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• LEGAL STUDIES RESEARCH PAPER SERIES • Research Paper No. 2013-15 Date: 05-16-2013 Title: The US v. The Red Cross: Customary International Humanitarian Law & Universal Jurisdiction Author: Noura Erakat Cite: 41 Denv. J. Int'l L. & Pol'y 225 (Winter 2013) This paper can be downloaded without charge from the Social Science Research Network Electronic paper Collection: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2218572 Electronic copy available at: http://ssrn.com/abstract=2218572 Electronic copy available at: http://ssrn.com/abstract=2218572 THE US V. THE RED CROSS: CUSTOMARY INTERNATIONAL HUMANITARIAN LAW & UNIVERSAL JURISDICTION I. INTRODUCTION In 1995, the International Committee for the Red Cross (ICRC) embarked on a momentous project to document and codify customary international humanitarian law. Using a broad methodological approach to the formation of customary international humanitarian law, the ICRC contended that there exist 161 rules applicable during international and non-international armed conflict that are of customary nature. The Study presented a challenge to the United States’ enduring rejection of the applicability of certain provisions of the 1977 Additional Protocols I and II. Those are legal, and multilateral, milestones that extended the protections of the laws of armed conflict to non-state actors in the response to the emergence and progeny of untraditional warfare. Between the close of the Second World War and 1977, most wars were fought either between non-state actors and states (i.e., wars of liberation) or within states (i.e., civil war and unrest). The state-centric character of international law was ill-equipped to regulate this non-traditional combat. In response, states re-convened between 1972-73 to legislate new provisions governing non-international armed conflict to supplement the meager lexicon afforded by the Geneva Convention’s Common Article 3, namely, the Additional Protocols. The ICRC’s Customary International Humanitarian Law Study asserts that its documentation of state practice, coupled with that which states deem to be legally obligatory, constitute a corpus of customary law that arguably challenges some of the US’s outstanding protests. Published in 2005, amidst the US’s Global War on Terror, which promised to incapacitate an enemy lacking a national identity and national borders, the Study was hostilely received by the US Administration. Writing on its behalf, State Department Legal Adviser John B. Bellinger III and Defense Department General Counsel William J. Haynes II admonished the Study’s findings asserting that the ICRC’s methodological approach to the formation of customary international law lacked rigor and precision. The ICRC, they argued was excessively reliant on the verbal and written commitment of states at the expense of their actual behavior. As such, an untold number of the rules it identifies lack the binding character constitutive of customary law, and international law more generally. The discord between the US and the ICRC reflects a methodological divergence in approaches to the formation of customary international law. Whereas traditional custom, reliant on state operational practice, represents the law’s descriptive accuracy, the modern approach, which looks to the trajectory of the collective will of states, reflects its prescriptive appeal. The US vividly demonstrates this divergence in its examination of four customary rules proffered by the ICRC. Among its illustrative case studies, the US takes issue with Rule 157, that states have the right to vest universal jurisdiction in their national courts over war crimes. This paper shows that while modern approach to custom is superior in particular regard to human rights and humanitarian law, the methodological approach does not presuppose a particular outcome. To the contrary, while the ICRC was correct 1 Electronic copy available at: http://ssrn.com/abstract=2218572 to apply the modern approach in its study, its analysis, based upon its evidentiary findings, was imprecise and, therefore, its conclusion regarding the customary status of universal jurisdiction is arguably incorrect. To demonstrate this case, the article uses the US-ICRC debate as a backdrop and begins by unpacking the US’s critique of the ICRC’s Study. It then briefly explores the traditional and modern approaches to the formation of customary international law. The next section makes a normative argument for the application of the modern approach to customary human rights and humanitarian law. The following sections demonstrate how, even using the proper methodological approach, the ICRC’s analysis is partly flawed thereby undermining the applicable scope of universal jurisdiction to war crimes as asserted by Rule 157. The paper concludes by extrapolating lessons from this debate, and this case study, about the proper approach to customary international humanitarian law. II. THE UNITED STATES VERSUS THE INTERNATIONAL COMMITTEE OF THE RED CROSS In 1995, the International Committee of the Red Cross (ICRC) began a comprehensive study to examine those laws of war applicable in international and noninternational armed conflict. 1 The ICRC’s purpose was two-fold: first, to identify those Geneva treaty provisions that are binding on third non-party States and territories2 and second, to supplement the meager detail available for the regulation of non-international armed conflict.3 In its Customary International Humanitarian Law study (Study), completed over ten years and reliant on research from over fifty countries and archives from nearly forty recent armed conflicts, the ICRC identified 161 rules to be of customary nature.4 The ICRC used a classic approach developed by the International Court of Justice to determine the existence of a general customary international law.5 Customary international law generally requires the presence of two elements, state practice and opinio juris, or the belief that such practice is a legal obligation, as opposed to one reflecting morality, reciprocity, courtesy, or otherwise.6 Accordingly, the ICRC relied both on verbal and physical acts of state as constitutive of state practice so long as they represent official practice.7 Though classical in its approach to establishing that a rule 1 Henckaerts, Jean-Marie, Customary International Humanitarian Law: A Response to US Comments, 89 INT’L. REV. RED CROSS 473 (2007). (The Intergovernmental Group of Experts for the Protection of War Victims recommended that the ICRC, in collaboration with a experts in international humanitarian law (IHL), prepare a report on the customary rules of IHL applicable in international and noninternational armed conflict. This was endorsed at the 26th International Conference of the Red Cross and Red Crescent, Geneva 3-7 December 1995, Resolution 1). [Hereinafter “Henckaerts Response”] 2 Jean-Marie Henkcaerts et al., et al., Customary International Humanitarian Law, Volume I: Rules (Cambridge: 2005). [Hereinafter “Volume I”]. 3 Id. at xxix (“Additional Protocol II usefully supplements Common Article 3, but it is still less detailed than the rules governing international armed conflicts contained in Additional Protocol I. Additional Protocol II contains a mere 15 substantive articles, whereas Additional Protocol I has more than 80.”) 4 Id. 5 Id. at xxxii. 6 Id. 7 Id. at xxxiv. (For a detailed discussion of its criteria for selecting relevant state practice, see the discussion at xxxii-xxxiv.) 2 Electronic copy available at: http://ssrn.com/abstract=2218572 is of customary nature, the ICRC did not require that opinio juris be demonstrated as a distinct and separate element. Instead, it found that “more often than not, one and the same act reflects practice and legal conviction.”8 So long as the practice is sufficiently dense, opinio juris can be found within that practice and therefore its existence did not need to be demonstrated separately.9 Significantly, the ICRC did not assert that treaty ratification as a practice also represented legal conviction in what it describes as a “cautious approach.”10 In its response to the ICRC Study, the US government took particular issue with this methodological approach. While the US acknowledged that “the same action may serve as evidence both of State practice and opinio juris” it insists opinio juris cannot be inferred by practice but must be “assessed separately.” 11 The US’s concerns reflects its cautionary approach to the relationship between multilateral treaties and customary law.12 It chided the ICRC’s approach, insisting that opinio juris cannot be established by mere recitation of treaty provisions, which may “as easily reflect policy considerations as legal considerations.”13 The US explains that to show that a rule is customary, the ICRC must be able to prove that a State is legally obliged to observe a rule even in the absence of a related treaty.14 The ICRC, however, did not consider a widely ratified treaty as definitive but instead only as indicative of custom in the context of broader state practice. In regards to assessing practice, the US government accepted the ICRC’s methodological approach but found the humanitarian organization’s application insufficiently rigorous. The US argued that the ICRC did not establish sufficient density of practice in many cases;15 that it gave undue weight to the statements of nongovernmental organizations;16 that it failed to give more weight to negative practice in several cases; and that erroneously relied upon state documents and proclamations, namely upon military manuals and non-binding general assembly resolutions.17 The government argues that while these materials may serve as an indicator of opinio juris they cannot replace the veracity of operational practice.18 Finally, the US admonished 8 Id. at xl. Id. 10 Henckaerts, Jean-Marie, Study on customary international humanitarian law: A contribution to the understanding and respect for the rule of law in armed conflict, International Review of the Red Cross, Vol. 87, No. 857, at 183 (March 2005) (“The study took the cautious approach that widespread ratification is only an indication and has to be assessed in relation to other elements of practice, in particular the practice of States not party to the treaty in question.”) 11 Bellinger, III., John B. & William J. Haynes II, A US Government Response to the International Committee of the Red Cross study Customary International Humanitarian Law, 89 INT’L. REV. RED CROSS 443 (2007). [Hereinafter “Bellinger”] 12 Id. at 446 (The US makes note that at the time of drafting, the Additional Protocols reflected farreaching principles that reflected the aspiration of states and not what they believed to be a legal obligation captured in international customary law.) 13 Id. at 447. 14 Id. 15 Id. at 444. 16 Id. 17 Id. at 445. 18 Id. 9 3 the ICRC for equating the state practice of specially affected with that of relatively lesser-affected states.19 Relying heavily upon the ICJ’s decision in the Case concerning Military and Paramilitary Activities in and against Nicaragua20 and the North Sea Continental Shelf cases,21 the ICRC agreed with the US that the quantity of states is less relevant than their qualitative value. Accordingly, the quantitative support for a rule is less significant in the case where all specially affected states offered support. In cases where specially affected states opposed a provision, the quantitative value of state support is arguably inconsequential.22 Still, the ICRC held that in the realm of warfare, all States have an interest in humanitarian provisions and therefore their practice must also be given due weight thereby diminishing the role of specially affected states in the determination of customary international humanitarian law.23 The ICRC also held that state practice must be sufficiently similar among states but not necessarily identical. The Committee found that contrary practice did not undermine the existence of a customary rule so long as other States condemned the practice or the government itself denied it, thereby negating its official nature. Significantly, the ICRC afforded great weight to verbal state practice even in the face of repeated violations. In the case that the a State wished to change an existing rule of customary international law, it would “have to do so through their official practice and claim to be acting as of right.”24 Where the ICRC insisted on general adherence and practice to reflect a rule’s customary nature, the US insists upon detail and specificity. Even in the formulation of its rules, the US notes that the ICRC failed to state rules with sufficient precision to reflect state practice and treaty obligations.25 The US’s stringent standards reflects a traditional approach to the formation of customary law wherein, absent treaty law, binding rules are based on actual, not verbal, state practice, and demonstrable opinion juris.26 In contrast, the ICRC accepts that a legal principle can become customary when it achieves general support from the international community as a collective whole. Like the holding in Nicaragua, it assumes that state behavior conforms with custom and that non-conformity reflects a breach rather than a seed for a new rule.27 The 19 Id. (The specially affected state doctrine reflects a principle derived from the North Sea Continental Shelf cases, Judgment, 20 February 1969, ICJ Reports 1969, p. 3, that holds that practice “must include that of states whose interests are specially affected.”) 20 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. United States), Merits, 1986 I.C.J. 14, 100 (June 27) [Hereinafter “Nicaragua”] 21 Id. at 3. 22 Volume I supra note 2 at xxxviii (“…if ‘specially affected States’ do not accept the practice, it cannot mature into a rule of customary international law, even though unanimity is not required as explained.”) 23 Id. at xxxix. 24 Id. at xxxvii. 25 Bellinger supra note 10 at 447 (“Thus, many rules are stated in a way that renders them overbroad and unconditional, even though State practice and treaty language on the issue reflect different, and sometimes substantially narrower, propositions.) 26 Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. REV. 665, 666 (1986). [Hereinafter “Trimble”] (“Political scientists of the ‘realist school’ have expressed similar conclusions: power and nationalist interest, not law, determine government conduct. For the most part, the writing of recent Secretaries of State, as well as international relation theorists and political scientists, ignore this subject altogether. International law is thus relegated to the dustbin of idealism.”) 27 Nicaragua supra note 19 at para. 186. 4 methodological divergence evidenced by the US and the ICRC reflects the two schools of thought underlying the formation of customary international law: traditional and modern. III. APPROACHES TO CUSTOMARY INTERNATIONAL LAW: TRADITIONAL AND MODERN International law's three primary sources are general principles of international law, treaties, and customary law.28 The establishment of customary, or tacit consent, 29 is based on two elements: practice and opinio juris.30 The philosophical underpinnings of the two approaches to identifying whether a principle has achieved customary status reflect the emphasis placed on each and/or both of these elements.31 a. Traditional Custom The two schools of thought, traditional and modern, respectively align with law's descriptive accuracy and its prescriptive appeal.32 Traditional custom emphasizes state practice and is driven by the law's descriptive accuracy. Descriptive law generally describes what the law is or has been. It supposedly corresponds to reality and therefore is the content of international law.33 It can be appealing in international law, where a hierarchal enforcement system is underdeveloped at best, or unavailable at worst.34 Descriptive law represents a deductive method to identify customary law, meaning that the law must be inferred from examples of practice and facts alone.35 Emphasizing the evidentiary significance of state practice, adherents argue that the international community intended that custom reflect practice, and not that practice reflect custom.36 This formulation assumes that the practice of states is to be considered as an aggregate. Accordingly, practice should perfectly reflect existing customary law as well as any shifts it may undergo.37 Resultant from the emphasis on state practice traditional custom develops 38 slowly. It requires courts to ascertain custom by examining many years of state practice and to find that a rule becomes customary international law when it reflects both uniform state practice over a long period of time as well as a conscious acceptance 28 Statute of the International Court of Justice, Art. 38 (b), (1945). [Hereinafter “Statute ICJ”] Emer De Vattlel, The Law of Nations, 78 (Béla Kapossy and Richard Whatmore ed., Liberty Fund 2008) (1758). [Hereinafter “Vattel”] 30 Statute of the International Court of Justice, Art. 38 (b), (1945). (“international custom, as evidence of a general principle accepted as law.”) [Hereinafter “Statute ICJ”] 31 Schlutter, Birgit DEVELOPMENTS IN CUSTOMARY INTERNATIONAL LAW 15 (Developments in International Law Ser. No. 62, 2010). [Hereinafter “Schlutter”] 32 Roberts, Anthea Elizabeth, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 A.J.I.L. 757 (2001). [HEREINAFTER “Roberts”] 33 Id. 34 Id. 35 Schlutter supra note 30 at 16. 36 Trimble supra note 25 at 710. 37 Id. 38 Roberts supra note 31 at 767; See also Guernsey, Katherine N., The North Sea Continental Shelf Cases, 27 OHIO N.U. L. REV. 141, 143. 