Cohen elected to American Journal of International Law Board of Editors

Delighted to congratulate our own Professor Harlan G. Cohen on his election to the Board of Editors of the American Journal of International Law.

AJIL, as it’s known, is the flagship publication of the Washington, D.C.-based American Society of International Law. Both were founded in 1907, with U.S. Secretary of State Elihu Root serving as ASIL’s 1st President, and scholar-diplomat James Brown Scott serving as AJIL‘s 1st top editor. Today, the quarterly Journal feature articles, editorials, and notes and comments by pre-eminent scholars. It’s not only one of the oldest, but also one of the most-cited peer-reviewed journals in international law and international relations.

Cohen’s election came earlier this month, when the AJIL Board met during ASIL’s Annual Meeting. It’s a well deserved honor for Cohen, who’s served for a number of years as Managing Editor of AJIL Unbound, the journal’s online platform, and held several ASIL leadership positions.

A member of our University of Georgia School of Law faculty since 2007, Cohen publishes and teaches in a range of international law areas, including trade, foreign affairs, global governance, and human rights. He is the inaugural holder of the Gabriel M. Wilner/UGA Foundation Professorship in International Law.

He contributes immensely to the initiatives of the law school’s Dean Rusk International Law Center, serving, among other things, as faculty advisor to our Georgia Journal of International & Comparative Law (he was a principal organizer this academic year of the Georgia Law-International Committee of the Red Cross conference on the ICRC’s 2016 Commentary) and leader of our 10th International Law Colloquium series.

Alums Kaitlin Ball and Eric Heath publish in International Legal Materials

Delighted to see the bylines of 2 recent graduates of the University of Georgia School of Law in the newest edition of International Legal Materials.

An American Society of International Law publication, ILM reprints decisions, treaties, and other newly issued documents reflecting important developments in international law. Each is preceded by an Introductory Note which explains and analyzes the document. Contributing such Notes to Volume 56, Issue 1, of ILM –  available online via open access for a limited period – are:

Kaitlin M. Ball (J.D. 2014), who is a Ph.D. candidate in the Department of Politics & International Studies, University of Cambridge, England. While at Georgia Law, Kaitlin served as Student President of the worldwide International Law Students Association, and was a Global Extern at the U.S. Department of State Office of Legal Adviser for Private International Law, at the Organization for Security and Co-operation in Europe mission in Sarajevo, Bosnia, and at the nongovernmental organization Human Rights League in Bratislava, Slovakia. Her ILM Introductory Note is entitled “African Union Convention on Cyber Security and Personal Data Protection.”

Eric A. Heath (J.D. 2015), who serves on the Legislative Staff of U.S. Rep. Matt Cartwright (D-Pennsylvania) in Washington, D.C. Immediately before taking that position, Eric served as an ASIL Fellow and also earned his LL.M. degree in International Economic Law from the University of Edinburgh, Scotland. While at Georgia Law, he was a Global Extern at UNESCO, in Paris, France, and published in our Georgia Journal of International & Comparative Law. His ILM Introductory Note is entitled “Amendment to the Montreal Protocol on Substances that Deplete the Ozone Layer (Kigali Amendment).”

Digital Commons upload extends reach of scholarship in Georgia Law journals

The Alexander Campbell King Law Library at the University of Georgia School of Law recently celebrated the upload, to the Digital Commons Repository, of all back issues of two of the law school’s reviews:

► The Georgia Journal of International and Comparative Law, started in 1971 as a student initiative supported by former U.S. Secretary of State and Georgia Law Professor Dean Rusk. GJICL publishes three time a year, featuring work by legal scholars and practitioners as well as student notes. The law school’s Dean Rusk International Law Center frequently cosponsors conferences with GJICL, as it did in September 2016 with “Humanity’s Common Heritage: Conference on the 2016 ICRC Commentary on the First Geneva Convention.” (additional posts on this event here)

► The Journal of Intellectual Property Law. Established in 1993, JIPL is among the oldest of the top 25 intellectual property law periodicals in the United States. JIPL publishes annual print volumes of two issues and online essays on areas of trade secrets, patents, trademarks, copyrights, internet law, and sports and entertainment law.

