Finnish Yearbook of International Law Volume 24, 2014 9781849467469, 9781782257820, 9781509901951

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Finnish Yearbook of International Law

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Finnish Yearbook of International Law Volume 24, 2014

Edited by

Tuomas Tiittala

OXFORD AND PORTLAND, OREGON 2018

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2018 © The editors and contributors severally 2018 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, ­electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www. nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-84946-746-9 ePDF: 978-1-50990-195-1 ePub: 978-1-50990-196-8 Library of Congress Cataloging-in-Publication Data Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters. The editors welcome unsolicited contributions related to international law. General information for authors and a detailed guide to the Yearbook’s house style can be found at www.fybil.org. Communications to the editors should be addressed to: Finnish Yearbook of International Law Erik Castrén Institute of International Law and Human Rights P.O. Box 4 (Yliopistonkatu 3) FI-00014 University of Helsinki, Finland E-mail: [email protected]

Finnish Yearbook of International Law Editor-in-Chief Tuomas Tiittala

Book Review Editor Rain Liivoja

Special Section Editor Ukri Soirila

Editors Paolo Amorosa Laura Kirvesniemi Tero Kivinen Eliška Pírková Iuliana-Raluca Luca Walter Rech Janne Valo

Associate Editors Juho Aalto Ilari Autio Susanna Kaavi Jens Kremer Katariina Paakkanen Olivia Packalén-Peltola Vasilena Savova David Scott

Mehrnoosh Farzamfar Tero Lundstedt Cecilia Pellosniemi Raisa Uljas

Editorial Advisory Board Ove Bring Bengt Broms Christine Chinkin James Crawford Ruth Donner Kari Hakapää Lauri Hannikainen Päivi Kaukoranta Jan Klabbers

Outi Korhonen Martti Koskenniemi Erkki Kourula Pirkko Kourula Raimo Lahti Marja Lehto Kimmo Nuotio Anne Orford Esa Paasivirta

Allan Rosas Holger Rotkirch Martin Scheinin Bruno Simma Markku Suksi Hugh W. A. Thirlway Pål Wrange

Honorary Board Katja Creutz Veijo Heiskanen Juhani Kortteinen Paavo Kotiaho

Tuomas Kuokkanen Juhani Parkkari Jarna Petman Ritva Saario

Kari T. Takamaa Taina Tuori Matti Tupamäki Åsa Wallendahl

Contents Articles Tilmann Altwicker Explaining the Emergence of Transnational Counter-Terrorism Legislation in International Law-Making Mehrnoosh Farzamfar Diplomatic Assurances in Cases of Expulsion to Torture: A Critical Analysis Vincent Dalpé Delimiting the ICC’s Ominous Shadow: An Analysis of the Inability Criterion’s Nebulous Contours

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Special Section: Sovereignty, Territory and Jurisdiction Ilja Richard Pavone The Ukraine Crisis as a Paradigm of the Limits of International Law and the West’s Faults Richard C Watkins Jurisdiction in International Human Rights Law: Application of the European Convention to Soldiers Deployed Overseas Heini Tuura Intervention by Invitation and the Principle of Self-Determination in the Crimean Crisis Marc Shucksmith-Wesley Uti Possidetis: The Procrustean Bed of International Law? Giuliano Vosa From Authorisation to Multi-Parliamentarism: Parliaments in Global Law-Making

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Book Reviews Edited by Rain Liivoja Sia Spiliopoulou Åkermark Hans-Joachim Heintze and Pierre Thielbörger (eds), From Cold War to Cyber War: The Evolution of the International Law of Peace and Armed Conflict over the Last 25 Years Gian Luca Burci Jan Klabbers, Advanced Introduction to the Law of International Organisations Samuli Haataja Nicholas Tsagourias and Russell Buchan (eds), Research Handbook on International Law and Cyberspace Natalia Jevglevskaja Stuart Casey-Maslen (ed), Weapons under International Human Rights Law Tero Lundstedt Duncan French (ed), Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law

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New Finnish Doctoral Dissertations in International Law Johanna Friman The Dual Face of Defence—A Revision of the Concept of Defence in the Jus ad Bellum Statement by Claus Kreβ Anne-Charlotte Martineau The Debate of the Fragmentation of International Law: A Critical Analysis Statement by Karen Knop Katja Creutz State Responsibility in International Law: From Paradigm to Periphery Statement by Christian J Tams Jari Pirjola Dark and Bright Sides of Human Rights: Towards Pragmatic Evaluation Statement by Elina Pirjatanniemi Juan Pablo Pérez-León-Acevedo Victims’ Status at International and Hybrid Criminal Courts: Victims’ Status as Witnesses, Victim Participants/Civil Parties and Reparations Claimants Statement by Elizabeth Salmón

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Explaining the Emergence of Transnational Counter-Terrorism Legislation in International Law-Making Tilmann Altwicker* Abstract: As the recent adoption of UN Security Council Resolution 2178 on Foreign Terrorist Fighters shows once again, international law-making in the field of counter-terrorism has embraced a new mode. The article suggests that an approach drawing on new institutional economics is a commendable way to analyse the features of the new mode of international counter-terrorism law-making. Based on the reasons why states cooperate through law-making on matters of counter-terrorism, a taxonomy of international law-making techniques in this field is developed (‘harmonisation’, ‘imposition’, and ‘diffusion’ of legal norms). The article argues that the new mode of counter-terrorism law-making can best be explained as emerging transnational legislation. ‘Transnational legislation’ refers to abstract-general norms on the conduct of non-state actors with cross-border application or intended cross-border effect. The key features of these norms are, ie, their regulatory nature, their regulatory depth, as well as their potential to be ‘selfexecuting’. The emergence of this new body of law poses two key problems: How to facilitate further integration of the international and the domestic legal orders, and how to safeguard the integrity of the new transnational norms. Keywords: counter-terrorism, international law-making, transnational law/ legislation, new institutional economics

1. Introduction Counter-terrorism has become a highly innovative, experimental field of international law-making. While there is still no universal definition of * Swiss National Science Foundation (SNSF)-Professor for Public Law, Public International Law, Legal Philosophy and Empirical Legal Research, University of Zurich, Switzerland. Email: [email protected]. I thank Anne Peters and Nuscha Wieczorek for comments on an earlier version, as well as the participants of the International Law Forum at the Hebrew University of Jerusalem (10 June 2014), especially Shai Dotan, Efrat Hakak, Guy Harpaz, Moshe Hirsch, Yahli Shereshevsky, and Yuval Shany. I also wish to express my gratitude to the anonymous reviewers of the FYBIL. The SNSF is to be thanked for generous support which made this publication possible. The usual disclaimer applies.

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terrorism in international law, other disciplines such as international relations and philosophy have come up with viable working definitions. Here, I follow Todd Sandler who defines terrorism as ‘the premeditated use or threat of use of violence by individuals or subnational groups to obtain a political or social objective through intimidation of a large audience beyond that of the immediate victims’.1 For more than a decade now (though with origins dating back long before the attacks of 9/11), the international legal agenda has been preoccupied with counter-terrorism.2 The universal legislative framework against terrorism currently consists of 14 multilateral conventions,3 three lawmaking Security Council resolutions, as well as a number of influential soft law instruments. Regarding treaty law, I limit my analysis to the following five conventions deposited with the UN Secretary-General: Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents;4 International Convention against the Taking of Hostages;5 International Convention for the Suppression of Terrorist Bombings;6 International Convention for the Suppression of the Financing of Terrorism;7 and International Convention for the Suppression of Acts of Nuclear Terrorism.8 These treaties were chosen for a number of reasons: First, the selected treaties reflect the development of more than 40 years of international law-making on counter-terrorism. Second, these treaties are referenced by other international legal instruments when the (highly controversial issue of a) definition of terrorism is at stake.9 Third, the selected instruments show the variety of regulatory choices available in international law-making on counter-terrorism (eg obligations to criminalise, obligations to cooperate, obligations to safeguard human rights while countering terrorism). Concerning UN Security Council resolutions, I draw 1. Todd Sandler, ‘Collective versus Unilateral Responses to Terrorism’ (2005) 124 Public Choice 75–93, 75. 2. For an overview, see Nigel D White, ‘The United Nations and Counter-Terrorism’ in Ana María Salinas de Frías et al (eds), Counter-Terrorism: International Law and Practice (Oxford, Oxford University Press, 2012) 54–82. 3. The universal legislative framework against terrorism currently consists of 19 international instruments, (last visited 9 July 2017). 4. 14 December 1973, 1035 UNTS 167. 5. 18 December 1979, 1316 UNTS 205. 6. 12 January 1998, 2149 UNTS 256. 7. 10 January 2000, 2178 UNTS 197. 8. 14 September 2005, 2445 UNTS 89. 9. See art 1(1) of the Council of Europe’s Convention on the Prevention of Terrorism, 16 May 2005, ETS No 196 (referring to the Appendix, which in turn relies on a list of 11 international counter-terrorism instruments among which those cited above are contained).

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on Security Council Resolution (SC Res) 1373,10 SC Res 154011 and SC Res 217812 because these resolutions form a distinct regulatory framework on counter-terrorism. Finally, as a prominent example of how soft law functions in the field of counter-terrorism, I will examine the Financial Action Task Force (FATF) Special Recommendations on Terrorist Financing as this body of rules significantly determines—in line with the idea of transnational law—also the conduct of non-state actors (such as banks and other financial intermediaries).13 A closer look at the creation of this universal legislative framework reveals that international law-making is in a process of change. Though it seems too early to say whether the innovations made in the field of counter-terrorism are here to stay or even to spill over to other fields of international law (disregarding for the moment whether that would be desirable at all),14 a ­systematic approach to international law-making on global counter-terrorism is lacking. Is international law-making, within the field of counter-terrorism, entering a new stage? What are the suitable conceptual and methodological tools with which to analyse these developments? What are the reasons for this new mode of making global counter-terrorism law? While a comprehensive approach would have to include both the domestic dimension of global counter-­terrorism law-making as well as judicial responses to it, the present article is limited to international law-making on this issue. The article argues that law-making in this field can best be explained as the creation of a ‘transnational legislation’ on counter-terrorism. I define the underlying concept of ‘transnational law’ as ‘law on the conduct of non-state actors with crossborder application or intended cross-border effect’.15 The article includes five parts. Aiming at a principled explanation of the new mode of international law-making in the field of counter-terrorism, the second part outlines three reasons why states cooperate (through international law-making) on issues of global counter-terrorism in the first place. This part

10. UN Doc S/RES/1373, 28 September 2001. 11. UN Doc S/RES/1540, 28 April 2004. 12. UN Doc S/RES/2178, 24 September 2014. 13. (visited 6 July 2017). Other influential soft law instruments are the Global Counter-Terrorism Strategy, GA Res 60/288, UN Doc A/RES/60/288, 20 September 2006, and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, GA Res 65/221, UN Doc 65/221, 5 April 2011. 14. For a critical stance, see Kim Lane Scheppele, ‘From a War on Terrorism to Global Security Law’, Institute for Advanced Study, (last visited 10 July 2017). 15. See in detail section 3 below (also for my understanding of ‘legislation’).

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is based on new institutional economics and explains why actors engage in international law-making on counter-terrorism. The third part argues that the new international law-making in the field of counter-terrorism can best be explained as emerging transnational counter-terrorism legislation. The fourth  part distinguishes three techniques used to create abstract-general­ norms on counter-terrorism. The fifth part concludes that the emerging transnational legislation on counter-terrorism poses two key problems, namely, first that of ‘integration’ (ie how to best bridge the gap between ‘the international’ and ‘the domestic’ in counter-terrorism law-making) and, second, that of ‘integrity’ (ie how to guarantee that the new transnational counterterrorism norms are effectively constrained by human rights concerns).

2.  Reasons for Transnational Counter-Terrorism Legislation Why does the international community engage in counter-terrorism lawmaking? In order to be able to answer this question one must have an idea of what international law is fundamentally about and what interests it serves (and how). To phrase it as a question: What assumption concerning the purpose of international law do we make when we say that (more) international law is desirable or even necessary in the fight against global terrorism? For the aims of this article, I assume that international law is in essence about cooperation among the actors of international law. For analytical support, I rely on a recent work by Joel Trachtman, The Future of International Law.16 The article follows Trachtman (who, in turn, relies on ­Wolfgang Friedmann) regarding his starting point that international law is about (a formal type of ) cooperation.17 Why do states cooperate on matters of global terrorism? Surely, the reasons for international cooperation are a traditional ‘battleground’ of the sociology of international law.18 ­Trachtman approaches international cooperation from a public welfarist angle, ­claiming that the subjects of the international community (states, in his case) use international law ‘to better their lot’.19 Thus, according to Trachtman, ­ ­international c­ ooperation takes place when it increases public welfare gains

16. Joel P Trachtman, The Future of International Law: Global Government (Cambridge, ­Cambridge University Press, 2013). 17. Ibid, 22–40. 18. See Jan Klabbers, An Introduction to International Institutional Law, 2nd edn (New York, Cambridge University Press, 2009) 25–31. 19. Trachtman (n 16) 22–23.

