave or sabbatical are encouraged to apply. More information can be found here.

Last week’s announcements can be found here. If you would like to post an announcement on Opinio Juris, please contact us. Happy Holidays to all of our readers!!

In the comments to my first post on the ICC and retroactive jurisdiction, Johnboy4546 suggested that the Palestinians might self-refer only the situation in the West Bank to the Court.  Such a referral would have two clear advantages for the Palestinians: (1) it would prevent the OTP from investigating Hamas’s rocket attacks, which are almost always launched from Gaza, as well as crimes committed by Fatah-related groups in Gaza (such as the murder of civilians); and (2) Israel would be extremely unlikely to prosecute the crime the Palestinians would want the OTP to investigate in the West Bank, the direct or indirect transfer of the civilian population into occupied territory, thereby ensuring that Israel could not take advantage of the Rome Statute’s principle of complementarity.

It’s a creative suggestion — and one that I’ve been hearing with increasing regularity from people sympathetic to the Palestinian cause.  (I’ve just returned from a wonderful conference in Tel Aviv, a trip that included giving three different presentations in one day — a new record for me.)  But would such a geographically-limited self-referral be possible?

On balance, I don’t think so.  There is no question that a state can self-refer crimes committed on a portion of its territory; that is how the ICC treated Uganda’s referral of the situation in Northern Uganda.  (Uganda only referred crimes committed by the LRA, but the Court recharacterized that self-referral on the ground that Article 14(1) of the Rome Statute limits states to referring “situations.”)  The Security Council also limited its Sudan referral to crimes committed in Darfur.  Those referrals would seem to suggest that Palestine could refer only the situation in the West Bank to the Court.  (I am assuming for sake of argument that the Palestinian state includes both West Bank and Gaza.)

The problem is that such a geographically-limited referral would frustrate the spirit, if not the letter, of Article 14(1).  As is widely acknowledged, the drafters limited Article 14(1) to situations precisely to prevent states from using referrals to target their political opponents.  (A legitimate fear, as Uganda’s original self-referral indicates.)  By requiring states to refer situations instead of cases, Article 14(1) ensures that the OTP will always be able to investigate crimes committed by both parties to a conflict.

And therein lies the problem with a hypothetical West Bank referral. Such a referral would obviously be designed to enable the Court to investigate crimes committed by Israel while preventing it from investigating crimes committed by Hamas.  Functionally, then, a West Bank referral would be no different than Uganda’s self-referral of the LRA’s crimes.  The Court would be very unlikely to accept such a referral simply because it was framed in geographic terms.  After all, Uganda could have referred only those parts of Uganda in which the LRA operated instead of specifically — and clumsily — targeting the LRA. I doubt that the Court would have permitted Uganda to accomplish indirectly what it could not accomplish directly.

Nor is that all: even if the Court would be willing to accept a West Bank referral, Palestine might find it difficult to prevent the OTP from investigating its own crimes.  To begin with, the OTP could simply decline to investigate a referral that was limited to the West Bank — on the basis of either insufficient gravity or the “interests of justice” —  and then use its proprio motu powers to initiate a broader investigation.  I’m skeptical that the current OTP would be foolish enough to conduct any investigation into one of the most politicized conflicts in history.  But if it did, it would certainly not be foolish enough to investigate only one side of that conflict.

Moreover, it is not clear that an investigation into the West Bank would preclude the OTP from investigating crimes committed in Gaza.  In Mbarushimana, the defendant argued that because the DRC’s self-referral was limited to crimes committed in the Ituri region, the Court did not have jurisdiction over the crimes he allegedly committed in North and South Kivu.  The Pre-Trial Chamber rejected that argument on the ground that, in fact, the DRC had not limited its self-referral to Ituri.  But it also suggested — obliquely — that, had the referral been so geographically limited, the Court might still have had jurisdiction over at least some acts committed outside of Ituri.  Consider the following paragraphs (emphasis added):

16. The issue at stake is to determine whether the facts underlying the charges brought by the Prosecutor against Mr Mbarushimana can be said not to exceed the territorial, temporal and possibly personal parameters defining the situation under investigation. More specifically, according to the test developed by the Chamber in the present case, it is required that the crimes referred to in the Prosecutor’s application for a warrant of arrest for Mr Mbarushimana occurred in the context of the ongoing situation of crisis that triggered the jurisdiction of the Court through the Referral by the DRC. As already clarified by the Chamber, such a situation can include not only crimes that had already been or were being committed at the time of the referral, but also crimes committed after that time, in so far as they are sufficiently linked to the situation of crisis which was ongoing at the time of the referral.

