WWI Trenches

Book Review: A Scrap of Paper: Breaking and Making International Law during the Great War, by Isabel V. Hull

 


By: Christopher Casey

On August 28, 1913, Andrew Carnegie attended the inauguration of the Peace Palace in The Hague. Carnegie had given the funds to provide a new home for the Permanent Court of Arbitration, an institution that those in attendance hoped would further the development of international law and encourage the peaceful resolution of international disputes. A little less than a year later, on August 4, 1914, and a little more than one hundred miles from the Palace, the German army marched into neutral Belgium in violation of international law and fired the first shots of the Great War.

Isabel V. Hull reminds us that the age of the Great War was also an age of international law. Many of international law’s greatest modern publicists—Bluntschli, Rolin-Jaequemyns, Asser, Root, Westlake—produced their most important work in the decades prior to the outbreak of the war. Nor was this advance purely an intellectual exercise. The foreign offices of the Great Powers all had legal advisors or departments. Moreover, several major conferences were held and treaties signed, most notably at The Hague in 1899 and 1907, to codify the laws of war.

By engaging in a comparative analysis of Britain, France, and Germany, Hull attempts to demonstrate two things. First, “that international law was central to how and why the Great War was fought”. Second, that Germany was unique among the Great Powers for its emphasis on the doctrine of military necessity as a rationale for breaking both the customary and treaty-based laws of war.

Hull begins with a prologue entitled: “What We Have Forgotten,” in which she posits that the erasure of international law from the historical memory of the Great War was the result of inter-war revisionism and Weimar’s apologists. The narrative then starts with the German march into Belgium and the horrific massacre of Belgian civilians. She then proceeds topically with an assessment of Germany’s conduct as an occupier (it was poor) and its use of the new and devastating weapons developed during the conflict—zeppelins, submarines, poison gas, and flamethrowers. In each case, Hull awards lower marks to German officials than to their entente counterparts for the consideration and seriousness with which they took international law. Hull does explore Britain’s naval blockade, an act that led to the deaths of thousands of German civilians, but she provides ample evidence that Britain’s civilian and military officials consciously tread carefully and were concerned about compliance with international law or norms.

Hull’s explanation for why Germany was so different from its fellow belligerents is the only unsatisfying part of her otherwise wonderful study. In sum, Germany paid less attention to international law because of Prussian militarism. While she does not use that phrase explicitly, Hull does contend that the German civilian leadership had “assimilated the military [legal] arguments, which [was] not surprising given the military’s high status institutionally and in public opinion and its thorough penetration into German legal writing.”

But the Great War was fought on two fronts. The western war was waged between states. The eastern war was waged between empires.  By confining the study to Germany, France, and Great Britain, Hull set her gaze squarely on the Western Front with its wholesale slaughters in clearly delineated trenches and the battles at sea. Absent from her analysis are the mass deportations, ethnic massacres, and conflicts of national liberation and survival that characterized the eastern front for Russia, Austria-Hungary, and Germany. In the East and West, Germany was the only power to occupy vast swathes of enemy territory for much of the war, a position that had the consequence of making it subject to the international laws of war more often than the other powers. When Germany abused the civilian Russian population living in Russian territory, it was an international crime. When Russia abused the same population, it was a domestic affair. Shifting her gaze eastward would have complicated and enriched her explanation for why Germany was far more willing to cry “military necessity” than its Western opponents.

Hull’s masterful book is useful for scholars of international law, political science, and history.  She engages effectively with scholarship in all three arenas, going so far as to claim that the realist critique of international law within political science is itself a product of interwar German apologias. This is a fantastically interesting and important book for revitalizing the historical study of applied international law. In a departure from many histories that engage with complex international legal questions lightly, Hull instead goes heavily into the specifics of the important legal texts and government documents to bring together the publicists and practitioners. In doing so, she has successfully brought the law back into the narrative of the Great War. Thus, Hull’s work has opened, rather than closed, the subject of the Great War’s relationship to the many international legalities in which it was waged. For that, scholars of history, political science, and international law should be grateful.

Buy A Scrap of Paper: Breaking and Making International Law During the Great War, by Isabel V. Hull. (affiliate link)

Christopher Casey is a J.D. Candidate at the School of Law and Ph.D. Candidate in the Department of History at the University of California, Berkeley.  He is a student contributor to Travaux.

 

An old Soviet BRDM, one of the many old vehicles left around from the Soviet Invasion of Afghanistan

This Day in International Law – December 5th

By: Liana Solot

On December 5th, 1978, the Soviet Union (USSR) signs a “friendship treaty” with the Democratic Republic of Afghanistan. This act was significant to international law, mostly because this treaty was later used as a pretext for the Soviet invasion. Major uprisings occurred regularly against the government led by members of the traditional establishment who lost their privileges in the land reform. The government responded with heavy military reprisals and arrested, and exiled and executed many Mujahideen (holy Muslim warriors). The Mujahideen belonged to a number of different factions, but all shared, to varying degrees, a similarly conservative ‘Islamic’ ideology. This led to the Soviet war in Afghanistan the following year, in December 1979, when the USSR organized a massive military airlift into Kabul. Soviet forces secured Kabul, against Darul Aman Palace. With Aman’s death, Babrak Karmal took place as Afghanistan’s new head of government.

 Liana Solot is an L.L.M. Candidate at Berkeley Law. She is a student contributor for Travaux.

November 28 in International Law

By: Laurence Cromp-Lapierre

The right to vote is inextricably linked to democracy and to the protection of freedom and equality. Indeed, universal suffrage appears to be a self-evident right. However, some groups have encountered significant barriers preventing them from exercising such rights.

On November 28, 1893, New Zealand, then a self-governing British colony, granted women over 21 years old the right to vote at the general election. The elections for the Maori electorates occurred later, on December 20, 1893. The liberal party won and Richard Seddon became Prime Minister.

New Zealand’s recognition of women’s rights to vote has been followed by other countries and become entrenched in international law. Important international treaties, such as the International Covenant on Civil and Political Rights as well as regional agreements such as the American Convention on Human Rights, enshrine citizens’ claims to universal and equal suffrage.

Laurence Cromp-Lapierre is an LL.M. Candidate at Berkeley Law. She is a student contributor for Travaux. 