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for the participating members of the international community.20 According to Trachtman, the content of public welfare is determined by domestic procedures (in democratic states through voting and elections).21 Applying Trachtman’s approach to the problem at hand, the initial question can be reformulated as follows: What are the welfare gains expected from international cooperation on global counter-terrorism? Methodologically, this part utilises a ‘new institutional economics’ approach (as Trachtman does, too).22 This approach can be gainfully applied when analysing the welfare gains expected from international cooperation in the field of global counter-terrorism. ‘New institutional economics’, in my view, provides the best explanation in matters of complex governance structures. It explains the formation and change of institutions, and addresses the underlying behavioural assumptions concerning human cooperation. For the present context of the reasons for cooperation on counter-terrorism, the following analytical concepts of new institutional economics are particularly useful: The production of public goods, transaction cost economics, and cost/ benefit-analysis of institutions.

2.1.  Efficiency Gains The first straightforward reason for international cooperation on counterterrorism is the (expected) efficiency gains. Global terrorism, by definition, crosses borders, as it targets victims of foreign states, and often affects the interests of more than one state. In this situation, efficiency gains through international cooperation are relatively easily made: For example, by sharing information on terrorist suspects, costly (and sometimes even impossible) intelligence collection by each state on its own can be avoided.23 In many cases, foreign intelligence services will lack even the capabilities to collect

20. Trachtman (n 16) 23. 21. Trachtman (n 16) 23. 22. Trachtman (n 16) 13. The classical text of new institutional economics is Douglass C North, Institutions, Institutional Change and Economic Performance (Cambridge, ­Cambridge University Press, 1990). For an introduction, see Paul L Joskow, ‘Introduction to New Institutional Economics’ in Éric Brousseau, Jean-Michel Glachant (eds), New Institutional Economics: A Guidebook (Cambridge, Cambridge University Press, 2008) 1–20. 23. For transatlantic intelligence information-sharing between the US and the EU, see Christian Kaunert, ‘The External Dimension of EU Counter-Terrorism Relations: ­ Competences, Interests, and Institutions’ (2010) 22 Terrorism & Political Violence ­ 41–61, 55.

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information on transnational terrorism on their own and therefore instead rely on international intelligence networks.24 Furthermore, international cooperation allows for joint counter-terrorism investigations and actions: Surveillance missions on the High Seas where joint counter-terrorism action may reduce the costs for each participating state while at the same time ensuring the global movement of people and goods are a suitable example.25 ­Furthermore, some have argued that cooperation tends to increase the ambitions of the participants, ie joint efforts would lead to an increased efficiency in the performance of a task.26 In sum, international cooperation allows expeching the generation of better results in the prevention (and prosecution) of terrorist crimes. Of course, not all members of the international community (states, for that matter) are affected by global terrorism to the same degree. Those states more affected by global terrorism are likely to anticipate greater efficiency gains from increased international cooperation than less affected states. Furthermore, asymmetries in the size or power of the actors (ie the capability to counter threats of global terrorism) are likely to affect each state’s willingness to cooperate.27 For example, while Switzerland has good reasons to consider itself a ‘safe place’ as regards global terrorism, it nevertheless actively participates in the major European and international security networks, eg Schengen.28 A central reason is the limited capacity of Switzerland to independently ensure its own security. This is especially true regarding the protection of Switzerland’s airspace which currently partly relies on foreign contributions, eg by France and Italy.

2.2.  External Effects Efficiency gains are not the only reason why states cooperate on matters of counter-terrorism. The way states deal with problems of global terrorism is likely to produce (negative) external effects, ie adverse effects caused by one 24. See Jennifer E Sims, ‘Foreign Intelligence Liaison: Devils, Deals, and Details’ (2006) 19 International Journal of Intelligence and Counterintelligence 195–217. 25. See on this Yonah Alexander and Tyler B Richardson, Terror on the High Seas: From Piracy to Strategic Challenge (Santa Barbara, Praeger, 2009). 26. Wynn Rees, Transatlantic Counter-Terrorism Cooperation: The New Imperative, 1st edn (Oxon, Routledge, 2006) 30. 27. On this point see generally Daniel W Drezner, ‘Globalization and Policy Convergence’ (2001) 3 International Studies Review 53–78, 60. 28. On the terrorism situation in Switzerland, see the 2014 Situation Report, Swiss Federal Intelligence Service (FIS), (last visited 12 July 2017).

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state affecting another state.29 In the context of counter-terrorism, some speak of ‘security externalities’.30 The following hypothetical case may serve as an example: State A has a common border with state B. Due to a lack in professionalism and in capacity, state B does not provide for effective transport security and border control which causes increased spending in state A in order to prevent terrorists from infiltrating the country from across the border.31 The inaction (or incapacity) of state B, thus, has external effects in state A. In times of global interdependence the potential impact of negative externalities is ever more powerful and widespread.32 Cooperation is a way to address or ‘internalise’ some negative externalities. To get back to the example of states A and B: State A would enter into bilateral cooperation with state B or seek assistance from other states or the international community.33 In the situation of external effects, collective action problems arise, such as deterrence races between states (by each state overspending on counterterrorism and thus deflecting terrorist attacks to third countries) and freeriding problems (where one state anticipates another state to act that is either more powerful or more likely to be affected by an otherwise shared terrorist threat).34 Cooperation in the form of international law is an attempt to address these collective action problems. Rules on jurisdiction that are contained in all international counter-terrorism conventions are a good example: By allocating jurisdiction, these international rules ‘establish congruence between decisionmaking authority and the effects of the exercise of authority’.35 Requiring contracting states to establish jurisdiction over certain terrorist offences (as suppression conventions do), thus eliminates a free-riding problem— contracting states are required to act upon allegations of terrorist offences regardless of whether they anticipate another state to act as well.

29. On external effects and international law, see Jeffrey L Dunoff and Joel P Trachtman, ­‘Economic Analysis of International Law’ (1999) 24 Yale Journal of International Law 1–59, 14–16. 30. Howard C Kunreuther and Erwann O Michel-Kerjan, ‘The Economics of Security Externalities: Assessing, Managing and Benefiting from Global Interdependent Risks, Risk Management and Decision Processes Center at the Wharton School of the University of Pennsylvania’, (visited 6 July 2017). 31. This is the case, eg, with the Tajik-Afghan border. See the 2012 Country Reports on Terrorism, United States Department of State Publication, Bureau of Counterterrorism. 32. See Kunreuther and Michel-Kerjan (n 30) 3. 33. The latter happened in the case of Tajikistan, see 2012 Country Reports on Terrorism, ibid, 171–72. 34. Todd Sandler, ‘Collective Action and Transnational Terrorism’ (2003) 26 World Economics Journal 779–802, 781. 35. Trachtman (n 16) 26.

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2.3.  Weakest Link Public Good In international legal literature, the global public goods taxonomy has recently gained some currency.36 It can be useful for understanding global law-making efforts on counter-terrorism as well. The production of global public goods (and the problems surrounding that) is another reason why actors engage in international cooperation. ‘Public goods’ are defined by two characteristics: ‘non-rivalry’ (ie the good may be consumed by one actor without diminishing its availability to others) and ‘non-excludability’ (ie no actor may be excluded from consumption regardless of whether she contributed to its production or not).37 The following goods are, among others, discussed under the heading of ‘global public goods’: environment, health, cultural heritage, knowledge and information, peace and security.38 Public goods are usually distinguished on the basis of differences in their provision: ‘aggregate effort public goods’, ‘single best effort public goods’ and ‘weakest link public goods’.39 Aggregate effort public goods are those that can only be produced together (by all states). Daniel Bodansky gives the example of climate change mitigation. Climate change mitigation is ‘a function of the total level of greenhouse gas emissions reductions achieved by all of the countries in the world’.40 Single best effort public goods are unrelated to cooperative efforts, but instead ‘depend on the single best effort of an individual actor or small group of actors’, such as scientific discoveries.41 Most relevant in the context of counter-terrorism is the third category of weakest link public goods. The provision of such goods does not depend on aggregate effort, but on the performance of the ‘weakest’ member of a community.42 An example is the prevention of global pandemics: The success of the eradication of smallpox could be ‘undone by a single actor that fails to do its part’.43 Some efforts by states in the global fight against terrorism can be considered a ­weakest link 36. See Inge Kaul, ‘Global Public Goods: Explaining their Underprovision’ (2012) 15 Journal of International Economic Law 729–50; Daniel Bodansky, ‘What’s in a Concept? Global Public Goods, International Law, and Legitimacy’ (2012) 23 European Journal of International Law 651–68; Gregory C Shaffer, ‘International Law and Global Public Goods in a Legal Pluralist World’ (2012) 23 European Journal of International Law 669–93. 37. Bodansky, ibid, 652. 38. This list is based on the case studies in Inge Kaul, Isabelle Grunberg and Marc A Stern (eds), Global Public Goods: International Cooperation in the 21st Century (Oxford, Oxford University Press, 1999). 39. See on this Bodansky (n 36) 658–65. 40. Bodansky (n 36) 658–59. 41. Bodansky (n 36) 663. 42. Bodansky (n 36) 660. 43. Bodansky (n 36) 661.

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global public good. For example, Nico Krisch has recently discussed countering terrorist financing as a weakest link good.44 Non-compliance of just a few states with the global rules will seriously hamper efforts (which are oftentimes futile) by individual states to curb terrorist financing.45 The same is true for nuclear terrorism,46 and for states failing to prevent terrorists from building training camps on their territory.47 All (or much) effort by the international community to contain global terrorism is useless if just one state defects.

3.  Elements of Transnational Counter-Terrorism Legislation Is there such a thing as ‘transnational counter-terrorism legislation’? By a doctrinal analysis of global counter-terrorism norms contained in international treaties, Security Council resolutions and soft law instruments, this part argues that transnational counter-terrorism legislation is indeed emerging. There are two preliminary remarks. First, there is not one definition of ‘transnational law’, there are many. However, probably due to the diversity of ‘transnational issues’, most of these definitional attempts do not offer a promising conceptual framework within which one can reconstruct the global law on counter-terrorism.48 Throughout this article, I refer to ‘transnational law’ as law on the conduct of non-state actors with cross-border application or intended cross-border effect.49 Transnational law in my reading, therefore, has two conceptual elements: One element pertains to the cross-border a­pplication or

44. Nico Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’ (2014) 108 American Journal of International Law 1–40, 20–25. 45. This is one of the reasons the international community seeks to eliminate ‘safe havens’ for terrorists, see SC Res 1373, UN Doc S/RES/1373, 28 September 2001, para 2(c). 46. For an economics approach to nuclear terrorism as a weakest link problem, see Stefano Barbieri and David A Malueg, ‘Securing Security when Terrorists Attack the “Weakest Link”’, (visited 6 July 2017). 47. I am grateful to Guy Harpaz for this point. 48. Definitions of transnational law are often too broad. See eg Philip C Jessup, Transnational Law (New Haven, Yale University Press, 1956) 2 (‘all law which regulates actions or events that transcend national frontiers … [relating to] [b]oth public and private international law … [as well as] other rules which do not wholly fit into such standard categories’). 49. This definition is inspired by the one given by Daniel Bethlehem, ‘The End of Geography: The Changing Nature of the International System and the Challenge to International Law’ (2014) 25 European Journal of International Law 9–24, 23 (‘the law that applies internationally to the conduct of individuals’) and by Roger Cotterrell, ‘Transnational Communities and the Concept of Law’ (2008) 21 Ratio Juris 1–18, 2 (‘By transnational regulation is meant here regulation that applies to (or is intended to affect directly) non-state agents (individuals, groups, corporate bodies) and is not restricted within the jurisdictional limits of a single nation state’).

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effect of norms, and the other to the conduct of non-state actors as the object or target of these norms. On the basis of this definition, large parts of international law dealing with inter-state affairs (eg the rules on state responsibility and the law of diplomatic relations) would not be considered as ‘transnational law’. International human rights, on the other hand, establishing entitlements for individuals in a multiplicity of states, are ‘transnational law’. By using this doctrinal concept of transnational law we are able to flag up some norms (of international or domestic law) as belonging to ‘transnational law’. Second, in giving meaning to the concept of ‘transnational legislation’, it makes sense to take two distinguishing features of legislation from the domestic context as a starting point. These two key elements of the concept of ‘legislation’ are, first, the ‘regulatory’ nature of norms (ie understood as abstract-general rules pertaining to the conduct of non-state actors) and, second, the ‘authoritativeness’ of these norms.50 Due to the structural differences of the international legal order, it is not to be expected that the domestic ideal-type concept of ‘legislation’ can simply be transplanted into the international legal sphere. Rather, it seems worthwhile to look for functional equivalents and approximations.51 This part addresses the two elements of ‘transnational legislation’ in turn. Central is the peculiar relationship of this emerging body of law to individuals. It is this relationship that ultimately distinguishes transnational law from (ordinary) international law. It shall be argued that global counter-terrorism law shapes and impacts the ‘normative situation of non-state actors’, ie their obligations and (still too insignificantly) their rights. The element of crossborder application or effect of the norms is of no concern here. As the article solely deals with global counter-terrorism law (as contained in international legal instruments), this element is fulfilled by definition. The emerging transnational counter-terrorism legislation ultimately gives rise to the problem of ‘constitutional gatekeeping’ which is considered in the concluding part.

