Tagged: international cooperation

Ukraine Expands Its Acceptance of ICC Jurisdiction

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Violence in Ukraine has troubled that nation and the world community for about two years. Recently, Ukraine has renewed and expanded its efforts to afford the International Criminal Court jurisdiction to investigate and prosecute those responsible for mass crimes committed on its territory. Ukraine is now alleging that Russia is responsible, in part, for such crimes.

Ukraine is not a State Party to the ICC’s Rome Statute. However, as written about in April 2014 post, Ukraine lodged an Article 12(3) declaration, which allows a non-Party State to accept the Court’s jurisdiction over crimes within its subject matter jurisdiction that are committed on the State’s territory. Ukraine’s 2014 declaration alleged that crimes against humanity were committed during internal strife in Ukraine between November 2013 and February 2014, responsibility for which it alleged was attributable to Ukraine’s former President and possibly other senior officials in his government. The ICC Prosecutor has been conducting a preliminary investigation regarding this matter but has not yet decided whether to seek authorization to open a formal investigation that would expand her investigative powers and allow for filing of charges against individuals.

Ukraine has now gone further. In a September 8, 2015 press release the ICC reported that the ICC Registrar acknowledged receipt of a second Article 12(3) declaration by Ukraine, in which Ukraine expands its acceptance of ICC temporal jurisdiction from beyond February 2014 to the indefinite future. Importantly, the declaration attributes responsibility for post-February 2014 war crimes and crimes against humanity to “senior officials of the Russian Federation and leaders of terrorist organizations.” Thus, Ukraine’s second declaration opens a politically potent issue, asking the ICC Prosecutor to conduct at least a preliminary investigation into Russia’s alleged involvement in the violence in Ukraine.

In its September 8 press release, the ICC noted that “[t]he provisions of Part 9 of the Statute relating to international cooperation and judicial assistance apply.” Part 9 of the Rome Statute imposes on State Parties the responsibility “to cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.” The Russian Federation, however, is not a State Party to the Rome Statute, and thus has no such responsibility to the ICC.

It will be interesting to see how this matter will develop.

The ICC Prosecutor Addresses Allegations Against ISIS

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On April 8, 2015, International Criminal Court Prosecutor Fatou Bensouda issued a statement responding to inquiries her Office has received regarding the widely publicized violence attributed to armed forces acting on behalf of the military and political organization known as ISIS. She noted that such violence is reported to include

mass executions, sexual slavery, rape and other forms of sexual and gender-based violence, torture, mutilation, enlistment and forced recruitment of children and the persecution of ethnic and religious minorities, not to mention the wanton destruction of cultural property.

The International Criminal Court is the only standing international criminal court available to investigate and prosecute crimes of an international character (such as those attributed to ISIS) when such crimes are not investigated and prosecuted by national courts. However, as a treaty-based institution, ICC jurisdiction is limited by rules consented to by State Parties relating to the alleged crimes at issue (subject matter jurisdiction) and to territorial and other requirements.

On August 15, 2014, the U.N. Security Council, acting under its Chapter VII powers took measures with respect to international peace and security and adopted S/RES/2170 (2014), condemning ISIS and other groups “for ongoing and multiple criminal terrorist acts aimed at causing the deaths of civilians and other victims, destruction of property and of cultural and religious sites, and greatly undermining stability.” Res. 2170 calls on U.N. Member States to take measures to interdict the flow of funding and recruits to ISIS. The Security Council has not as yet, however, referred the matter of ISIS-related violence to the ICC, as it could do under Article 13(b) of the Rome Statute.

The crimes allegedly committed by ISIS are of a scale and nature that would likely meet the ICC subject matter jurisdiction requirements – at least for initiating a preliminary investigation by the Prosecutor. However, that by itself is not sufficient to allow the Prosecutor, acting on her own initiative, to pursue an investigation. In the absence of a Security Council referral, either territorial jurisdiction (the alleged crimes were committed on the territory of a State Party) or personal jurisdiction (the alleged crimes were committed by a national(s) of a State Party) would need to be met.