29 5 among states that the practice reflects a principle of law.39 Traditionalists therefore, consider treaty law to be more legitimate and binding than newly-minted or controversial customary rules.40 This school of thought has found support among scholars and jurists alike.41 Among said supporters is Sir Robert Jennings who diverged from his colleagues in deciding Nicaragua. He took issue with the validity of the ICJ's jurisdiction, which he argued could not exist in the face of a US multilateral treaty reservation. Jennings disagreed that customary international law could be applied in lieu of the relevant treaties where it could not be demonstrated that the treaty either codified existing customary law or alternatively, that the treaty had given rise to a new rule.42 This approach conceives of states as active lawmakers who bind themselves only by explicit consent in ways that do not impede their sovereignty.43 The Permanent Court of International Justice's decision in SS Lotus captured this sentiment well when it held: ‘International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions on the independence of States cannot therefore be presumed.’44 This passage in Lotus arguably stands for the proposition that international law is regulative and not constitutive of State rights.45 Coupled with a later passage in Lotus,46 it also suggests that a state’s rights cannot be circumscribed unless there exists a customary prohibition on such right.47 These propositions however do not distinguish 39 See Kerwin, Gregory J., The Role of the United Nations General Assembly Resolutions in Determining Principles of International Law in United States Courts, 1983 DUKE L.J. 876, 877 as cited in Benjamin Langille, It’s “Instant Custom”: How the Bush Doctrine Became Law after the Terrorist Attacks of September 11, 2001, 26 B.C. INT’L & COMP. L. REV. 145, 147 (2003). [Hereinafter “Langille”] 40 Trimble supra note 25 at 669 (Treaty and Customary law are not equally authoritative “the relevant and true role of international law in the world, lies in national political traditions and structures that support the domestic implementation of the two types of international law.”) 41 See Bruno Simma & Andreas L. Paulus, The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View, 93 A.J.I.L. 301, 304 (1999) [Hereinafter “Simma”] (“states create international norms by reaching consent on the content of a rule. If a state later changes its mind, there must be another-this time nonconsensual-rule that prevents the state from unilaterally withdrawing its consent.”) 42 Nicaragua supra note 19 at 530 (The UN Charter neither codified existing law nor did it, in the intervening years generate a new rule. “I am unable, however, to agree with the Court's persuasion that, whilst accepting the pertinence of the reservation, it can, nevertheless, decide on the Nicaraguan Application by applying general customary law, as it were in lieu of recourse to the relevant multilateral treaties.”) 43 Trimble supra note 25. 44 S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7). [Hereinafter “Lotus”] 45 See Reydams, Luc, Universal Jurisdiction: International and Municipal Legal Perspectives, (Oxford University Press, 2003). [Hereinafter “Reydams”] 46 Lotus supra note 43 at para. 49. 47 See Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. of the Congo v. Belgium) February 14 6 modernists from traditionalists as there is no formulation of customary law that presumes consent on the part of States.48 The distinction between modern and traditional custom is not found here but rather in the methods used to identify custom and the sources upon which commentators can rely. Due to its insistence on the preeminence of operational state practice, at its extreme, traditional custom risks standing in as an apology for state behavior because it accepts principles as legally binding insofar they reflect the national interests of states.49 It is an undemocratic proposition because it suggests that only those states with the means to act can shape binding and applicable law. At its core, this violates the premise that states are as equal to one another as are the persons within each of those states to one another. As opposed to those who believe that "a dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom,"50 traditionalists advocate that power indeed produces difference. b. Modern Custom If it can be crudely summarized that traditionalists are committed to state sovereignty, than it can be similarly summarized, that modernists are committed to human rights because of their emphasis on the equality of states and the law’s normative thrust.51 Modern custom espouses the theoretical equality of states and therefore accepts the notion that each state equally contributes to the formation of international law regardless of its available means and resources. Like their traditional counterparts, modernists acknowledge the limitations inherent to an international community lacking a compulsory adjudication system, but argue that the necessary treatment for said lack is to be derived from procedural norms.52 Modern custom insists that the legitimating force of customary law flows from a commitment to democratic process.53 As such, the modern approach emphasizes opinio juris, to which all states can contribute equally regardless of their disparate power. It relies on a deductive approach that accepts that legal norms can be derived from general propositions absent actual facts and practice.54 [Hereinafter “Arrest Warrant”] (Dissenting Opinion of Judge Van Der Wyngaert, Arrest Warrant, International Court of Justice) [Hereinafter “Van Der Wyngaert”] 48 Nicaragua supra note 19 at para. 269 (“…in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of aramaments of a sovereign State can be limited.”) 49 Kennedy, David, When Renewal Repeats: Thinking Against the Box, 32 N.Y.U. J. INT’L L. & POL., 335, 335 (2000) [Hereinafter “Kennedy”] as quoted in Roberts supra note 31 at 767 (‘[e]ither international law has been too far from politics and must move closer to become effective, or it has become dangerously intermingled with politics and must assert its autonomy to remain potent.’) 50 Vattel supra note 28 at 78. 51 Roberts supra note 31 at 762. 52 Id. 53 Id. at 763 ("…legal rules are more likely to engender respect in a decentralized system, possibly even when the outcome is less favorable, if they result from a process perceived as legitimate.") 54 Id. 7 This includes reliance upon the attitudes of states found in multilateral treaties, general assembly resolutions and state declarations. 55 Unlike traditionalists who rely on a more precise approach,56 modernists derive opinio juris from general practice, or previous determinations of the ICJ or other international tribunals.57 Due to the accessibility of such statements and the speed with which consensus can be established or a precedent deduced, modern custom can also develop quickly and, even, instantly.58 As put by Professor Theodor Meron, “[t]he modern approach relies on loosely defined opinio juris and/or inference from widespread ratification of treaties or support for resolutions and other ‘soft law’ instruments; thus, it is more flexible and open to the relatively rapid acceptance of new norms.”59 Taken to its extreme, the modern approach is divorced from reality for lacking an immediate connection to state behavior, will, or interest.60 IV. THE NORMATIVE CASE FOR THE MODERN APPROACH TO CUSTOMARY INTERNATIONAL HUMANITARIAN LAW Notwithstanding the potential shortcomings inherent to each approach, the modern approach to custom is superior in evaluating international human rights and humanitarian law due to their specialized nature, the character of an international society as a collective whole, and the unreliability of operational state practice. Each of these observations implicates the formation of customary international humanitarian law. Consider first that human rights and humanitarian law are universal in scope and constitute non-reciprocal rights. These characteristics distinguish humanitarian and human rights treaty provisions from discrete contractual rights and they should therefore be evaluated with greater flexibility. Additionally, in the face of rapid globalization, it is anachronistic and inaccurate to accept that the international community is no more than the aggregate of approximately two hundred states. Instead, as concerns human rights and humanitarian law in particular, international society must be evaluated as a collective whole, wherein all states are affected by human rights and humanitarian law violations. Accordingly, this diminishes the value of specially affected states in the assessment of customary international humanitarian law. Finally, a strict reliance on operational state practice in armed conflict neither reflects the law as it is, has been, or should be. As such, the words of states as well as what can be deduced 55 Nicaragua supra note 19 at para. 175 (“The Court does not consider that, in the areas of law relevant to the present dispute, it can be claimed that all the customary rules which may be invoked have a content exactly identical to that of the rules contained in the treaties which cannot be applied by virtue of the United States reservation.”) 56 Brownlie, Ian, Principles of Public International Law, (6th ed. 1998) [Hereinafter “Brownlie”] (Establish opinio juris by showing “positive evidence of the recognition of the validity of the rules in question in the practice of states.”) 57 Id. 58 See Cheng, Bin, United Nations Resolutions on Outer Space: “Instant” International Customary Law? 5 INDIAN J. INT’L L. 23 (1965) (Cheng demonstrated that temporality not a necessary prerequisite to establish customary law.); See also 59 Meron, Theodor, Revival of Customary Humanitarian Law, 99 AM. J. INT’L L. 817, 817 (2005). [Hereinafter “Meron Revival”] See also Langille supra note 38. 60 Kennedy supra note 48 at 102 as quoted in Roberts supra note 31 at 767. (As put by David Kennedy in this case, international law "has been too far from politics and must move closer to become effective.” 8 from their support of ‘soft law’ instruments should be afforded more weight in the formation of customary international humanitarian law. A. Human rights and humanitarian law constitute specialized regimes that can be interpreted with greater flexibility 1. Human rights and humanitarian law governed by a specialized regime and represent non-reciprocal and universal interests Human rights and humanitarian law constitute a specialized regime, or what is often referred to as a self-contained regime. The Permanent Court of International Justice, coined the term of art in its adjudication of S.S. Wimbledon.61 There, the court applied this concept in order to resolve a matter of treaty interpretation concerning the relationship between “two sets of primary international obligations.”62 In its 2006 Study, “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law,” the International Law Commission found that such specialized treaty regimes are not exceptional. Rather they constitute a series of systems and sub-systems that resolve conflicts differently than would general international law. Citing the ICJ’s decision in Nicaragua, the ILC explains that within a specialized regime, a State may only resort to remedies made available within their own regime of accountability “that [make] other ways of reaction inappropriate.”63 Significantly, human rights treaties do not create reciprocal obligations between State parties but instead create obligations between States and individuals to whom they owe a duty.64 More generally, human rights obligations serve an interconnected network, which benefits from its collective enforcement.65 The treaty context also carves out a specialized treatment of human rights and humanitarian law. While Article 61 SS Wimbledon Bruno Simma and Dirk Pulkowski, Of Planets and the Universe: Self-Contained Regimes in International Law, 17 Eur. J. Int’l L. 483, 491 (2006). [Hereinafter “Planets and the Universe”] 63 International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, para. 128, U.N. Doc. A/CN.4/L.682 (April 13, 2006) (Finalized by Martti Koskenniemi). [Hereinafter “ILC 2006 Study Group”] Citing Nicaragua, para. 2678. 64 Basak Cali, Specialized Rules of Treaty Interpretation: Human Rights, pp. 524-548 The Oxford Guide to Treaties, ed. Duncan Hollis (Oxford University Press: 2012) But see Planets and Universe supra note x (“While human rights have an objective, public-law-like, perhaps even constitutional, character, technically, they nonetheless formally remain “reciprocal engagements between contracting States. It is crucial to distinguish between reciprocity as a formal characteristic of a norm on the one hand, and reciprocity as a substantive do-ut-des relationship on the other. Human rights treaties do not involve such a substantive exchange, since their ultimate beneficiaries are individuals under the jurisdiction of the state undertaking the obligation. However, since human rights remain ‘mutual, bilateral undertakings' owed to the other state parties to the respective convention, there is no compelling systematic reason why states should be precluded from bilateral enforcement of human rights.”) 65 Ireland v. UK, European Court for Human Rights, Ser.A Vol. 25, para. 239 as quoted in Planets and Universe supra note x at 527. (“Unlike international treaties of the classical kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a ‘collective enforcement’.) 62 9 60 of the Vienna Convention on the Law of Treaties (VCLT) holds that a material breach of a treaty will be grounds for another party to suspend its compliance with the treaty in whole or in part, subsection 5 makes clear that this does not apply to provisions relating to the protection of human persons “contained in treaties of a humanitarian character.”66 The VCLT, which otherwise applies trans-substantively, asserts that failure by one party to observe humanitarian treaty provisions, in particular, does not release another party from observing its duties.67 Specialization, however, does not isolate a treaty regime from general international law. Just as “social systems cannot exist in special isolation from their environment,” specialized regimes share a relationship with general international law at least at the level of interpretation.68 In its decision concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, the ICJ endorsed this position and added that the universal character of, and the extensive participation in establishing, multilateral treaties gives rise to “greater flexibility in the international practice concerning multilateral conventions.”69 Therefore, the principles of a Convention can be binding on States even without a conventional obligation since its purpose is purely humanizing and civilizing and no single state incurs any advantages or disadvantages by being a party to it. Instead, all states share a common interest in compliance.70 2. A human rights or humanitarian treaty provision need can develop quickly and need not ‘harden’ The specialized regime governing human rights and humanitarian law together with their universal and non-reciprocal character informs how relevant treaty provisions should be interpreted. While a contractual treaty provision, of bilateral character, should harden into customary law, the generalizable nature of human rights and humanitarian law need not crystallize to be binding upon all other states. Accordingly, custom can develop over a short period of time and opinio juris can be inferred from state practice so long as such practice is sufficiently dense. Oppenheim’s proposition that a treaty must either be derogation, or an affirmation, of underlying custom suggests that a treaty provision cannot become custom until it ‘hardens.’71 This view reflects the notion that treaties are contracts and all contracts must be restrictively evaluated.72 The restrictive view, however, confuses the generalizable provisions that are intended to be universally applicable with strict entitlement rights. Whereas reciprocal rights between two or more states reflect 66 Vienna Convention on the Law of Treaties Id. 68 Planets and Universe supra note x at 492. 69 ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (May 28, 1951) 70 Id. 71 Id. at 1133 72 Anthony D’Amato, The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110,1132(1982). [Hereinafter “D’Amato”] (“This is more a statement of a conclusion than a reason, a conclusion that follows from equating treaties with contracts and then taking a restrictive view of contracts.”) 67 10 particular interests that should be evaluated like contractual terms, a universal right can be more flexibly evaluated. Significantly, at the time of writing, Oppenheim commented that it is not clear whether or not slavery was acceptable. Shortly thereafter, the ILC found law that the prohibition on slave trade was “‘one of the most obvious and best settled rules of jus cogens’ and that even new treaties could not derogate from it,” 73 thereby casting doubt on such a restrictive approach to the determination of customary humanitarian law. The ICJ in North Sea adopted the restrictive approach where it stated that state support for a treaty provision does not satisfy opinio juris, which must be demonstrated separately in order to affirm a principle's existence as customary law. The problem is that this does not accurately apply to human rights and humanitarian law. Professor Anthony D’Amato points out that the article in question in North Sea represents the right to a specific title, and therefore, as noted by the ICJ, cannot be altered by implicit consent.74 In contrast, those rights that are generalizable are intended to reach beyond their parties and can apply to them almost instantly.75 Professor Jonathan Charney agrees that while technical and narrow treaty provisions may not be applicable to third parties, the same is not true for those generalizable rules regarding human rights obligations.76 Charney echoes D’Amato’s concern that a specific rule, one that “requires highly technical methods of implementation would require the specificity of an international agreement, as contrasted with more generalized obligations that are possible to implement as custom” are less likely to give rise to a customary law.77 In the case that a rule could not be established absent an international institution or treaty, it is not eligible to become a customary law.78 In contrast, “an agreement which addresses generalized interests and aspirations of the international community may be more likely to produce new law than an agreement which focuses on specific state interests.”79 The notion that generalizable interests may represent aspirations common to the international community is resonant with the Joint Separate Opinion in the ICJ’s 2002 Arrest Warrant decision (“Joint Separate Opinion”).80 There, the ICJ deliberated whether the Democratic Republic of the Congo’s incumbent foreign affairs minister was immune from prosecution under Belgium’s universal jurisdiction statute from war crimes and crimes against humanity. Without discussing the legality of universal jurisdiction, the Court found the minister immune under customary international law. Justices Higgins, Kooijmans, and Buergenthal took issue with the Court’s scope of inquiry and held that it could not deliberate the application of immunity without 73 Id. D’Amato supra note 72 at 1143. 