3.1.  Regulatory Nature In what sense does global counter-terrorism law shape the normative situation of non-state actors? The concept of ‘transnational law’, as it was defined above,

50. See Jutta Brunnée, ‘International Legislation’ (2008) in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (17 June 2014), (last visited 6 July 2017). 51. In the context of the debate on global constitutionalism and its use of the concept of ­constitution, this method has been referred to as ‘correspondence strategy’, see Oliver Diggelmann and Tilmann Altwicker, ‘Is There Something Like a Constitution of International Law? A Critical Analysis of the Debate on World Constitutionalism’ (2008) 68 Heidelberg Journal of International Law 623–50, 637–39.

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captures one of the most significant recent developments in ­international law-making: The turn to the individual. In the context of counter-terrorism, this turn to the individual is of a different nature than, eg, in international human rights law (which also concerns the normative situation of individuals). For the purposes of this article, a norm is considered to ‘shape’ the normative situation of individuals if it is directed at permitting, proscribing or commanding human conduct. Whereas transnational law in the form of human rights law is of an enabling or agency-enhancing nature, in the context of counter-terrorism, transnational law is about controlling or restricting the conduct of non-state actors. This move has been identified by Jacob Katz Cogan as the ‘regulatory turn’ in international law.52 This means that the subjects of international law have in recent times: at an unprecedented rate entered into agreements, passed resolutions, enacted laws, and created institutions and networks, formal and informal, that impose and enforce direct and indirect international duties upon individuals or that buttress a state’s authorities respecting those under and even beyond its territorial jurisdiction.53

Since acts of terrorism are to a large part committed by non-state actors, global counter-terrorism law is a prime example of the ‘regulatory turn’ in international law.54 The ‘regulatory’ nature is a striking feature of transnational counter-terrorism law. ‘Regulatory law’ shall be understood here as norms creating obligations for non-state actors (private individuals and non-state entities).55 Subsequently, ‘transnational regulatory law’ refers to norms with cross-border application or effect-creating obligations for non-state actors. In principle, there are three instruments used for shaping the normative situation of individuals: law-making treaties, (unilateral) quasi-legislative resolutions, and soft law instruments. The bulk of transnational regulatory law in the field of counter-terrorism is contained in law-making treaties (transnational regulatory treaty-norms).56 As mentioned above, there are currently 14 universal legal instruments and four amendments dealing with counter-terrorism.57 Some norms of these

52. See Jacob Katz Cogan, ‘The Regulatory Turn in International Law’ (2011) 52 Harvard International Law Journal 321–72, 346. 53. Ibid, 325. 54. As Katz Cogan rightly stresses, the regulatory turn neither started with counter-terrorism law-making after the 9/11 attacks in the US nor is it, today, limited to it (given the international regulatory activity in fields such as ‘environmental law’, ‘organised crime’ and ‘violence against women’), see Katz Cogan (n 52) 349–50. 55. Cf Katz Cogan (n 52) 324. 56. On the concept of a law-making treaty see Brunnée (n 50) paras 4–6. 57. See n 3.

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s­uppression conventions relate to the normative situation of individuals, ie they shape the obligations and, much less frequently, rights of non-state actors.58 One way in which suppression conventions influence the normative situation of individuals is by requiring states to criminalise certain forms of individual conduct.59 Other transnational regulatory norms concern the introduction of particular professional duties (eg, the duty to verify a ­customer60 and the duty to keep records on transactions61). The normative situation of individuals is also shaped through quasi-legislative resolutions by the Security Council (transnational regulatory resolutions). The three (sole) examples of quasi-legislative resolutions so far, Security Council resolutions 1373 (2001), 1540 (2004), and 2178 (2014) all ultimately target the normative situation of non-state actors in an abstract-general way. Even though they refer to ‘states’ or ‘Member States’ as formal addressees,62 their content regulates the conduct of non-state actors: For example, Security Council Resolution 1373 (2001) demands the criminalisation of: the wilful provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist acts.63

Similarly, Security Council Resolution 1540 (2004) mandates that states: … shall adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, 58. One may want to read the ambition of designing the normative situation of individuals into norms declaring that ‘[n]othing in this Convention shall affect other rights, obligations and responsibilities of … individuals under international law …’, for example, International Convention for the Suppression of the Financing of Terrorism art 21, 10 January 2000, 2178 UNTS 239 (emphasis added). See also International Convention for the Suppression of Acts of Nuclear Terrorism art 4(1), 14 September 2005, 2445 UNTS 89. 59. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents art 2(1) & (2), 14 December 1973, 1035 UNTS 167; International Convention against the Taking of Hostages arts 1 and 2, 18 December 1979, 1316 UNTS 205; International Convention for the Suppression of Terrorist Bombings arts 2 and 4, 12 January 1998, 2149 UNTS 256; International Convention for the Suppression of the Financing of Terrorism arts 2 and 4, 10 January 2000, 2178 UNTS 197; International Convention for the Suppression of Acts of Nuclear Terrorism arts 2 and 5, 14 September 2005, 2445 UNTS 89. 60. International Convention for the Suppression of the Financing of Terrorism art 18(1)(b), 10 January 2000, 2178 UNTS 197. 61. International Convention for the Suppression of the Financing of Terrorism art 18(1)(b) (iv), 10 January 2000, 2178 UNTS 197. 62. Couched in the formula of ‘[d]ecides that all States shall’, see SC Res 1373, UN Doc S/RES/1373, 28 September 2001, para 1–2; SC Res 1540, UN Doc S/RES/1540, 28 April 2004, para 2. 63. SC Res 1373, UN Doc S/RES/1373, para 1(b). For another example see ibid, para 1(d).

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chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them.64

Security Council Resolution 2178 (2014), as did Resolution 1373 (2001), even prescribes the type of legislation to be used and the intensity with which states must regulate the prohibited conduct by deciding that all states: … shall ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense.65

Apart from the three quasi-legislative resolutions, there are a few other examples of counter-terrorism resolutions where the Security Council (albeit in a more implicit and, above all, non-binding way) undertook to shape the normative situation of individuals.66 As Ryan Goodman states, the adoption of Resolution 2178 ‘solidifies a mode of transnational legal regulation’ over counter-terrorism.67 Lastly, the normative situation of individuals is, albeit to a lesser extent, also shaped by soft law (transnational regulatory soft law provisions).68 Tellingly, the UN General Assembly—a large producer of (non-binding) international soft law—has largely refrained from taking part in the recent transnational regulatory activity.69 Of course, resolutions by the General Assembly are nonbinding, but they may provide an authoritative interpretation of principles of the UN Charter and, arguably, also other international treaty law.70 In its counter-terrorism resolutions, the General Assembly addresses the duties of

64. SC Res 1540, UN Doc S/RES/1540, 28 April 2004, para 2. 65. SC Res 2178, UN Doc S/RES/2178, 24 September 2014, para 6 (emphasis here). 66. Clearly, in SC Res 1624, UN Doc S/RES/1624, 14 September 2005, para 1: ‘Calls upon all States to adopt such measures as may be necessary and appropriate and in accordance with their obligations under international law to: (a) Prohibit by law incitement to commit a terrorist act or acts; (b) Prevent such conduct; (c) Deny safe haven to any persons with respect to whom there is credible and relevant information giving serious reasons for considering that they have been guilty of such conduct’. 67. Ryan Goodman, ‘The Foreign Fighter Resolution: Implementing a Holistic Strategy to Defeat ISIL’ Just Security Blog (2014), (last visited 6 July 2017). 68. On the idea of ‘international legislative soft law’, see Andrew T Guzman and Timothy L Meyer, ‘Soft Law’ (2014), (last visited 6 July 2017). 69. Historically, however, the UN General Assembly has been a driving force (especially in the 1970s and 1990s) in turning counter-terrorism into an international concern, starting with GA Res 3034(XXVII), UN Doc A/RES/3034(XXVVII) (18 December 1972), adopted in the aftermath of the terrorist attacks on the Munich Olympic Games. 70. See Ian Brownlie, Principles of Public International Law, 6th edn (Oxford, Oxford University Press, 2003) 14–15.

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states (often in a general way),71 reflects its own role as a coordinator and information provider,72 or as an initiator for further law-making,73 but it does not actively take part in regulatory transnational law-making.74 This may be a wise move, given that the General Assembly has—in the context of ­counter-terrorism—taken the role of a ‘constitutional gatekeeper’ as will be illustrated below.75 Indeed, it seems problematic for one institution to exercise both a regulatory function and a constitutional gatekeeping function. At the same time, new important actors that create transnational regulatory soft law provisions on counter-terrorism have entered the scene. An example is the Financial Action Task Force (FATF), an intergovernmental body established by the G-7 Summit Group in 1989.76 The FATF is an expert-driven transnational legislative network.77 The task of the FATF is ‘to set standards and promote effective implementation of legal, regulatory and operational measures for combating money laundering, terrorist financing and other related threats to the integrity of the international financial system’, that is the FATF is entrusted with creating international soft law.78 A central soft law instrument

71. For example, Measures to Eliminate International Terrorism, GA Res 65/34, para 5, UN Doc A/RES/65/34 (6 December 2010): ‘Reiterates its call upon all States to adopt further measures in accordance with the Charter of the United Nations and the relevant provisions of international law, including international standards of human rights, to prevent terrorism and to strengthen international cooperation in combating terrorism and, to that end, to consider in particular the implementation of the measures set out in paragraphs 3 (a) to (f ) of General Assembly resolution 51/210’. 72. Ibid, para 3. 73. Ibid, para 8: ‘Expresses concern at the increase in incidents of kidnapping and hostagetaking with demands for ransom and/or political concessions by terrorist groups, and expresses the need to address this issue’ (emphasis omitted). 74. One exception can be found in ibid, para 9: ‘Urges States to ensure that their nationals or other persons and entities within their territory that wilfully provide or collect funds for the benefit of persons or entities who commit, or attempt to commit, facilitate or participate in the commission of terrorist acts are punished by penalties consistent with the grave nature of such acts’. 75. See Nigel D White, ‘Terrorism, Security and International Law’ in Aidan Hehir et al (eds), International Law, Security and Ethics: Policy Challenges in the Post-9/11 World (Oxon, Routledge, 2011) 9, 22. 76. See FATF, (last visited 6 July 2017). The FATF has— as of November 2013—36 members including two regional organisations. For an overview on FATF, see Yee-Kuang Heng and Kenneth McDonagh, Risk, Global Governance and Security, 1st edn (Oxon, Routledge, 2009) 51–78. 77. See Dieter Kerwer and Rainer Hülsse, ‘How International Organizations Rule the World: The Case of the Financial Action Task Force on Money Laundering’ (2011) 2 Journal of International Organizations Studies 50–67, 55. 78. See FATF website (n 76). On the FATF see Ilias Bantekas, ‘The International Law of Terrorist Financing’ (2003) 97 American Journal of International Law 315–33, 319.

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for counter-terrorism financing is the FATF Special ­ Recommendations on Terrorist Financing.79 Most of the nine recommendations are addressed to ‘states’, but some read clearly as transnational regulatory norms. Special Recommendation no IV illustrates that: If financial institutions, or other businesses or entities subject to anti-money laundering obligations, suspect or have reasonable grounds to suspect that funds are linked or related to, or are to be used for terrorism, terrorist acts or by terrorist organisations, they should be required to report promptly their suspicions to the competent authorities.80

In sum, all three types of global instruments on counter-terrorism (transnational regulatory treaties, resolutions, and soft law) contain abstract-general norms with a regulatory nature that shape the obligations of individuals.

3.2. Authoritativeness Are transnational regulatory norms on counter-terrorism ‘authoritative’, as is required of them to count as ‘legislation’? In other words, do they impact the normative situation of individuals? ‘Authoritativeness’ of norms cannot mean the same in the international as in the domestic context. There is presently no institution on the international level that could make ‘global legislation’, directly imposing obligations on individuals. But, as I shall argue, there is a functional equivalent in the case of counter-terrorism. The functional equivalent of ‘authoritativeness’ is the potential of transnationally created regulatory norms to be considered as ‘self-executing’ norms (or, in the European legal terminology, to have ‘direct effect’) in domestic legal orders. Additionally, an institutional aspect contributing to the ‘authoritativeness’ of transnational counter-terrorism norms is what can be called ‘supervised domestic law-making’. The idea is that, given the seriousness of the terrorist threat and the reasons for international cooperation, the international community has in some cases a valid interest in controlling even the domestic implementation process of transnational norms. ‘Authoritativeness’ of transnational norms, then, becomes a function of the regulatory depth of these norms, their (potential for) self-execution, and the existence of a procedure monitoring their domestic implementation. 3.2.1.  Regulatory Depth The first aspect of ‘authoritativeness’ of transnational norms is their regulatory depth, ie the degree to which transnational norms constrain domestic policy

79. FATF Special Recommendations on Terrorist Financing, (last visited 6 July 2016). 80. Ibid, IV. See also ibid, VI, VII.