Violence in Aleppo

Fighting Impunity in Syria: The International Criminal Court

By: Martin Meeùs

The Need for Accountability

Even though all countries acknowledge the atrocities committed by the Syrian regime and the rebels during the three-and-a-half-year civil war, a military intervention against Syrian President Bashar al-Assad and his regime seems to be ruled out by the international community. A few months ago, the emergence of the Islamic State in Iraq and the Levant (ISIS), an organization committing unprecedented acts of violence, pushed the United States and its “allies” to conduct air strikes but only against this particular organization and not against the Syrian regime.

This international posture does not exclude the fact that serious international crimes must be punished and that perpetrators of these crimes must be held accountable in some way. When it comes to criminal accountability in the Syrian civil war, thus far, the International Criminal Court (ICC) has monopolized the debate. The High Commissioner for Human Rights has urged the United Nations Security Council (UNSC) several times to refer the situation to the ICC.  Ultimately, the ICC may not be the best solution.

Three Ways to the ICC

There are currently three ways in which Syria could be brought in front of the International Criminal Court. First, Syria signed the Rome Statute but did not ratify it. Although it seems unrealistic that al-Assad would ratify a treaty that could be highly damaging to his regime, it is not impossible. Indeed, diplomatic talks already led Syria to join the Chemical Weapons Convention (CWC) as a condition to avoid a military intervention from abroad. Similarly, the international community could use the ratification of the Rome Statute as a bargaining chip against Syria.  Second, the Syrian government could send a declaration to the Registrar of the Court, accepting its jurisdiction for this particular situation only. Such voluntary ad hoc submission also seems unlikely but is not altogether impossible given the CWC precedent.  Third, Article 13(b) of the Rome Statute allows the UNSC to refer any situation to the ICC, even if the targeted country is not party to the Rome Statute. The country’s consent would not necessarily be needed. This is seemingly the only path currently available for Syria to be brought to the ICC.

Significantly for Syria, the UNSC has referred two situations to the ICC in the past, though these have been rife with complications.  In 2005, the UNSC referred the situation in Sudan, and the Court initiated investigations against seven individuals, including against the President, Omar al-Bashir. After nine years, four individuals are still at large. This includes the president, who is still freely traveling in neighboring countries. Again, in 2011, the UNSC referred the Libyan conflict to the ICC. The court issued warrants of arrest against Abdullah Al-Senussi, former head of the military intelligence, and against Saif Al-Islam Gaddafi, Muammar Gaddafi’s son. Al-Senussi’s case was declared inadmissible by the court. As for Saif Al-Islam, despite urgent calls from the court and from the international community, Libya refuses to extradite him to The Hague on the basis of the complementarity principle. Both referrals are struggling to go forward and are considered as failures for the time being.

Despite these difficulties, not only is a UNSC referral the most likely option for the Syrian conflict, but there is also UNSC movement on this front.  On 14 January 2013, Switzerland sent a letter to the UNSC on behalf of more than fifty countries, asking to refer the Syrian civil war to the ICC. While the referral was signed by a diverse set of countries, three permanent members of the UNSC (the United States, China, and Russia) were hostile to the idea of a referral at this time, stagnating the process.  Seven months later, on 21 August 2013, the Syrian regime perpetrated chemical weapons attacks in the Ghouta region of Damascus. Al-Assad effectively crossed President Obama’s “red line”.  As a result, the United States changed its position and decided to support an ICC referral by the UNSC.  At this point, the project finally took off.

The shift in the US position is significant.  In early 2013, then-Secretary of State Hillary Clinton held the view that treating al-Assad as a war criminal would “complicate” the situation. The United States as a result chose not to co-sign the Swiss letter initiating the draft resolution. The United States only changed its position upon the release of the UN report confirming the regime had used chemical weapons against its civilians. The United States’ change in attitude was surprising as it went as far as lobbying at the UN for co-sponsorship of the resolution. This case illustrates a broader shift in the United States’ position, becoming less and less hostile towards the ICC.

Nearly a year after the chemical weapons attack, on 22 May 2014, France presented the draft resolution S/2014/348, co-sponsored by sixty-five countries, to the UNSC. With thirteen votes in favor and two vetoes (Russia and China), the resolution was set aside.

Russia and China vetoed the resolution for three principle reasons.  First, Russia and China invoked the principle of non-intervention in the internal affairs of a state to justify their veto. Their attachment to the principle of sovereignty is well known and often repeated. Second, Russia and China argued that the resolution is one-sided, focusing solely on al-Assad’s regime and not on the crimes committed by non-state actors. Third, Russia and China feel as though they were fooled by the recent Libyan resolution 1973, on which they both abstained. The countries that intervened in Libya acted beyond their mandate in order to depose Muammar Gaddafi. Russia and China are therefore likely to be much more prudent regarding all resolutions on Syria that could lead to any further unwanted actions such as al-Assad’s deposing.

Nevertheless, if the Russian veto was expected in May 2014, the Chinese position was more ambiguous.  Ultimately, it stemmed from the above stated reasons, as well as a reaction to France’s decision to submit the resolution. There were no illusions regarding an immediate ICC referral, but France had other reasons to submit the draft resolution to a vote. First, it embarrasses, alienates, and isolates Russia and China in the UNSC. Second, it sets the basis for the day when al-Assad’s regime will eventually fall. Third, it shows that most countries in the UNSC are still concerned by the Syrian situation and continue to fight against impunity.

 Potential Positive and Negative Effects of an ICC Action

ICC action could foment several positive and negative effects for both Syria and the Court.  From the Syrian perspective, an ICC referral would have symbolic importance, as it would affirm the commitment of the international community towards accountability in Syria. An intervention from the ICC may also have a deterrent effect on the individuals perpetrating crimes falling under the ICC jurisdiction.  For the ICC, the referral would have strategic benefits beyond the noble and primary objective of fighting impunity within Syria. A referral that would lead to successful trials would give the opportunity for the ICC to play a role and hopefully have an impact in a major conflict. It would also help to dispel the criticism that the Court’s sole focus is Africa.