Scholarship related to international, comparative, and transnational law also often is posted at the Dean Rusk International Law Center Research Paper Series at SSRN. (prior post)

The just-completed online archive contains 44 years of GJICL scholarship and 23 years of JIPL scholarship, for a combined total of 1,721 uploaded items. At the end of last month, downloads from the two journals numbered nearly 190,000, from all countries in the world. The archive will continue to grow as future issues are added.

Distinguished alumnus Jean-Marie Henckaerts joins our Center Council

Honored to announce that one of our distinguished international law alumni, Dr. Jean-Marie Henckaerts, has become a member of our Dean Rusk International Law Center Council. Henckaerts earned his Master of Laws (LL.M.) degree here at the University of Georgia School of Law in 1990.

Based in Geneva, Switzerland, Henckaerts is Legal Adviser in the Legal Division of the International Committee of the Red Cross. In that capacity, he leads the unit in charge of ICRC’s ongoing project of updating its midtwentieth-century Commentaries on the 1949 Geneva Conventions and the Additional Protocols of 1977.

Last September, publication of the Commentary on the First Geneva Convention was marked by a daylong conference here in Athens. Henckaerts keynoted the event (above), and nearly 2 dozen other experts in international humanitarian law took part in public and closed-door discussions (prior posts). Cosponsoring with our Center were the ICRC and the Georgia Journal of International & Comparative Law, the 45-year-old review for which Henckaerts once served as an Associate Editor.

The Commentary on the Second Geneva Convention is due for release in early May, and will be launched via an event livestreamed from Geneva on May 4.

Henckaerts came to Georgia Law from Belgium, where he’d completed a Bachelor of Laws (LL.B.) at Vrije Universiteit Brussel. Thereafter, he moved to Washington, D.C., earning an S.J.D. degree in international law from George Washington University Law School.

As described in a post marking its inaugural meeting last year, the Dean Rusk International Law Center Council is made up of faculty members, alumni/ae, and others who advise and support the work of the Center.

FT profiles alumna Ertharin Cousin’s continued efforts to end hunger

cousin-1Among our most distinguished Georgia Law alumnae is Ertharin Cousin, who earned her Juris Doctor degree in 1982. She has served since 2012 as the Executive Director of the United Nations’ World Food Programme – an appointment that followed service as a U.S. ambassador on food insecurity issues. Based at the 53-year-old Programme’s headquarters in Rome, Italy, Cousin leads the world’s largest humanitarian organization: its 11,000-plus staffers combat hunger and food insecurity on behalf of more than 80 million persons in 82 countries.

The London-based Financial Times acquainted its readers with Cousin earlier this month, featuring her in a “Q&A with Ertharin Cousin” in its FT Weekend Magazine. Amid a mix of personal and professional topics, Cousin noted that she was a member of the 1st class of girls at Chicago’s Lane Tech High School and an undergraduate at the University of Illinois before becoming a law student at the University of Georgia. Asked about politics, she said:

“Everyone should recognise the importance of the political process and the election of good people, regardless of party, who can represent the vulnerable.”

Her greatest achievement?

“When the conflict began in South Sudan, two and a half, three years ago, the NGO community, working together, avoided a famine.”

Continuing ambition?

“Ending hunger. The mission of most of my adult life has been giving people access to affordable, nutritious food wherever they are.”

We at Georgia Law were honored to welcome Cousin as the keynote speaker at the 2013 symposium of our Georgia Journal of International & Comparative Law (pictured above), and we look forward to March 2017, when our Law School Association will give her a Distinguished Service Scroll Award.

Between the Law of Force and the Law of Armed Conflict

adhaque_img“Between the Law of Force and the Law of Armed Conflict” by Adil Ahmad Haque, originally published on Just Security Blog on October 13, 2016. We are grateful for permission to reprint this as part of our series inspired by “Humanity’s gjicl_confposterCommon Heritage,” our recent conference on the 2016 ICRC Commentary on the First Geneva Convention. The author, Rutgers Law Professor Haque, was a conference participant; this post is the 3d of 3 he prepared soon after the conference. He writes:

Last week, I argued in favor of the ICRC’s position that if one state uses armed force in the territory of another state then an international armed conflict (IAC) arises between the two states, unless the territorial state consents to that use of force. Accordingly, the treaty and customary law of IAC protects the civilian population of the territorial state as well as the armed forces of the intervening state. For example, on this view, the customary law of IAC applies to US operations in Syria, while Additional Protocol I (to which the US is not a party) applies to UK operations in Syria.