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choices. In global counter-terrorism law, we find particularly detailed norms setting out internationally preferred policy choices and instruments on the control of individual conduct.81 Suppression conventions do not only regulate individual conduct through requirements for criminalisation, but they also entail other elaborate state duties regarding the conduct of non-state actors. For example, some conventions oblige states to introduce specific types of sanctions on individuals (such as asset freezing, forfeiture or seizure of funds),82 they require states to lay duties on private individuals and institutions and to give them an active role in the prevention of terrorism (such as the strategy of ‘know your customer’ or reporting obligations),83 or they require states to ensure the alleged offenders’ presence for the purpose of prosecution or extradition (in effect a duty to take the offender into custody).84 Some parts of transnational regulatory law seek to place particularly detailed duties on individuals. The 1999 International Convention for the Suppression of the Financing of Terrorism may serve as an example where it mandates states to require ‘financial institutions to maintain, for at least five years, all necessary records on transactions, both domestic or international’.85 There is a clear normative dimension to the question of regulatory depth: How detailed should transnational regulatory norms be? On this question, human rights-inspired reasoning can provide some guidance. The more transnational counter-terrorism law impacts important individual rights (such as the right to liberty or privacy), the more detailed the norms should be in order to satisfy the principle of legality (in particular legal clarity).86 Transnational counterterrorism law currently lives up to this demand only partially. For example, while some formulations used in suppression conventions regarding the elements of terrorist offences (eg of possession of nuclear material, providing terrorist funding) are drafted with sufficiently high precision so as to fulfil the

81. See Katz Cogan (n 52) 338, fn 74. 82. International Convention for the Suppression of the Financing of Terrorism art 8(1) and art 8(2), 10 January 2000, 2178 UNTS 197. 83. International Convention for the Suppression of the Financing of Terrorism art 18(1)(b), 10 January 2000, 2178 UNTS 197. 84. For example, International Convention for the Suppression of Acts of Nuclear Terrorism art 10(2), 14 September 2005, 2445 UNTS 89. 85. International Convention for the Suppression of the Financing of Terrorism art 18(1)(b)(iv), 10 January 2000, 2178 UNTS 197. 86. On a transnational reading of the ‘principle of legality’ and its requirements, see Anne Peters, Jenseits der Menschenrechte (Tübingen, Mohr Siebeck, 2014) 70–81. The principle of legality and the requirement of precision of norms establishing criminal offences is not derogable even in times of emergency, see UN Human Rights Commission, General Comment No 29, para 7, UN Doc CCPR/C/21/Rev.1/Add.11 (2001).

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demands of legal clarity,87 other formulations are of troubling vagueness (in particular provisions criminalising membership in terrorist organisations).88 3.2.2.  Potential for Self-Execution The second element of ‘authoritativeness’ is the quality of norms to be ‘self-executing’ (or, to be considered as self-executing norms). This leads to a problem of general international law, namely, whether a norm containing international obligations may be enforced domestically (by the courts or the administration) without a preceding implementation act by the legislator.89 Generally speaking, the doctrine of self-execution (in most jurisdictions) requires that the international norm must be precise and unconditional.90 This can be summarised in the requirement that international norms, in order to be considered directly effective, must be addressed to individuals (or other non-state actors). There are two recent developments in the doctrine of self-execution of international legal norms that are relevant here: First, there seems to be a global increase in the number of norms that are considered to be self-executing. It is true that the wide implications of selfexecution as contemplated under EU law are still the exception and cannot be generalised for international law.91 Nevertheless, as André Nollkaemper has recently outlined, the idea of self-executing international legal norms (albeit in the limited context of rights-conferring international law, not regulatory law as defined here) is gaining ground internationally.92 Second, while the ­traditional ­doctrine stressed the role of national law and institutions in

87. For example, International Convention for the Suppression of the Financing of Terrorism art 2(1)(b), 10 January 2000, 2178 UNTS 197: ‘Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and willfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out: … Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act’. 88. See Ben Saul, ‘Criminality and Terrorism’ in Salinas de Frías et al (n 2)133, 150–51. 89. See André Nollkaemper, National Courts and the International Rule of Law (Oxford, Oxford University Press, 2011) 118. For the doctrine of self-execution (or ‘direct effect’) in the context of EU law see Joseph Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403–83, 2413–14. 90. See Karen Kaiser, ‘Treaties, Direct Applicability’ (2008) in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (17 June 2014), (last visited 6 July 2017). 91. See the famous case C-26/62, Van Gend en Loos [1963] ECR 1. 92. Nollkaemper (n 89) 107 (listing global jurisprudence relying on self-execution).

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the determination of self-executing international norms, this too seems to change.93 As Anne Peters (among others) has argued, self-execution is also a matter for international law that can—to some extent—be decided upon or prejudged by international courts and tribunals.94 Can transnational regulatory norms on counter-terrorism ever be self-­ executing? Some suppression conventions do contain regulatory provisions that seem clear enough so as to describe in sufficient detail the conduct required of non-state actors. As an example, one may refer to a provision contained in the 1999 International Convention for the Suppression of the Financing of Terrorism which suggests to contracting parties to consider the adoption of the following measure: Adopting regulations imposing on financial institutions the obligation to report promptly to the competent authorities all complex, unusual large transactions and unusual patterns of transactions, which have no apparent economic or obviously lawful purpose, without fear of assuming criminal or civil liability for breach of any restriction on disclosure of information if they report their suspicions in good faith.95

While the content of this far-reaching regulation that contracting parties are required to adopt is prescribed in detail by the transnational norm (and is further fleshed out by FATF-soft law), it clearly fails to meet the test of unconditionality. Already, the wording shows that domestic implementation legislation is required. Additionally, take the provisions—central to all suppression conventions—on the criminalisation of terrorist acts. Though these criminalising norms set out the terrorist crimes in detail, they cannot be said to be unconditional so as to trigger self-execution: Transnational norms criminalising terrorism are not self-executing because suppression conventions do not pronounce upon the precise legal consequences of the offences. Consequently, all suppression conventions contain clauses on domestic (legislative) implementation of the criminalisation provisions.96 In other words, suppression conventions are not addressed to individuals (in a formal sense). Indeed, international suppression conventions are—what some would call—‘mediated law’, ie law that has the state as addressee.97

93. For the traditional view see Kaiser (n 90) para 6. 94. Peters (n 86) 444 (with references to the literature). 95. International Convention for the Suppression of the Financing of Terrorism art 18(1)(b) (iii), 10 January 2000, 2178 UNTS 197. 96. International Convention against the Taking of Hostages art 2, 18 December 1979, 1316 UNTS 205: ‘Each State Party shall make the offences set forth in article 1 punishable by appropriate penalties which take into account the grave nature of those offences’. 97. Cf Katz Cogan (n 52) 328.

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The fact that, currently, most transnational regulatory norms will not be directly effective does not mean, however, that self-execution of these norms must be ruled out on a principled account. The real question is: Should a norm containing an international obligation for individuals ever be considered enforceable without a preceding domestic implementation act? There are good arguments against self-execution of transnational regulatory norms. Other than in the case of self-executing individual human rights, in the situation of transnational regulatory norms individual conduct is restricted or controlled by virtue of transnational law. Thus, the options for individual agency are reduced (and not increased as in transnational human rights law). If one does not want to argue on the basis of duties derived from human rights to protect other individuals (through self-executing transnational regulatory norms), a rights-based argument for self-execution of regulatory norms is difficult to make. There are, however, some more sympathetic voices on the self-execution of transnational regulatory treaty norms. While it seems clear that self-execution of transnational regulatory norms must remain the exception, it should not be discarded too early. In particular, self-executing transnational regulatory norms seem less problematic outside the context of criminal law.98 In the context of counter-terrorism, two situations in particular come to mind: The first is when transnational norms establish (civic) obligations of individuals, eg reporting obligations or due diligence requirements. The second situation where selfexecution may be contemplated is when transnational norms require states to take concrete measures vis-à-vis individuals, eg preventing the entry or transit of (suspected) foreign terrorist fighters. Anne Peters has convincingly argued that international treaties may only be interpreted to confer obligations on individuals under the following restrictive conditions: First, the text must be clear on the question of conferring (precise and unconditional) obligations on individuals so as to satisfy the principle of legality. Second, self-execution must serve the purpose of safeguarding important legal interests, and third, there must be a heightened risk for a deficient implementation and enforcement in domestic law.99 In favour of self-executing (sufficiently precise and unconditional) transnational regulatory norms, one could argue along similar lines as for the self-execution of rights-conferring transnational norms. First, self-executing regulatory norms would both increase the effectiveness and the importance of transnational law.100 Domestic law enforcement agencies would be more actively drawn

  98. I am grateful to Anne Peters for referring me to this point.   99. Peters (n 86) 79. 100. See John H Jackson, ‘Status of Treaties in Domestic Legal Systems: A Policy Analysis’ (1992) 86 American Journal of International Law 310–40, 322.

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into the transnational legal process and the awareness for transnational public security law would be raised. Self-execution could contribute to enhancing compliance with suppression conventions since more domestic actors would be directly involved in applying transnational norms (courts, administration). Second, in some cases self-execution may make resorting to the inherently problematic instrument of transnational regulatory resolutions (by the Security Council) unnecessary. If the international community could be sure that (some) transnational regulatory treaty norms automatically become part of the ‘law of the land’, there would be less need for imposing these norms by the Security Council through quasi-legislative resolutions. Third, self-execution could lead to  greater consistency between transnational obligations and national law, ‘without their meaning being lost in translation’.101 What about self-executing provisions in transnational quasi-legislative ­resolutions by the Security Council? Can (or must) quasi-legislative resolutions by the Security Council be given direct domestic effect? Most resolutions by the Council—already by their wording—require the government to take additional steps of implementation.102 This problem is of practical relevance: If norms contained in quasi-legislative resolutions were self-executing, they could act as a ‘legal basis’ for restrictions of human rights.103 Some authors reject this: Nigel White has claimed that quasi-legislative resolutions are not ‘supranational legislation’ with direct domestic effect.104 However, it is not clear why quasi-legislative resolutions could never be treated as being selfexecuting.105 There seems to be no general or principle-based argument that would completely bar any self-execution of transnational regulatory norms contained in Security Council resolutions. That self-execution of r­egulatory 101. See Nollkaemper (n 89) 118. 102. Nico Krisch, ‘Art. 41’ in Bruno Simma et al (eds), The Charter of the United Nations: A Commentary on the UN Charter, 2nd edn (Oxford, Oxford University Press, 2012) 1325. 103. See, eg, European Convention on Human Rights and Fundamental Freedoms art 8–11, 4 November 1950, 213 UNTS 222, ETS No 5 requiring that the interference be ‘prescribed by law’. The question whether SC Res 757, UN Doc S/RES/757 (30 May 1992) (and amending resolutions) against Serbia were self-executing and could be used as a legal basis in Irish law for restricting the right to freedom of possession was at issue in Bosphorus Hava Yollari v Ireland, Application no 45036/98, European Court of Human Rights, Grand Chamber, Judgment (30 June 2005) para 107. On the problem of domestic implementation of a Security Council resolution and the correct identification of a ‘legal basis’ for interferences with Convention rights see also Nada v Switzerland, Application no 10593/08, European Court of Human Rights, Grand Chamber, Judgment (12 September 2012) para 173. 104. White (n 2) 72. 105. For a position favourable to the possibility of directly effective Security Council resolutions see Peters (n 86) 452–53 (limiting the discussion to the situation of ‘targeted sanctions’).