21. The Chamber takes note of the DRC Observations, clarifying that; in submitting the Referral, the competent authorities did not intend to limit the Court’s jurisdiction to one or more particular provinces within its territory. As already determined by the Chamber, the territorial and temporal scope of a situation is to be inferred from the analysis of the situation of crisis that triggered the jurisdiction of the Court through the referral. Crimes committed after the referral can fall within the jurisdiction of the Court when sufficiently linked to that particular situation of crisis.

Although far from the picture of clarity, these paragraphs seem to imply that the Court’s understanding of the situation underlying a state’s self-referral is more important than the specific parameters of the referral itself.  As long as there is a sufficient nexus between a particular crime and the facts that motivated the state to refer the situation in question, the Court has jurisdiction over that crime.

I don’t want to push that interpretation too strongly.  The PTC’s comment regarding territorial jurisdiction was dicta, given how it construed the DRC’s self-referral.  But the rationale is the same for both temporal and territorial jurisdiction: states should not be able to craft self-referrals that prevent the Court from exercising jurisdiction over crimes that, in an objective analysis, really do fall within the parameters of the situation in question.  That principle explains why Uganda could not self-refer only the LRA’s crimes to the Court — and it explains why Palestine should not be able to impose geographic restrictions on a situation that would effectively limit the OTP to investigating crimes committed by Israel.

This week on Opinio Juris, Kristen Boon followed up on her discussion last week about changes towards more transparency and fairness in the UN’s Al Qaida sanctions regime.

Craig Allen contributed a guest post on the ITLOS’ interim order for the release by Ghana of Argentina’s ARA Libertad. UNCLOS was also central to Duncan Hollis’ post on China’s submission to the Continental Shelf Commission in relation to the dispute regarding the Senkaku/Diaoyu islands.

Peggy McGuinness congratulated Diane Amann, Leila Sadat and Patricia Sellers on their appointments as special advisor to the ICC’s OTP, but was saddened that Diane’s appointment meant a goodbye from IntLawGrrls.

In response to John Bellinger’s NYTimes op-ed, Chris Borgen argued that it is up to Republican leadership to address their base’s aversion towards international treaties. Further on news from the US Senate, Deborah Pearlstein posted the open letter by Senators Feinstein, Levin and McCain to Sony Pictures, protesting against the depiction of torture as an effective means of intelligence gathering in the new movie Zero Dark Thirty. She followed up with a post on the CIA’s press release about the movie.

We concluded the week with our final journal symposium of the year, on the latest issue of the Leiden Journal of International Law. Dov Jacobs introduced the two articles to be discussed, and the comments, here. The first article, by Monika Ambrus, looked through the lens of discrimination law at the question of defining a group for the purpose of the definition of genocide. William Schabas questioned why the definition of genocide needs to be broadened given that the definition of a crime against humanity has already been expanded to include peacetime atrocities. Frederic Mégret’s comment focused on the 19th century understanding of race and ethnicity that permeates the genocide definition. Monika Ambrus’ response is here. Samantha Besson’s article on extra-territoriality of the European Convention of Human Rights was the second article in the symposium. Comments were provided by Cedric Ryngaert and Marko Milanovic, to which Samantha Besson responded here.

Our weekly events and announcements and weekday news wraps completed the week.

Have a nice weekend!

This statement, coming from the Acting Director of the CIA, is perhaps even more remarkable than the Senators’. The press release is posted on the CIA website and is reprinted below.

Statement to Employees from Acting Director Michael Morell: “Zero Dark Thirty”
December 21, 2012
________________________________________
I would not normally comment on a Hollywood film, but I think it important to put Zero Dark Thirty, which deals with one of the most significant achievements in our history, into some context. The film, which premiered this week, addresses the successful hunt for Usama Bin Ladin that was the focus of incredibly dedicated men and women across our Agency, Intelligence Community, and military partners for many years. But in doing so, the film takes significant artistic license, while portraying itself as being historically accurate.