From the negative perspective, for Syrians, international tribunals are extremely expensive and so will be an ICC action. It is not clear that this is where Syrians want to see the international money spent. Moreover, the ICC would only indict a very small number of defendants.  Finally, Syrians may prefer a national trial that could lead to the death penalty, rather than an ICC trial, which does not use the death penalty and has comparatively “comfortable” prison conditions in The Hague.  For the ICC, there is a great chance that a trial will never come to fruition. Al-Assad could remain President after the war, he could possibly negotiate for the charges to be dropped against him, or the Syrian population could refuse to extradite him to the Netherlands. Referring the Syrian situation to the ICC before the end of the war and thus without being able to fully assess if it is the most suitable forum may therefore be harmful for the Court.

The ICC May Not be the Best Solution Per Se

Even though an ICC referral would have significant symbolic and political effects, it may not currently be a suitable solution for either Syria or the ICC. Referring a case to the ICC while the country remains in conflict could prove to be too risky of a bet. Choosing which accountability process is the best suited is a highly important and sensitive decision that has to be made on a case-by-case basis. The factors to be taken into account are innumerable and can often not be known before the end of the conflict: will Al-Assad still be President at the end of the conflict? What role does the Syrian National Coalition intend to play? Will the next regime be able to objectively prosecute perpetrators of mass atrocities on both sides? Moreover, the Libyan and Sudanese precedents proved that referring a situation to the ICC, without the consent and therefore the guarantee of the full commitment of a country, is often not ideal.

Finally, among all of these other concerns, the increase in power of ISIS radically changed the situation. Now, al-Assad and the members of the UNSC share a common enemy. There is unlikely to be another draft resolution presented to the UNSC any time soon. For now, the most important actions to take are documenting crimes and collecting ample evidence for later prosecution. Drafting statutes for potential ad hoc or hybrid tribunals is also useful in order to prepare for the day when the circumstances will allow action to be made towards Syrian accountability. This is precisely what the independent International Commission of Inquiry on the Syrian Arab Republic, mandated by the UN Human Rights Council as well as some NGOs are doing.

Martin Meeùs is a Belgian L.L.M. Candidate at Berkeley Law. He is a student contributor for Travaux.

Climate Shame

Five Issues To Watch on Climate Change Ahead of the Paris Summit

By: Remi Moncel

These past weeks have been rich in announcements on climate change, and the next round of United Nations climate talks begins in Lima, Peru on December 1. That conference paves the way to a major climate summit in December 2015 in Paris, France. The coming year will be critical in the fight against climate change, an issue with wide-ranging impacts. Its effects on water availability and crop yields make climate change a livelihood and national security issue. The threat that sea-level rise poses to low-lying States makes it a human rights issue. The world’s necessary transition from fossil to renewable fuels makes it an energy and economic issue. Here are the highlights of recent developments and five issues to watch on the road to Paris.

The Science

 According to the National Oceanic and Atmospheric Administration (NOAA), 2014 is currently on track to be the warmest year ever recorded. The world’s leading scientists agree: humans cause climate change, our climate is already changing, and at the current pace the effects on people and the environment will be dire. The Intergovernmental Panel on Climate Change (IPCC) summarizes every four years the state of peer-reviewed climate change science. The IPCC’s latest report came out in 2014 and describes more clearly than any previous report “the likelihood of severe, pervasive and irreversible impacts for people and ecosystems.” It also highlights the greater risks posed “to disadvantaged people and communities in countries at all levels of development.” The U.S. National Academy of Sciences, the American Association for the Advancement of Science, the U.S. Global Change Research Program, and other countries’ science academies have come to similar conclusions.

Worse, our efforts to fix the problem are woefully inadequate. All countries’ current commitments to reduce greenhouse emissions, when added together, fall short of what we need to avoid the worst consequences of climate change. And it’s not even close. World leaders vowed in 2009 to limit an average rise in global temperatures to two degrees Celsius (3.6 degrees Fahrenheit) above pre-industrial levels. But every passing year without more serious cuts in emissions makes it more likely that we will miss that goal, with severe consequences for people and the environment. A new report by the United Nations Environment Program shows just how much ground we need to make up.

National and Local Action

Despite this bad news, it is not too late to correct course, but doing so will require aggressive policies. National emissions in some countries have started declining and some governments have made significant commitments. Grassroots movements, like the 400,000-person march in New York City this fall, may also signal a shift in public attitudes on the issue. Some businesses are also demonstrating climate leadership by going beyond what regulations require. And some mega cities around the world are taking proactive steps to reduce emissions and increase their resilience to climate change.

Five years ago, the United States, the world’s largest historical emitter of greenhouse gases, pledged to reduce its emissions by seventeen percent below 2005 levels by 2020, and just this month, President Obama announced a reduction goal of twenty-six to twenty-eight percent by 2025. Reaching these targets will depend on U.S. regulations and possibly new legislation. The Environmental Protection Agency has been rolling out a series of regulations tightening automobile fuel economy standards and allowable emissions from new and existing power plants.

The European Union is more ambitious than the United States, with planned reductions of twenty percent by 2020 below 1990 levels, at least forty percent by 2030, and eighty percent by 2050.

The developing world too is acting. China just pledged to peak its emissions of greenhouse gases around 2030 and possibly earlier, to cap its coal consumption in 2020, and to source twenty percent of its primary energy consumption from “non-fossil fuels” by 2030. India pledged to reduce the emissions intensity of its gross domestic product by twenty to twenty five percent by 2020 compared to 2005, and the country is expanding its renewable energy capacity. And Brazil enacted national laws to reduce deforestation.

Other countries are laggards. For example, Canada, a developed country that should be reducing its emissions, is actually projecting an emissions increase of thirty-eight percent by 2030. And Australia’s Prime Minister oversaw the repeal of a national carbon tax and has taken the defense of the coal industry.

Climate Diplomacy

The next major international milestone is the twenty-first Conference of the Parties to the United Framework Convention on Climate Change (UNFCCC) in Paris in December 2015. Countries are supposed to adopt “a protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties.” That carefully negotiated language means that the agreement will include commitments by all major economies, unlike the Kyoto Protocol, which required only some developed countries to make quantified reductions in greenhouse gases.

Over the next year, countries will put on the table their proposed climate commitments. Some have already started. President Obama and President Xi, in a historic move, jointly announced this month their countries’ respective opening offers. The two countries’ commitments are not bold enough, but they could be strengthened over time, and they represent a major breakthrough in an international process long crippled by an acrimonious divide between developed and developing countries. Now, the world’s two largest polluters and economies are starting to face their respective responsibilities and call on everyone to step up in time for the summit in Paris.