75 Id. 76 Charney, Jonathan, International Agreements and the Development of Customary International Law, 61 WASH. L. REV. 971, 983 (1986) [Hereinafter “Charney”] (“Thus, it is difficult to merge a generalized principle of this sort into international law without the accompanying detail that must be negotiated individually. The same is not true for most of the Vienna Convention’s rules relating to international argreements; nor it necessarily tru in the case of human rights obligations or diplomatic immunity.”) 77 Id. at 984. 78 Id. (“Furthermore, if international institutions are required to be used or established, customary law is inappropriate.”) 79 Id. at 982. 80 Arrest Warrant supra note 46. 74 11 determining whether or not Belgium had a right to exercise universal jurisdiction. In their Joint Separate Opinion they found that there indeed exists such a right, as indicated by a trend to prosecute those offenses that are universally offensive. 81 The three Justices emphasized that human rights are of general and global concern. Since they represent interests that are not specific to any state, the recognition of human rights as customary law is a palatable trend. Consider their discussion on multilateral treaties: The series of multilateral treaties with their special jurisdictional provisions reflect a determination by the international community that those engaged in war crimes, hijacking, hostage taking, torture should not go unpunished. Although crimes against humanity are not yet the object of a distinct convention, a comparable international indignation at such acts is not to be doubted.82 The Justices infer from the series of multilateral treaties a particular trend that bends towards the arc of justice. This leads them to conclude that similar indignation cannot be doubted where crimes of humanity are concerned notwithstanding the lack of a treaty articulating such consensual repugnance. Higgins, Kooijmans, and Buerguenthal recognize that this is not a unilateral trend, but rather one that reflects a balancing of interests in consideration of other general international law.83 They write, that while there is a discernible global trend that rejects immunity for human rights violators “the law of privileges and immunities […] retains its importance since immunities are granted to high State officials to guarantee the proper functioning of the network of mutual inter-State relations, which is of paramount importance for a well-ordered and harmonious international system.”84 Even in their final analysis, however, the Justices do not distinguish between sovereignty and human rights. Instead, they ascribe value to sovereignty insofar as it promotes international harmony and stability, thus suggesting that political actors, including states, should celebrate, rather than shun, the law’s prescriptive force. Accordingly, treaty provisions, which represent generalizable interests, like humanitarian and human rights provisions do, need not harden into custom over a long period of time. Relatedly, opinio juris can be inferred from sufficiently dense state practice when establishing the existence of a customary international humanitarian law. 81 Id at para. 51. Id. 83 Id. at para. 75 (“These trends reflect a balancing of interests. On the one scale, we find the interest of the community of mankind to prevent and stop impunity for perpetrators of grave crimes against its members; on the other, there is the interest of the community of States to allow them to act freely on the inter-State level without unwarranted interference.”) 84 Id. 82 12 B. International Society is a collective whole, not a sum of its parts thereby diminishing the significance of specially affected states upon the formation of customary international humanitarian law 1. The world is an aggregate whole and not a sum of its parts International society is a collective whole as opposed to a sum of its parts. The community of nations, or the whole, has particular concerns distinct from each of its states, or its individual parts. This is particularly true as concerns matters, like humanitarian ones, that constitute common interests. The manner in which way a war is fought and regulated is of concern to all nations individually and collectively, regardless of direct participation. A state’s non-participation in armed conflict does not diminish its potential participation in one in the near or long-term future. Accordingly, while some states may have more experience with armed conflict or human rights challenges, this does not make them “specially affected” insofar as the formation of custom is concerned. This significantly diminishes the consideration of specially affected states in the formation of customary international humanitarian law and heightens the value of soft-law considerations. At the turn of the nineteenth century, it may have been sound to conceive of the international community as the aggregate of its many states. Then, those existent nationstates amounted to a little more than forty in number.85 Their under-developed collective identity reflected their nascent form.86 Less sophisticated forms of technology limited the ability to communicate rapidly. In light of these historic circumstances, it is reasonable to think that their unspoken consensus would develop as the result of strict observance to aggregated state practice over a long period of time. However, those few nations have grown to number nearly two hundred states in the twenty-first century.87 New states have entered the community of nations accepting, as a matter of precondition, those customary rules upheld by the palpable collective body.88 Technology in the twenty-first century has made instantaneous communication possible, not just between heads of state, but among and between individual units comprising the global population. Rapid communication has not only facilitated the flow of ideas but goods, capital, and labor as well.89 Globalization has birthed global markets,90 global environmental conditions,91 global public health concerns,92 and in so 85 See Martin, Phillip, Economic Integration and Migration: The Mexico-US Case, United Nations University, WIDER, Discussion paper No. 2003/35m, 3 (April 2003) ("There were 190 recognized nation-states in 2000, up from 43 in 1900, and each has a system of passports to distinguish citizens from foreigners, border controls to inspect persons who want to enter, and policies that affect the settlement and integration of noncitizens.") 86 Id. 87 Id. 88 See http://www.un.org/en/ga/about/ropga/adms.shtml ("If the Security Council recommends the applicant State for membership, the General Assembly shall consider whether the applicant is a peaceloving State and is able and willing to carry out the obligations contained in the Charter and shall decide, by a two-thirds majority of the members present and voting, upon its application for membership.") 89 See Lorca, Arnulf Becker, Universal International Law: Nineteenth-Century HIstories of Imposition and Appropriation, 51 HILJ 2 (2010). 90 See Iriye, Akira, Global Community: The Role of International Organizations in the Making of the Contemporary World. 13 doing has established a collective form. The impact of rapid news sharing, together with the collective form of international society, makes practice less controlling and the possibility for rapid formation of customary law more possible. Communication technology has enabled an expedited consensus-formation process. Rapid communication, together with a collective international society, has developed the capacity to espouse a global attitude without having to patiently witness the evolutionary process reflect those preferences.93 The lack of a hierarchal order with effective executive powers does not diminish international society’s collective character.94 To the contrary, even powerful states, that presumably prefer diplomacy to law, depend on the order afforded by law. 95 The extent to which states desire law and “the amount and kind of law which the international community will achieve will depend, of course, on the degree of homogeneity of the political system and the degree of common or reciprocal interest.”96 Such integrated concerns are most pronounced in regard to human rights and humanitarian law because of their non-reciprocal nature. Consider that adherence to law of a normative character often works to enhance the collective benefit of all states without detriment to any single state. The Higgins-Kooijmans-Buergenthal Joint Separate Opinion in Arrest Warrant articulated this when it noted that when certain states can act as ‘agents for the international community’ to prosecute those offenses that are “damaging to the interests of all.”97 Significantly, the Justices note, this is a “vertical notion of the authority of action,” which “is significantly different from the horizontal system of international law envisaged in the Lotus case.”98 Accordingly, international society shares certain humanitarian values and interests as a collective whole, distinct from the interest from any one state, or group of states. 2. The significance of specially affected states is diminished in the assessment of customary international humanitarian law International society’s collective character diminishes the impact of any one state upon the formation of customary international humanitarian law. Instead, its position towards humanitarian provisions can be evaluated as a psychological element among 91 Id. See Elbe, Stefan, Microbes Take to the Sky: Pandemic Threats to National Security, Security and Global Health: Toward the Medicalization of Insecurity (2010). 93 Henkin, Louis, How Nations Behave, 2d Ed., Columbia University Press: 1979. (I borrow the term “attitude” from Louis Henkin who acknowledges its existence and uses it throughout his treatise.) [Hereinafter “Henkin”] 94 Id. at 24. (“In a society of soverign states, in the absence of an effective legislature representing all competing interests and able to accommodate them, nations must be free to pursue their interests, to work out reasonable accommodations with other. What is called for is the flexibility of diplomacy, not the strait jacket of law.”) 95 Id. at 15. (The law formalizes relationships between states, regulates them, and predicts the consequences of their behavior.) 96 Id. at 30. 97 Arrest Warrant at para. 51. 98 Arrest Warrant supra note 46 at para. 51 (Joint Separate Opinion Justices Higgins, Kooijimans, Burguenthal). [Hereinafter “Higgins”] 92 14 states, regardless of their practice. The ICJ articulated the concept of specially affected states in its North Sea Continental Shelf decision.99 North Sea reflects the textbook approach to establishing whether or not a treaty provision reflects, or gives rise, to customary law. The Restatement Third summarizes North Sea as saying that "a treaty rule may become ‘a general rule of international law’ if there were ‘a very widespread and representative participation in the convention…provided it includes that of States whose interests were particularly affected.’"100 However, there, the ICJ addressed a specific right to entitlement as concerned a geographical coast specific to only three parties.101 No other state has the potential to share that specific interest. In contrast, even those states that are not engaged in armed conflict have the potential to become involved in such conflict in the short or long term future. Although humanitarian law specially affects all states, the doctrine remains relevant. As acknowledged by the ICRC, a state’s persistent objection to a developing norm that specifically affects them can frustrate the crystallization of such a norm.102 Otherwise, the attitude of all states is considerably influential. North Sea also stood for the proposition that in the absence of protest, a practice becomes binding customary law so long as it is evidenced by uniformity among states and acceptance that it is binding upon third states.103 Even though it was not certain whether “the acquiescence stemmed from a consciousness of a clear legal duty-as distinguished from a recognition of the reasonableness of the claim made…”104 the ICJ considered that the lack of protest among states constituted meaningful opinio juris. Accordingly, practice is not just found in the practice of states but also in their attitudinal response to the behavior of other states. Moreover, the degree of uniformity in practice need only be general and not exact. North Sea draws upon Asylum to make this claim. 105 In Asylum, the ICJ rejected Colombia’s argument that the Montevideo Convention of 1933 on Political Asylum codified existing custom for several reasons including the fact that general uniformity 99 North Sea Continental Shelf Case (Federal Republic of Germany/Netherlands) 1969 I.C.J. 3 (Feb. 20). [Hereinafter “North Sea”] 100 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE U.S., § 102 (1997). [Hereinafter “Restatement”]; See also Carr, Craig L. and Gary L. Scott, Multilateral Treaties and the Formation of Customary International Law, 25 DENV. J. INT'L L. & POL'Y 71, 72 (1996) (Professors Craig L. Carr and Gary L. Scott reformulate this concept and suggest a three-pronged model for the determination of whether a treaty provision has attained customary status. They proffer that a generalizable treaty provision evident in multilateral treaties can attain customary status (1) if there is a sufficient number of states engaged in the practice; (2) that those states most affected by the practice be among them; and (3) that the treaty provision is not subject to reservations.) 101 North Sea supra note 99. 102 Major Robert A. Ramsey, Armed Conflict on the Final Frontier: The Law of War in Space, 48 A.F. Rev. 1; See also Jean-Marie Henckaerts, Customary International Humanitarian Law: Taking Stock of the ICRC Study, Nordic Journal of International Law 78 (2010) 435-468. 103 Lauterpacht, Hersch, International Law 57 at 64 (E. Lauterpacht ed., 1970) [Hereinafter “Lauterpacht”] 104 Id. 105 Id. (“The party relying on a custom…must prove that this custom is established in such a manner that it has become binding on the other party…. that the rule invoked…is in accordance with a constant and uniform usage practiced by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State.”) 15 could not be demonstrated among the Latin American states.106 Notably, the ICJ in Asylum distinguished universal adherence to a rule from general uniformity in practice.107 J.L. Brierly also captures this where he expounds that with regard to the uniformity of practice, the difference "is not one between uncertainty and certainty in formation, but merely between a greater and a less degree of uncertainty."108 Stated differently, state practice by a handful of powerful states does not necessarily trump the will of international society. Sir Hersch Lauterpacht, former member of the International Law Commission, and ICJ jurist, cautioned against such excessive deference to the practice and will of States because the force of international law is "grounded in a factor superior to an independent will of States-a factor which gives validity to the law created by the will of States. That superior source is the objective fact of the existence of an interdependent community of States."109 Oscar Schachter adds that if commitment to descriptive law is taken to its extreme, powerful states would have unfettered latitude to define the rules for themselves risking acceptance of international society as an "'anarchical order of power' in which might makes right,"110 thereby rendering meaningless the preferences of the collective whole. In their 1999 address to the American Society of International Law, Bruno Simma and Andreas L. Paulus attempt to reconcile the traditional approach with the normative underpinnings of human rights. They argue that adherents to law's descriptive accuracy acknowledge that there are substantive limits on the influence of power alone because excessive discretion risks the loss of political authority, and consequently, political influence.111 Moreover, they posit that as other actors assume greater importance in shaping international norms, the exclusivity afforded to the will of states in norm creation will conversely shrink.112 In effect, Simma and Paulus reconcile strict adherence to law's descriptive accuracy with the law's transformative force, so long as the claim is not surrendered to "normativity and the prescriptive force of law."113 Significantly, state attitudes, even as a collective whole, reflects a balancing of state interests that is not subsumed by normative values. Therefore, the value of specially affected states is diminished, and the value of soft-law instruments is heightened in the formation of customary international humanitarian law. 106 Asylum Case (Colombia v. Peru) (20 Nov 1950) (Other reasons included the limited number of states that endorsed the Convention and the fact that the Convention in question merely modified an earlier Convention.) [Hereinafter “Asylum”] 107 Id. at para. 15 (“The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the officia1views expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in al1 this any constant and uniform usage, accepted as law, with regard to the alleged rule of unilateral and definitive qualification of the offense.”) 108 Brierly, J.L., The Law of Nations, 62 (Oxford University Press, 1963). [Hereinafter “Brierly”] 109 Lauterpacht, Hersch, International Law 57 (E. Lauterpacht ed., 1970) [Hereinafter “Lauterpacht”] 110 Aron, Raymond The Anarchical Order of Power, in Conditions of World Order 25 (S. Hoffman ed. 1968) as quoted in Oscar Schachter, In Defense of International Rules on the Use of Force, 53 U. CHI. L. REV. 113, 119 (1986). [Hereinafter “Schachter”] 111 Simma supra note 40 at 304. 