The crimes alleged against ISIS were reported to be committed on the territory of Syria and Iraq, neither of which is an ICC State Party. Either country could nevertheless lodge an Article 12(3) declaration allowing the ICC to investigate, but at this point, neither has done so. Therefore, territorial jurisdiction is currently lacking.

As to the other alternative, the Prosecutor stated that she has information that “significant numbers” of ISIS fighters are nationals of ICC State Parties, including Tunisia, Jordan, France, the United Kingdom, Germany, Belgium, the Netherlands and Australia. She noted that some of these individuals may have committed crimes within the ICC’s subject matter jurisdiction. She noted also, however, that the information available to her Office indicates that the leadership of ISIS is composed primarily of nationals of the non-Party States of Iraq and Syria. Accordingly, given the OTP’s policy to focus on those most responsible for the commission of mass crimes, the prospect of exercising personal jurisdiction over any nationals of State Parties “appears limited” and “the jurisdictional basis for opening a preliminary examination into this situation is too narrow at this stage.”

Noting that “ISIS continues to spread terror on a massive scale in the territories it occupies,” the Prosecutor stated that she “remain[s] profoundly concerned by this situation” and that she will continue efforts, in consultation with relevant States, to gather further information. She emphasized the international community’s “collective duty … to respond to the plight of victims whose rights and dignity have been violated.”

Students’ Perspectives: Blaine Sloan Lecture by Prof. Ohlin and the Assault on International Law

On Monday, April 13, 2015 Pace Law School hosted a Symposium entitled Foundations of International Criminal Law, which was well attended by faculty, students, and staff. The symposium offered three thought-provoking discussion panels:

In addition, as part of this symposium, Prof. Jens David Ohlin delivered the 27th annual Blaine Sloan Lecture entitled The Assault on International Law based on his book of the same title. The following are two students’ reflections summarizing this riveting lecture.


Defection Isn’t Working Guys: Cooperation as the (First) Best Choice  

REFLECTION WRITTEN BY: Cassandra Castorino (’17), Pace Law School

Why should nation-states cooperate with one another, what role does international law play in multinational cooperation, and why is it significant? This three-part question was the fulcrum of Prof. Ohlin’s annual Blaine Sloan lecture.

Ohlin’s lecture presented an outline of his latest book, The Assault on International Law, in which he argues that international law must be complied with because the incentives to do so are present and persuasive and the benefits to be accrued are manifold and far-reaching. He avers that while it may be tempting for states to defect to gain seeming advantage (truly only a myopic one), it is international cooperation that offers the advantage for states. Abiding by international law  not only creates less risk, but it also provides for a greater reward  both in the short and long term. International institutions, conventions, and multilateral treaties, such as GATT and WTO, have already incentivized cooperation among states by reducing both the monetary and opportunity costs of cooperating, eliminating potential barriers to cooperation, and encouraging reciprocity of cooperation between competing states.

It is the United States withdrawal from international cooperation after 9/11 that triggered the need for a reevaluation of how our nation responds to its self-interests, Ohlin argues. The war against al-Qaeda brought about U.S. noncompliance with international law, particularly the torture policies and the drifting away from compliance with the Geneva Conventions, International Criminal Court, and United Nations. Ohlin urges the United States to follow his plan in order to awaken a shift from a self-motivated, minimally-gaining society, to one that willingly recognizes the value of abiding by international law. Profitability with respect to compliance of international law knows no bounds, Ohlin maintains.