What I want you to know is that Zero Dark Thirty is a dramatization, not a realistic portrayal of the facts. CIA interacted with the filmmakers through our Office of Public Affairs but, as is true with any entertainment project with which we interact, we do not control the final product.

It would not be practical for me to walk through all the fiction in the film, but let me highlight a few aspects that particularly underscore the extent to which the film departs from reality.

First, the hunt for Usama Bin Ladin was a decade-long effort that depended on the selfless commitment of hundreds of officers. The filmmakers attributed the actions of our entire Agency—and the broader Intelligence Community—to just a few individuals. This may make for more compelling entertainment, but it does not reflect the facts. The success of the May 1st 2011 operation was a team effort—and a very large team at that.

Second, the film creates the strong impression that the enhanced interrogation techniques that were part of our former detention and interrogation program were the key to finding Bin Ladin. That impression is false. As we have said before, the truth is that multiple streams of intelligence led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad. Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.

Third, the film takes considerable liberties in its depiction of CIA personnel and their actions, including some who died while serving our country. We cannot allow a Hollywood film to cloud our memory of them.

Commentators will have much to say about this film in the weeks ahead. Through it all, I want you to remember that Zero Dark Thirty is not a documentary. What you should also remember is that the Bin Ladin operation was a landmark achievement by our country, by our military, by our Intelligence Community, and by our Agency.

Michael Morell

[Samantha Besson is a Professor of Public International Law and European Law, University of Fribourg and Fellow of the Wissenschaftskolleg zu Berlin]

I would like to start by thanking Dov Jacobs and the Leiden Journal of International Law for organizing this on-line symposium on my extraterritoriality piece, and, of course, for agreeing to publish the article in the first place. Many thanks also to Professor Marko Milanovic and Professor Cedric Ryngaert for their generous comments and not least for taking the time to deliver them at this busy time of the year.

In this brief reply note, I will start with Professor Ryngaert’s comments and then turn to Professor Milanovic’s.

Professor Ryngaert’s main critique is that the normative dimension of jurisdiction as I understand it is difficult to pin down (see also Professor Milanovic on its “vagueness”) and in particular to distinguish from mere coercion. I agree that it is a difficult element to grasp, but not less difficult than the concept of jurisdiction itself. Reducing jurisdiction to coercion by virtue of the sheer complexity of its normative dimension amounts not only to choosing the easy route but, as I have argued, a misguided approach to authority and hence to the normative relationship that underlies any human right. In fact, Ryngaert’s own work on the issue makes me believe he agrees with this normative understanding of jurisdiction. Further, the examples given by Ryngaert in order to show how difficult the distinction between coercion and authority is actually dilute the normative test by not focusing on the normative subjects of the laws enforced (and on human rights-holders as a result) and hence by avoiding the reasons that apply to them and not to others. Of course, Ryngaert is right: there will inevitably be a human rights protection gap and it is frustrating, but we know that gap in the context of democratic accountability for international action as well. As a matter of fact, I argue in the article that the tension this gap creates between international or European and domestic human rights law has proven beneficial –slowly certainly, but surely.  (more…)

[Marko Milanovic is lecturer in law at the University of Nottingham School of Law.]

It is a pleasure to participate in this discussion organized by the Leiden Journal of International Law and Opinio Juris, and to comment on Professor Besson’s interesting article, which I enjoyed reading. Not to beat around the bush, I (very amicably!) disagree with much of Professor Besson’s article, just as much as she disagrees with much of what I wrote in my recent book on the topic (discussed here on Opinio Juris and at EJIL: Talk!). So there. Let me try to explain why.

Professor Besson’s main claim is that prior scholarship on the ECHR’s extraterritorial application, most of it very critical of the European Court’s case law, has not given serious thought to normative considerations that underpin the issue, ‘except for vague and often misleading gestures to the  universality of human rights that allegedly requires their extraterritorial application.’ Generally speaking, in Besson’s view that scholarship is under-theorized and the vague references to universality fail to account for the relational nature of rights and obligations under human rights treaties. To remedy that, the ‘article endeavours to bring some normative human rights theorizing to bear on the ECtHR’s recent practice on extraterritoriality [and] hopes thereby to provide a different reading of the Court’s case law and show that it has been wrongly depicted by some authors as fragmented and even contradictory.’  (more…)

[Cedric Ryngaert is an Associate Professor at KU Leuven and the University of Utrecht]

Samantha Besson has provided a fine normative account of the extraterritorial application of the ECHR. At the same time, she believes that this account may well offer a rationalization of the string of controversial ECtHR decisions in this matter. Besson’s argument may or may not have explanatory power as regards the ECtHR case-law, but what is sure is that the Court will be happy to hear that, as far as extraterritoriality is concerned, it can at least count on some academic supporters.