 Technology

Clean energy technology is critical to the world’s transition to a low-carbon economy. It determines how quickly and cheaply we can wean developed countries off fossil fuels. It also determines how easily we can decouple economic growth from a rise in greenhouse gas emissions, a particular concern for developing countries with legitimate economic and development aspirations.

For a long time, renewable energy was costly and only competitive with coal and natural gas thanks to expensive government subsidies. That is no longer true. The production costs of solar panels and wind turbines have plummeted in recent years. In several markets, the cost of electricity from renewable sources already rivals coal and natural gas.

Still, it will take time to retire existing coal power plants and source most of our power from clean sources. There are also political and institutional barriers to faster diffusion of clean energy technology. The fossil fuel industry retains greater access to political capitals than the nascent clean technology sector. For example, a recent report estimates that the fossil fuel industry, despite its healthy annual profits, receives $88 billion per year in subsidies from developed country governments. Banks and utilities around the world are also more hesitant to invest in clean technologies because they are less established and tested. That makes them more expensive to finance.

Finance

 The climate deal in Paris next year will include a financial component. Developing countries are looking for support to meet their growing energy needs through renewable rather than conventional fuels. They also need finance to build their resilience to the inevitable and growing impacts of climate change. The regions most affected by climate change are also the poorest and the least responsible for the problem. Developed countries can help finance so-called adaptation programs to respond to a wide array of impacts, including rising sea levels, droughts, floods, and decreasing crop yields.

In Copenhagen in 2009 and again in Cancún the following year, parties to the UNFCCC agreed to mobilize $100 billion per year starting in 2020 from a range of public and private sources. As part of this commitment, countries established the Green Climate Fund, based in South Korea. Countries have already pledged nearly $10 billion to the Fund, which is still being set up. For example, the United States pledged $3 billion, Japan $1.5 billion and Norway $1.3 billion. Several developing countries have also joined the effort, including South Korea, Mexico, Panama, and Indonesia. This first string of contributions is not enough, but it is a good start and perhaps indicates a collective desire to get serious about climate change.

On finance and on other issues, the climate conference in Lima provides the next big opportunity for countries to show real leadership. These past weeks’ announcements have provided some valuable momentum, but the gap remains large between where we are and where we need to be. The road to Paris over the next year will tell us just how serious world leaders are about bridging it.

Remi Moncel is a J.D. Candidate at Berkeley Law. He is the Co-Editor-in-Chief of the Berkeley Journal of International Law and a student contributor for Travaux.

isweat

Recent UN efforts on business and human rights: How can international law be enforced on private corporations?

By: Liana Solot

On June 27, 2014, the United Nations (UN) Human Rights Council reaffirmed its 2011 endorsement of the UN Guiding Principles on Business and Human Rights. This resolution was adopted by consensus, following the June 26 resolution establishing an open-ended Inter-Governmental working group to negotiate a legally binding international instrument on transnational businesses with respect to human rights. This represents one of the many recent efforts towards promoting international corporate social responsibility standards.

The 2011 Guiding Principles established a global standard for addressing business activities’ adverse impacts on human rights. They promote a three-pillar framework: (1) the State duty to protect human rights; (2) the corporate responsibility to respect human rights; and (3) access to a remedy for victims of human rights abuses. Collectively, this framework is known as Protect, Respect, and Remedy (PRR). The Guiding Principles require companies to proactively take steps to prevent, mitigate and, where appropriate, remediate their adverse impact on human rights. However, finding ways to enforce these non-legally binding principles has been a difficult task.

The issue of how to make transnational corporations liable under international human rights law has become increasingly urgent for activists and scholars, but is still a huge legal challenge. Historically, international human rights law has been considered a way to protect individuals from states’ arbitrary use of power, not from private entities, while corporate law has traditionally been treated as a domestic matter. For many, the idea of shifting the responsibility to protect human rights from governments to businesses may seem odd at first, but today, individual corporations can have as much power and influence as entire countries, and should therefore be held liable for violations. Unfortunately, there is still a legal gap to be filled with the development of international legal obligations that can effectively be imposed on corporations, with the additional possibility of applying extraterritorial legislation.

In most cases, businesses make decisions to pursue profits without regard for potential human rights violations resulting from their activities. Labor and environmental rights are more prone to abuse by transnational corporations. According to the 2014 Walk Free Foundation index, almost 36 million people live in “modern-day slavery” conditions, mostly from human trafficking, forced and child labor, and hazardous work environments. Recent reports demonstrate the proliferation of “sweatshops” and horrifying work conditions in developing countries, mostly where giant international brands seek contractors for low-cost labor. Desperate pleas for help from Asian workers have been found hidden in products sold by giant brands like Primark and Kmart. Furthermore, Zara was involved in a slave labor scandal in Brazil, where it had illegal factories staffed with Bolivian and Peruvian immigrants working in slave-like conditions. Mechanisms must be created to require foreign retailers to ensure that factories involved in their garment supply chain are safe places to work.

The UN’s Guiding Principles alone will definitely not bring these and other human rights violations to an end, but they will serve as a foundation for developing better enforcement mechanisms and possibly binding standards of good practice. One of these positive developments could be the upcoming working group, created by the June 26 resolution, to negotiate an legally binding international instrument. This working group is expected to start its deliberations in mid-2015 and will hopefully focus on effective ways to implement the UN Guiding Principles.

The Sustainable Development Goals (SDGs) are also expected to be launched in 2015, representing another opportunity for businesses to take an active role in the humane development of society. During the Rio+20 United Nations Conference on Sustainable Development in Rio de Janeiro, Brazil in June 2012, UN Member States decided to develop a set of SDGs for the post-2015 development agenda. Goal No. 12.6, specifically, seeks to “encourage companies, especially large and trans-national companies, to adopt sustainable practices and to integrate sustainability information into their reporting cycle”. However, the definition of “sustainable practices” needs to be more clearly defined, using convincing good practice standards for companies to follow. This will depend on a global partnership with the active engagement of governments, civil society, and the private sector.