112 Id. at 307. 113 Id. 16 C. Operational Practice is an unreliable source of Customary international humanitarian law In its response to the ICRC, the US argues that nothing can outweigh actual state practice in the assessment of customary international law.114 It contends that its own military manuals, which the ICRC had cited as evidence of international custom, neither reflect opinio juris115 nor state practice116 because they represent a mix of policy and law. However, strict operational state practice is an unreliable source of customary law for at least two reasons. Firstly, operational practices are neither widely available nor plainly known and secondly, in cases where a global value is at stake, consistent practice alone cannot undermine a rule’s customary nature. In its discussions on the customary law applicable to internal conflicts, the International Criminal Tribunal on Yugoslavia largely ignored battlefield practices and relied on verbal statements, declarations, and resolutions.117 The ICTY explained that examination of state practice ‘…is rendered extremely difficult by the fact that not only is access to the theater of military operations normally refused to independent observers (often even to the ICRC) but information on the actual conduct of hostilities is withheld by the parties to the conflict; what is worse, often recourse to it is has to misinformation with a view to misleading the enemy as well as public opinion and foreign Governments.’118 In addition to the logistical restraints impeding perfect knowledge of battlefield operations, states often engage in practices that they believe are illegal. To accept that such engagement is evidentiary of a customary rule’s waning force would lead to absurd results in light of the unlimited possibilities of war’s gruesome horrors.119 Professor Schachter suggests that in order to determine whether or not a rule maintains its customary force, observers should search for consensus regarding a rule’s fundamental character. He explains, “[w]hen a principle is repeatedly and unanimously declared to be a basic legal rule from which no derogation is allowed, even numerous violations do not become state practice constitutive of a new rule.”120 114 Id. Bellinger supra note 10 at 447 (“States often include guidance in their military manuals for policy, rather than legal, reasons. For example, the United States long has stated that it will apply the rules in its manuals whether the conflict is characterized as international or non-international, that this clearly is not intended to indicate that it is bound to do so as a matter of law in non-international conflicts.”) 116 Id. at 445 (“Although manuals may provide important indications of State behavior and opinion juris, they cannot be a replacement for a meaningful assessment of operational State practice in connection with actual military operations.”) 117 Meron, Theodor, The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 AM. J. INT’L L. 238 (1996). [Hereinafter “Meron Role of Custom”] 118 Prosecutor v. Tadic, Case No. IT-94-1-AR72, Appeal on Jurisdiction (Oct. 2, 1995), reprinted in 35 ILM 32 (1996) as quoted in Meron supra note 107 at 240. 119 Schachter, 1986 at 128 (“This argument is no more convincing than the assertion that if a large number of rapes and murders are not punished, the criminal laws are supplanted and legal restraints disappear for everyone.”) 120 Id. 115 17 The case of torture is particularly illustrative here. During the Global War on Terror (“GWOT”) states systematically exerted force, described as torture, to persons in their custody.121 If observers were to accept these operational practices as controlling, they would have to accept that such widespread practice did not breach the customary prohibition122 of torture, but rather, constituted the seed for a new international customary rule. Ostensibly the new rule would make permissible the use of torture during unconventional warfare when combatants, by virtue of their unlawful conduct, voluntarily forfeit the law’s protection.123 This conclusion, however, is inconsistent with the fact that, despite the widespread practice of torture, the international community has not adjusted its collective admonition and prohibition on the use of torture as evidenced by the numerous state-led lawsuits filed against alleged torturers124 as well as state behavior condemning the use of torture.125 This underscores the presumption raised in Nicaragua that states conform with customary law unless they explicitly express otherwise.126 Accordingly, if, during the course of said practice, states explicitly defended the use of torture and other states acquiesced to its use, then observers should accept that a seed for a new rule has been planted. On the other hand, if during the course of torture, no state defended its use and other states objected to it, then the practice must be viewed as a breach of customary law thereby affirming its validity and application. From this example, we can draw four principles. First, there is a presumption 121 See Hajjar , Lisa, American Torture: The Price Paid, The Lessons Learned, MERIP (Summer 2009) [Hereinafter “American Torture”] 122 See Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) July 20, 2012) (The “prohibition of torture is part of customary international law and a preemptory norm (jus cogens).”) Regin v. Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte (No. 3), United Kingdom House of Lords [2000] 1 A.C. 147 (1999), 2 W.L.R. 827 (H.L.), reprinted in 38 I.L.M. 581 (1999) (In the British High Court’s decision on Pinochet, various judges describe the bank on torture as jus cogens. 123 See Lieber, Francis, Guerrilla Parties: Law and Usages of War, (D. Van Nostrand, 1862). 124 American Torture supra note x (An Italian court issued the indictment for 22 CIA agents who kidnapped Hassan Mustafa Osama Nasr (aka abu Omar) in Milan in February 2003 and transported him to Egypt for torture. In 2007, a German court issued arrest warrants for 13 CIA agents involved in the December 2003 kidnapping of Khaled El-Masri, a German citizen from Macedonia who was transported to Afghanistan where he was tortured and held incommunicado for months. To avoid public acknowledgment, the CIA dumped him in a remote area in Albania from where he made it back to Germany.) 125 Id. (The Canadian government apologized to Maher Arrar, a Canadian-Syrian national who the US rendered to Syria where he endured ten months of torture. The government also compensated him with $10 million. In the UK, the controversy over Binyam Mohammed, a Guantamo Bay detainee who was subject to systematic torture, led to intense public controversy and to the first criminal investigation against British intelligence agents for their collusion in CIA torture.) See also The Bybee Torture Memo, http://www.uchastings.edu/faculty-administration/faculty/paul/classwebsite/docs/BybeeTortureMemo.pdf (Though the US did not condemn the use of torture, it also went to great lengths to distinguish its treatment of and policy towards detainees from torture. John Yoo, former Office of Legal Council Advisor and member of the exclusive War Council at the time, wrote in a memo that “for an act to constitute torture, ... it must inflict pain that is difficult to endure. Physical pain amounting torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death. For purely mental pain or suffering to amount to torture…it must result in significant psychological harm of significant duration, e.g., lasting for months or even years.”) 126 Nicaragua supra note 19. 18 that states comport with international customary law. Second, strict reliance on operational state practice is an inadequate source of customary international law. Third, to accurately determine the enduring legitimacy of customary law, observers must afford due weight to state declarations, resolutions, and statements during the course of said practices. Finally, observers must account for the negative practice of states that can be interpreted as acquiescence. Customary international humanitarian law, in particular, is an attitudinal position that reflects obligatory norms that have shaped practice as opposed to habitual norms that have come to represent legal obligations. Due to the specialized nature of the human rights and humanitarian legal regime together with the international community’s character as a collective whole and because of the unreliability of operational state practice, this is especially true where morally loaded norms are at issue. Therefore, customary rules can develop quickly without waiting decades for the law to harden; the influence of specially affected states is significantly diminished; the value of sof-law instruments is heightened; opinio juris and state practice can be deduced from the same event or articulation;127 they can be reflected by the reaction, or the lack thereof, of the international community; and, in some cases, they can develop instantly from multilateral treaty provisions. These are not absolute rules, instead they reflect a rebuttable presumption of sorts. They are general assumptions in the approach to the customary human rights and humanitarian rules that are still open to challenge based on the specific nature, i.e., permissive, operational, obligatory, nature of the rule in question. Under this formulation, the US approach to establishing customary law is rigid and inadequate. It does not consider the proper approach to the formation of custom with distinct consideration for the nature of human rights and humanitarian law. In contrast, the ICRC approach, which leans towards, but is not necessarily, modern, is more appropriate. It has the capacity to interpret developing customary norms based on a balance of opinio juris and state practice. The ICRC avoids paralysis in its approach by not affording undue weight to operational state practice and by deriving opinio juris and state practice from the same incident or act. In the words of Jean-Marie Henckaerts, co-author of the ICRC Study, “there is no mathematical standard to establish customary law.”128 V. RULE 157: STATES HAVE THE RIGHT TO VEST UNIVERSAL JURISDICTION IN THEIR NATIONAL COURTS OVER WAR CRIMES Notwithstanding the ICRC's correct methodological approach, its analysis as to Rule 157, which holds “states have the right to vest universal jurisdiction in their national courts over war crimes,”129 is not immune from critique. The ICRC’s failure to properly distinguish war crimes from grave breaches makes debatable whether the evidence it 127 See also International Law Association, Committee on Formation of Customary (General) International Law, London Conference (2000) ("...most members of the Committee agreed that, where practice exists which satisfies the conditions set out in Part II and is not covered by one of the exceptions discussed in Section 17, it is not nec- essary to prove the existence of an opinio juris.") 128 Skype Interview with Jean Marie Henckaerts, Legal Advisor to ICRC (November 11, 2011). [Hereinafter “Henckaerts Interview”] 129 Id. 19 collated reflects no more than state adherence to treaty obligations. Moreover, the ICRC does not adequately account for state protest to universal jurisdiction up to the time of writing. Finally, the intervening developments between 2005 and 2011 demonstrate a regressive trend that also put the ICRC's findings into question. While these findings do not negate the right to vest universal jurisdiction as a customary right, they do signify that the customary rule should be more attenuated and precise. To examine the ICRC's analysis of universal jurisdiction, this section will begin by unpacking the US critique of the ICRC's analysis. It will then show how the distinction between the treaty provision giving rise to universal jurisdiction and the universality principle’s customary form supports the ICRC’s definition of universal jurisdiction as a permissive right. Next, it will explore the implications of the ICRC's failure to adequately demonstrate the distinction between grave breaches and war crimes upon its conclusions. Finally, it will examine how state protests before and since the publication of the Study, undermines the scope and meaning of universal jurisdiction as asserted by Rule 157. Universal Jurisdiction is one of the seven bases for jurisdiction identified in legal doctrine.130 Unlike the other bases for jurisdiction, which establish a direct link between a state and the right to prosecute an individual, universal criminal jurisdiction is based solely on the nature of the crime. It "is the ability of the court of any state to try persons for crimes committed outside its territory that are not linked to the state by the nationality of the suspect or the victims or by harm to the state's own national interests."131 Former UN High Commissioner on Human Rights Mary Robinson explained that the principle of such jurisdiction is based on the notion that certain crimes are so harmful to international interests that the states are entitled—and even obliged— to bring proceedings against the perpetrator, regardless of the location of the crime or the nationality of the perpetrator or victim.132 Although closely related, it is distinct from the treaty provision obligating states to extradite or prosecute (aut dedere aut judicare) someone alleged to have committed a war crime.133 According to the ICRC, aut dedere aut judicare stands for the proposition that states are not to provide safe haven to criminal suspects. Accordingly, states are required to either surrender the person to an international criminal court or a national court with the capacity to prosecute such crimes, or where it fails to do so, it must prosecute the alleged in its national courts presumably pursuant to universal 130 Reydams supra note 44 at 21 (“Doctrine identifies up to seven principles: (1) the principle of territoriality, (2) the principle of nationality of the offender (or active personality principle), (3) the principle of the nationality of the victim (or passive personality principle), (4) the principle of the flag, (5) the principle of protection, (6) the principle of universality, and (7) the representation principle.”) 131 Amnesty International, Universal Jurisdiction: UN General Assembly Should Support This Essential International Justice Tool, http://www.amnesty.org/en/library/asset/IOR53/015/2010/en/72ab4ccf-440742d3-8cfb-46ad6aada059/ior530152010en.pdf. [Hereinafter “Justice Tool”] 132 Princeton University Program in Law and Public Affairs, The Princeton Principles on Universal Jurisdiction 28, (23 July 2003) http://www1.umn.edu/humanrts/instree/princeton.html. 133 Amnesty International, International Law Commission: The Obligation to Extradite or Prosecute (Aut Dedere Aut Judicare), Index: IOR 40/001/2009 (2009) at 8. [Hereinafter “Extradite or Prosecute”] 20 jurisdiction.134 In contrast, the ICRC contends, universal jurisdiction in customary law is a permissive right to prosecute a heinous crime in a state’s national courts irrespective of an extradition request.135 The US argues that three methodological errors undermine the ICRC’s conclusion that states can exercise universal jurisdiction in their national courts as a matter of custom: (1) the lack of uniformity over the definition of war crimes across states; (2) the failure of state practice cited to establish either an accepted definition of universal jurisdiction or the existence of “pure” universal jurisdiction; and (3) insufficient state practice of prosecutions not connected to the forum state.136 The US’s overarching concern reflects its belief that the state practice and opinio juris collated by the ICRC, reflects a treaty rule and not a distinct customary law. 137 The treaty provision, aut dedere aut judicare, provides that a state, which has the ability to establish custody of a suspect accused of committing a serious violation of humanitarian law in international armed conflict, hand over or try the accused as a matter of duty. It is derived from dozens of multilateral treaties. 138 The Geneva Convention Common Article 49 (GCI) /50 (GCII)/129 (GCIII)/146 (GCIV), provides that High Contracting Parties have an obligation to prosecute, but not extradite persons, within their territory suspected of committing grave breaches.139 Accordingly, the US Government tries to illustrate that the ICRC’s evidence of state practice and opinio juris simply reflects compliance with the Geneva Conventions. The authors write: The nine cases in which States claimed jurisdiction based on customary rights come from only six States…The practice of six States is very weak evidence of the existence of a norm of customary international law…Indeed in many of these cases, States were prosecuting acts that were committed before the Geneva Conventions were adopted, but that ultimately were considered grave breaches in the Conventions. Thus, although the prosecuting States were not in a position to rely on their treaty obligations as a basis for their prosecutions, the acts at issue effectively were grave breaches.140 134 Id. at 8. Henckaerts Response supra note 1 at 476 (“Permissive rules…are supported by acts that recognize the right to behave in a given way but that do not, however, require such behavior…Rule 157 is such a rule.”) 136 Id. at 466. 137 Bellinger supra note 10 at 469. 138 See Reydmans supra note 44 at 47 (Before the Second World War II, only three of the one hundred international instruments with penal characteristics established a universality principle. In contrast, postWorld War II “some two dozen treaties […] adopted to criminalize certain conduct and establish a form of universal repression.’) See e.g., Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment New York, 10 December 1984, Article 5 (obligation to establish jurisdiction), Article 7 (obligation to extradite or prosecute), Article 8 (extradition) (These three articles reflect the three clauses establishing the aut dedere aut judicare principle in the two dozen aforementioned treaties.) 