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.


 

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.

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.