Despite these efforts, it may still take many years before companies actually take human rights standards and goals seriously and adopt them not only through theoretical corporate policies made available on their websites, but also by taking concrete actions to prevent violations or remedy eventual damages. Businesses will naturally resist binding international obligations placed upon them, so how will they be convinced that protecting human rights can also be a beneficial corporate policy? Why would some states that do not even accept all international human rights standards domestically, for example, agree to subject their companies to such standards under international law? The idea is that these standards should be enforced on all companies, even where national laws are poorly enforced, or not at all.

Since establishing the Guiding Principles, the UN has been trying to create ways to operationalize the principles and promote corporate responsibility internationally. The UN Secretary-General’s Special Representative for Business and Human Rights, John Ruggie, made an important advance in this direction by providing an interpretative guide to the principles and providing assistance for companies to construct human rights due diligence regimes. The fact that companies and governments have been discussing this issue is a huge achievement. However, the question of how to implement the Guiding Principles, establish due diligence rules, and create the requisite enforcement mechanisms remains controversial.

Changing businesses’ internal culture will be difficult. The first requirement will be to have businesses incorporate social responsibility standards in their internal corporate policies and structure. In turn, this will demonstrate how taking concrete actions and creating due diligence regimes to prevent human rights abuses can decrease risks and expenses (i.e. brand reputation, labor lawsuits, penalties for environmental damages, etc.). One possible step in this direction may be to promote sustainable development and responsible management in business schools and higher education institutions. The idea of aligning business management education with sustainable development best practices seems like an effective way of promoting awareness in the world’s future business leaders.

Because it is evident that the private sector will be critical to achieving the SDGs, the UN Global Compact has called on business schools to promote the Principles for Responsible Management Education (PRME). In October 2014, participants at the “Third Global Forum for Business as an Agent for World Benefit” workshop issued a call for action for management education and engagement to advance the SDGs. Today there are over 500 business schools from around the world that have adopted the PRME in their academic curricula and research institutions.

Another UN initiative in this context will be the upcoming annual UN Forum on Business and Human Rights, which will take place in Geneva, Switzerland, from December 1 through 3, 2014. It is open to states, business enterprises and associations, civil society organizations, trade unions, victims, academics, students, the media, and any other relevant stakeholder. This forum represents another attempt to promote the widespread dissemination of the “Protect, Respect and Remedy” framework and to discuss national action plans for implementation.

Although it may still take many years, these combined efforts, global principles, guidelines, and goals may soon transcend the theoretical discussions and workshops to become concrete corporate practices. Hopefully, with the efforts of the international community, the new generation of business leaders and executives are better prepared to address the prevention, or at least minimizing, of human rights violations resulting from corporate activities. Unfortunately, until this change in corporate culture occurs and effective enforcement mechanisms are created, the world can expect to see many more incidents of human rights violations as globalization promotes international expansion of harmful business practices.

Liana Solot is an L.L.M. Candidate at Berkeley Law. She is a student contributor for Travaux.

ICC

Settlements & Borders: Palestine, Israel, and the International Criminal Court

By: Aaron Murphy

Will Palestine join the International Criminal Court? The 2012 installment of Palestine as a “non-member observer state” at the United Nations has reignited a caustic debate on the merits of Palestinian accession to the Rome Statute. ICC involvement in Gaza and the West Bank offers the alluring promise of ostensibly impartial judicial oversight, the potential modicum of justice for alleged war crimes and crimes against humanity committed on Palestinian territory, and a deterrent against the eruption of future violence. For the Court itself, an investigation into the Israeli-Palestinian debacle could offer a chance to divest itself of its spotty early history and start anew at the nexus of international criminal law, state sovereignty and relevant world affairs. Is there more to the issue?

Testing The Waters

The Palestinian Authority, led by Chairman Mahoumad Abbas, has long wielded the threat of ICC jurisprudence as leverage in negotiations with Israel. Until the General Assembly upgraded Palestine’s status, Abbas’s warning carried little heft. A Palestinian attempt to accept ICC jurisdiction in 2009 was denied after the Office of the Prosecutor determined that, for the purposes of the Court, Palestine was not a state. A promotion at the United Nations, though, carries with it a wide range of benefits. Vested with the raiments of newfound statehood and mired in yet another round of unfruitful negotiations with Israel, Palestine marshalled plans to join some sixty international organizations this year in a bid to solidify its legitimacy as a sovereign player on the international stage. The full-court push prompted a renewed flurry of speculation on Palestinian intentions towards the ICC.

In August 2014, Palestinian representatives met with ICC prosecutors at the Hague to ponder donning the Rome Statute’s legal cloak. The lead Prosecutor, Fatou Bensouda, penned a Guardian op-ed synthesizing the ICC’s process and laying out the options for the newly minted non-member observer state. Bensouda explained that the ICC “can only investigate and prosecute actions committed on the territory or by the nationals of states that have joined the ICC statute or which have otherwise accepted the jurisdiction of the ICC through an ad-hoc declaration” pursuant to Article 12(3) of the Rome Treaty. According to Bensouda, both accession and its ad-hoc counterpart (the nucleus of Palestine’s failed 2009 jurisdictional bid) are now within Palestine’s reach. Until Palestine comes knocking, however, the Court will refrain from diving into the imbroglio that is Gaza and the West Bank.

Despite this public invitation, the prospect of ICC involvement in the Palestinian crisis presents a veritable grab-bag of slippery issues and fascinating quandaries. Two such problems are particularly difficult to unravel.  First, how should the ICC approach the question of Israeli settlements in the West Bank? Second, how should the Court address the surfeit of novel jurisdictional issues a Palestinian probe would likely encounter?

Settling Scores With The Settlements

When one applies the language of “war crimes” or “crimes against humanity” to the conflict in Palestine, it is easy to summon headline-worthy visions of bombed-out UN charter schools and sizzling rockets descending towards the concrete roofs of Tel Aviv. Lurid, technicolor atrocities such as these make it easy to overlook a problem that is arguably more pressing, a problem the ICC will likely have to address if it ever enters the long-running fray: the legality of Israeli settlements in the West Bank.

Long characterized by much of the international community as a flagrant violation of international law, the settlements at first glance seem to present a clear-cut case.

Article 8(2)(b)(viii) of the Rome Statute gives the ICC jurisdiction over war crimes involving “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.” The established interpretation of this provision, which has deep intellectual ties with Article 49(2) of the Fourth Geneva Convention, forbids Israeli settlements in occupied Palestine. Indeed, it was this very provision that earned the Rome Statute an Israeli “no” vote in 1998. If the matter is prosecuted before the Court, however, the dispute will prove anything but straightforward.