Importantly, the ICRC’s approach applies even if the target of the armed force is an organized armed group operating on the territory­—but not under the control—of the territorial state. Accordingly, the treaty and customary law of non-international armed conflict (NIAC) may also apply to such uses of armed force, for example, by governing the targeting and detention of armed group members.

In this post, I’ll respond to some criticisms of the ICRC’s position. Along the way, I’ll make some more general comments on the relationship between the law of force (jus ad bellum) and the law of armed conflict (jus in bello).

Here on Just Security, Sean Watts and Ken Watkin have criticized the ICRC’s position (see here, here, and here). Perhaps the most sustained critique of the ICRC’s position comes from Terry Gill, in a recent article for International Law Studies. There is much to admire in Gill’s article (indeed, I recently assigned it to my students). However, I found his criticisms of the ICRC’s position unpersuasive.

First, Gill rejects “the argument that non-consensual military intervention automatically constitutes a violation of sovereignty and is therefore directed against the territorial State” on the grounds that the intervention may be a lawful exercise of self-defense or may be authorized by the UN Security Council.

This objection seems misdirected. The ICRC does not refer to a violation of sovereignty but instead to an interference or intrusion into the territorial state’s sphere of sovereignty. By definition, a violation of sovereignty is unlawful. In contrast, an interference or intrusion into a state’s sphere of sovereignty may lawful or unlawful. According to the ICRC, an armed interference or intrusion into a state’s sphere of sovereignty—whether lawful or unlawful—will trigger an armed conflict with that state. More on this below.

Second, and relatedly, Gill writes that “there is no reason to assume that the classification of an armed conflict is dependent upon— or even influenced by—the question of whether a violation of the ius ad bellum has occurred.”

This objection also seems misplaced. On the ICRC’s view, the classification of an armed conflict does not depend upon the lawfulness or unlawfulness of the use of force, but instead depends on the fact that force is used by one state on the territory of another without its consent.

Of course, if the territorial state consents to the use of force then (i) the use of force is lawful under the jus ad bellum and (ii) there is no armed conflict between the two states. However, the reason that there is no armed conflict between the states is not that the use of force is lawful but rather that there is no conflict between the states, armed or otherwise. There is no dispute, difference, opposition, or hostile relationship between the two states. Put another way, the fact that consent has been given or withheld is independently relevant to both the jus ad bellum and the jus in bello.

In his second post, Watkin writes that the ICRC’s “reliance on State consent, as the basis for conflict categorization, makes it difficult, if not impossible, to separate it from the law governing the recourse to war.” I respectfully disagree.

The jus ad bellum and the jus in bello are independent in the sense that a use of force may be lawful under one body of law but unlawful under the other. A war of aggression may strictly conform to the law of armed conflict, while a war of self-defense may flagrantly violate the law of armed conflict. At the same time, we do not conflate jus ad bellum andjus in bello simply by recognizing that certain factual circumstances (such as consent or non-consent) may be relevant to both bodies of law.

(For example, if one state exercises effective control over part of the territory of another state then this will ordinarily give rise to a belligerent occupation. Of course, if the territorial state consents then there is no belligerent occupation, not because the occupation is lawful but because there is no belligerency. The same logic applies to the use of armed force and the existence of armed conflict.)

Third, Gill notes that “neither the text of the relevant provisions in the Geneva Conventions (Common Articles 2 and 3) nor the original ICRC commentaries thereto contain any reference to violation of sovereignty as a criterion for determining the character of the armed conflict.” Nor does the ICTY’s Tadić judgment, which Gill rightly describes as “the leading judicial decision on the classification of armed conflicts.”

Since the Geneva Conventions do not tell us when an armed conflict between states exists, we must interpret their terms in light of their context, object, and purpose. The original ICRC commentaries state that “[a]ny difference arising between two States and leading to the intervention of members of the armed forces” gives rise to an armed conflict between those states. It is hard to imagine a more serious difference arising between two States than a difference regarding whether one may use armed force on the territory of the other. If such a difference leads to intervention by the armed forces of either state, then an armed conflict automatically arises.