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resolutions cannot be excluded does not, however, mean that there are good reasons to embrace such an effect either. In my view, one focal point of the discussion must be—in analogy to the situation in international treaty law— the quality (regulatory depth, precision and unconditionality) of the norms. Though norms contained in quasi-legislative resolutions are not ‘treaty law’ in the strict sense of the term, they may be addressed as ‘secondary treaty norms’ and—with some modification—they should be subjected to similar criteria regarding self-­execution.106 The decisive question is whether regulatory norms contained in quasi-legislative resolutions are sufficiently precise and unconditional. For the two early quasi-legislative resolutions, 1373 (2001) and 1540 (2004), this needs to be rejected. The wording of these resolutions reflects the necessity for further implementation measures, eg  when stating that laws should be adopted in accordance with the appropriate domestic procedures.107 Additionally, apart from the absence of a statement on the legal consequences of terrorist offences, the high level of precision required for a legal norm which could serve as a legal basis in criminal proceedings is clearly not met by any provision in the two early quasi-legislative resolutions.108 ­Furthermore, the existence of special regimes monitoring the implementation of the quasi-legislative resolutions (‘supervised domestic lawmaking’) supports the finding that these resolutions are not designed to have direct domestic effect.109 However, a provision that would be a candidate for self-execution is para 8 of the recent UN Security Council Resolution 2178 (2014) that reads as follows: Decides that, without prejudice to entry or transit necessary in the furtherance of a judicial process, including in furtherance of such a process related to arrest or detention of a foreign terrorist fighter, Member States shall prevent the entry into or transit through their territories of any individual about whom that State has credible information that provides reasonable grounds to believe that he or she is seeking entry into or transit through their territory for the purpose of participating in the acts described in paragraph 6, including any acts or activities indicating that an individual, group, undertaking or entity is associated with Al-Qaida, as set out in paragraph 2 of resolution 2161 (2014), provided that nothing in this paragraph

106. Anne Peters, ‘Art. 25’ in Bruno Simma et al (n 102) 47. 107. SC Res 1540, UN Doc S/RES/1540, 28 April 2004, para 2. 108. See Andrea Bianchi, ‘Assessing the Effectiveness of the UN Security Council’s Anti-­ terrorism Measures: The Quest for Legitimacy and Cohesion’ (2006) 17 European Journal of International Law 881–919, 892–903 (relying on an analysis of country reports under resolutions 1267 and 1373). 109. SC Res 1373, UN Doc S/RES/1373, para 6; SC Res 1540, UN Doc S/RES/1540, 28 April 2004, para 4.

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shall oblige any State to deny entry or require the departure from its territories of its own nationals or permanent residents …110

In my view, this provision is clear and precise enough to be considered selfexecuting in the Member States. In particular, the provision does not require further legislative action by the Member States, the negative obligation (ie denial of entry or transit) by the state is sufficiently determined, and the group of persons the normative situation of whom the resolution regulates is also precisely stated in the resolution text. Regarding its potential for selfexecution, Resolution 2178 (2014) is a remarkable step forward as compared to the previous two quasi-legislative resolutions. It will be interesting to see whether a state will in the future deny entry to an individual solely on the basis of para 8 of Resolution 2178 (2014). In sum, the possibility of self-executing quasi-legislative resolutions by the Security Council cannot be excluded on the level of principle. While most norms contained in the quasi-legislative resolutions so far will not be considered self-executing and in most cases will require the adoption of domestic legislation, there is at least one provision in the recent Resolution 2178 (2014) that fulfils the requirements for self-execution. Finally, the question arises whether there is anything similar to selfexecution of transnational regulatory soft law. A legal concept that has ‘family resemblance’ with self-execution is that of ‘consistent interpretation’.111 In the context of an emerging transnational legislation on counter-terrorism, this raises the question whether domestic courts and administrations may refer to transnational regulatory soft law when interpreting (domestic) obligations of non-state actors, in effect ‘harmonising’ obligations contained in domestic law with transnational law.112 As transnational soft law instruments, like the FATF Special Recommendations, specify and in some ways complement both transnational regulatory treaty-norms and transnational regulatory resolutions, it cannot be excluded that domestic courts and administrations may consult these for the purpose of facilitating consistent interpretation of domestic and transnational law.113 110. SC Res 2178, UN Doc S/RES/2178, 24 September 2014, para 8 (emphasis in the original). 111. Some deny that ‘consistent interpretation’ can be distinguished from the issue of direct effect (or self-execution), see Nollkaemper (n 89) 110. 112. In the EU law context, there is a ‘duty to consistent interpretation’ even with regard to EU soft law. See case C-322/88, Salvatore Grimaldi v Fonds des maladies professionnelles [1989] ECR 4407, para 18. 113. This is the case eg in the Netherlands. See Joseph Fleuren, ‘The Application of Public International Law by Dutch Courts’ (2010) 57 Netherlands International Law Review 245–66, 250 (with references to Dutch case law).

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In sum, on the one end there are good arguments against self-execution of either treaty-based or quasi-legislative resolution-based transnational regulatory norms. This applies in the case of a criminal law context where the requirements of legal certainty and non-retroactivity are of great concern. On the other end, however, there are fields of counter-terrorism (eg controlling the conduct of financial institutions and other areas of prevention) where a restrictive application of the doctrines of self-execution and, as a part of it, consistent interpretation, may contribute to more efficient transnational law enforcement. While many global counter-terrorism norms are of a regulatory nature and in some cases have a remarkable regulatory depth, the majority of these norms is, at present, not unconditional and therefore lacks the potential for self-execution. This is, of course, not to say that these norms are without authoritativeness. It is rather that they have not been given the full authoritativeness transnational law could ultimately assume. Thus, the more transnational law impacts the normative situation of individuals (eg through consistent interpretation, as model laws, and maybe in the future through self-execution), the more manifest the legislative character of global counterterrorism law becomes. In this sense, one may speak of the emergence of transnational counter-terrorism legislation. 3.2.3.  Supervised Domestic Law-Making The authoritativeness of transnational norms depends upon the intensity with which these norms impact the normative situation of individuals. If transnational regulatory norms are considered self-executing (which, for the time being, is likely to remain the exception), the impact on the normative situation of individuals is high. Self-execution still concerns an issue to be settled mainly by domestic authorities (though this is increasingly disputed). Consequently, the influence of the international community on this issue is low. Given the important reasons for ensuring cooperation of each member of the international community outlined above (in particular, in weakest link situations), there is a strong international interest in ensuring that the transnational regulatory norms on counter-terrorism are not ‘watered down’ and actually become part of the domestic legal orders. For this purpose, international procedures for ‘supervised domestic law-making’ were created. While the authoritativeness of transnational regulatory norms does not depend on it, the existence of such a procedure enhances the authoritativeness (and, thereby the efficiency) of these norms. In relation to international suppression conventions, the UN Office on Drugs and Crime (its Terrorism Prevention Branch, to be exact) offers

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‘­technical assistance’ concerning the ‘ratification, legislative incorporation and implementation of the universal legal framework against terrorism’.114 The Office on Drugs and Crime is a large distributor of transnational legal norms on counter-terrorism. It assists states, upon their request, on how to implement the transnational counter-terrorism norms by providing, eg, ‘best practices’ and ‘model laws’.115 In relation to UN Security Council resolutions, ‘supervised domestic lawmaking’ is institutionalised to an even greater degree. The idea of monitoring the implementation of transnational counter-terrorism legislation in the Member States was introduced by UN Security Council Resolution 1373 (2001). In this Resolution, the Council set up the Counter-Terrorism Committee (CTC) to supervise the domestic implementation process.116 The CTC has a range of tools at its disposal to fulfil its supervisory mandate, eg country visits, technical assistance, and country reports.117 The method of supervised domestic law-making was also used for transnational norms concerning the prevention of terrorists’ access to nuclear, chemical or biological weapons and for transnational norms concerning the incitement to commit a terrorist act or acts.118 In the latest quasi-legislative Resolution 2178 (2014) concerning foreign terrorist fighters, the Security Council did not establish a monitoring procedure. This might negatively impact the authoritativeness of the transnational norms contained in it, and thereby the efficiency of this increasingly important part of the transnational counter-terrorism legislation. A monitoring procedure to supervise domestic law-making also exists with regard to some transnational regulatory soft law instruments. A well-known example is the FATF ‘peer reviewing’ or ‘mutual evaluation’ mechanism. Its purpose is to ‘determine the degree of technical compliance, implementation and effectiveness of systems to combat … the financing of terrorism’.119

114. See (last visited 7 July 2017). See also Technical assistance for implementing the international conventions and protocols related to counter-terrorism, GA Res 68/187, UN Doc A/RES/68/187 (11 February 2014). 115. See (last visited 7 July 2017). 116. See SC Res 1373, UN Doc S/RES/1373, para 6. It should be noted that the duty to report is couched in (formally) non-binding terms. 117. See (last visited 7 July 2017). 118. SC Res 1540, UN Doc S/RES/1540, 28 April 2004, para 4; SC Res 1624, UN Doc S/ RES/1624, 14 September 2005, para 5. 119. Financial Action Task Force Mandate (2012–2020), para 3(c), FATF (20 April 2012) (last visited 7 July 2017).

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For example, the 2014 Mutual Evaluation Report on Canada stressed that Canada had sufficiently addressed the deficiencies regarding Customer Due Diligence by amendments of its criminal law legislation and could be removed from the regular follow-up process.120 Apart from the mutual evaluations of the Member States’ law and law enforcement of FATF rules, the organisation is engaged in identifying ‘high-risk, non cooperative jurisdictions and those with strategic deficiencies in their national regimes, and coordinating action to protect the integrity of the financial system against the threat posed by them’.121 Presently, the FATF has identified two non-compliant states, Iran and the Democratic Republic of North Korea, and called on its members and other jurisdictions to apply counter-measures in these cases. Regarding Iran, the FATF recently urged to start ‘criminalising terrorist financing and effectively implementing suspicious transaction reporting requirements’.122 In sum, ‘supervised domestic law-making’ has become a useful tool of the international community (or of some less inclusive groups such as the FATF Member States) to monitor domestic legislative processes. Supervised domestic law-making is a way to prevent external effects of non-harmonised domestic laws and to handle the weakest link problem. It enhances the authoritativeness of transnational regulatory norms in key fields such as counter-financing of terrorism.

3.3.  Constitutional Gatekeeping As transnational counter-terrorism legislation advances, so does the need for what I call ‘constitutional gatekeeping’. Obviously, constitutional gatekeeping can take on many forms. The paradigm case of constitutional gatekeeping is judicial review, by having a court determine with final say what is in conformity with the constitution and may properly be applied as ‘the law of the land’. However, there may be other forms of ensuring the conformity of transnational legislation with constitutional principles (discussed below). ‘Constitutional gatekeeping’ is understood here as the function of monitoring ‘regulatory law’ on the basis of ‘constitutional principles’ (most importantly, human rights). By ‘constitutional principles’ I mean legal principles commonly established on the constitutional level or of a constitutional 120. Mutual Evaluation of Canada: 6th Follow-up Report, FATF (27 February 2014) (last visited 7 July 2017). 121. FATF Mandate (n 119) para 3(d). 122. Public Statement, FATF (24 October 2014) (last visited 7 July 2017).

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­ rovenience, such as primarily human rights, principles of governance (rule p of law, good governance norms) and principles on the political process (representation of interests and participation). As such, constitutional principles are ‘general and important norms whose main function is the attribution of the binary qualification of legal/illegal in light of overarching values’.123 This task becomes more complicated with transnational regulatory law where obligations of individuals (at least partially) originate in ‘foreign’ or ‘international’ law or—even more complicated—in (often non-transparent, exclusive) legislative networks.124 The problem of ‘constitutional gatekeeping’ raises some fundamental questions: What arguments can be made on a level of principle that ‘constitutional gatekeeping’ is necessary in the case of transnational legislation on counter-terrorism? How do existing transnational regulatory norms relate to constitutional principles (such as human rights)? Which institution should exercise ‘constitutional gatekeeping’ on transnational regulatory norms? One objection that could be raised here is that ‘constitutional gatekeeping’ is unnecessary because transnational regulatory law is only ‘mediated law’ and that, therefore, individuals are not really directly affected by these norms. However, as shown above, the ‘authoritativeness’ of transnational regulatory norms is increasing (through greater regulatory depth, self-execution or supervised domestic law-making). Consequently, the margin of implementation for states and regional organisations (such as the EU) diminishes. As an example, take again the provision in the 1999 International Convention for the Suppression of the Financing of Terrorism that suggests that contracting parties require ‘financial institutions to maintain, for at least five years, all necessary records on transactions’.125 Particularly in cases where transnational regulatory norms seek to establish a common standard by setting minimum level requirements, the margin of legislative discretion in implementation decreases significantly. As Jacob Katz Cogan argues, the gap between ‘mediated law’ and ‘unmediated law’, ie the discrepancy between international norms that are directly effective and those that are not, continues to decrease.126 Furthermore, some transnational counter-terrorism norms are vague and leave discretion to the states as to how they should be 123. Armin von Bogdandy, ‘General Principles of International Public Authority: ­Sketching a Research Field’ (2008) 9 German Law Journal 1909–38, 1912 (referring to Martti Koskenniemi, ‘General Principles: Reflexions on Constructivist Thinking in International Law’ in Martti Koskenniemi (ed), Sources of International Law (Dartmouth, Ashgate, 2000) 359, 368 et seq). 124. On transnational legislative networks, see section 4.3 below. 125. International Convention for the Suppression of the Financing of Terrorism art 18(1)(b)(iv), 10 January 2000, 2178 UNTS 197. 126. Katz Cogan (n 52) 349.