An action on the settlement question would be a case of first impression for the ICC. No country has ever been criminally charged under the transfer provisions of the Rome Statute and the Fourth Geneva Convention. To date, the Court has confined the scope of its proceedings largely to addressing past war crimes by African warlords and toppled former presidents. It has yet to consider a claim of such complexity, defined by such ingrained institutional conduct. In the course of unraveling such a claim, the Court would be forced to journey into the unknown, devoid of the benefits of precedent. The lack of substantive direction on such an issue could make the Court reluctant to tackle the matter in any meaningful way.

Since the ICC is structured as a court of last resort, an investigation into the settlements would indicate that the Israeli legal system is unwilling or unable to do so itself (see Article 17 of the Rome Statute). This reality, termed the complementarity principle, could invoke a firestorm of protest from Israel and its allies. Since the settlement issue is unique to Israel, ICC actions against those settlements would be roundly criticized for failing to account for war crimes committed by Palestinian actors such as Hamas, who might be vulnerable to indictment on other counts. An accusation of imbalance and politics masquerading as impartiality could put a hefty dent in the ICC’s already tenuous public reputation, further draining the court of the legitimacy it desperately needs to fulfill its mandate.

The  unfamiliar and highly uncertain nature of an action against Israel under Article 8(2)(b)(viii), coupled with the very real threat of political blowback, could render the Court reluctant to take up the question of Israeli settlements, even if Palestine enters the fold of member states.

Bewildering Borders

Palestinian accession to the Rome Statute is simply the opening volley in what is likely to be a nasty, contentious debate on the limits of ICC jurisdiction. The boundaries of ICC influence have always brushed against the sharply defended limits of national sovereignty, and the Court’s ability to litigate the conduct of non-member state nationals has proved a perennially controversial subject. Because Israel is not a member of the Court, the ICC must confine its reach only to conduct which “occurs on the territory of Palestine” in accordance with Article 12 of the Rome Statute. This stipulation masks a difficult question: What exactly constitutes Palestinian territory?

In a delightfully meticulous article on the topic, Northwestern Law professor Eugene Kontorovich argues that to exercise jurisdiction, the ICC would have to literally draw the borders of Palestine and Israel. Control over a defined territory is integral to the very notion of a sovereign state, yet the conundrum of delineated Palestinian borders remains as opaque as ever. As Kontorovich points out, the General Assembly’s resolution on Palestinian statehood abdicated the question entirely, treating the borders as an “outstanding issue” in search of a solution. Statehood appears to have vested Palestinians with some territory somewhere, but no one is in a hurry to clarify the details.

This baffling territorial quandary could have alarming consequences for ICC jurisdiction. With no binding guidelines to adhere to, the Court would find itself in the uncomfortable position of drawing national borders for the purposes of legal inquiry. The pitfalls are obvious. For one, the International Court of Justice’s decision in Monetary Gold means that the ICC cannot “determine the legal rights and duties” of a non-consenting state not party to a particular case. Adjudicating the reach of Palestinian territory would necessarily determine the boundaries of Israeli lands as well, a development Kontorovich succinctly terms “as clear a violation of the Monetary Gold principle as one could imagine.” Additionally, Palestinian accession to the Rome Statute implicitly relinquishes territorial and criminal jurisdiction to the Court on certain issues. It is by no means clear that Palestine has such jurisdiction to give, governed as it is by what remains of the Oslo Accords. This discrepancy becomes particularly glaring when discussing the capacity of the ICC to address the legality of Israeli settlements. All West Bank settlements lie within an area over which Israel has full territorial control and complete criminal jurisdiction. To put the issue bluntly: How can Palestine reassign jurisdiction it does not have? Assuming it attempts that very thing, how can the ICC accept jurisdiction of such questionable legitimacy?

An ICC investigation of the Palestinian situation takes the Court into dangerous waters. Such an inquiry, according to Kontorovich, “will win the enmity of all non-state parties” and ultimately render the Court “less able to fulfill its mandate.” While such a dire prediction may overstate the issue, it is certain a Palestinian signature on the Rome Statute will thrust the ICC into perplexing territory indeed.

Treading Softly

The potential role of the International Criminal Court in the conflict between Palestine and Israel is an intriguing one. Adherents to the high ideals of transnational justice weave tapestries of international accountability, cross-border dispute resolution, and deep wounds sutured by the balanced hands of impartial justice. Dogged policy realists proffer doom-laden specters of altered power balances, hamstrung sovereignty, and cataclysmic political fallout. While the actual results remain impenetrable, it is useful to remember the complexities of potential ICC involvement in one of history’s most intractable conflicts. The Court does not offer anything resembling a complete solution. To pretend otherwise is disingenuous.

Aaron Murphy is a J.D. Candidate at Berkeley Law. He is a student contributor for Travaux.

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Repealing the Human Rights Act: United Kingdom leadership in European Human Rights Law

By: Jian Yang Hoh

“This is the country that wrote the Magna Carta . . . the country that time and again has stood up for human rights . . . whether liberating Europe from fascism or leading the charge today against sexual violence in war.”

UK Prime Minister David Cameron’s recent speech at the Conservative (Tory) Party Conference 2014 was filled with allusions to the great British tradition of upholding human rights. Strangely enough, this high rhetoric was marshalled to justify repealing the Human Rights Act 1998 (HRA), a piece of domestic legislation that, among other things, makes it unlawful for any public body to act incompatibly with the European Convention on Human Rights (ECHR), an international human rights treaty that has been signed and ratified by the United Kingdom. Should the Conservatives retake power in the upcoming election, Cameron envisions a new British Bill of Rights that will return sovereignty to the United Kingdom, allowing British judges to make judgments for British people. Yet the recent strategy paper released by Justice Minister Chris Grayling suggests that the text of this new Bill of Rights will be identical to that of the ECHR. Any clear explanation for this behaviour must be by reference to the wider debate on the United Kingdom’s sovereignty concerns, and the political context that surrounds it. This post will first explain the way the European Court of Human Rights (ECtHR) works with regard to the United Kingdom, and detail the reasons for their strained relationship. It will then describe how Conservative plans for human rights reform are significantly motivated by politics, and argue that those plans would have deleterious domestic and international consequences.