In Tadić, the ICTY stated that “an armed conflict exists whenever there is a resort to armed force between States.” Importantly, “armed force between States” does not require that two states use armed force against one another but instead requires that one state uses armed force against another.

Now we approach the heart of the matter. What does it mean for one state to use force “against” another?  On the ICRC’s view, an armed interference in a state’s sphere of sovereignty is a use of force against that state.

Why invoke the concept of sovereignty in this context? States are legal persons, not physical persons or objects. Strictly speaking, one cannot use physical force against a legal person, such as a state or corporation. One can, however, use physical force against a physical entity—a person, place, or object—over which a legal person has legal rights. There is nothing else that physical force against a legal person could sensibly mean. On this approach, physical force is used against a state when physical force is used against a physical entity within that state’s sphere of sovereignty. There is nothing else that physical force against a state could sensibly mean.

Fourth, and most importantly, Gill identifies several examples involving extraterritorial force targeting armed groups in which “the States concerned [n]either verbally [n]or factually conduct themselves as if they were involved in an armed conflict, even though they may not have consented to the interventions and may have considered them a violation of their sovereignty (irrespective of whether they did constitute such violations).” These examples include military operations by the United States inside Pakistan and Yemen; by Turkey inside Iraq; by Kenya inside Somalia; and by Colombia inside Ecuador.

Admirably, Gill allows that “the lack of hostilities between the intervening and territorial States in these examples may be in whole or in part due to other factors.” But what should we make of the fact that these states may not claim to be in armed conflict with one another?  Is the absence of such claims, or the denial of such claims, “subsequent practice in the application of the treaty [in this case, the Geneva Conventions] which establishes the agreement of the parties regarding its interpretation?”

In my view, state silence is inherently ambiguous. Accordingly, we should consider only the explicit legal opinions of states that the law of IAC applies or does not apply. For example, Syria might announce that it is not in an IAC with the UK and that, accordingly, UK forces captured in Syria are not entitled to combatant immunity for acts preceding their capture. The UK would no doubt respond with its own legal opinion, based on its own classification of the conflict and identification of applicable legal rules.

Until subsequent practice establishes the agreement of the parties to the Geneva Conventions (that is, of all states) regarding their interpretation in such cases, we should interpret the terms of the Conventions in light of their object and purpose. As I discussed in my previous post, the object and purpose of the law of IAC is the protection of civilians, civilian objects, and combatants from hostile foreign states. As the ICRC puts it:

it is useful to recall that the population and public property of the territorial State may also be present in areas where the armed group is present and some group members may also be residents or citizens of the territorial State, such that attacks against the armed group will concomitantly affect the local population and the State’s infrastructure. For these reasons and others, it better corresponds to the factual reality to conclude that an international armed conflict arises between the territorial State and the intervening State when force is used on the former’s territory without its consent.

Strangely, in his first post on Just Security, Watkin objects that, by adverting to this factual reality, the ICRC “prioritizes form over substance” because the harm to civilians “may be a mere possibility.” Instead, Watkin suggests that conflict categorization should be based on “an assessment of what actually happens.” On this view, it seems that we will not know what law applies to a use of force until after the use of force is carried out. Among other things, we will not know which legal protections civilians enjoy until it is too late. This seems like an unattractive view.

For his part, Gill acknowledges that “an intervention may impact portions of a State’s population or its national resources,” but writes that

when a population and public property are under the control of an [organized armed group] and not under the effective control of the territorial State, they can no longer be identified with that State for purposes of determining the legal constraints on the conduct of hostilities. In the event the intervening State’s action resulted in occupation of territory, this would change the situation and trigger the regime pertaining to IACs.

Watkin seems to make a similar claim in his first post on Just Security.

Strikingly, Gill provides no support for the first sentence, which is hardly self-evident. Indeed, the first sentence seems to implicitly concede that persons and public property under the effective control of the territorial State can be identified with that State for purposes of conflict classification. Accordingly, if a member of an armed group travels through an area under the effective control of the territorial state then an attack in that area, potentially impacting nearby persons and property, would seem to constitute an attack on the state itself.