139 Geneva Conventions of 1949 (art. 49 GCI; art. 50 GCII; art.126 GCIII; and art.146 GCIV.) [Hereinafter “Geneva Conventions”] 140 Id. 135 21 The US government’s emphasis that the criminal violations amounted to grave breaches, as opposed to a broader category of war crimes, highlights its contention with Rule 156, “Definition of War Crimes,” of the Study upon which Rule 157 is reliant. The authors allege that Rule 156 lacks precision and is therefore unreliable as a customary rule. They explain: [t]hese acts include grave breaches of the Geneva Conventions and A[dditional] P[rotocol] I, other crimes prosecuted as ‘war crimes’ after World War II and included in the Rome Statute, serious violations of Common Article 3 of the Geneva Conventions, and several other acts deemed ‘war crimes’ by ‘customary law developed since 1977,’ some of which are included in the Rome Statute and some of which are not.141 Rule 156 coupled with Rule 157 establish that certain serious violations of humanitarian law constitute war crimes to which international criminal liability inheres whether committed in international or non-international armed conflict.142 This is particularly troubling to the US, which has not ratified the Geneva Convention’s 1977 Additional Protocols.143 The Additional Protocols expand the applicable scope of laws of war, and their attendant protections afforded to civilians, combatants, prisoners, and the wounded, to those armed conflicts not of an international character,144 they characterize wars of national liberation as international in character,145 reduce the stringent standards requisite upon combatants to distinguish themselves from civilians,146 and they expand those violations considered war crimes.147 Whereas the ICRC includes these violations and others in its litany of war crimes enumerated in Rule 156 over which third party states can establish criminal jurisdiction per Rule 157, the US insists that those violations to which international criminal liability is attached are limited to categories established by treaty, which include, but are not limited to, grave breaches identified in the four Geneva Conventions. The violations common to all four Geneva Conventions are “willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health…”148 141 Id. at 466. Volume I supra note 2 (“These violations are not listed in the Statute of the International Criminal Court as war crimes. However, State practice recognizes their serious nature and, as a result, a court would have sufficient basis to conclude that such acts in a non-international armed conflict are war crimes.”) 143 See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 available at http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=470&ps=P [Hereinafter “Protocol I”]; See also Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 available at http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=475&ps=P [Hereinafter “Protocol II”] 144 See Solis, Gary, The Law of Armed Conflict, (Cambridge University Press, 2010). [Hereinafter “Solis”] 145 Protocol I supra note 145 art. 1(4). 146 Id. Art. 44 (3). 147 See Solis supra note 146 pp. 123-130; See also Protocol I supra note 145, Art. 85(2). 148 David Luban, Julie R. O'Sullivan, and David P. Stewart, INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW (Aspen 2010) at 1047. [Hereinafter Luban] 142 22 As such, the US objection to the ICRC analysis can be summarized: the ICRC’s evidence on state practice and opinio juris regarding the prosecution of war crimes reflects inconsistent compliance with a treaty provision and is not demonstrative of a new customary law. In order to examine whether the ICRC correctly evaluated whether the state right to vest national legislation over universal jurisdiction for war crimes has attained customary status, I will divide my inquiry into three broad categories: (1) Has an existing treaty provision found in several multilateral treaties attained customary status and if so, is its customary form distinct from its treaty articulation?; (2) How does, or does not, the state practice and opinio juris, documented by the ICRC demonstrate the waning relevance of the distinction between grave breaches and war crimes more generally?; (3) What do trends in state practice leading up to the ICRC’s 2005 compendium of customary international humanitarian law as well as since the Study’s completion, indicate about the right to vest universal jurisdiction in national courts over war crimes as a customary rule? a. Treaty Provision versus Customary Rule Customary law, a form of tacit consent, must be distinct from treaty law, a form of explicit consent, in order to apply to non-party third states.149 The customary rule need not be as precise as the treaty provision from which it developed. Henckaerts agrees with this proposition and explains, “custom is not like treaty law, it need not be stated verbatim and is therefore not incontrovertible. The rule can be read more broadly.”150 He explains that Rule 157 suggests that universal jurisdiction as captured in rule 157 is a permissive right available to states to try persons suspected of committing the war crimes enumerated in rule 156 where a presence link to the prosecuting state is neither necessary nor dispositive of the rule’s existence.151 While the US takes specific issue with rule 157’s non-definitive nature, academic literature supports the notion that customary law cannot be as specific as treaty law. 152 Instead, it is observed as a general restatement that is molded by judicial interpretation. In the words of the ICTY panel in Prosecutor v. Milutoniv, “[c]ustomary 149 See Simma supra note 40 at 305 (A binding treaty provision represents explicit consent while customary law reflects tacit consent. For that reason, treaties are binding on contracting parties only while custom binding on all parties because of habitual conduct and is a determination of fact.) 150 Henckaerts Interview supra note 130. 151 Jean-Marie Henckaerts et. al., Customary International Humanitarian Law: Practice, (2005). [Hereinafter “Volume II”] Rule 157 (“Practice is not uniform with respect to whether the principle of universal jurisdiction requires a particular link to the prosecuting State. The requirement that some connection exist between the accused and the prosecuting State, in particular that the accused be present in the territory or has fallen into the hands of the prosecuting State, is reflected in the military manuals, legislation and case-law of many States. There is also legislation and case-law, however, that does not require such a link. The Geneva Conventions do not require such a link either.”) 152 See Hiram E. Chodosh, An Interpretive Theory of International Law: The Dictinction Between Treaty and Customary Law, 28 VAND J. TRANSNAT’L L. 973, 980 (1995) (“Treaties are more conclusive not universally binding.”); See also Thrashing Custom supra note 67 at 104 (“Customary rules, however, are not static. They change in content depending upon the amplitude of new vectors (state interests).”) 23 law evolves through interpretation and application. Here the science of the law blends with judicial culture of caution and restraint.”153 Professor Schachter cautions that while all rules can be made to conform with a particular outcome, it is wrong to assume that they are without a core meaning.154 Despite its purported fluidity, the core meaning of rule 157 is intact: states have a right to try a suspect for a heinous offense committed abroad with no link to another form of jurisdiction. This reflects, but is not identical to, the aut dedere aut judicare principle captured in several multilateral treaties, which the Study cites as evidence of state practice.155 That treaty provision arguably makes prosecution a duty. In its earliest iteration, the principle of aut dedere aut judicare only established an obligation to prosecute when a “request for extradition has been received and denied.”156 A distinction can therefore be made between the treaty rule mandating prosecution where extradition is requested and denied, and a permissive rule, as 157 is meant to be, where no request has been made and a third-party State takes it upon itself to prosecute a crime on behalf of the international community. This distinction is deliberate and explicit, as evidenced by Henckaert’s insistence that “Rule 157 is not reflected anywhere in a treaty, unlike other rules, it has not been codified and there is no parallel in treaty law. Since this rule is a right, no one will be chided for failure to prosecute or failure to legislate, it is only a right to do so.”157 He continues that while there exists “insufficient evidence to demonstrate that there exists an obligation to prosecute, there is enough to demonstrate that there exists a right to do so.”158 This emphasizes the Rule’s permissive nature, which, unlike other customary norms, can be demonstrated by highlighting the lack of protest to the exercise of such jurisdiction. The Study’s author explains that the number of cases brought by states where there was no objection to the exercise of universal jurisdiction even where no state expressed a desire to prosecute the accused reflects this permissive right.159 Judge Van der Wyngaert interprets the Lotus dictum in paragraphs 18-19 as supporting the concept 153 The ICTY in Prosecutor v. Milutoniv, Decision on Motion Challengin Jurisdiction, No. IT-99-37AR72, para. 38 as quoted in Meron supra note 65 at 826 154 Schachter supra note 53 at 119. (Although customary rules “are not free of ambiguity and they may call for factual appraisals as to which reasonable persons can differ. One cannot expect them to be applied by computers.”) 155 See Jean-Marie Henckaerts et. al., Customary International Humanitarian Law: Practice (2005) [Hereinafter “Volume II”] (Article VI of the 1948 Genocide Convention; Articles 49 Geneva Cconvention I, 50 Geneva Cconvention II, 129 Geneva Cconvention III, and 146 Geneva Cconvention IV; Article 28 of the 1948 Hague Convention; Article 85(1) Additional Protocol I; Article 10 of the 1994 Convention on the Safety of UN Personnel; Article IV of the 1994 Inter-American Convention on the Forced Disappearance of Persons; Article 15(2) of the 1994 Inter-American Convention on the Forced Disappearance of Persons; Article 14 of the 1996 Amended Protocol II to the Convention on Chemical Weapons; Article 9 of the 1997 Ottawa Convention; Preamble to the 1998 International Criminal Court Statute; Article 12 of the International Criminal Court Statute; Article 13 of the 1998 International Criminal Court Statute; and Article 16(1) of the 1999 Second Protocol to the 1954 Hague Convention.) 156 Reydams supra note X at 45 (This is in specific reference to Article 9 of the International Convention for the Suppression of Counterfeiting Currency which mandates that “obligation to take proceedings is subject to the condition that extradition has been requested and that the country to which application is made cannot hand over the person accused for some reason which has no connection with the offence.”) 157 Henckaerts Interview supra note 130. 158 Id. 159 Id. 24 of permissive rules in her dissenting opinion in Arrest Warrant. The dictum states that while States cannot exercise their jurisdiction in another state, it does not follow that …international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law…Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.160 In her analysis, Van der Wyngaert distinguishes permissive and enforcement jurisdiction. Whereas permissive jurisdiction is the right to establish jurisdiction to try the crime, enforcement jurisdiction is the right to enforce that decision in another State. She interprets the Lotus dictum as affording permissive jurisdiction to State A to prosecute offences committed in State B but not to supplant the judicial system in State B. While sovereignty precludes the exercise of enforcement jurisdiction, she believes that “there is no prohibition under international law to enact legislation allowing it to investigate and prosecute war crimes and crimes against humanity committed abroad."161 The US also raises the issue of pure universal jurisdiction, or the right to prosecute a suspect in absentia when a search within its territory produces no results.162 It claims that state practice is insufficient to support the claim that failure to demonstrate that pure universal jurisdiction has attained customary status undermines the ICRC’s findings. This objection, however, is arguably a red herring given that the US has not limited its protests to universal jurisdiction only when it has been established in absentia.163 In fact, the issue of pure universal jurisdiction is a distinct inquiry and has no bearing on the customary norm articulated in Rule 157. The ICRC’s Rule establishes that universal jurisdiction exists when no link between the harm alleged and the forum state exists, regardless of the presence of the accused in the forum state. 164 Presence of the accused within the forum state does not undermine the meaning of universal jurisdiction, although it may put the status of pure universal jurisdiction into question. Henckaerts clarifies that the ICRC did not attach an element of absentia to the definitional scope of universal jurisdiction. Instead, the 160 Lotus supra note 43 at paragraphs 18-19. Van den Wyngaert supra note 46 at para. 51. 162 Bellinger supra note x; See also Higgings supra note 126 at paragraph 31 ("Pictet Commentary: Geneva Conventionfor the Arnelioration oj'tlze Condition of the Wounded and Sick in Armed Forces in the Field, 1952, which contends that this obligation was understood as being an obligation upon States parties to search for offenders who may be on their territory. 1s it a true example of universality, if the obligation to search is restricted to the own territory? Does the obligation to search imply a permission to prosecute in absentia, if the search had no result?") 163 See infra “Part C. Broader Political Context: Trends Before, and Since, 2005” 164 Volume I supra note 2. 161 25 principle represents “the lowest common denominator” of a jurisdictional basis that is complementary to other bases of criminal jurisdiction where a link to a forum state exists.165 The ICRC thus negatively defines universal jurisdiction as jurisdiction over a crime where no other basis of jurisdiction exists.166 The ICRC’s definition is not unique. The Institut de droit international (IDI) has also defined the jurisdiction as one unlike any existing basis for jurisdiction for which the essence is an absence of link between the crime and the prosecuting State.167 “Mere presence,” the IDI continues, does not furnish such a link.168 Professor Theodor Meron agrees with this definition of universal jurisdiction and explains There is no reason why universal jurisdiction should not also be acknowledged in cases where the duty to prosecute and or extradite is unclear, but the right to prosecute when offenses are committed by aliens in foreign countries is recognized. Indeed, the true meaning of universal jurisdiction is that international law permits any state to apply its law to certain offenses even in the absence of territorial, nationality, or other accepted contacts with the offender or the victim.169 Wolfgang Kaleck, a German human rights attorney responsible for bringing several universal jurisdiction cases within European national courts, most notably the 2004 case against Rumsfeld and company, attributes the presence requirement to logistical purposes and not any restrictive rule upon states in their exercise of universal jurisdiction. He comments in the long run, it is difficult to start an investigation when there is no link in the country. Because you have to work technically and what you can you do when there is no link in the country…with the presence requirement that has to be enforced to be taken more seriously by other governments [which is necessary for the discovery process]…so as a policy goal we should adopt this practice to ensure success.170 Kaleck’s observation highlights that while presence has become a technical prerequisite domestically, it does not preclude a broader universality principle.171 However, the fact 165 Id. Id. 167 Tomuschat, Christian, Rapporteur of the IDI Commission on Universal Jurisdiction, as quoted in Seinho Yee, Universal Jurisdiction: Concept, Logic, and Reality, 10 CHINESE J. INT’L L. 503, 504 (2011). [Hereinafter “Yee”] 168 Institut de droit International , Resolution on universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes, adopted in Krakow, 2005 as quoted in 178 supra note 178 at 513. 