Background: Politics, Sovereignty, and Euroangst

The United Kingdom has been subject to the jurisdiction of the European Court of Human Rights (ECtHR) since 1951. Membership is compulsory for all members of the Council of Europe, an advisory international organization promoting co-operation on law, culture, and development in the region. The ECtHR, based in Strasbourg, hears complaints from any individual who feels that his or her rights as enumerated in the ECHR have been violated by a Member State, and all judgments are binding on the States concerned. In 1998, the UK Parliament signed into legislation the HRA, which allows human rights cases to be decided in British courts in accordance with the ECHR, and requires judges to take into account ECtHR jurisprudence as persuasive authority. Ultimately, however, an individual who has had his case tried in the UK courts may still appeal to the Strasbourg Court for a final, binding decision.

Recent judgments of the Strasbourg Court have clashed with the Conservative government’s policies on crime and national security. In Hirst v. United Kingdom (No 2), the ECtHR ruled that the United Kingdom’s blanket ban on prisoner voting was incompatible with the ECHR, arguing that the government had failed to provide specific and convincing reasons to depart from the principle of universal suffrage. Similarly, the ECtHR’s refusal to allow the UK government to deport alleged Al-Qaeda affiliate Abu Qatada in Othman (Abu Qatada) v. United Kingdom on grounds that he would face torture back in Jordan was not met with felicity by the Conservatives. Qatada was eventually deported (and acquitted in Jordanian courts) after the United Kingdom signed a treaty with Jordan obtaining explicit assurances that he would not face torture, but not before prominent Conservative politicians and newspapers emphasized the high cost to the British taxpayer of keeping the alleged terrorist in the country, inflaming public outrage.

This conflict is exacerbated by the Strasbourg Court’s history of making high-profile reversals of decisions by British judges. In Smith & Grady v. United Kingdom, the ECtHR overturned judgments by British courts that held that the executive branch of government had not acted illegally in investigating and discharging members of the Navy on grounds of their homosexuality, sparking a sea change in policy on sexual orientation in the armed forces. More recently, in Al-Skeini v. United Kingdom, the ECtHR disagreed with the adjudication of the UK Supreme Court on the extraterritorial application of ECHR rights, and held that British soldiers have human rights obligations even while fighting in Iraq. This decision was highly unpopular in the United Kingdom, and has been held up by Cameron as an example of unacceptable interference by the ECtHR.

Much of this hue and cry is highly political. The Conservatives’ need to distance themselves from anything European has been made all the more urgent by the meteoric rise of the United Kingdom Independence Party (UKIP), a right-wing populist party whose charismatic leader, Nigel Farage, has run on a platform of strong Euroscepticism with great success. Although UKIP did not succeed in carrying any of its party members into Parliament in the last election, recent polls have them at around a stable 15-18%, gaining on the Tories’ low 30s, and nearly twice the percentage of the Liberal Democrats, who currently share power in a coalition government with the Conservatives. Cameron is not just faced with the prospect of losing right-wing vote share to Farage—a string of recent Tory defections to UKIP indicates that he is in danger of losing party members as well. If the Conservatives appear weak on crime, national security, or sovereignty, support will likely flow to the more hard-line UKIP.

Ill-advised Proposals and Consequences

The problem with promoting the repeal of the HRA as a headline act of an incoming Conservative government is that the Tories will have to go much farther to achieve any meaningful reform. Removing the HRA will fail to solve the problem of the ECtHR’s ultimate jurisdiction over the United Kingdom, only prevent Convention rights from being directly enforceable in domestic UK law, and result in more costly and protracted referrals (on average costing £30,000 [≈47600 USD] and taking an average of 5 years) to the Strasbourg Court. To effect real change, the United Kingdom will have to sever from the ECtHR completely. This would be a drastic step. It would remove the United Kingdom from the Council of Europe, which would place it in lonely company with Belarus and Kazakhstan as the third European state not party to the organization. This would worsen the United Kingdom’s already fractious relationship with the European Union (EU), not least because a treaty approving the accession of the EU itself to the ECHR is currently under discussion. Cameron has maintained that staying in the EU under some renegotiation would be best for the United Kingdom. Rejecting the jurisdiction of the ECtHR will further underscore the United Kingdom’s alienation from the rest of the EU, and add to the growing list of factors that may ultimately lead to a British exit.

Much criticism of the Strasbourg Court centres on the fact that its unelected judges may decide matters of contentious policy, and is therefore undemocratic. Yet deference to the particular socio-political context of each Member State is at the core of the ECtHR’s jurisprudence—the  margin of appreciation, a concept applied uniformly across all cases relevant to the ECHR, makes substantial provision for each member state to interpret the text of the Convention differently. In A, B, and C v Ireland, the European Court declined to rule on the legality of Ireland’s anti-abortion laws, holding that there was insufficient consensus on the matter within Europe to be justiciable. Further, democracy does not always work well with fundamental rights, as exemplified by reference to the parliamentary record of the House of Commons debate on prisoner voting: less than one page was devoted to substantive discussion of the issue at hand, and over thirty were focused on frustration with regard to Strasbourg competence creep. When the persons whose rights are under threat are unpopular, and when legislative bodies are infected with politicking, it falls to principled forums like the ECtHR to act as the ultimate watchdog.

Britain has a long and storied history of leadership in the area of fundamental rights. It is precisely that reputation that would make severance from the ECtHR such a disastrous move; if the United Kingdom will not comply with the ECHR, how could Russia or Turkey be compelled to do so? Europe is at a pivotal moment in its history of collective human rights enforcement—if the Conservatives take power again, one wrong step could mark the beginning of the United Kingdom as a leader in all of the wrong ways.

Jian Yang Hoh is a L.L.M. Candidate at Berkeley Law. He is a student contributor for Travaux.

Soviet WWII Memorial

This Day in International Law – November 7

By: Kelsey Quigley

On November 7, 1941, the Armenia, a Soviet hospital ship, was torpedoed and sunk by German air forces – marking one of the worst maritime disasters in history. Of the 7,000 passengers aboard the ship, which was originally built for only 980, eight survived; the ship sunk just four minutes after a direct torpedo hit. The ill-fated passengers had surged onto the ship in the Crimean Peninsula, fleeing the Nazi’s rapid incursion into the Soviet Union. Among the passengers were civilians and wounded soldiers, but due to the rushed nature of the evacuation, no full accurate record of the casualties exists.