Moreover, the second sentence seems to undermine the first. According to Gill, territory under the control of an armed group remains sufficiently identified with the territorial state such that, if the intervening state occupies part of that territory, then an IAC arises between the two states. However, according to Gill, territory under the control of an armed group is not sufficiently identified with the territorial state such that, if the intervening state uses force on that territory, then an IAC arises between the two states. Since control never passes back to the territorial state, it is hard to see the legal or logical basis for this apparently incongruous result.

Finally, Gill observes that “most [academic] authorities take the position that the classification of armed conflicts primarily (but not exclusively) turns on the nature of the parties . . . .” In my view, it begs the question to say that, in the cases under discussion, the two states are not parties to an armed conflict. After all, if the ICRC is correct, then the two states are parties to an armed conflict.

In this post, I have tried to address the most substantial criticisms of the ICRC’s position. No doubt, other objections have been and will be raised. We should expect no less. The controversy that the ICRC’s position has elicited is, perhaps, the best evidence that conflict classification remains highly relevant to the legal regulation of armed conflict.

Whose Armed Conflict? Which Law of Armed Conflict?

adhaque_img“Whose Armed Conflict? Which Law of Armed Conflict?” by Adil Ahmad Haque, originally published on Just Security Blog on October 4, 2016. We are grateful for permission to reprint this as part of our series inspired by “Humagjicl_confposternity’s Common Heritage,” our recent conference on the 2016 ICRC Commentary on the First Geneva Convention. The author, Rutgers Law Professor Haque, was a conference participant; this post is the 2d of 3 he prepared soon after the conference. He writes:

When one state, say, the United States, uses military force on the territory of another state, say, Syria or Pakistan, without the consent of that state, what legal rules constrain that use of military force?  What if the attacking state does not target the armed forces or institutions of the other state but instead targets an organized armed group (say, ISIL or the Taliban) operating in the other state?

According to the International Committee of the Red Cross (ICRC) 2016 Commentary on the First Geneva Convention, if one state uses military force on the territory of another state then the use of force triggers an international armed conflict (IAC) between the two states, unless the territorial state consents to the use of force.  Accordingly, the law of IAC applies to, and constrains, all such uses of force.

Importantly, the law of IAC applies even if the intervening state exclusively targets an organized armed group operating in the territorial state. If there is a non-international armed conflict (NIAC) between the intervening state and the armed group then the law of NIAC may apply in parallel.

The ICRC’s position has attracted substantial criticism, including on Just Security (see here, here, and here).  I hope to respond to some of these criticisms in a future post.  For now, I will try to explain why I find the ICRC’s view persuasive.  This post, like my previous one, emerged from a terrific recent event at the University of Georgia School of Law that examined a number of issues raised by the Commentary.

Before we begin, let’s remember why the question is worth asking, and why the answer matters.  Conflict classification can seem dry and technical, but it affects both protection and accountability in armed conflict.

First, the treaty law of IAC is far more detailed and robust than the treaty law of NIAC.  Most importantly, the Geneva Conventions and Additional Protocol I are far more protective of both civilians and combatants than either Common Article 3 or (with respect to internal conflict) Additional Protocol II.

Second, the customary law of IAC remains distinct from the customary law of NIAC, though the gap has certainly narrowed since the 1990s. For its part, the ICRC identifies 23 customary rules applicable in IAC but not in NIAC. States that take a more conservative approach to customary international law may conclude that the gap between IAC and NIAC remains even wider than the ICRC maintains.

Finally, the Statute of the International Criminal Court recognizes 34 war crimes in IAC but only 19 war crimes in NIAC. Notably, the Statute recognizes knowing violation of the proportionality rule as a war crime when committed in IAC but not when committed in NIAC.

To fix ideas, consider the following scenario:

No Consent: State A launches an airstrike against organized armed group G on the territory of State T, foreseeably killing several civilians. State T exercises no control over group G, but also does not consent to State A’s strike.

According to the Commentary, State A’s strike triggers an IAC with State T to which the law of IAC applies.  If there is, in addition, a NIAC between State A and group G then these two conflicts occur in parallel.

(Note that conflict classification does not depend on the lawfulness of State A’s attack under the jus ad bellum. For these purposes, it does not matter whether State A is lawfully defending itself against an armed attack by group G or unlawfully using military force to eliminate a possible future threat.)