169 Meron, Theodor, International Criminalization of Internal Atrocities, 89 AM. J. INT’L L. 554, 570 (1995). [Hereinafter “Meron Internal Atrocities”] 170 Skype Interview with Wolfgang Kaleck, Human Rights Attorney (Nov. 6, 2011). [Hereinafter “Kaleck”] 171 See also Van den Wyngaerts supra note 46 at paragraph 55. (Justice Van der Wyngaerts agrees and attributes the requirement of the offender’s presence in the exercise of universal jurisdiction to domestic law, which is not necessarily an expression of opinio juris required by international law. She explains, “[w]hereas presence may be required in domestic law there is nothing in international law that similarly 166 26 that other governments do not take a warrant seriously unless presence is established also suggests that as the presence requirement develops as an expectation among other states, it may become a requirement in customary international law. The Joint Separate Opinion contemplates this possibility but insists that great care has been taken to avoid excluding other grounds of voluntary jurisdiction during the drafting of relevant treaty provisions.172 They conclude that as regards pure universal jurisdiction, state practice is neutral.173 Regardless, it is a separate issue and does not have bearing on the ICRC’s finding in Rule 157. In its customary form, universal jurisdiction is a permissive right. Therefore, its strength as a customary rule is derived from acquiescence among states to a state’s decision to exercise said jurisdiction. Additionally, while the presence requirement has emerged as a domestic law requirement for the sake of logistics and international comity, it neither precludes the exercise of a more pure universal jurisdiction nor is it dispositive of a right to establish universal jurisdiction. These factors help demonstrate the futility of the US’s assertion that insufficient practice of pure universal jurisdiction undermines its customary nature. As a permissive rule, a principle’s customary force is evidenced by the lack of protest to its invocation. While the ICRC’s determination that states have the right to vest universal jurisdiction as a matter of customary right is sound, the same cannot be said for its analysis on those heinous crimes to which international criminal liability inheres. b. Grave Breaches versus War Crimes The universality principle in customary law encompasses a very broad definition of war crimes that includes those violations of laws and customs of war both in international and non-international armed conflict (“IAC” and “NIAC”). This effectively collapses grave breaches, which can be committed only in IACs,174 with a broader set of war crimes that can be committed in both international and noninternational conflict into a single category. The US claims that those states exercising universal jurisdiction are merely complying with the ‘extradite or prosecute’ treaty obligation pertaining to IACs. Accordingly, the prosecutable crimes in those cases are limited to grave breaches with few exceptions. To establish the veracity of Rule 157, the ICRC should be able to demonstrate either the indistinguishable character of grave breaches and war crimes and/or that state practice sufficiently criminalizes war crimes in national legislation or jurisprudence. In Henckaerts’s words, “If we only found support for grave breaches that would not have been sufficient because it is a treaty obligation. So we had to look for legislation that goes beyond grave breaches that gives makes it prerequisite.”) Higgins supra note 126 at para. 51 (“(See Article 4 (3), Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970; Article 5 (3), International Convention against Taking of Hostages, 1979; Article 5 (3), Convention against Torture; Article 9, Statute of the International Criminal Tribunal for the former Yugoslavia; and Article 19, Rome Statute of the International Criminal Court.) 173 Id. at para. 45. 174 This takes for granted the US’s objections to the inclusion of grave breaches listed under Article 85(1) of Additional Protocol I-in particular its criminalization of offenses committed against protected persons as listed in Article 44 of the Additional Protocol I. It also raises questions about the nature of armed conflict listed in Article 1(4) which is also an unsettled area of law. 172 27 the states the right to vest universal jurisdiction.”175 i. Distinct Legal Regimes Grave breaches are defined in Geneva Convention Common article (50/51/130/147) as well as API article 11 and 85.176 Historically, they have been defined as a "limited set of particularly serious violations of the Geneva Conventions of 1948 that gave rise to special obligations of the States Parties for the enactment and enforcement of domestic criminal law.”177 The travaux préparatoires of the Conventions demonstrate that State plenipotentiaries deliberately distinguished the concept of grave breaches from war crimes in order to ensure greater uniformity across states. Whereas crimes had diverse domestic meaning, a grave breach draws its meaning from international consensus as enshrined in the Conventions and their Additional Protocols.178 Unlike war crimes to which international criminal liability inhered, grave breaches necessitated national legislation to establish liability. The Conventions considered these violations so serious that states had a treaty obligation to enact penal legislation, prosecute or extradite them.179 Non-grave breaches of the Conventions are sanctioned in national law by discretion. They amount to war crimes if they are serious enough. Significantly, Article 85(5) of Additional Protocol I described grave breaches of the Geneva Conventions and their Additional Protocols as war crimes180 thereby attaching to grave breaches criminal consequences in international law.181 Among the reasons for maintaining a distinction between the treaty provision and customary law, however, is that within the confines of domestic law, states are not obligated to prosecute war crimes but have a duty to prosecute or hand over a person accused of a grave breach.182 In his comprehensive article on the matter, Marko Divac Oberg argues that thirty years since the legislation of the concept of grave breaches, the "war crimes concept is the more dynamic of the two, to the point that one may wonder whether grave breaches will disappear from international law."183 Nonetheless, he continues, “[t]oday, grave breaches provisions, at least those of the 1949 generation, remains privileged as tried and true black-letter law, compared with the nebulous customary law origins of war crimes.”184 The preference for the black letter character of grave breaches is evidenced in the jurisprudence and law of international criminal tribunals as well. Consider that the 175 Henckaerts Interview supra note 130. ICRC, How "grave breaches" are defined in the Geneva Conventions and Additional Protocols (0406-2004 FAQ). 177 Oberg, Marko Divac, The absorption of grave breaches into war crimes, 91 INT’L. REV. RED CROSS 873, 163 [Hereinafter “Oberg”]. 178 Id. at 166. 179 Id. at 165. 180 Protocol I supra note 145 Art. 85(5) (“Without prejudice to the application of the Conventions and of this Protocol, grave breaches of these instruments shall be regarded as war crimes.”) 181 Oberg supra note 187 at 167. 182 Id. at 181. 183 Id. at 164. 184 Id. at 182. 176 28 Statute of the International Criminal Tribunal of Rwanda (ICTR) does not make mention of grave breaches because of the uncontested nature of the Rwandan conflict as one of a non-international character.185 The Statute establishes that prosecutable crimes include crimes against humanity, genocide, and violations of Article 3 common to the Geneva Conventions and of Additional Protocol II but not grave breaches.186 In contrast, the dissolution of the Yugoslav Republic and the attendant state and non-state violence meted out within and between the various ethnic groups and nascent states characterized the conflict as both international and non-international. Accordingly, the Statute of the International Criminal Tribunal on Yugoslavia (ICTY)187 includes both grave breaches and war crimes as possible offenses. It also distinguishes grave breaches from war crimes in Article 2 and Article 3 respectively.188 In Prosecutor v. Duko Tadic,189 the Appeals Chamber went to painstaking efforts to characterize the conflict as an IAC and therefore prosecute the defendant under Article 2 grave breaches.190 To do so, it had to distinguish its legal reasoning from the International Court of Justice’s findings in Nicaragua where it applied the “effective control” test to determine whether or not US intervention made the conflict tantamount to an IAC.191 The Appeals Chamber found that the Trial Chamber erred “in so far as it acquitted the Appellant on the sole ground that the grave breaches regime of the Geneva Conventions of 1949 did not apply”192 and held Tadic to be guilty of grave breaches.193 Significantly, in the series of cases that followed, the ICTY abandoned this practice and analyzed the violations under a NIAC legal regime. The strategic shift reflected a desire to pursue a less cumbersome approach to establishing liability for war crimes. Justice Richard Goldstone, who served as the ICTY’s first chief prosecutor commented …after the Appeals decision, we no longer referred to grave breaches at all…we charged [defendants] with ordinary war crimes, which apply to international and non-international armed conflicts. Under Article 2, we 185 Statute for the International Criminal Tribunal for Rwanda (January 2010). Id. 187 Updated Statute of the International Criminal Tribunal for the Former Yugoslavia (September 2009). 188 Id. 189 Prosecutor v. Duko Tadic, ICTY, IT-94-1-A (15 July 1999) 190 Id. at para. 84 (“It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.”) 191 Id. at para. 115 (“The “effective control” test enunciated by the International Court of Justice was regarded as correct and upheld by Trial Chamber II in the Judgement.137 The Appeals Chamber, with respect, does not hold the Nicaragua test to be persuasive. There are two grounds supporting this conclusion.”); See also para. 124 (“The “effective control” test propounded by the International Court of Justice as an exclusive and all-embracing test is at variance with international judicial and State practice: such practice has envisaged State responsibility in circumstances where a lower degree of control than that demanded by the Nicaragua test was exercised.”) 192 Id. at para. 170. 193 Id. at para. 171. 186 29 would have the additional obligation and burden to demonstrate that an international armed conflict existed.194 Using an Article 3 analysis, the ICTY established liability for both grave breaches and war crimes. On the one hand, this affirms that the distinct legal regimes between international and non-international armed conflict is of enduring relevance. On the other, it also highlights how grave breaches can be subsumed by a broader category of war crimes thereby diminishing the demarcation between the distinct war crimes categories. A US amendment to its penal code defining war crimes also contributes to this steady evisceration process. In 2006, US lawmakers amended18 USC § 2441 and defined certain violations of Common Article 3 to the Geneva Conventions as grave breaches.195 This is striking since the violations listed in the common Article do not amount to grave breaches under the Conventions because grave breaches are defined only in IACs and common Article 3 applies only in NIACs. Additionally, those prohibitions listed in the US Code include torture, cruel or inhuman treatment, performing biological experiments, murder, mutilating or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, and taking hostages196 and are therefore broader than the list of grave breaches common to the four Geneva Conventions.197 It is not clear why the US would object to the inclusion of other war crimes committed in NIAC as grave breaches but redefine the aforementioned crimes as grave breaches in its domestic law.198 Regardless, the US state practice arguably contributes to the waning relevance of the distinction between war crimes established by treaty and those established by custom. Notwithstanding these interesting developments, grave breaches continue to constitute a distinct legal regime that is not easily collapsed with a broader category of war crimes because of the nuances within the 1949 and 1977 generations of grave breaches. Consider the establishment of the International Criminal Court. The Rome Statute distinguishes between war crimes, Article 8(2)(b), and grave breaches, Article 8(2)(a).199 Though the inclusion of all grave breaches as war crimes indicates an acceptance that grave breaches can exist outside of the strict confines of IAC, the distinction between those grave breaches remains a matter of controversy. Of particular note is the fact that the drafters included grave breaches pursuant to Additional Protocol 194 Phone Interview with Richard Goldstone, Chief Prosecutor of the ICTY (Nov. 9, 2011). See 18 U.S.C. §2441 (2006) (“2006 - Subsec. (c)(3). Pub. L. 109-366, Sec. 6(b)(1)(A), added par. (3) and struck out former par. (3) which read as follows: "which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a part and which deals with non-international armed conflict; or". Subsec. (d). Pub. L. 109-366, Sec. 6(b)(1)(B), added subsec. (d).”) 196 Id. at 2441(d). 197 David Luban, Julie R. O'Sullivan, and David P. Stewart, INTERNATIONAL AND TRANSNATIONAL CRIMINAL LAW (Aspen 2010) at 1047. [Hereinafter Luban] tom(“wilful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health…”) 198 It is of note that Congress amended the federal law in 2006 in an effort to retroactively protect US soldiers from liability whereas the Government drafted its response to the ICRC in 2005. 199 See Rome Statute of the International Criminal Court (1998) available at http://untreaty.un.org/cod/icc/index.html. 195 30 I under the war crimes section rather than the section listing grave breaches.200 Indeed, this categorization demonstrates the enduring objections to the Additional Protocols as controlling law and, relatedly, the outstanding distinctions between grave breaches and war crimes. Still, a strong argument can be made that certain practices, including US national legislation and ICTY jurisprudence, constitute trends indicative of a fading distinction between the two categories. ii. National Legislation and Jurisprudence While wholly reasonable to draft a customary rule characterized by ambiguity to be shaped by judicial tribunals and academics, the distinction between grave breaches and war crimes merited more discrete treatment in the 2005 Study. The ICRC does not demonstrate how its evidence of state practice makes the distinctions between the two categories irrelevant. Contrary to the US’s contention that the national legislation does not suffice to demonstrate opinio juris in support of Rule 157, the legislation is demonstrative of opinio juris as well as state practice. The problem, however, is that the national legislation cited is vast, encompassing both narrow jurisdiction over grave breaches pursuant to an existing treaty obligation as well as broad jurisdiction over crimes irrespective of their character as a grave breach or a general war crime. The spectrum of criminal categories includes ordinary crimes; certain war crimes; all or some several crimes against humanity; Genocide; and Torture.201 Moreover, the overwhelming majority of examples cited in the Study refer only to jurisdiction over grave breaches or crimes otherwise established in treaty law.202 Only a handful of states have statutes with broad application.203 Belarus is one such state and its statute reads: Belarus’s Criminal Code (1999) provides for universal jurisdiction for the crimes of genocide, crimes against humanity, the use of prohibited means and methods of warfare, violations of the laws and customs of war and grave breaches of IHL, which are included in the special section of the Code, as well as for offences under treaties to which Belarus is a party.204 Jurisprudence evidencing an indistinguishable approach to war crimes irrespective of their treaty or customary nature can suffice to disregard the distinctions made between them in national legislation. The ICRC cites thirty-one cases where universal jurisdiction was invoked. (See CHART I below) Of those, only twelve involved claims for violations of laws and customs of war beyond the scope of grave breaches.205 Notably, twenty of all listed cases involved cases emerging from World War II, the 200 See Oberg supra note 187. See Justice Tool supra note 134. 202 See Volume II supra note 159. 203 Volume II supra note 159 (See Belarus, Luxembourg, Netherlands, Sri Lanka, Sweden, Switzerland, United Kingdom) 204 Id. 205 Id. (Pinochet, Demjanuk, Niyonteze, Musema, Grabez, Hissene Habere, Knesevic, Eichmann, Kusljic, Munyeshka, Four from Butare, and Cvjetokovic). 201 31 conflict in Yugoslavia, and the conflict in Rwanda.206 These cases certainly demonstrate that there is general support for a jurisdiction to try persons even in the absence of a traditional link to the forum state. They do not demonstrate, however, that such jurisdiction extends to a broad category of war crimes as captured by Rule 157. State practice seems to indicate a willingness by states to prosecute those crimes, which are indeed considered an affront to humanity in toto. However, it is inescapable that such broad condemnation is only established in cases where the international community has articulated its collective approbation through the UN Security Council, (i.e., ICTY, ICTR) or atop the platform afforded to victors of war (i.e., Nuremberg, Tokyo). As such, it may have been more appropriate to find that universal jurisdiction exists as a customary right over those crimes condemned by the international community regardless of their treaty- or customary-based status. CHART I. NATIONAL CASE LAW LISTED IN ICRC STUDY AS EVIDENCE OF STATE PRACTICE. CASE STATE (YEAR) CRIME (IAC OR NIAC) The Four from Butare Djajic Belgium (2001) Grave breaches, and AP II and CA3 (NIAC) Germany (1997) Jorgic Kusljic Germany (1997) Germany (1999) Sokolovic Javor Germany (1999) France (1996) Muneshyaka France (1996) Grabez Switzerland (1997) Niyonteze Switzerland (1999) Musema Switzerland (1997) Eichmann Demjanuk Yousef Israel (1961) US (1985) US (2003) Altstotter (The Justice Trial) Saric Rohrig and US (1947) Geneva Convention (GC) and grave breaches regime GC, Genocide (IAC) Tried Bosnian nationals for grave breaches art. 146 and 147 of GC IV Grave breaches regime (IAC) Dismissed case for lack of treaty obligation or link to France Prosecution of a Rwandan priest accused of an alleged role for massacres in Kigali. Court of Cassation overruled dismissal for lack of jurisdiction citing that France was obligated to try persons pursuant to Law of Cooperation with the ICTR 1996 (NIAC) GCIII, GCIV, API, APII, customary war crimes National crimes, did not recognize genocide and crimes against humanity (NIAC) Agreed to surrender detainee of Rwandan nationality to ICTR (NIAC) Genocide, customary law Affirmed Israel’s right to try accused Dismissed suit, terrorism not customary, no basis for UJ US Military Tribunal at Nuremberg affirmed validity of universality principle GCIII and GC IV, torture (IAC) Upheld jurisdiction est. in Ahlbrecht by way of Denmark (1994) Netherlands (1950) 206 Id. (Rwanda: Four from Butare, Niyonteze, Munyeshka, Musema; Yugoslavia: Saric, Javor, Djajic, Jorgic, Sokolovic, Kusljic, Knesevic, Grabez; WWII: Demjanuk, Altstotter, Sawoniuk, Kuroda, Rohrig and Others, Ahlbrecht, Eichmann, Finta, Polyukhovic) 32 Others Ahlbrecht Netherlands (1947) Knesevic Netherlands (1997) Sawoniuk Pinochet Finta UK (1999) UK (1999) Canada (1989) Polyukhovich Cvjetkovic Schwammberger Cavallo extradition case Kuroda Hissene Habere Australia (1991) Austria (1994) Argentina (1989) Mexico (2001) Phillippines (1949) Senegal amendment War crimes and crimes against Humanity committed during WWII Bosnian Serbs. Interpreted Art. 3 of the Act to give Dutch courts competence to try war crimes (including grave breaches and CA3) UK War Crimes Act of 1991, territorial link Torture, jus cogens WWII, war crimes and crimes against humanity, (IAC) Customary war crimes, WWII, IAC Art. 6 Genocide Convention Genocide Obliged to comply w/ extradition request by Spain & based principle on UJ WWII, prosecute Japanese in the Philippines Dismissed for lack of jurisdiction; internal conflict c. Broader Political Context: Trends Before, and Since, 2005 The ICRC’s enthusiasm to find that states have the right to vest universal jurisdiction in their national legislation over war crimes is understandable in light of the political context at the time of writing. The establishment of the ICTY in 1993, the ICTR in 19xx, and the ICC in 2002 marks a dramatic acceleration of international criminal law’s development, unseen since the criminal tribunals following the Second World War.207 The “atrocities in the former Yugoslavia and Rwanda shocked the conscience of the people everywhere, triggering within a short space of time, several major legal developments,” namely the promulgation of the ICTY and ICTR Statutes under Chapter VII authority as well as the adoption of a treaty-based statute for an International Law Commission.208 The indelible impact of the tribunals and the ICC on the ICRC is evidenced by their reference in the Study over 170 times before the Study began its treatment of implementation and enforcement of humanitarian law.209 Notwithstanding the decade’s unprecedented events, a few notable gaps undermine the ICRC’s analysis. Namely, the Study failed to properly assess the impact of the ICJ’s Arrest Warrant decision and the impact of universal jurisdiction cases against United States officials in Belgium and Germany respectively. 