Was the hospital ship a legitimate military target? When attacked, the Armenia was clearly marked with red crosses and was carrying civilians and war casualties. However, the ship was escorted by two armed boats and two fighter planes, thereby a legal target under Germany’s interpretation of international rules of war.

Kelsey Quigley is a J.D. Candidate at Berkeley Law. She is a student contributor for Travaux.

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Drone Wars: The Legality of Remotely Piloted Aircrafts

By: Tania Sweis

The militarized use of remotely piloted aircrafts (RPAs), more commonly known as drones, is on the rise. With this increase, many questions surface as to their legality under International Humanitarian Law and International Human Rights Law. Drones are not explicitly mentioned in, nor prohibited by, international law; they are considered no different than other weapons launched from manned aircrafts. In that case, why are they subject to such specific and vocal scrutiny?

The Legal Framework for RPAs

In the presence of armed conflict, the use of RPAs with lethal force falls under the purview of international humanitarian haw (IHL).  Under IHL, drone attacks should be undertaken with proportionality, humanity, military necessity, and distinction between civilians and combatants. In the absence of conflict, the more stringent international human rights law (IHRL) applies, and lethal force is permitted only when strictly necessary and proportionate. Many opponents of RPAs contend that they are used in the absence of conflict and should be subject to the strict IHL. It is here that much of the controversy surrounding RPAs arises. The Stanford International Human Rights & Conflict Resolution Clinic sheds light on the legality of targeted killings by RPAs under IHRL:

“’Targeted killings’ as typically understood (intentional and premeditated killings) cannot be lawful under IHRL, which allows intentional lethal force only when necessary to protect against a threat to life, and where there are ‘no other means, such as capture or non-lethal incapacitation, of preventing that threat to life.’”  In the case of drone,  “there is little public evidence that many of the targeted killings carried out fulfill this strict legal test… many particular strikes and practices suggest breaches of the test, including: signature strikes; strikes on rescuers; the administration’s apparent definition of “militant”; the lack of evidence of imminent threat; and the practice of extensive surveillance and presence on a list before killing.”

Ben Emmerson, the UN Special Rapporteur on Counter-Terrorism and Human Rights, further explains that much uncertainty results from today’s global landscape. It is occasionally difficult to determine whether or not one is in an area of conflict or combat. Particularly in the case of terrorist organizations like the Taliban, al Qaeda, and ISIS, the enemy has transcended state borders. These developments create confusion as to the applicable laws. The lack of transparency of governments engaged in RPA use exacerbates this confusion. In light of these issues, Emmerson communicated to the UN Human Rights Council that there is “a need to promote an international consensus on the core legal principles applicable to the use of armed drones in counter-terrorism operations.’” Over the course of several years, Emmerson conducted an investigation of targeted killings carried out by the United States, United Kingdom, and Israel in Afghanistan, Pakistan, Yemen, Somalia, and Gaza and uncovered thirty cases between 2006 and 2013 that “show sufficient indications of civilian deaths to demand a ‘public explanation of the circumstances and the justification for the use of deadly force’ under international law.”

In line with Emmerson’s claims, many human rights-oriented non-governmental organizations (NGOs) such as Amnesty International, the American Civil Liberties Union, and Human Rights Watch provide vocal opposition to drone use and policies. On September 18, 2014, these NGOs, along with several others, penned a joint, open letter to the UN Human Rights Council on Targeted Killing and the Use of Armed Drones.  They urged the Human Rights Council to enumerate legal standards and criteria for state disclosures of data regarding targeted killing operations; ensure that states comply with international law; enable meaningful oversight and the right to a remedy for injured civilians; and ensure the pursuit of effective investigations, tracking, and response to civilian harm.

The Response of the US Government and her Allies

Domestically, the US government overtly justified its use of RPAs.  President Obama, in his 2013 speech at the National Defense University, addressed many of the questions surrounding the legality of US drone use. The Commander in Chief directly stated that the United States is at war with al Qaeda and the Taliban, effectively cementing that IHL is applicable to US counter-terrorist RPA activity, as opposed to the more stringent IHRL. He continued to justify the points in contention of IHL, asserting that the amount of force used by the United States is proportional to the threat posed by the opposing terrorist organizations and, regarding civilian casualties, that “conventional airpower or missiles are far less precise than drones and are likely to cause more civilian casualties and more local outrage.” Nevertheless, despite these defenses, President Obama conceded that increased transparency is essential to the continued use of drones and even mentioned the possibility of a secret court that would sign off on future strikes.

Since this speech, the most progressive step the United States has taken towards the goal of transparency comes in the Targeted Lethal Force Transparency Act, introduced in April 2014 by Congressman Adam B. Schiff (D-CA-28). The act, if passed, will require the publication of an annual report on the number of deaths that result from military drone use. The report will include: “the total numbers of combatants, civilians, and other persons killed or injured outside the United States by remotely-piloted aircraft each calendar year,” but excludes any “use of targeted lethal force in Afghanistan prior to the end of U.S. combat operations, or … any use of such force in a foreign country described by a future declaration of war or authorization for the use of military force.” The passage of this act would be in line with the demands of the NGOs and other opponents of the current drone policy.

The United Kingdom’s Ministry of Defense has been notably silent regarding their planned and current use of drones and have been accused of aiding the United States in its drone program, much to the dismay of UK citizens.  The UK branch of Reprieve, a non-profit human rights organization, threatens to launch a judicial review of the Ministry of Defense if the government does not provide more transparency regarding their operations.

Conclusion

Although remotely piloted aircrafts were introduced combatively in World War I, the current surge in their use, coupled with the elusive nature of emerging enemies, calls for a reassessment of the application of international laws. As evidenced by the contrasting views concerning the legality of RPAs, the present laws are not clear as to the nuances of what constitutes legitimate and illegitimate use. At the heart of this problem is the lack of transparency of governments utilizing this technology. For the United Nations to formulate adequate regulations, a factual understanding of the real life effects of drones is essential. The Targeted Lethal Force Transparency Act by the United States, as well as the inquiries made into other states’ RPA use, is a significant step in the right direction.

Tania Sweis is a J.D. Candidate at Berkeley Law. She is a student contributor for Travaux.