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International and Foreign

Statelessness knocked on the head: House of Lords’ defeat for the UK Government’s citizenship-stripping proposal

As Steve Vladeck observed in one of his first posts at Just Security, citizenship-stripping proposals are a recurring feature in American politics and public discourse, especially in the aftermath of a recent terrorist incident. Last week, April 7, saw the defeat in the House of Lords of the UK Government’s most recent citizenship-stripping proposal (“the Proposal”). The Proposal took the form of a clause in the Immigration Bill which is presently winding its way through Parliament. By the Proposal, the Government sought to change section 40 of the British Nationality Act 1981. Section 40 provides that citizenship can be removed on two grounds:

(a) from those who have acquired it fraudulently – where the citizenship results from registration or naturalization – and

(b) where the Secretary of State is satisfied that the person has done something seriously prejudicial to the vital interests of the UK, provided, as is made clear by section 40(4), that revocation of citizenship would not render him stateless.

The Proposal was, in relation to (b) and in those cases where a person’s citizenship status results from her naturalization, to strip away the protection against statelessness which is provided by section 40(4) – to create, in Hannah Arendt’s words, a pool of people who lack the right to have rights.

Strikingly,

  • the Proposal was introduced very late by the Government: there was no pre-legislative scrutiny and no consultation.
  • the Proposal was not (cf. Steve’s observations about the US experience) a reaction to a terrorist incident. It was, in fact, triggered by an observation in the Supreme Court judgment in Al-Jedda v Secretary of State for the Home Department in October 2013.  That (i.e. the limited time between October 2013 and January 2014) apparently explains why the Proposal was not subject to pre-legislative scrutiny and consultation: see the Home Office correspondence with the Joint Committee on Human Rights.
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Guest Post: Trial Chamber Finds Power to Compel Witnesses is an “Implied Power” of the ICC

In an important victory for the Office of the Prosecutor at the ICC, the Ruto Trial Chamber, by majority, today issued subpoenas for eight prosecution witnesses for the prosecution and requested the Government of Kenya (GoK) to enforce the subpoenas, by compulsion if necessary.  The eight witnesses reside in Kenya and are no longer willing to appear voluntarily.  The Trial Chamber requested the GoK to ensure the appearance for testimony of the witnesses to testify either by video-link or in Kenya (presumably before the judges sitting in situ).  I previously wrote about the arguments of the parties here.

The Trial Chamber found that the power to compel witnesses is an “implied power” of the ICC – critical for it to perform its “essential functions” – that is not expressly foreclosed by the Rome Statute.  If witnesses were completely free to withdraw their cooperation at any moment in the process, as the defense urged, the Court would be unable to “effectively discharge” its function. In this part of the decision, the Trial Chamber offers a robust vision of an ICC actually empowered to do its job of ensuring accountability for core international crimes.

In addition, the Trial Chamber found that the Rome Statute expressly provides for compelling witnesses in article 64(6)(b), which states that “the Trial Chamber may … [r]equire the attendance and testimony of witnesses and production of documents and other evidence by obtaining, if necessary, the assistance of States as provided in this Statute.”  Although article 93(1)(e) requires States Parties to “facilitate[] the voluntary appearance of persons as witnesses or experts before the Court,” article 93(1)(l) also requires those States Parties to comply with “[a]ny other type of assistance which is not prohibited by the law of the requested State.” Since Kenyan law does not prohibit witness subpoenas and measures of compulsion to enforce them, the Rome Statute requires the GoK to serve and enforce the requested subpoenas in this case.…   continue »

Ukraine accepts ICC Jurisdiction but stops short, way short

The Registrar of the International Criminal Court has announced that it has received a declaration from Ukraine accepting jurisdiction for international crimes committed on its territory between November 21, 2013 and February 22, 2014.

The start date of Nov. 21, 2013 is the day that Ukrainian President Viktor Yanukovych’s government announced it was abandoning the agreement with the European Union. And the end date of Feb. 22, 2014 is the day Yanukovych fled the country. It thus covers the period in which Yanukovych’s government used force to try to repress the protests that eventually ended his hold on power.

As I wrote in an earlier post at Just Security, Kiev would be well served by going the full distance and joining the Rome Statute in toto. It would raise the costs for Putin and for any future military action on the part of the Russian forces. As international actors grapple for additional levers to use against Moscow, there is still one waiting in The Hague.