Ohlin’s plan to revive U.S. compliance with international law is his own unique modification to the New Realists’ rational actors’ model that already exists in international relations theory. The New Realists’ model posits that states are sovereign and adopt their own mode of rational decision-making but that such decisions are guided only by national interests defined in terms of state power. This model is a self-motivated one – it urges states to act only pursuant to their own personal gain. Ohlin takes this plan of rationality and turns it against them. He strikes down the New Realists’ notions that states only act as rational actors when pursuing their own self-interest by redefining the ‘actor’ in the model. Ohlin suggests that states should act, not as states, but as humans, in assessing and carrying out their goals. Humans, unlike states under Realist theories, exhibit the propensity to remain faithful to the goals they devise because they know how salutary the effects will be once fully consummated. Seldom do humans reassess their main goal at each intermittent step to see whether or not defecting from their overall plan would provide for a higher return. Instead, even when humans veer off the set-out path to accomplish their goals, they only think of the end long-term goal and the high yield it will bring once carried out. In effect, the end goal exemplifies the true self-interest of the human actor.

Self-interested motivations run our world. Thus, applying Ohlin’s theory, if the effectuation of a long-term beneficial goal is motivated by self-interest, his plan works and promises gains both in the short- and long-term. If the State is kept as the actor in the rational model, however, self-interest can only be viewed through myopic, temporary gains that are sure to fall short in the long-run. If States were to adopt beneficial, long-term plans and complete the plan, as humans do, respect for and adherence to international law would likely not find itself in the precarious position it assumes today.

After hearing Ohlin’s plan of ‘human’ rationality for states, game theory notions, particularly that of the prisoner’s dilemma, immediately came to mind. By the end of his lecture, however, Ohlin successfully challenged the application of prisoner’s dilemma theory to international cooperation – now, it no longer holds in that context. The theory of prisoner’s dilemma says that although it is less risky and more gainful to always cooperate, rational actors acting in their own self-interest are still dissuaded from cooperating because there is a chance, albeit slim, that defecting provides the highest return. Prisoner’s dilemma relates to a scenario of 2 prisoners being interrogated: if both prisoners decide to cooperate and both either confess or stay silent, their time in prison will be shortened appreciably and they will likely receive the same sentencing. Conversely, if the two prisoners fail to cooperate and one confesses while the other one remains silent, the one who confesses may walk away free while the other one has to serve longer jail-time. Thus, the incentive to defect, if you think you’ll be successful, is high – one can potentially be absolved of all wrongdoing and spend no time in jail.

However, this theory only holds true if the theory of rationality is viewed through the lens of the New Realist framework. Ohlin has refashioned the self-interested rational actor model to make prisoner’s dilemma not applicable to cooperation with international law. If we apply Ohlin’s human plan of rationality to States we are dissuaded by the chance of ‘walking away free’ because, both in the short- and long-run, the defection is not as incentivized as cooperation is under international law. The natural instinct when complying with international law is to act like the human and follow through with the end goal. International law already incorporates mechanisms to discourage States from viewing defecting as beneficial. International law should be respected for all the benefits it bestows on States who choose to comply with it and the U.S. needs to give it another chance. Ironically, defecting has proven not to bring about a higher yield for our nation, bar none. It has led us astray from beneficial foreign policy goals and has  threatened our position at the apex of world influence. Defection from international law, very plainly, is not working for the United States.

My hope is that Ohlin’s cogently argued and laudably innovative thesis receives the attention, praise, and actual implementation it so merits because the potential effect it could have on our nation’s choice of which lens to view its foreign policy may bring our nation back to its heyday of exceptionalism – yet this time around, provide for a lasting exceptionalism, achieved by different, more globally salutary means.

A Look Into the Assault on International Law

REFLECTION WRITTEN BY: Joseph Moravec (’17), Pace Law School

Professor Ohlin focused on three points. First, following the attacks of 9/11, the Bush Administration (namely its various legal counsels) sought to discredit international law in order to circumvent certain obligations under international law and pursue courses of intelligence gathering, drone use in extra-judicial killing and surveillance, and the institution of torture. Second, the theoretical disillusionment with international law in academia by New Realist thinkers furthered skepticism of international law in deciding whether the United States should adhere to its international legal obligations. Professor Ohlin argues that in theory and application the Bush Administration found ways to re-write the interpretation of U.S. obligations so as to do “all that was necessary” to fight the War on Terror. Finally, Prof. Ohlin countered this thinking with the argument that, had the United States worked to adhere to international law and pursued multilateral courses of action during the initial stages of the War on Terror, we may have seen significantly greater success in both defeating Al-Qaeda, as well as preventing the rise of other terror groups such as Al-Shabab in Somalia, Boko Haram in West Africa, or more recently the Islamic State in Iraq and Syria.