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­implemented.127 If there is no guidance concerning their implementation in a way conforming to human rights, there is the danger that transnational counter-terrorism law may be abused by some states (eg for crackdowns on journalists, bloggers or human rights activists).128 In sum, as transnational regulatory norms can affect the normative situation of non-state actors, constitutional gatekeeping becomes imperative. Despite the need to make transnational regulatory law comply with constitutional principles, current practice does not look so bright. It can be noted, though, that suppression conventions today refer to human rights and ‘subjective international rights’.129 Regarding transnational regulatory treaty law, a few examples shall suffice. The early suppression conventions, such as the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons and the 1979 International Convention against the Taking of Hostages, contained ‘subjective international rights’ for alleged offenders: For example, detained alleged offenders should be granted consular rights, such as ‘[t]o communicate without delay with the nearest appropriate representative of the State of which he is a national …’130 or the right to be visited by a state representative.131 Human rights protection in these early suppression conventions was addressed rather vaguely in general terms as a state duty to grant ‘fair treatment’.132 A step towards transnationalisation was taken with the 1997 International Convention for the Suppression of Terrorist Bombings, requiring that: [a]ny person who is taken into custody or regarding whom any other measures are taken or proceedings are carried out pursuant to this Convention shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity 127. See Saul (n 88) 150–51. 128. See ‘Ethiopia: Pillay condemns crackdown on journalists, increasing restrictions on freedom of expression, UN High Commissioner for Human Rights’, (last visited 12 July 2017). 129. On the conception of the ‘subjective international right’, see Anne Peters, ‘Das subjektive internationale Recht’ (2011) 59 Jahrbuch des öffentlichen Rechts der Gegenwart 411–56. 130. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons art 6(2)(a), 14 December 1973, 1035 UNTS 167; International Convention against the Taking of Hostages art 6(3)(a), 18 December 1979, 1316 UNTS 205. 131. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons art 6(2)(b), 14 December 1973, 1035 UNTS 167; International Convention against the Taking of Hostages art 6(3)(b), 18 December 1979, 1316 UNTS 205. 132. Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons art 9, 14 December 1973, 1035 UNTS 167. Tellingly, the content of ‘fair treatment’ is to be determined by domestic human rights, see International Convention against the Taking of Hostages art 8(2), 18 December 1979, 1316 UNTS 205.

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with the law of the State in the territory of which that person is present and applicable provisions of international law, including international law of human rights.133

It is clear, however, that these rights-related provisions target potential human rights violations on the implementation level only—the creation of transnational law itself is not covered. A cautious sign that all counterterrorism efforts, be it on the national or the transnational level, must conform to international human rights is contained in the ‘Draft Comprehensive Convention against International Terrorism’ (not in force), where the Preamble in general terms recalls the ‘necessity of respecting human rights and international humanitarian law in the fight against terrorism’.134 If one accepts (which is far from settled) that there is a ‘normative hierarchy’ in international law,135 some provisions in recent suppression conventions may be interpreted as providing for the supremacy of constitutional principles over (regulatory) treaty law.136 This constitutionalist interpretation is, however, highly presumptive. The following can be gathered from the rather weak commitment to constitutional principles in the field of transnational regulatory treaty norms: If international law continues to embark on transnational regulatory law-making, the need to integrate human rights is reinforced. This integration of human rights can be facilitated in two ways.137 A first (‘vertical’ or ‘constitutionalist’) way of integrating human rights is to establish a hierarchy of transnational human rights over transnational regulatory law. For example, t­ ransnational r­ egulatory ­treaties and resolutions

133. International Convention for the Suppression of Terrorist Bombings art 14, 12 January 1998, 2149 UNTS 256. For similar provisions, see International Convention for the Suppression of the Financing of Terrorism art 17, 10 January 2000, 2178 UNTS 197; International Convention for the Suppression of Acts of Nuclear Terrorism art 12, 14 September 2005, 2445 UNTS 89. 134. Draft Comprehensive Convention against International Terrorism Preamble, UN Doc A/RES/59/894, Appendix II (12 August 2005). 135. On the problem of ‘normative hierarchy’ in international law, see Martti Koskenniemi, ‘Hierarchy in International Law: A Sketch’ (1997) 8 European Journal of International Law 566–82; Dinah Shelton, ‘Normative Hierarchy in International Law’ (2006) 100 American Journal of International Law 291–323. 136. For eg, International Convention for the Suppression of the Financing of Terrorism art 21, 10 January 2000, 2178 UNTS 197: ‘Nothing in this Convention shall affect other rights, obligations and responsibilities of States and individuals under international law, in particular the purposes of the Charter of the United Nations, international humanitarian law and other relevant conventions.’ 137. The UN has been actively pursuing a better integration or streamlining of international human rights law and counter-terrorism. See, recently, the ‘rights-centred approach to counter-terrorism’ announced by the UN Secretary-General, Threats to International Peace and Security Caused by Terrorist Acts, S/PV.7316, 3/83 (19 November 2014). I am grateful to an anonymous referee for drawing my attention to this.

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could state that human rights have supremacy over the regulatory norms. This approach would make the most sense if there was a (world) court that could balance transnational regulatory norms and abstract transnational human rights norms. However, unspecific reference to human rights obligations may not prove to be very helpful. In the absence of a world court, it must be feared that there will not be a consistent practice among the courts (adjudicating on how to balance human rights and transnational counter-terrorism norms). Thus, a second (‘horizontal’) option of how to add human rights to the calculus can be contemplated.138 The transnational legal instrument (treaties, resolutions or soft law) should specify either in the text itself or in an accompanying legal instrument in sufficient detail how exactly human rights are implicated by specific regulatory issue. For example, it could be spelled out—already at the transnational level—what limits the right to freedom of association sets for regulatory norms on material support.139 Similar considerations apply to law-making by the Security Council. It is known that transnational regulatory resolutions by the Security Council and constitutional principles cannot be squared easily. The initial quasilegislative Resolution 1373 (2001) did not mention any duty to observe human rights (except in the very specific context of granting refugee status to asylum-seekers).140 What is missing in this Resolution is the general pronouncement that domestic counter-terrorism measures must comply with international human rights standards. The false start induced some actors to regard human rights as a matter to be separated from global counter-terrorism. It is symptomatic that the CTC, which is to monitor state compliance with Resolution 1373 (2001), in the beginning viewed any human rights considerations to be outside the scope of its mandate.141 Once human rights were off the international agenda in the fight against terrorism, it proved difficult to introduce them. The Security Council reacted to severe criticism by adopting Resolution 1566 (2004) reminding states to ensure that: any measures taken to combat terrorism comply with all their obligations under international law, and [that the states] should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law.142 138. I am grateful to Guy Harpaz for suggesting that to me. 139. Of course, even this ‘horizontal’ solution would ultimately require some kind of review mechanism. 140. SC Res 1373, UN Doc S/RES/1373, para 3(f ). 141. See Kim Lane Scheppele, ‘Global Security Law and the Challenge to Constitutionalism after 9/11’ (2011) 2 Public Law 353–77, 369 (quoting Sir Jeremy Greenstock, the first head of the CTC); see also EJ Flynn, ‘The Security Council’s Counter-Terrorism Committee and Human Rights’ (2007) 7 Human Rights Law Review 371–84. 142. SC Res 1566, UN Doc S/RES/1566 (8 October 2004), Preamble.

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In quasi-legislative resolutions, reference to human rights has only been made in the Preamble, but not in operative paragraphs.143 As in the case of treatylaw, the problem remains of how to guarantee international human rights already on the level of transnational law-making. This touches upon the widely discussed problem (that is outside the scope of this article) of whether the Security Council is bound by international human rights.144 If one (as I do) accepts that the Security Council must obey international human rights, then the problem of ‘constitutional gatekeeping’ on the transnational level arises in full sway. If some form of transnational ‘constitutional gatekeeping’ is desirable or even necessary, who should perform it? The first actor that comes to mind is domestic courts. In the case of transnational regulatory treaty-norms, domestic courts are in the comfortable position of denying self-execution of norms they consider problematic on a constitutional principle. In effect, domestic courts can use the concept of self-execution ‘as a shield’ against treaty-norms to ‘protect domestic political organs and, more generally, domestic values’ simply by rejecting one of the conditions of self-execution.145 However, it is questionable whether ‘constitutional gatekeeping’ on the domestic level is a feasible solution in practice. It cannot be ruled out that some states are ‘pressed’ to change their laws by powerful transnational actors (states or international organisations).146 For example, the US imposes ‘special measures’ on states that are unwilling to participate in the global fight against counter-financing of terrorism.147 The threat of being cut off from access to the US banking

143. But see SC Res 1624, UN Doc S/RES/1624, 14 September 2005, para 4 (this Resolution was, however, not adopted under Ch VII of the UN Charter). 144. For a thorough discussion see Peters (n 106). The UN Security Council is included in the recent process of streamlining UN counter-terrorism efforts and human rights, see again the ‘rights-centered approach to counter-terrorism’ by the UN Secretary General, Threats to International Peace and Security Caused by Terrorist Acts, S/PV.7316, 3/83 (19 November 2014). I am grateful to an anonymous referee for pointing this out to me. 145. Nollkaemper (n 89) 115–7, 121–4 (making clear that the question of self-execution is not a ‘politics-free zone’). 146. Terence Halliday and Bruce Carruthers have described how international financial institutions pressed Indonesia to bring its bankruptcy law in conformity with international standards, see Terence C Halliday and Bruce G Carruthers, ‘The Recursivity of Law: Global Norm Making and National Law-Making in the Globalization of Corporate Insolvency Regimes’ (2007) 112 American Journal of Sociology 1135–1202, 1154–62. For the role of transnational standards in the reform of China’s law of criminal procedure, see Sida Liu and Terence C Halliday, ‘Recursivity in Legal Change: Lawyers and Reforms of China’s Criminal Procedure Law’ (2009) 34 Law and Social Inquiry 911–50. 147. Mariano-Florentino Cuéllar, ‘The Mismatch between State Power and State Capacity in Transnational Law Enforcement’ (2004) 22 Berkeley Journal of International Law 15–58, 38.

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s­ystem has proven to be a powerful tool to ensure that states adopt transnational rules on counter-financing. In this situation, it also seems unlikely that ‘constitutional gatekeeping’ by domestic courts would have enough ‘bite’. Similar problems arise in the case of Security Council law-making: In the absence of an example of a provision contained in a quasi-legislative resolution that was given direct domestic effect, it can only be speculated whether domestic courts would engage in prior constitutional review of transnational regulatory norms. Some domestic, regional and international courts have struggled hard with exercising ‘constitutional gatekeeping’ in relation to targeted sanctions by the Security Council.148 The task is not easier in relation to norms that enter the national sphere as rules originating in transnational regulatory resolutions. In all likelihood, domestic courts will be deferential to transnational regulatory law by the Security Council. It suffices to say that, presently, it cannot be taken for granted that constitutional concerns about transnational counter-terrorism legislation will necessarily find a forum at the domestic level. It is important to note, therefore, that some form of ‘constitutional gatekeeping’ should already exist at the transnational level. A potential candidate is the UN General Assembly. The General Assembly acts as a ‘constitutional gatekeeper’ vis-à-vis the states. In this regard, the General Assembly regularly reminds states to observe ‘international human rights, refugee and humanitarian law’ when implementing counter-terrorism measures in domestic law.149 The General Assembly also pointed to the ‘obligation of States … to respect certain rights as non-derogable in any circumstances’, making clear that counter-terrorism measures can never be treated as a human rights-free zone.150 In particular, the General Assembly uses four means to carry out its ‘constitutional gatekeeping’ function: It points to absolute prohibitions (deriving from international human rights),151 it outlines state obligations flowing from international human rights in specific, recurrent counter-­ terrorism situations (eg deprivation of liberty, border control, extradition, profiling, interrogation)152 and it stresses the importance of particular 148. Some courts followed a deferential approach concerning ‘targeted sanctions’ by the Security Council, eg the Swiss Federal Court (Nada) and the General Court of the EU (Kadi). For an overview see Machiko Kanetake, ‘The Interfaces between the National and International Rule of Law: The Case of UN Targeted Sanctions’ (2012) 9 International Organizations Law Review 267–338. 149. See Protection of Human Rights and Fundamental Freedoms while Countering ­Terrorism, GA Res 65/221, UN Doc 65/221, 5 April 2011, para 4. 150. Ibid, para 5. 151. Ibid, para 6(a), (c), (d). 152. Ibid, para 6(b), (h), (j), (k), (m), (n).

