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International and Foreign

How “Overwhelming” was the UN General Assembly Vote on Crimea?

At a press conference in Kiev with the Ukrainian Prime Minister, Vice President Biden stated that the world’s rejection of Russia’s actions in Crimea was evident in last month’s “overwhelming vote” by the UN General Assembly. That’s the terminology the White House has obviously settled on. For example, White House Press Secretary Jay Carney said back in March: “I would point you to the overwhelming vote in the United Nations General Assembly.” In accord, “overwhelming” is the word that major media outlets have used to describe the vote ever since (for example, LA Times, New York Times, TIME).

But was it?

How does the vote on Ukraine compare to past votes by the UN General Assembly in response to foreign military interventions? And how strong was the wording of the Ukraine resolution compared to these other cases? Specifically, we need to know two things: (1) the vote count; and (2) the strength of the resolution’s text. Just imagine, for example, if the past GA resolutions were far tougher in their stance and yet garnered even greater international support than a watered down Ukraine resolution.

Before diving into such comparisons, I should note that I strongly favor using international institutions to increase the costs of Moscow’s invasion of Ukraine. I have proposed using the International Criminal Court for such purposes in earlier posts at Just Security (here and here). And I should add that the UN Security Council vote on Crimea was clearly overwhelming.

But the General Assembly vote deserves closer scrutiny.

Indeed, rather than a tendentious reading of it to serve political objectives, we need sober reflection on how much political support the resolution truly garnered. That kind of inquiry can help us assess how much political room Moscow really thinks it has to maneuver on the international stage, and how much support the US can count on in its efforts to pressure Russia.…   continue »

Consequences of the Fact-Based Armed Conflict Test in Yemen’s Internal Armed Conflict

Ryan’s recent post about ongoing “drone strikes” in Yemen raises an issue that has troubled me for quite some time from a legal, policy, and advocacy perspective.

In the last of his four points, Ryan questions whether the United States is involved in Yemen’s internal armed conflict. The reason this argument can be made (and has been made) is because, as LOAC lawyers know, an assessment of whether an “armed conflict” exists under international law is a fact-based assessment. An armed conflict is based on objective criteria; not on the subjective views of the military, lawmakers, or anyone else (although such views may be strong indicators that an armed conflict does exist).

The reason this rule was codified in LOAC was to combat the practice of States that refused to admit they were in armed conflicts, including internal armed conflict, because they found it politically, economically, or militarily disadvantageous to admit that rebels may have gotten the upper-hand. States have also refused to admit they were in internal armed conflicts to avoid following LOAC rules, a body of law that has expanded over the years through treaty and customary international law.

The fact-based test for armed conflict, at least at first glance appears to bring more, rather than less, regulations into hostilities and ensure greater protection for civilians. These include rules relating to the humane treatment of detainees, authority of humanitarian relief agencies to offer assistance, and strict(ish) rules on who can be killed and under what circumstances.

However, in the context of U.S. strikes in Yemen, the reliance on the fact-based test seems to have different consequences. Saying that the United States is in a LOAC alongside Yemen allows, as a matter of international law, the United States to carry out LOAC targeting operations under a legal justification that, as Ryan pointed out in his previous post, the United States itself may not agree with or publicly admit to.…   continue »

Ongoing “Drone Strikes” in Yemen Raise Four Questions

From Saturday to Monday morning, the US has reportedly been carrying out a series of air strikes in Yemen, delivering multiple blows to Al Qaeda in the Arabian Peninsula (AQAP). According to a Yemeni official who spoke with CNN, the strikes are “massive and unprecedented.” Shrouded in secrecy, the actions raise questions about the consistency of US operations with the “New Rules” that the White House announced on May 23, 2013 for lethal operations. The actions also raise a profound question about whether US involvement in Yemen (a) has slid into fighting an insurgency (i.e., an internal armed conflict) on the side of the Yemeni government rather than (b) combating AQAP as part of the transnational armed conflict with Al Qaeda pursuant to Congress’s Authorization to Use Military Force.

On Saturday, air strikes reportedly killed 10 AQAP militants in a vehicle but also resulted in killing 3 civilians and wounding 2 civilians in an approaching car. On Sunday and early Monday morning, a series of air strikes reportedly killed another 25 people suspected of being AQAP members. Initial news reports have conflicted over some of the details, and access to the remote mountainous areas, where the strikes occurred, create difficulties for journalists to report. Accordingly, some of the information is sparse, and relies significantly on statements by Yemeni officials. That said, what information is available raises the following questions.

1. Civilian Deaths

The President’s New Rules for kill or capture operations outside of areas of active hostilities forbid strikes that present even a marginal risk of civilian casualties. According to the rules, one of the “criteria [that] must be met before lethal action may be taken” is:

“Near certainty that non-combatants will not be injured or killed.”

Saturday’s attack, however, resulted in 3 civilians dead and 2 wounded.…   continue »

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.
  •   continue »

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 »