In my view, the ICRC’s position fully reflects the text, object, and purpose of the Geneva Conventions and their Additional Protocols. An international armed conflict is a dispute (‘conflict’) between states (‘international’) involving the use of military force (‘armed’).  It is hard to imagine a more serious dispute between states than a dispute regarding the use of military force by one on the territory of the other.

Indeed, States adopted the law of IAC in order to protect their civilians and armed forces from extraterritorial force by foreign states. States using force beyond their borders may not recognize many legal, ethical, or political constraints on their conduct. Accordingly, when State A uses force on the territory of State T, we need the law of IAC to protect the civilian population of State T from the military operations of State A and (as we shall see) to protect the armed forces of State A from criminal prosecution by State T.

In contrast, States adopted the law of NIAC primarily to regulate internal armed conflicts within their own territory.  States using force on their own territory may feel constrained by domestic law, human rights law, concern for their own citizens, and internal politics. Accordingly, the need for robust protection by the law of armed conflict may have seemed less urgent.

The alternative view—that no IAC exists and that the law of IAC does not apply—seems deeply implausible.

First, the law of NIAC may not apply either.  On the prevailing view, including that of the ICRC, the law of NIAC applies only to protracted armed confrontations between state armed forces and organized armed groups or between such groups.  If group G is not organized in the right way, or if fighting between State A and group G is not sufficiently intense, then a gap in protection would exist that no state would accept.  (As Just Securityreaders know, I partially reject the prevailing view and partially disagree with the ICRC on this point.)

Second, it is hard to believe that states would want legal protection for their civilians from foreign forces to depend on what those foreign forces choose to target.  If an intervening state targets the armed forces of the territorial state then civilians may receive robust protection under Additional Protocol I.  In contrast, if an intervening state targets an organized armed group then civilians may receive only the minimal protections of Common Article 3 (which, arguably, does not regulate the conduct of hostilities at all).  Defenders of the alternative view must explain why states would accept such limited protection for their civilians from foreign forces in such cases.

Third, in internal NIACs, states may be constrained in their treatment of their citizens by human rights law and by domestic law.  In contrast, in cross-border cases, IHL is the primary (though not exclusive) constraint on the intervening state’s conduct.  Accordingly, in cross-border cases, we should not rely on the law of NIAC to provide civilians with the level of protection envisioned by the parties to the Geneva Conventions and Protocols.

In my view, the customary law of NIAC now offers civilians protection comparable to that offered by the customary law of IAC.  However, in my view, we should interpret Common Articles 2 and 3 of the Geneva Conventions in light of the customary law of NIAC as it existed when those treaties were adopted and entered into force.  At that time, no state would have relied on the customary law of NIAC to protect their civilians from foreign states operating on their territory without their consent.

Fourth, the alternative view exposes the forces of the intervening state to criminal prosecution by the territorial state.  There is no combatant immunity in NIAC and, on the alternative view, there is no IAC.  It follows that, if State T captures State A’s pilot, then State T may prosecute the pilot for killing its civilians under State T’s domestic criminal law even if the strike did not violate the targeting rules of the customary law of NIAC.

In my view, State T’s capture of the pilot may itself trigger an IAC between the two states, such that the law of IAC would regulate his detention.  However, the strike occurred prior to capture and therefore, on the alternative view, before an IAC began.  Hence, the pilot would not be entitled to combatant immunity with respect to the strike.  Since combatant immunity exists to protect combatants from prosecution by foreign states for acts that do not violate the law of armed conflict, it is hard to see why states would deny their own forces such protection in such cases.

Finally, the alternative view seems ad hoc.  If one state uses military force against anything else in another state—citizens, state armed forces, or foreign visitors, private property, state institutions, or refugee camps—then it seem clear that an IAC exists and that the law of IAC applies.  Defenders of the alternative view must justify carving out an exception to this general rule for strikes directed at armed groups.  Given the evident need to protect civilians from the intervening state, and to protect captured combatants from the territorial state, such a justification seems hard to imagine.

For these reasons, I favor the ICRC’s position over the alternative view.  The use of force by one state on the territory of another should be constrained by the law of IAC, even if that force targets an organized armed group on that territory, unless the territorial state consents to that use of force.  As mentioned earlier, the ICRC’s position has attracted criticism, some of which I hope to address in a future post.