New Editors’ Picks Reading List: IHRL on Privacy and Surveillance

As regular readers will likely recall, in recent weeks there has been much discussion here on the pages of Just Security (and elsewhere) on important questions regarding the extraterritorial application of human rights treaties, notably the ICCPR, and more specifically, whether international human rights law (IHRL) imposes an extraterritorial obligation to respect the privacy rights of foreign populations.  As the discussions illuminate, the scope of these international legal obligations may have direct (or indirect) implications on U.S. foreign surveillance programs operating pursuant to Section 702 of FAA or E.O. 12,333. [For earlier coverage on Just Security, see here, here, and here. And don't miss thoughtful posts from Ashley Deeks, Ben Wittes, and John Bellinger on Lawfare.]

The PCLOB also recently grappled with these questions during the third and final panel of a recent hearing discussing foreign surveillance programs authorized under Section 702 that was held on March 19th. Unfortunately, the link to a video of the panel which was once available is no longer working [note: to the PCLOB and CSPAN], but a complete transcript of last month’s hearing can be found here.

The discussions on the reach and scope of international human rights obligations with respect to privacy rights is timely, given that Congress, the the administration, and oversight bodies like the PCLOB are currently engaged in a holistic evaluation the nation’s surveillance authorities.  However, resources that encompass the universe of academic literature and legal commentary in this area is unfortunately sparse.  This is why we are thrilled to announce the publication of a new Just Security ”Editors’ Picks” reading list on “International Human Rights Laws and Privacy (and Surveillance).”  For this “Editors’ Picks,” we have provided an annotated list of essential reads on the IHRL on privacy and its implications for foreign intelligence surveillance programs.  …   continue »

José Alvarez: Ukraine’s Request for UN Peacekeepers Does Not Require Security Council (Russian) Approval

On Monday, Ukraine requested the United Nations to send peacekeeping troops to 10 cities to help respond to pro-Russian groups in those parts of the country. If you believe major media outlets, you would consider this a fool’s errand. Many in the media have been reporting, unequivocally, that UN peacekeepers require authorization by the UN Security Council (where Russia holds veto power). Here’s a sample:

New York Times: “The country’s acting president … asked the United Nations to send peacekeepers. But the move was widely viewed as an act of desperation, given that Russia holds a veto at the United Nations Security Council and is unlikely to assent to a such a request.”
Foreign Policy: “The Kiev government on Monday requested support from U.N. peacekeepers to minimize violence, but the deployment of peacekeepers would have to be approved by the U.N. Security Council, where Russia would have the option to veto the decision.”
Time: “Peacekeepers can only be authorized by the U.N. Security Council, on which Russia has veto power.”
AP: “Peacekeepers, however, would have to be authorized by the U.N. Security Council, where Russia holds a veto.” 

Despite its repetition, the notion that the Security Council is the only body that can authorize UN peacekeepers struck me as legally and historically suspect. 

So I asked someone who knows better than me — Professor José Alvarez, a leading expert on the law of the UN — if peacekeepers could instead be authorized for Ukraine by the UN General Assembly, whether specifically in accordance with the Uniting for Peace Resolution or more generally as part of the General Assembly’s residual power. Professor Alvarez wrote in response:

 “The Uniting for Peace resolution (Res.

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UK Surveillance Watchdog Releases Report Endorsing UK Surveillance Programs

As we covered in yesterday’s Early Edition, Sir Anthony May, the UK’s Interception of Communications Commissioner (the UK’s surveillance watchdog), has concluded in his 2013 Annual Report (full text) to the Prime Minister that the UK’s spy agencies do not carry out “random mass intrusion into the private affairs of law abiding UK citizens.”  In the 87-page annual report released yesterday, Sir Anthony states that the UK government “does not misuse [its] powers under the Regulation of Investigatory Powers Act (RIPA).”  This is undoubtedly an important and compelling report, and in this post, we aim to outline some of its highlights, analyze a few of its important findings, and discuss shortcomings in the report.

A full examination of the grant of powers under the (admittedly complex) RIPA statute is well beyond the scope of our post (although if you are looking for more background on RIPA, may we recommend this brief overview from The Guardian).  Nevertheless, a brief introduction to RIPA and the UK surveillance regime is helpful, particularly to our largely U.S.-based audience, to lay the appropriate foundation to understand the Commissioner’s report.