207 See Oberg supra note 187 at 182. See also Meron Internal Atrocities supra note 180 at 568 (Universal jurisdiction developed post-WWII when most violations were prosecuted in international tribunals and courts of the occupying powers of Germany. Most violations were tried in the courts of various Allied States though they were not required to do so by international law at the time. The crimes tried were not even characterized as crimes by any general international treaty at the time.) 208 Meron Internal Atrocities supra 180 note at 554. 209 Cryer, Robert, Of Custom, Treaties, Scholars, and the Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary Law Study, 11 J. CONFLICT & SECURITY L. 239, 240 (2006). 33 i. Trends before 2005 1. Arrest Warrant (Democratic Republic of the Congo v. Belgium) (2002) In 2000, a Belgian investigating magistrate issued an arrest warrant in absentia to Abdulaye Yerodia Ndombsai, an incumbent Foreign Affairs Minister of the Democratic Republic of the Congo. The warrant alleged that he had committed grave breaches of the Geneva Conventions and their Additional Protocols as well as crimes against humanity. In response, the Congo brought suit against Belgium in the ICJ challenging the arrest warrant’s validity. The ICJ restricted its analysis to the immunity due to acting state officials and ruled in favor of the Congo. In a 10-6 vote, the ICJ held that the warrant against Yerodia “failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister of Foreign Affairs of the Congo enjoyed under international law; and that Belgium must cancel the arrest warrant.”210 The Court found that customary international law of immunities is meant to ensure the effective performance of state officials on behalf of their respective states. The decision was careful to distinguish the concept of juridical immunity from suit from impunity for crimes thereby preserving the possibility that Yerodia can be tried after completing his term in office. While the 2002 ICJ decision did not diminish the legitimacy of universal jurisdiction, it arguably had a chilling effect on its invocation. Consider that the Court’s decision, which affirmed the immunity for heads of state regardless of their alleged crimes indicates cautionary restraint.211 In effect, Arrest Warrant worked to resuscitate a discussion of universal jurisdiction’s legitimacy, which had until then, had more or less, been taken for granted. The Study notes the case in its compendium of state practice and concludes that nothing in the decision impacts universal jurisdiction’s standing as a customary rule.212 This is odd given that the case’s chilling effect also impacts what states deem legally permissible and obligatory. At minimum, the ICJ decision informs the scope of universal jurisdiction which is arguably more limited than is indicated by Rule 157. 2. Belgium (2003) In 1993, Belgium enacted a law to prosecute grave breaches pursuant to the Geneva Conventions and their Additional Protocols. In 1999, it strengthened the law and expanded it to include genocide, crimes against humanity, even for sitting heads of 210 Press Release, Arrest Warrant of 11 April 2000 (Democractic Republic of Congo v. Belgium) ICJ Press Release 2002/4 (14 February 2002) available at at http://www.icjcij.org/docket/index.php?pr=552&code=cobe&p1=3&p2=3&p3=6&case=121&k=36 211 See Yee supra 167 note at 530 (“The movement for ‘pure universal jurisdiction’ has been ‘trending down’ since the conspicuous silence of the ICJ on the legitimacy of that jurisdiction in the Arrest Warrant case in 2002…the subsequent downtrend may have been in no small measure due to the cautious judgment of that case.”) 212 ICRC Vol. II supra note x at 606 (“The judgment of the International Court of Justice turned on the question of immunity of heads of State and foreign ministers and therefore no decision was taken on the extent of universal jurisdiction…but the majority did not contest the right to try to a suspected war criminal on the basis of universal jurisdiction.”) 34 State.213 Under Belgian rules, like other civil law countries, private persons can file criminal complaints with the public prosecutor, which the prosecutor must investigate.214 While the Belgian Prime Minister supported the law when the Court of Cassation that it can be invoked against an accused in absentia,215 he did not have the same reaction when plaintiffs brought suit against US officials. In March 2003, seven Iraqi families filed a criminal case against George Bush and members of his Administration for war crimes stemming from the deaths of dozens of Iraqi civilians killed when a US missile penetrated a Baghdad bomb shelter in 1991.216 The US threatened to relocate NATO headquarters from Brussels if Belgium did not terminate its proceedings. Prime Verhofstadt responded promptly and in April 2003, Belgian parliament amended its law. The amendments significantly reduced the scope of universal jurisdiction by (1) requiring passive or active personality jurisdiction; (2) providing immunity to all acting state officials as well as for all persons on official visits; and (3) restricting the ability to bring suit to prosecutors and not civilians.217 The amendments left Belgian courts available for human rights cases when (1) the requisite tie to Belgium existed; (2) the other states with links to the crime lacked the capacity to try the cases; (3) the accused has no immunity.218 Notably the law’s new criteria, that there exist a link between the crime and Belgium, undermine its character as universal jurisdiction even under its broad definition as a negative rule. 3. Germany (2004) In 2004, the Center for Constitutional Rights along with several cooperating attorneys including Wolfgang Kaleck, filed a case against Donald H. Rumsfeld, then US Secretary of Defense, and other U.S. officials citing mistreatment of detainees at Abu Ghraib and other detention locations in Iraq.219 Plaintiffs’ attorneys explained that German courts treated the complaint seriously until mid-January when news of Rumsfeld’s imminent visit to Germany sparked public debate. Rumsfeld threatened to cancel his trip unless German authorities revoked the warrant.220 Two days before Rumsfeld arrival in Germany for an international security conference, a German court dismissed the case on grounds of complementarity. The prosecutor held that there was no indication that the US would not investigate and prosecute said abuses.221 Germany’s dismissal of the case on political grounds was readily apparent to everyone involved. As put by Kaleck 213 Ratner, Stephen A., Belgium's War Crimes Statute: A Postmortem, 97 A.J.I.L. 888 (2003). [Hereinafter “Ratner”] 214 Cite 215 Id. (This referred to the Court of Cassation decision against Ariel Sharon and Yaron Almog for their role in a 1982 attack on a Beirut-based Palestinian refugee camp that resulted in the death of approximately 1,000 civilians.) 216 King-Irani, Laurie, Does Universal Jurisdiction have a Local Address? Lessons from the Belgian Experiment MERIP (Winter 2003). 217 Ratner supra note 213 at 892. 218 Id. 219 Langer, Máximo The Diplomacy of Universal Jurisdiction: The Role of Political Branches in the Transnational Prosecution of International Crimes, 105 A.J.I.L. 1, 14 (2011). [Hereinafter “Langer”] 220 Kaleck supra note 181. 221 Id. 35 The warrant really molested the US and this was communicated to the Germans…It was kind of naive of us, and still kind of naive on the part of the human rights movement, if you deal with such cases you have to deal with politics. Whereas human rights organizations try to pretend that they do not have to deal with politics--you have to deal with politics and reality of power politics to bring such cases, you are not in a powerless legal sphere.222 Notably, Kaleck and cooperating attorneys attempted to revive the criminal suit in subsequent years in Germany as well as France. Both were dismissed on similar grounds and those will be discussed at greater length below. Applying the ICRC’s own test for identifying the existence of a permissive rule, the protests by the US and the Congo over the application of universal jurisdiction should have raised concerns for the ICRC. Buoyed by a decade rife with contrary evidence, the ICRC may have predicted that the trend, however mired, pointed towards more robust practice. However, in 2011, it is plainly clear that Arrest Warrant coupled with the US’s indelible reprimand of those states who dared to challenge its behavior, have had a regressive impact on the application of universal jurisdiction. ii. Trends between 2005 and 2011 Since 2005, Germany and other states have invoked universal jurisdiction to challenge the behavior of powerful states including US, Israel, and China, eliciting fervent protest by those states. The protests translated into meaningful political pressure resulting in the termination of the cases as well as amendment of universal jurisdiction laws. The regressive trend generally resulted in attenuated universal jurisdiction over crimes across several states. These measures serve as evidence of opinio juris and state practice, derived from a single act, and informs the status of the customary right to vest universal jurisdiction in national courts. Consider the following cases in Germany, France, Spain and the United Kingdom as well as proceedings within the Sixth of Committee of the UN General Assembly. 1. Germany (2006) In 2006, the US passed the Military Commissions Act (MCA), which retroactively grants immunity to everyone involved in the enhanced interrogation techniques.223 Kaleck, along with the Center for Constitutional Rights, revived the criminal complaints against Donald Rumsfeld, as well as US Attorney General Gonzalez, John Yoo, and others “accused as the alleged legal ‘architects’ of the torture program” on the basis that the US has shown itself unable and unwilling to investigate and prosecute. 224 The new complaint included more evidence and detail.225 222 Id. http://ccrjustice.org/ourcases/current-cases/german-war-crimes-complaint-against-donald-rumsfeld,et-al. 224 Wolfgang Kaleck, From Pinochet to Rumsfeld: Universal Jurisdiction in Europe 1998-2008, 30 Mich. J. Int'l L. 927, 952 (2009). 223 36 Significantly, the attorneys filed it after the resignation of Secretary Rumsfeld from the helm of the Department of Defense.226 The German prosecutor dismissed the case in 2007. Citing the Code of Criminal Procedure, he claimed that there was no “legitimate domestic linkage” to justify German universal jurisdiction over crimes committed extraterritorially and, therefore, there “was not a reasonable likelihood of convicting the suspect in Germany.” 227 A group of human rights organizations filed several appeals all to no avail. On April 21, 2009, the Appeal Court Stuttgart issued the final dismissal citing the appeal as “inadmissible.” 228 2. France (2007) Following the German Prosecutor’s 2007 dismissal of the revived criminal complaint, a French attorney, together with the same group of human rights organizations, filed a criminal complaint against Rumsfeld in France during his private visit in October 2007.229 The complaint alleged torture and inhumane treatment of detainees in US military custody at Guantanamo Bay and Abu Ghraib.230 The French Public Prosecutor refused to proceed, on the ground that Rumsfeld was immune under Arrest Warrant.231 In a letter, the French Prosecutor explained that under Arrest Warrant, officials 225 CCRjustice, “German War Crimes Complaint against Donald Rumsfeld”. http://ccrjustice.org/ourcases/current-cases/german-war-crimes-complaint-against-donald-rumsfeld,-et-al. (According to CCR website: The complaint is being filed under the Code of Crimes against International Law (CCIL), enacted by Germany in compliance with the Rome Statute creating the International Criminal Court in 2002, which Germany ratified. The CCIL provides for “universal jurisdiction” for war crimes, crimes of genocide and crimes against humanity. It enables the German Federal Prosecutor to investigate and prosecute crimes constituting a violation of the CCIL, irrespective of the location of the defendant or plaintiff, the place where the crime was carried out, or the nationality of the persons involved. No international courts or personal tribunals in Iraq were mandated to conduct investigations and prosecutions of responsible U.S. officials. The United States has refused to join the International Criminal Court, thereby foreclosing the option of pursuing a prosecution before it. Iraq has no authority to prosecute. Furthermore, the U.S. gave immunity to all its personnel in Iraq from Iraqi prosecution. All this added to the United States’ unquestionable refusal to look at the responsibility of those of the very top of the chain of command and named in the present complaint, and the recent passage of the Military Commissions Act of 2006 (see below) aimed at preventing war crimes prosecutions against Americans in the U.S., German courts are seen as a last resort to obtain justice for those victims of abuse and torture while detained by the United States.) 226 Id. 227 Kaleck supra note 223 at 953. “Prosecutors Decision”, Sec. 153f(1)(1) of the Criminal Procedure Code establishes the authority not to prosecute (Beulke, in Löwe/Rosenberg, StPO, 25th ed., appendix Sec. 153f marginal no. 14). Prosecution can be refused in the case of acts committed abroad, as contained in Sec. 153c(1)(1) and (2) of the Criminal Procedure Code, if a perpetrator is neither present in the country nor can be expected to be present. This is the case here: http://ccrjustice.org/files/ProsecutorsDecision.pdf 228 http://ecchr.eu/index.php/us_accountability/articles/complaint-against-former-us-secretary-of-defensedonald-rumsfeld.html 229 http://ecchr.eu/index.php/us_accountability/articles/complaint-against-former-us-secretary-of-defensedonald-rumsfeld.html 230 note memo signed by Rumsfeld of enhanced interrogation techniques. 231 Public Prosecutor to the Paris Court of Appeal re: Case of Donald Rumsfeld-triggering contesting the decision of the Paris District Prosecutor to dismiss the case, PB/JS/01 40 62 99 60 (16 November 2007) [Hereinafter “French Public Prosecutor Letter”] 37 of high rank, such as the Head of State, enjoy immunities from criminal and civil jurisdiction in other States during the exercise of their functions.232 Although such head of state immunity ceases upon completion of the accused’s official function, the Prosecutor carefully notes that this is only the case for “acts accomplished before or after the period during which the protected person was occupying his/her post or for acts that, although accomplished during this period, are not related to the functions carried out.”233 Therefore, the charges against Rumsfeld cannot be “dissociated from his functions” while he was the Secretary of Defense.234 The Prosecutor notes that unlike Pinochet, Rumsfeld’s actions were not marginal to the exercise of his functions as the Secretary of Defense.235 Moreover, the gravity of those alleged offenses has no bearing upon official immunity so long as they are central, and not marginal, to the exercise of his official functions.236 The French Prosecutor’s judgment significantly truncates both the scope of universal jurisdiction as well as the scope of prosecutable offenses based on Head of State immunity. 3. Spain Spain arguably led the enthusiastic charge of universal jurisdiction’s potential benefits when it issued an arrest warrant for Chile’s Augusto Pinochet, delivered by the United Kingdom, in 1998.237 The extradition never came to fruition as the UK cancelled the extradition proceedings against Pinochet on humanitarian grounds in 2000. Thereafter, the tide against universal jurisdiction in Spain accelerated in the face of mounting cases filed against Guatemalans and Argentinians under its universal jurisdiction statute.238 Although the Spanish Supreme Court initially required that there exist a procedural link to national interest to establish universal jurisdiction, in 2005, the Constitutional Tribunal overruled this analysis. Instead, it held that “a link to national interest was not required since universal jurisdiction is exclusively based on the substantive nature of grave crimes affecting the entire international community.”239 This robust authority constricted rapidly under intense political pressure when Spain filed criminal suits against Chinese, Israeli, and US officials between 2003 and 2009.240 In all three cases, the affected home countries protested that Spain’s jurisdiction amounted to intervention into the states’ internal affairs.241 Spanish courts dismissed the cases for complementarity and subsidiarity. The Spanish case against three American soldiers for the death of a Spanish 232 Id. Id. 234 Id. 235 Id. 236 Id. 237 Langer supra note 227. 