While Professor Ohlin’s rebuttal of New Realist thinking is cogent, I find his argument incomplete. His argument rests on an interpretation of Rational Choice Theory, stating that the United States in the past 15 years has moved to a short-run view of rational decision making. By pursuing courses of action in short-term self-interest, the U.S. is both not winning the War on Terror, but also not obtaining the best future outcome. If the U.S. were to pursue a long-term strategy of national security, Prof. Ohlin argues, it would naturally include adherence to international law and would result in greater long-run prosperity and security.

However, the argument rests on two assumptions concerning the nature of rationality that were not fully addressed during his lecture. First, Prof. Ohlin’s argument that all international actors would follow international law because it is in their long-term rational self-interest presupposes that all international actors are interested in the same long-term ends, namely the “good of their people.” During the lecture, Prof. Ohlin examined the Netherlands and North Korea. The Netherlands have done quite well adhering to international law while North Korea is one of the poorest States in the world. Leaving aside alternative historical, geographical, and political explanations for the failures of North Korea and the success of the Netherlands, it cannot be said that the political players in the Netherlands and North Korea have the same rational framework. In the Netherlands, democracy in itself dictates the “good of the people” as the ultimate goal of political power. At least in theory, democratic elections ensure that a democratic government will act rationally toward this future interest. However, the situation in North Korea is quite different – a military oligarchy and hereditary dictatorship where elites personally choose a successor. Whatever we may think about political philosophy, we must consider the rationality of North Korean actions from the perspective of those who hold the power to make foreign policy and political decisions. From that perspective, North Korea has done quite well not adhering to international laws, which would long ago have undermined the dynasty of elites in political and military leadership, making it rational not to follow international law. It cannot be said that all international actors (States) are rationally interested in the same ends, and thus it is unlikely that all actors would pursue the same course to achieve those ends.

Second, Prof. Ohlin’s argument assumes that all international actors have the same capacity and ability for rational decision-making. A metaphor of two chess players is illustrative. When I play chess, I plan a strategy four or five moves ahead. However, Grandmaster players often calculate fifteen to twenty moves in advance. If I were to play against a Grandmaster, we would both be thinking and moving in our own long-term self-interest towards the same goal (winning), but I would likely lose because I lack the capacity to calculate far enough into the future. Thus, the capacity for rational decision making is not always equal among all actors. Rational Choice Theory presumes that both actors are capable of understanding the problem in order to reach the best possible outcome. However, as with chess players, States are unequal in their capacities for rational decision making. In the U.S., we have thousands of universities, think tanks, government institutions, free press, one of the strongest military and economy, a greater control of many vital natural resources, and the third largest population – we are, in a way, one of a few “Grandmasters” of international political actors, making us capable to rationally plan long-term. On the other hand, a State such as North Korea has limited economic and social power and thus significantly lower capacity for long-term planning. Thus, North Korea is less likely to rationally plan on the same scale as the U.S. Even if we assume that adherence to international law were the most rational course of action, North Korea may still pursue a course of action which ignores international law because North Korea may lack the resources and institutional capacity to accurately forecast the best long-term policies. In fact, it does not follow that either actor will ultimately succeed in reaching a “best” strategy. Both States have different resources and capabilities, and even the strongest State may lack the capacity to plan and execute the “right” plan.