So, in the most general terms, what is RIPA and what does it do?  In the U.S., there is quite a hodgepodge of legislative and regulatory authority governing surveillance programs, including but not limited to Title III warrants“traditional” FISA ordersSection 215 of the PATRIOT Act, Section 702 of the FAA, EO 12,333, and the various regulations and laws that govern human intelligence at home and abroad.  However, in the United Kingdom, almost all covert surveillance by the government, whether electronic surveillance or human surveillance or whether for the purpose of criminal investigations or for intelligence gathering, is governed by a single, comprehensive statute: RIPA.  …   continue »

Palestine, the Vatican and Accession to International Treaties: Some Ancillary Thoughts

The application to accede to multiple international treaties and international organizations made by President Mahmoud Abbas on April 1st (see full list) has proceeded with breathtaking speed.  In this context, I offer some reflections on the substantive response by Nimrod Karin (here) to my post (here) on the legality of Palestinian accession to the Geneva Conventions and other treaties. These comments are not intended as a response per se but rather to extend the conversation in light of ongoing developments. The likely ‘hesitancy’ articulated by Mr. Karin has been little in evidence as the United Nations Secretary General accepted, apparently with little difficulty, the accession of the state of Palestine to fourteen international treaties on the 3rd and 7th of April.  UN spokesman Stephane Dujarric said:

“The secretary general has ascertained that the instruments received were in due and proper form before accepting them for deposit”

The UNSG’s office has indicated that in keeping with procedure, all member states have been informed.   This means that Palestine is now listed as official State party on the UN treaty database for 14 treaties (which include the Convention on the Rights of the Child (with Optional Protocol), the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Genocide Convention, the Vienna Convention on the law of treaties, and the Convention Against Torture.  It is still open for states to make their own determination and to raise any issues of concern as regards to any legal issues raised by the accession.

These acceptances seem to confirm that the general rule on the accession to treaties as governed by Article 15 of the Vienna Convention on the Law of Treaties has been applied to Palestine.…   continue »

The Earth Moved – Senate Advice and Consent Granted to Fisheries Treaties

Readers may be interested to note that last week the Senate Committee Foreign Relations Committee provided its advice and consent to a small number of international treaties. The four treaties are all in the category of Fisheries and Wildlife protection, applying to Northwest Atlantic Fisheries, conservation of fisheries resources in the North Pacific Ocean, conservation in the South Pacific Ocean, and a treaty advancing measures to prevent, deter and eliminate illegal and unregulated fishing,   While this positive development does little overall to ease the logjam of treaties in the ‘pending’ box, nonetheless the bipartisan support for these particular treaties is a welcome and perhaps hopeful sign of better days to come on US treaty ratification.

Newsflash – Swiss Depository accepts accession by Palestine to the Geneva Conventions

Readers will be interested to hear that the Swiss Depository has accepted the instrument of accession of Palestine to the Geneva Conventions and the Additional Protocol I.

As readers may recall, on 13 September 1989, the Swiss Federal Council informed states parties that it was not in a position to decide whether a similar letter from the Palestinian Liberation Organisation constituted an instrument of accession, “due to the uncertainty within the international community as to the existence or non-existence of a State of Palestine.”

[Editor's Note: For earlier coverage on the Palestine accession to the Geneva Conventions and other international treaties, see previous posts herehere, and here. Stay tuned on Friday for the next round in the debate between Fionnuala Ní Aoláin and Nimrod Karin on legal questions raised by these developments.]

Hersh’s Syria Conspiracy Theory: The CIA and Intelligence Oversight Questions

In a previous post, I discussed the Senate Intelligence Committee report on the attack against U.S. facilities and personnel in Benghazi, Libya.  That post contemplated bias by congressional committees in favor of their oversight subject agencies.  On Monday, Ryan addressed Seymour Hersh’s latest article advancing a theory that Turkey was responsible for a false flag operation in Syria in which the rebels were the real perpetrators of the sarin gas attacks in Ghouta.  Others have been withering in their criticism of the theory and sourcing.

Ryan alerted me to the following additional allegation by Hersh that related to the Senate Intelligence Committee’s report:

A highly classified annex to the report, not made public, described a secret agreement reached in early 2012 between the Obama and Erdoğan administrations. It pertained to the rat line. By the terms of the agreement, funding came from Turkey, as well as Saudi Arabia and Qatar; the CIA, with the support of MI6, was responsible for getting arms from Gaddafi’s arsenals into Syria. A number of front companies were set up in Libya, some under the cover of Australian entities. Retired American soldiers, who didn’t always know who was really employing them, were hired to manage procurement and shipping. The operation was run by David Petraeus, the CIA director who would soon resign when it became known he was having an affair with his biographer. (A spokesperson for Petraeus denied the operation ever took place.)

The operation had not been disclosed at the time it was set up to the congressional intelligence committees and the congressional leadership, as required by law since the 1970s. The involvement of MI6 enabled the CIA to evade the law by classifying the mission as a liaison operation.

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