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i­nternational human rights in counter-terrorism (eg right to equality before the law, right to a fair trial, right to privacy, non-refoulement, right to an effective remedy and reparation, right to due process).153 Lastly, the General Assembly also stresses—in a truly transnational spirit—general conditions for domestic counter-terrorism legislation: It ‘urges States, while countering terrorism … [t]o ensure that their laws criminalizing acts of terrorism are accessible, formulated with precision, non-discriminatory, non-retroactive and in accordance with international law, including human rights law’.154 The General Assembly potentially also acts as a ‘constitutional gatekeeper’ vis-à-vis the other UN organs, in particular the Security Council. In its resolution on the ‘Protection on Human Rights and Fundamental Freedoms while Countering Terrorism’, the General Assembly stated: the need to continue ensuring that fair and clear procedures under the United Nations terrorism-related sanctions regime are strengthened in order to enhance their efficiency and transparency, and welcomes and encourages the ongoing efforts of the Security Council in support of these objectives, including by establishing an office of the ombudsperson and continuing to review all the names of individuals and entities in the regime, while emphasizing the importance of these sanctions in countering terrorism.155

However, all of these statements are rather weak and are far from any real monitoring of transnational regulatory law. It seems that the UN General Assembly has not exploited its full potential as a meaningful ‘constitutional gatekeeper’ yet.156 Other potent ‘constitutional gatekeepers’ (such as a world court) are currently not in sight. One may, however, contemplate an emerging transnational public or transnational civil society (eg in the form of nongovernmental organisations, internet fora, and international news media) exercising (additional) ‘constitutional gatekeeping’ functions. It is one benefit of transnational law to allow for the inclusion of private actors both in the law-making as well as, arguably, in the monitoring process. In sum, ‘constitutional gatekeeping’ on the transnational level—while ever more important given the increase of transnational regulatory instruments—is largely absent at present.

153. Ibid, para 6(e), (f ), (i), (o), (p). 154. Ibid, para 6(l). See also ibid, para 6(q): ‘To shape and implement all counter-terrorism measures in accordance of gender equality and non-discrimination.’ 155. Ibid, para 9. 156. For criticism of the role of UN General Assembly in counter-terrorism see White (n 2) 62.

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4. Techniques for the Creation of Transnational CounterTerrorism Legislation If international law-making is one (certainly important) way to cooperate, and given the reasons for international cooperation on counter-terrorism in particular, how does the international community create a ‘transnational legislation’ on counter-terrorism? It is not an institutional analysis on actors and procedures that shall be undertaken here. Instead, this part deals on a more abstract level with transnational law-making relying on the elements of ‘transnational legislation’ outlined in Part 3. What are the techniques of law-making in the field of global counter-terrorism employed by the international community?

4.1.  Harmonisation of (Domestic) Norms on Counter-Terrorism One technique of international law-making is ‘harmonisation’. By ‘harmonisation’ I mean the reduction of differences between legal norms of different (national) origin through a binding legal act with cross-border application. The typical instrument for harmonisation of domestic and international norms is an international treaty. The level of harmonisation envisaged by the international legal norm may vary, ranging from ‘minimum harmonisation’ to ‘full harmonisation’ or ‘unification’.157 Outside special legal regimes (like the EU) international law-making by harmonisation is a consensual, nonhierarchical type of cooperation.158 From the twentieth century onwards, the idea of harmonisation has no longer been limited to private law, but today relates to all sorts of legal fields, such as labour law (especially work health and safety laws),159 environmental law,160 health law,161 etc. Harmonisation of criminal law has become an issue 157. See Martin Gebauer, ‘Unification and Harmonization of Laws’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (2008) 24 (17 June 2014), (last visited 7 July 2017). 158. See Katharina Holzinger and Christoph Knill, ‘Causes and Conditions of Cross-National Policy Convergence’ (2005) 12 Journal of European Public Policy 775–96, 782. 159. Junji Nakagawa, International Harmonization of Economic Regulation (Oxford, Oxford University Press, 2011) 169–87. 160. Katharina Holzinger et al, ‘Environmental Policy Convergence: The Impact of International Harmonization, Transnational Communication, and Regulatory Competition’ (2008) 62 International Organization 553–87. 161. On the need to internationally harmonise public health standards, see David P Fiedler, ‘A Globalized Theory of Public Health Law’ (2002) 30 The Journal of Law, Medicine & Ethics 150–61, 153. Similarly, Lawrence O Gostin and Allyn L Taylor, ‘Global Health Law: A Definition and Grand Challenges’ (2008) 1 Public Health Ethics 53–56, 61.

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as well.162 In particular, the objective of harmonisation of counter-terrorism law has resulted in significant efforts by states in the past decade.163 In the EU, this objective has found its clearest expression in the ‘Framework Decision on Counter-Terrorism’ of 2002, the purpose of which is to introduce minimum rules concerning terrorist offences in the EU Member States.164 Some European institutions continue to pressure for more harmonisation of domestic counter-terrorism law.165 At the international level, the harmonisation of counter-terrorism law is less openly framed as an objective of international law-making. Nevertheless, harmonisation is at least partially the result of international law-making processes. The tendency of harmonisation can be noted when consulting the US Country Reports on Terrorism.166 To make harmonisation processes more efficient, there are numerous examples of best practice guides on how to transpose UN counter-terrorism law into domestic law.167 On a bilateral

162. See Neil Boister, ‘Transnational Criminal Law?’ (2003) 14 European Journal of International Law 953–76. For the special context of harmonisation of criminal law in the EU see Valsamis Mitsilegas, EU Criminal Law (Portland, Hart Publishing, 2009) 59–114. 163. Kimmo Nuotio, ‘Terrorism as a Catalyst for the Emergence, Harmonization and Reform of Criminal Law’ (2006) 4 Journal of International Criminal Justice 998–1016, 1012. 164. Council Framework Decision on Combating Terrorism 2002/475 [2002] OJ L164/3 (EU). 165. For example, Eurojust, see Michèle Coinsx, ‘Strengthening Interstate Cooperation: The Eurojust Experience’ in Ana María Salinas de Frías et al (eds), Terrorism: International Law and Practice (Oxford, Oxford University Press, 2012) 965, 989. 166. For example, a US Country Report states that Bosnia and Herzegovina harmonised its criminal code with the EU and UN legal framework on counter-terrorism, see 2012 Country Reports on Terrorism, 63 United States Department of State Publication, Bureau of Counterterrorism. Similarly, for Montenegro see the 2008 Country Reports on Terrorism, 85 United States Department of State Publication, Bureau of Counterterrorism. 167. Domestic implementation of suppression conventions and quasi-legislative resolutions by the Security Council is often aided by ‘model laws’. In the field of counter-terrorism, the UN CTC has the mandate to prepare model laws for the areas covered in Resolution 1373, see SC Res 1373, UN Doc S/RES/1373, para 6; SC Res 1377, UN Doc S/RES/1377 (12 November 2001) (inviting the CTC to explore the ‘promotion of bestpractice in the areas covered by resolution 1373 (2001), including the preparation of model laws as appropriate’). UNODC has prepared a comprehensive manual intended as a model for domestic counter-terrorism legislation, (last visited 12 July 2017). Model laws encompass suggestions for norms on terrorism in general but also relate to specific issues, such as the financing of terrorism. These model laws have proved to be a valuable tool for developing domestic counter-terrorism capacities, see CA Ward, ‘Building Capacity to ­Combat International Terrorism: The Role of the United Nations Security Council’ (2003) 8 Journal of Conflict & Security Law 289–305, 303.

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level, there are currently ongoing negotiations between the EU and the US on harmonising existing counter-terrorism laws.168 Why does it make sense—under the cooperation-paradigm—to harmonise counter-terrorism laws? First, as Peter Andreas and Ethan Nadelmann state, ‘the capacity of a state to suppress transnational criminality depends greatly on the extent to which its criminal law norms conform with or vary from those of others’.169 Harmonisation of counter-terrorism law is, in other words, a way to decrease information deficits about foreign law and to create opportunities and obligations for future cooperation and for further approximation of policies. Therefore, international counter-terrorism conventions contain several clauses dealing with cooperation obligations or opportunities. Take, for example, the 1979 International Convention against the Taking of Hostages, stipulating in art 4 (b) that ‘States Parties shall co-operate in the prevention of the offences set forth in article 1, particularly by … [e]xchanging information and co-ordinating the taking of administrative and other measures as appropriate to prevent the commission of those offences’.170 Second, another objective of harmonisation is improving the law. Harmonisation is about substituting domestic norms with ‘better’ international norms.171 For example, counter-terrorism norms usually aim to enhance the security capacities of states facing threats by global terrorism networks. Examples are the duty to establish jurisdiction (over certain terrorist crimes),172 the duty to criminalise particular terrorist crimes,173 or the duty 168. See Kristin Archick, US-EU Cooperation Against Terrorism, Federation of American ­Scientists, (last visited 7 July 2017). 169. Peter Andreas and Ethan Nadelmann, Policing the Globe: Criminalization and Crime Control in International Relations (Oxford, Oxford University Press, 2008) 227. 170. International Convention against the Taking of Hostages art 4(b), 18 December 1979, 1316 UNTS 205. 171. For this argument in a commercial law context see Paul B Stephan, ‘The Futility of Unification and Harmonization in International Commercial Law’ (1999) 39 Virginia Journal of International Law 743–97, 748. According to Trachtman’s welfarist approach that I follow here, ‘better’ rules are those that increase the (domestically determined) public welfare, see Trachtman (n 16) 22–23. 172. For example, Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons art 3, 14 December 1973, 1035 UNTS 167; International Convention against the Taking of Hostages art 5, 18 December 1979, 1316 UNTS 205; International Convention for the Suppression of Terrorist Bombings art 6, 12 January 1998, 2149 UNTS 256; International Convention for the Suppression of the Financing of Terrorism art 7, 10 January 2000, 2178 UNTS 197; International Convention for the Suppression of Acts of Nuclear Terrorism art 9 of the 2005, 14 September 2005, 2445 UNTS 89. 173. Examples: Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons art 2(2), 14 December 1973, 1035 UNTS 167; International

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to establish the liability of legal persons.174 In all of these cases, international law-making serves to strengthen domestic counter-terrorism capacities. Third, harmonisation of counter-terrorism laws is a way to internalise ‘security externalities’ since collective action problems may be better addressed by cooperative rulemaking than by individual solutions.175 In the situation of a shared threat, paradigmatically (though not limited to) global terrorism, harmonisation of laws is a way to manage legal risks and thus to ensure more stability in an important field of public policy.176 For example, international counter-terrorism instruments usually require all contracting states to adopt laws criminalising specific acts of terrorism, eg the acquisition of nuclear material by private persons.177 Here, international law sets a narrow margin for differences in domestic law-making in order to minimise potentially negative external effects. To take another example, the 1999 International Convention for the Suppression of the Financing of Terrorism requires that contracting states adopt the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity, committed an offence set forth in article 2.178

This norm entails harmonisation in relation to the goal that is to be achieved, namely, that legal persons may be held liable for violations of legal norms on counter-financing of terrorism (it is, however, flexible as to the means of achieving that goal).179 In that way, the potential for adverse external effects caused by differences in domestic legal systems regarding the sanctioning of legal persons are reduced, though full harmonisation is avoided. Convention against the Taking of Hostages art 2, 18 December 1979, 1316 UNTS 205; International Convention for the Suppression of Terrorist Bombings art 4, 12 January 1998, 2149 UNTS 256; International Convention for the Suppression of the Financing of Terrorism art 4, 10 January 2000, 2178 UNTS 197; International Convention for the Suppression of Acts of Nuclear Terrorism art 5, 14 September 2005, 2445 UNTS 89. 174. Example: International Convention for the Suppression of the Financing of Terrorism art 5, 10 January 2000, 2178 UNTS 197. 175. On this argument in a commercial law context see Stephan (n 171) 749. On ‘security externalities’ see section 2.2 above. 176. Adapting an argument from Stephan (n 171) 746. 177. International Convention for the Suppression of Acts of Nuclear Terrorism art 5, 14 September 2005, 2445 UNTS 89. 178. International Convention for the Suppression of the Financing of Terrorism art 5(1), 10 January 2000, 2178 UNTS 197. 179. Ibid, art 5(3) (liability may be operationalised through criminal, civil or administrative sanctions).