Even if international actors are not equal, it is at least established that the U.S. is the State capable of pursuing a truly rational best strategy. If a complete adherence to international legal obligation is the most rational choice for such a strategy, as Prof. Ohlin argues, then the diversion of U.S. foreign policy from international law during the War on Terror has been a diversion from truly rational thinking. Perhaps even the U.S. with all of its resources has lost some of its capacity for long-term strategy. While the debate continues, it is a difficult task to scrutinize 15 years of U.S. foreign policy in hindsight. However, the very fact that we have an academic debate on this topic is itself a testament to the freedom to think rationally and the institutional capacity to do so that we all enjoy in the United States. We should not waste either one.

International Criminal Court Welcomes Palestine as a State Party

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

To follow up on an earlier post, on April 1, 2015 at a ceremony at The Hague the representatives of the International Criminal Court (ICC) welcomed Palestine as the 123rd Party to the ICC’s Rome Statute. The ICC representatives expressed hope that Palestine’s acceptance of the Rome Statute will contribute to the Statute’s goal of ending impunity for grave crimes of an international dimension.

Mindful of hotly contested issues relating to the Palestinian territory of Gaza, from which Hamas has launched attacks against Israel and in which Israel has launched attacks against Hamas, Judge Kuniko Ozaki, delivering Welcoming Ceremony remarks in the capacity of Acting President of the ICC, reminded Palestine that by becoming a State Party, it accepted the obligations (set out in Part 9 of the Rome Statute) requiring a State Party to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”

The ICC Office of the Prosecutor (OTP) recently addressed issues relating to Gaza. In May 2013, the OTP opened a preliminary examination into an incident on May 31, 2010 relating to Israel’s naval blockade of Gaza. At issue was whether the OTP had sufficient basis to open a formal investigation regarding war crimes allegedly committed by members of the Israeli Defense Force (IDF) when they boarded registered vessels of ICC State Parties that were attempting to defy the blockade. After conducting a preliminary examination for approximately 17 months, on November 6, 2014 the OTP issued a report pursuant to Article 53(1) of the Rome Statute, in which it thoroughly reviewed the matter and decided not to open a formal investigation.

The OTP’s report concludes that Israel’s stated purpose for the blockade was to interdict arms shipments that it considered would be used by Hamas for attacks against Israel. In May 2010, groups opposing the blockade organized a flotilla to bring humanitarian aid to the Palestinians and also to protest and to encourage international condemnation of the blockade. Israel had offered to allow the humanitarian aid to be delivered to Palestine by other means. On May 31, 2010, IDF personnel boarded some of the vessels after providing a warning. Several passengers on board one of the vessels violently resisted the IDF, but this resistance was not of such a degree as to disqualify the resisting passengers’ status as protected persons under the Geneva Conventions. While the information available did not support several potential charges, there was a reasonable basis to believe that the IDF willfully killed ten of the 500+ passengers, caused serious injury to several others, and committed outrages upon personal dignity of others. Nevertheless, the scale of the crimes involved, given the surrounding circumstances, did not meet the gravity requirement of Articles 17(1)(d) and 53(1)(d) of the Rome Statute.

Further, Rome Statute Article 8, defining war crimes, provides somewhat different rules depending on whether the acts in question were committed in the context of an international or non-international armed conflict. Addressing this issue, the OTP report concluded that “the prevalent view within the international community is that Israel remains an occupying power in Gaza” because of several controlling measures taken by Israel – despite Israel’s withdrawal of its forces from Gaza and the dismantling of Israeli settlements there in 2005. Citing basic principles of the international law of occupation, the OTP concluded that because Israel retains the capability of exercising effective control over Gaza, hostilities between Israel and Hamas implicated an international armed conflict.

Thus, if Israel is in fact in effective control of Gaza, ICC investigation of Gaza-related violence will likely be hampered because Israel, not being a Party to the ICC Statute, has no obligation to comply with ICC investigations. On the other hand, Palestine can find support in the international law of occupation, referenced by the OTP, stating that occupation of a State over part of the territory of another State does not displace the sovereignty of the latter over the occupied territory.