238 Mugambi Jouet, Spain's Expanded Universal Jurisdiction to Prosecute Human Rights Abuses in Latin America, China, and Beyond, 35 Ga. J. Int'l & Comp. L. 495, 497 (2007). (Spanish courts successfully prosecuted Guatemalan generals for genocide, torture and state sponsored terrorism against the Mayan people between 1978 and 1986, and has also successfully prosecuted Argentinians during the “Dirty War.”) 239 Jouet, at 509-511. 240 Langer supra note x. 241 Id. 233 38 journalist in Iraq is of particular note. The Spanish magistrate asserted that the soldiers must have known that the hotel was located in a civilian area occupied only by journalists.242 The US refused to cooperate with the investigation. A State Department spokesperson stated that “it will be a very cold day in hell,” before American soldiers have to answer to Spanish courts.243 Other Spanish cases sought to investigate whether Spain violated its obligations for allowing US planes to transit Spain on their to Guantanamo Bay or for CIA operatives who transited Spain during extraordinary rendition flights.244 Wikileaks cables revealed that the US placed extraordinary pressure upon Spanish courts and judges to drop the case.245 Universal jurisdiction came to a halt when the investigating magistrate, Baltasar Garzon, indicated that he would investigate alleged violations by Spanish authorities against Basque separatists. The Spanish courts then accused Garzon of overstepping his judicial authority, which constitutes a criminal offense in Spain, thereby ending his decades-long career as a prosecutor.246 Spanish courts dismissed the cases on grounds of complementarity in 2011. The cases and the diplomatic furor they created also prompted radical amendment to Spain’s universal jurisdiction law. In 2009, Spanish legislators amended the law to require that either the accused be in Spanish territory or that there exist another relevant link between Spain and the case. The new law also prohibited Spanish courts from invoking universal jurisdiction if another national court or an international tribunal is investigating the case.247 4. United Kingdom After a series of cases brought against former Israeli officials in the British courts,248 its Parliament amended the UK law to prohibit magistrates from filing arrest 242 Jouet, at 527-530. Id. 244 Reprinted wikileaks cable: http://www.guardian.co.uk/world/us-embassy-cables-documents/200177 and article http://www.guardian.co.uk/world/2010/nov/30/wikileaks-us-spain-guantanamo-rendition 245 Id. (“Senator Mel Martinez, a former Republican party chairman, and the US embassy's charge d'affaires visited the Spanish foreign ministry to warn the investigation would have consequences.” The U.S. targeted various judges and prosecutors including national court chief prosecutor, Javier Zaragoza. The wikileaks shows that Zaragoza was a valuable asset to the U.S. government in trying to stop investigations by Prosecutor Garzon who was responsible for the majority of prosecutions under universal jurisdiction in Spanish courts. Zaragoza criticized Garzon as hating Americans and seemed to provide the U.S. government with information that Garzon was already under scrutiny for his “is investigation into human rights crimes committed under Spain's former dictator General Francisco Franco.”); See also http://harpers.org/archive/2010/12/hbc-90007836 (According to Harper’s Magazine, the wikileaks cables also showed the U.S. embassy in Madrid was also involved in political pressure against Spanish courts. “These cables show that the U.S. embassy in Madrid had far exceeded this mandate, however, and was actually successfully steering the course of criminal investigations, the selection of judges, and the conduct of prosecutors. Their disclosure has created deep concern about the independence of judges in Spain and the manipulation of the entire criminal justice system by a foreign power.”) 246 Abend, Lisa, Sentencing Spain's 'Superjudge': Why Baltasar Garzon is Being Punished, TIME, (Feb. 10, 2012) available at http://www.time.com/time/world/article/0,8599,2106537,00.html. 247 Langer supra note 227 At 40 (See Amended article 23(4)). 248 Erakat, Noura, Israel versus Universal Jurisdiction, JADALIYYA, (4 Nov 2010) available at http://www.jadaliyya.com/pages/index/288/israel-versus-universal-jurisdiction_a-battle-for243 39 warrants for universal jurisdiction cases.249 After the 2011 amendments went into effect, only a government minister can authorize an arrest warrant.250 While the amendment further politicizes invocation of universal jurisdiction, it still preserves that states have the permissive right to do so. 5. African Union Challenge in the Sixth Committee In light of the failed suits against US, Israeli, and Chinese officials, African countries who have borne the brunt of international criminal law’s development,251 and are therefore specially affected in this sense, challenged the application of universal jurisdiction. In February 2009, Tanzania, on behalf of the Group of African States, requested the inclusion of an additional agenda item entitled, “Abuse of the principle of universal jurisdiction” in the proceedings of the 63rd Session of the United Nations General Assembly. The General Assembly adopted resolution A/RES/64/117 and mandated (1) that all states submit reports on their scope and application of universal jurisdiction to the Secretary-General by April 2010; and (2) that the Sixth Committee (legal) would consider the issue as part of its discussions on pressing legal issues.252 While the response to the Secretary-General has been underwhelming, universal jurisdiction has been the subject of heated debate since 2009.253 Of the 192 member states asked to submit reports to the Secretary-General, only forty-four states have complied.254 In its 2010 report on Universal Jurisdiction, Amnesty International demonstrates a gap between the state submissions to the Secretary-General and their actual practice and legislation. The international NGO shows that states knowingly withheld information critical for an authoritative and comprehensive assessment of universal jurisdiction.255 While this may illustrate shortcomings in the Secretary-General’s assessment of the practice, it does not bode well for the status of universal jurisdiction. The lackluster and inaccurate submissions may constitute a state practice unto their own demonstrating a regression away from the robust potential of universal jurisdiction as a tool to end impunity. Within the Sixth Committee, divergent understandings of universal jurisdiction have done little to afford clarity on the matter.256 It is of considerable significance however that not a single state among those who participated in the Sixth Committee discussion questioned the permissible right of universal jurisdiction. In the most recent 249 Harman, Danna, U.K. moves to amend universal jurisdiction law, HA’ARETZ, (12 Feb 2010) available at http://www.haaretz.com/print-edition/news/u-k-moves-to-amend-universal-jurisdiction-law-1.328308. 250 Paul, Johnny, UK amends laws to protect Israelis from prosecution, THE JERUSALEM POST, (15 September 2011) available at http://www.jpost.com/DiplomacyAndPolitics/Article.aspx?id=238107. 251 Of the 14 ICC warrants issued since the tribunal’s establishment in 2002, all of them have involved cases emerging from the African contient. Not a single universal jurisdiction has been invoked in an African national court. 252 Justice Tool supra note 134. 253 See Yee supra note 178 at 503. 254 Justice Tool supra note 134 at 1. 255 Id. 256 See Press Release, General Assembly, Principle of ‘Universal Jurisdiction’ Again Divides Assembly’s Legal Committee Delegates: Further Guidance Sought from International Law Commission, U.N. Press Release GA/L/3415 (Oct. 12, 2011) available at http://www.un.org/News/Press/docs/2011/gal3415.doc.htm. [Hereinafter Sixth Committee] 40 Sixth Committee meeting in October 2011, participating member states repeatedly and consistently affirmed the critical need for a universal jurisdiction for the sake of a world where the torturer could find no haven but lamented the lack of a more formulaic approach that would offer predictability.257 They are primarily concerned with the fact that the tool had gotten into the hands of individuals, of civil society organizations, and other non-state actors. Absent tight regulation, these actions could not be filtered to account for comity.258 This narrative suited those strong states who feared that universal jurisdiction would become a pathway for the individual to become a full rights-bearing agent under international law. On the other hand, weaker states grew frustrated that such a jurisdiction would only be wielded against the sovereignty of the least developed states for whom sovereignty was tenuous.259 All parties describe the problem as the “politicization” of universal jurisdiction.260 While clarity on the definition of universal jurisdiction will not trump the practice itself or its availability as customary permissive right, inter-subjective confusion among states will certainly stunt its invocation. Coupled with legislative amendments restricting the scope of universal jurisdiction by requiring a link to the forum state, the trajectory of universal jurisdiction appears to be in regression. In fact, aware of this current down-trend, human rights attorneys are reluctant to wield the jurisdictional tool,261 though they have not disavowed it all together. Kaleck sums it up when he explains: We all know about the limitations of international criminal justice not being able to bring cases against super and regional powers and the only way to hold them to account is to prosecute them in universal jurisdiction--if it is only used against fallen dictators and low level officials, we cannot achieve its purpose...no, it didn't develop like we imagined fifteen years ago but there is some progress. It is important that the US's torture policy and our accusations have been taken seriously by 257 Id. (See e.g., Cuba “…the principle needed to be discussed to avoid its misuse.”; Sudan “the scope of its application raised legal reservations…universal jurisdiction was directly linked to the sovereignty of States and the principles of international law.”) 258 Id. (Consider this passage describing the goals of the meeting: “Those entities contributing to Section IV of the report raised a variety of issues, including the need for clear rules governing the application of universal jurisdiction to ensure its reasonable exercise; the necessity of considering rights and guarantees that mark the limits of State power, regardless of where a trial is conducted, once the need to exercise universal jurisdiction becomes apparent; the necessity of devising a framework of reference under international law for the principles of universal jurisdiction to specify under what conditions the State is internationally competent to investigate or prosecute extraterritorial offences; and the need to agree on the extent and applicability of universal jurisdiction within an all-inclusive multilateral arrangement, such as the United Nations.) 259 Yee supra note 167 (Not a single case was brought in Africa.) 260 Sixth Committee supra note 243 (In its press statement following the close of its 12th and 13th meetings, the Sixth Committee explains that it met to deliberate “on the possible misuse and imposition of State sovereignty.” The Delegate from Sudan summed it up well when describing that “The application of the principle was directly was directly linked to the Sovereignty of states, and he noted a double standard in the understanding of the principle and the selectivity of its practice.”) 261 Kaleck supra note 181 (“We are very very reluctant to use the tool because the attitude of prosecutorial authorities all over europe is that they wont allow us to bring a case without a link to the country.”) 41 the majority of the legal community. Even among governments they have taken the evidence seriously.262 The regressive trend in universal jurisdiction since the Study’s publication in 2005 indicates that a more attenuated right to vest universal jurisdiction exists than the Study originally suggested. The precise scope of the right is not as broad or unqualified as the ICRC stated. Instead, the fact that specially affected states, like the African Union as a body, have protested its invocation against sitting heads of states and have emphasized its abuse, indicates that the norm may still be in formation. Moreover, it shows that the customary right to vest universal jurisdiction over war crimes is robust only when there exists general international consensus that an act amounts to a crime and that there should be accountability for this crime. In the early nineties, and on the heels of an aborted intervention to stave off mass murder in Rwanda, the international community responded to internal conflicts with a vengeance. In effect, the global movement to respond to chilling atrocities in the former Yugoslavia and Rwanda ushered in a revival of international criminal law whose jurisdictional boundaries were not policed by sovereign markers. To the contrary, for an intermittent decade, it seemed that human rights and the claims of individual dignity would police sovereignty’s borders. During that time, dozens of states opened their national courts to hear claims lacking the traditional jurisdictional links, (i.e., active personality, passive personality, territorial, and national interest), in matters concerning those crimes considered an affront to all of humanity. The mounting jurisprudence, and the palpable acquiescence to its exercise, underscored an attitudinal position common to the community of nations that each nation is empowered to act on behalf of the global whole to eradicate impunity for heinous crimes. Upon this demonstrable attitudinal position, the ICRC found that states have the right to vest universal jurisdiction in their national courts over war crimes as a matter of customary right. The ICRC, however, failed to consider that the momentum to which it was bearing witness, was context-specific. While national courts opened their doors to hear extra-territorial and extra-national claims, those claims had been rendered noncontroversial by the sweeping endorsement of the UN Security Council. History and politics together established who, where, and what was an enemy to all humankind, not unlike the historical vectors that made deplorable those Nazi designs for ethno-national purity while condoning the mass murder of Japanese civilians in the name of national security. The “enemy of humankind” reflects a selective humanity, then and now. As such, the US Government is right to question the status of Rule 157 as a customary rule. Though equipped with antiquated modes for identifying customary international humanitarian law, the US correctly noted that there does not exist sufficient consensus regarding the scope of war crimes to which international criminal liability inheres. 262 Id. 42 VI. CONCLUSION While the scope, definition, and application of universal jurisdiction generates ample controversy, its purpose and utility remains uncontested. This speaks to the permissive nature of the rule as characterized by the ICRC. Unlike other rules, which create obligations for, or restrictions upon states, a permissive rule stipulates that no prohibition exists upon state authority. The modern approach to the formation of customary international humanitarian law is particularly appropriate as concerns permissive rules because of the weight that should be afforded to state attitudes and state protest as opposed to actual state practice alone. In general, the modern approach is superior in particular regard to human rights and humanitarian law because of international society’s nature as a collective whole rather than an aggregate sum of its parts, because of the specialized nature of the human rights and humanitarian legal regimes, and because of the unreliability of operational state practice. As a result, the methods inherent to the modern approach, namely a reliance on soft-law instruments as indicative of opinio juris, the flexibility in identifying a customary norm that has not hardened, and a diminished reliance upon the practice of specially affected states, are operative in the assessment of customary international humanitarian law. To this end, the ICRC was correct in its methodological approach in its Study. However, its application of the more accurate approach does not amount to achieving the most accurate outcome. As it stands, the ICRC can confidently argue that states possess a right to vest universal jurisdiction in their national courts over those crimes benefitting from universal condemnation irrespective of their international or non-international character. This is distinct from its broader claim as articulated in Rule 157, which suggests that states have a customary right to vest universal jurisdiction over war crimes. As shown here, the approach to customary law does not presuppose a particular outcome. It is worthwhile to also consider whether choosing between the traditional and modern approach is relevant at all. Perhaps using other disciplinary approaches, like sociology or political science, to identify customary law is more appropriate, for example. Regardless of any particular approach, this paper attempts to demonstrate, in part, that customary law is not subject to mathematical algorithms and definitive accuracy. To the contrary, customary law is complex and nonetheless equally binding on the most powerful and weak states alike. 43