I concur with Besson’s analysis in many respects, but in the interest of the discussion I would like to elaborate on some points of disagreement.

In my view, that which Besson has added to existing analyses of extraterritoriality is the normative dimension of the concept of jurisdiction, as the third constitutive element of jurisdiction, apart from effective power and overall control. Drawing on legal theorist Joseph Raz’s writings, Besson submits that jurisdiction, qua de facto authority, ‘amounts to more than the mere exercise of coercion or power, as a result: it also includes a normative dimension by reference to the imposition of reasons for action on its subjects and the corresponding appeal for compliance (e.g., through giving instructions)’. Further on in her article, drawing on theorists of democracy, she cites the ‘all-subjected principle’, which ‘requires actual normative subjectedness and not only affectedness’. (more…)

• The ICTR issued its final decision yesterday, sentencing former Rwandan minister Augustin Ngirabatware to 35 years in prison.
• An Argentine court sentenced former Interior Minister Jaime Smart to life in prison for crimes against humanity during the nation’s 1976-1983 “Dirty War.”
• The UN sees no prospect of an end to the violence in Syria, according to Ban Ki-Moon, and urges unity from the Security Council.
• The Security Council unanimously approved a two-track intervention into Mali.
• Julian Assange, founder of Wikileaks, has said that the door is open to ending the standoff that has kept him holed up in the Ecuadorian Embassy in London for the last six months. He also mentioned that he is ready to publish a “million more files” and that his work “will not be cowed.”
• Amnesty International has warned of a worsening situation for migrants in Greece, reporting of horrible conditions of detainees—including children.
• A day after winning its case against Canada, Japan has requested that a WTO dispute panel is established over anti-dumping duties applied by China on Japanese high performance stainless steel seamless tubes. It is the 27th dispute launched at the WTO this year.
• Russian President Putin is in Brussels for a summit with EU leaders to discuss trade, human rights and Syria.

[Mónika Ambrus is an assistant Professor at the Erasmus University in Rotterdam]

The interpretation of the expression ‘members of the group’ in the different actus rea under Article 2 of the Genocide Convention through which genocide can be committed as well as that of ‘racial, ethnic or national origin or religious affiliation’ in the chapeau of the same article essentially boils down to who can be seen as victim of genocide (how the protected groups and their members can be identified). As simple an exercise this might seem to be, both case law and scholarly discussion, including this online symposium of the Leiden Journal of International Law, have shown that this is, indeed, not the case. Two main reasons could be identified underlying the different positions: (1) the one relates to the dimension one focuses on in the definition of genocide and the conceptualization of the relationship between the two dimensions, and (2) the other concerns the question of interpretation and the role of the judiciary. (more…)

[Frederic Mégret is an Associate Professor of Law and the Canada Research Chair on the Law of Human Rights and Legal Pluralism, at  McGill University]

Monika Ambrus offers a compelling treatment of the question of what constitutes genocide and persecution as a crime against humanity relying on the human rights law of discrimination to reinforce the case that both protected groups and the definition of who belongs to them should be seen as subjective questions, focusing on the state of mind of the perpetrator, rather than objective as objective issues. In that, she suggests that it is time to move beyond international criminal courts’ constant indecision between an objective and a subjective approach, and to more resolutely move towards the latter. I could not agree more. I note also that in using international human rights law to make a larger point about international criminal law (and, one might hope, vice versa) she does a praiseworthy job of breaking barriers between sister disciplines that have no reason of standing wholly apart.

In this short reaction, I will start not from the case law as Ambrus does, but from some of the underlying ambiguities of the concepts of groups, and how these were bound to create problems for the Law that end up telling us something about the enterprise of international criminal justice.  In that respect, I want to help contextualize Ambrus’s arguments in some of the challenges of post-modernizing an international legal project whose structures often remain embedded in 19^th Century thinking. (more…)