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In practice, however, international harmonisation of counter-terrorism norms is a complex, often impossible task. As the US Counter-Terrorism Reports show, there are great differences among the states regarding compliance with international norms on counter-terrorism.180 What are the problems of harmonising counter-terrorism laws? A first obstacle to harmonisation is the lack of a shared understanding of the phenomenon to be regulated. It is well-known that terrorism is notoriously difficult to define181 and, in fact, the international community has not agreed upon a universal definition of it.182 The lack of a universal definition is a fundamental problem hindering the harmonisation of laws. A second problem is the diversity of criminal law systems and criminal law cultures. For example, even if a universal definition of global terrorism existed, it would still be doubtful whether liberal democracies would share information gained in counter-terrorism operations with non-liberal states.183

180. For example, the 2012 US Country Report on Terrorism criticised Turkey for its ‘continued lack of progress in adequately criminalizing terrorist financing and establishing a legal framework to freeze terrorist assets’ (fn 31) 100, Kuwait and Yemen for lacking a legal framework for prosecuting terrorism-related crimes altogether (fn 31) 126 resp 150. See Katja Samuel, ‘The Rule of Law Framework and its Lacunae: Normative, Interpretative, and/or Policy Created?’ in Salinas de Frías et al (n 2) 14, 18 (noting the ‘poor harmonization of national, regional, and international anti-terrorism law-making and instruments’). 181. It has been pointed out that the difficulty of definition is due to the fact that ‘various institutions compete for the most appropriate approach’, Mathieu Deflem, ‘Terrorism’ in J Mitchell Miller (ed), 21st Century Criminology: A Reference Handbook 533 (Thousand Oaks, SAGE Publications, 2009). On the definition of terrorism followed in this article, see n 1. 182. As a (second-best) way out, international law-making relies on sectoral, context-specific definitions of terrorism. See eg International Convention for the Suppression of the Financing of Terrorism art 2, 10 January 2000, 2178 UNTS 197. See also International Convention for the Suppression of Acts of Nuclear Terrorism art 2, 14 September 2005, 2445 UNTS 89. To tackle the freedom-fighter problem it has been deemed necessary to include provisions in international conventions that further delineate the concept, eg clauses stating that terrorist acts ‘are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature’, see eg, International Convention for the Suppression of Terrorist Bombings art 5, 12 January 1998, 2149 UNTS 256, and International Convention for the Suppression of Acts of Nuclear Terrorism art 6, 14 September 2005, 2445 UNTS 89. 183. The reverse situation is also problematic: should courts in liberal states accept evidence allegedly gained from torture in non-liberal states? For a recent case on the problem see Othman (Abu Qatada) v United Kingdom, Application no 8139/09, European Court of Human Rights, Final Judgment (9 May 2012), para 56. See generally Tobias Thienel, ‘The Admissibility of Evidence Obtained by Torture under International Law’ (2006) 17 European Journal of International Law 349–67.

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Even within the EU, the diversity of criminal law systems is a severe obstacle to harmonisation. The EU Member States have been reluctant to include counter-terrorism among the truly supranational issues (with the effect of opening up counter-terrorism law for EU harmonisation efforts).184 Instead, the method used is ‘mutual recognition’, ie the recognition and enforcement of foreign criminal law, as a second-best alternative to harmonisation of counter-terrorism laws.185 A third problem with harmonisation of counter-terrorism law is that it is, so far, non-holistic, ie it focuses on individual norms rather than employing a systemic approach: Harmonisation affects some norms directly, but leaves other domestic norms (eg those that are only indirectly implicated) untouched. This may lead to unwanted systemic imbalances. The introduction of the corporate liability norm mentioned above by the 1999 Convention for the Suppression of the Financing of Terrorism is an example.186 Implanting such a norm into a legal system may require changes in the law of criminal procedure and, at least as importantly, should be counter-balanced by domestic human rights (eg the extension of some procedural human rights to legal persons). International harmonisation efforts do not sufficiently pay tribute to these (indirect) consequences.

4.2. Imposition of Legal Norms through UN Security Council Resolutions A second technique of international law-making is the ‘imposition’ of legal norms. By imposition I mean the unilateral transfer of a norm through a legally binding act with cross-border application. An instrument for the imposition of international norms is a resolution (by an organ of an international organisation, paradigmatically the UN Security Council). ‘Imposition’ presupposes a hierarchical relationship, built on an asymmetrical distribution of power.187

184. Javier Argomaniz, ‘Post-9/11 Institutionalisation of European Union Counterterrorism: Emergence, Acceleration and Inertia’ (2009) 18 European Security 151–72. 185. Oldrich Bures, EU Counterterrorism Policy: A Paper Tiger? (Farnham, Ashgate, 2011) 168. On transnational mutual recognition in general see Kalypso Nicolaidis and ­Gregory Shaffer, ‘Transnational Mutual Recognition Regimes: Governance Without Global ­Government’ (2005) 68 Law and Contemporary Problems 263–318. 186. International Convention for the Suppression of the Financing of Terrorism art 5, 10 January 2000, 2178 UNTS 197. 187. Holzinger and Knill (n 158) 781.

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Law-making through imposition is still a great exception given that the international legal order is based on the equality of states.188 Nevertheless, the Security Council has—with its counter-terrorism agenda—entered into a ‘legislative phase’ and, in particular, resolutions 1373 (2001), 1540 (2004), and the recent Resolution 2178 (2014) are of a quasi-legislative character since they were unilaterally imposed through a binding decision of the Security ­Council.189 Obviously, this classification depends on how ‘legislative action’ is understood in the context of acts by a UN organ. One has a fairly clear image of what legislative action means in the domestic context, usually involving an elected or at least democratically accountable body which promulgates binding (abstract-general) rules satisfying certain criteria of rule of law.190 In the case of legislative action by the UN, there are clear differences to domestic law-making: Security Council quasi-legislative resolutions are addressed to states only, not—as in the case of domestic law-making—to individuals.191 Furthermore, the procedure of adoption is much less formal than that of domestic laws which often require multiple hearings.192 Usually, the adoption of quasi-legislative resolutions by the UN Security Council is preceded by informal negotiations by the Council members, and then a simple vote is taken.193 In addition, there is no such thing as an accepted ‘theory’ of lawmaking with regard to the UN.194 The simple reason is that until now such a theory was dispensable since law-making was not conceived of as a possible competence of a UN organ. Note, however, that the Council has never used 188. Art 2(1), Charter of the United Nations, 26 June 1945, in force 24 October 1945, 1 UNTS XVI. 189. See Jose E Alvarez, ‘Hegemonic International Law Revisited’ (2003) 97 American Journal of International Law 873–88, 874. Examples from the vivid discussion in the literature on Security Council law-making include: Paul C Szasz, ‘The Security Council Starts Legislating’ (2002) 96 American Journal of International Law 901–05; Eric Rosand, ‘The Security Council as “Global Legislator”: Ultra Vires or Ultra Innovative?’ (2004) 28 Fordham International Law Journal 542–90; Stefan Talmon, ‘The Security Council as World Legislature’ (2005) 99 American Journal of International Law 175–93. 190. Lon Fuller, The Morality of Law (Virginia, Yale University Press, 1964) 46. 191. Roberto Lavalle, ‘A Novel, if Awkward, Exercise in International Law-Making: Security Council Resolution 1540’ (2004) 51 Netherlands International Law Review 411–37, 415. 192. Talmon (n 189) 186–88 (stating that resolutions are usually prepared in the course of informal consultations of the members and often adopted without a debate). 193. This simple procedure is much criticised. For the context of the recent UN Security Council Resolution 2178, see Martin Scheinin, ‘A Comment on Security Council Res 2178 (Foreign Terrorist Fighters) as a “Form” of Global Governance’ Just Security Blog (6 October 2014), (last visited 7 July 2017). 194. The absence of meaningful ‘theories of law-making’ at the domestic level has often been noted: Jeremy Waldron, The Dignity of Law-making (Cambridge, Cambridge University Press, 1999) 1.

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the label of law-making or, even less so, legislative act for any of its acts. Instead of formally distinguishing these acts, the Council has cast them in the familiar style of decision-making in the form of ‘resolutions’.195 In general, legislating is not something that international organisations regularly do.196 The term ‘law-making’ should, therefore, still be used with caution in the context of the Security Council action. Although a rare phenomenon in practice, Eric Rosand has claimed that there is a ‘widely accepted definition of law-making’ with regard to the UN.197 According to this definition, the act must be unilateral, create or modify a legal norm of a general nature, and be directed to an indeterminate group of addressees while capable of repeated application over time.198 In short, the formal imposition of norms relates to the unilateral transfer of abstract-general norms of a binding character.199 The element of ‘generality’ refers to the addressees. As the Colombian delegate to the Security Council, Maggie Farley, stated: a quasi-legislative resolution ‘does not name a single country, society or group of people’.200 Rather, it targets all states. ‘Abstractness’ relates to the subject-matter of quasi-legislative resolutions: They are not concerned with a specific situation or individualised conduct, but rather with a certain type of agency (eg, financing of terrorism or the cross-border movement of terrorist suspects).201 Resolutions 1373 (2001), 1540 (2004) and 2178 (2014) meet these criteria. They are ‘general’ in the sense of obligating ‘all States’ or ‘all Member States’.202 Furthermore, they are ‘abstract’ in the sense that they do not target a specific situation, but aspects of terrorism as a (potentially) particularly harmful form of human agency. In this regard,

195. Some have held that the Security Council was unaware of the novelty of its action when adopting SC Res 1373 (2001), see Szasz (n 189) 905. 196. Klabbers (n 18)187 (pointing, among other things, to art 12 of the Chicago Convention which entrusts the International Civil Aviation Authority with the power to establish rules regulating aircraft flying over the High Seas). 197. Rosand (n 189) 545, fn 11. 198. Rosand (n 189) 545, fn 11 (referring, among other things, to the classical treatment by Edward Yemin). See also Brunnée (n 50) 48–51 (normative act promulgated unilaterally by an authorised organ and containing general, abstract and directly binding legal norms). 199. See, eg, Talmon (n 189)176; Peters (n 106) ‘ para 67. 200. Maggie Farley, UN Measure Requires Every Nation to Take Steps against Terrorism in L.A. Times (28 September 2001) (quoted by Talmon (n 189) 177, fn 20). 201. See Matthew Happold, ‘Security Council Resolution 1373 and the Constitution of the United Nations’ (2003) 16 Leiden Journal of International Law 593–610, 598. 202. For example, SC Res 1373, UN Doc S/RES/1373, para. 1–6; SC Res 1540 (2004), UN Doc S/RES/1540, 28 April 2004, para 1–5, 8–10; SC Res 2178 (2014), UN Doc S/ RES/2178, 24 September 2014, para 2–6.

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Resolution 1373 (2001) concerns the financing of terrorism, while Resolution 1540 (2004) seeks to prevent nuclear, chemical or biological weapons falling into illicit hands, especially those of terrorists. Resolution 2178 (2014) deals with the prevention of cross-border movement of terrorists or terrorist groups. In line with their abstract-general nature, these resolutions do not provide for a time limit of application.203 They remain in force until repealed by the Security Council and apply to an indefinite number of cases. In the cooperation paradigm used here, when does imposition of counterterrorism law make sense, and why? A pure efficiency focus is too short-sighted in this case. While it may be more efficient to rely on the ‘fast track’ procedure of Security Council imposing norms, there are serious concerns from the perspective of legitimacy: It seems to be clear that norm imposition by the Security Council, in the absence of a UN Charter amendment, may not replace the existing procedures of international law-making, ie treaty law or customary international law. To install law-making by resolutions on an equal footing with the other two law-making procedures—treaty law and customary law— would in my view require a formal amendment of the UN Charter (and other treaties). One reason is that the legal architecture of the UN Charter contemplates Chapter VII law as ‘crisis law’ (in particular, by virtue of Article 39 of the UN Charter). Security Council law-making without a ‘crisis’ of sorts is illegitimate. But, of course, one can argue that severe cooperation deficiencies among states on a vital global public good constitute a ‘crisis’. The imposition of norms by the Security Council must, in other words, remain of a subsidiary character only. This is sometimes addressed as ‘urgency requirement’204 or as the existence of a ‘need for general law’.205 The urgency requirement is met, in exceptional circumstances only, if the ordinary procedure—despite the existence of an actual ‘threat to the peace’—has either failed (eg, because a minority of states withholds their consent preventing an international solution) or is unlikely to produce an efficient result (eg unspecific norms).206 Apart from this pragmatic reason, imposition can be an effective way to handle weakest link situations: If the success of a counter-terrorism measure depends on the performance of the weakest link, the rest of the international community has a particularly strong reason to force that state to adopt the necessary rules.

203. Talmon (n 189) 176. 204. See Rosand (n 189) 579–80 (‘new and urgent threat not addressed by existing treaty regimes’). 205. See Bianchi (n 108) 892–903, 888. 206. See Bianchi (n 108) 892–903, 888 (stating that customary law-making would—in the case of terrorism—not have produced sufficiently precise norms, requiring, eg, asset freezing or the criminalisation of certain acts).

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On a general note, the legitimacy of transnational legislative law-making (by imposition) could gain from an empirical study on its cost-effectiveness.207

4.3. Diffusion of Norms on Counter-Terrorism through Legislative Networks Diffusion of law refers to consensual, non-binding law-making (or, rather, norm dispersion) with transnational effect through international legislative networks.208 International law-making by diffusion differs from harmonisation in that the creation of conformity with international norms does not follow from a legally binding formal act but from informal interaction. Diffusion is also to be distinguished from imposition in that there is no hierarchical relationship between the ‘law-creator’ and the ‘law-recipient’. International networks engaged in the diffusion of norms are, in principle, conceivable for any of the three branches of government: there may be legislative, administrative, and judicial networks.209 In most areas, administrations and the judiciary seem to be more successful in establishing international networks (eg on human rights, on environmental issues). However, in the field of counter-terrorism, legislative networks have become crucial platforms for the dispersion of legal norms.210 At the UN level for example, the CTC provides legislative assistance to domestic law-making bodies.211 Another legislative network of increasing importance is formed in the context of the Organization for Security and Co-operation in Europe (OSCE).212 Various sub-units of the OSCE offer assistance to national legislators in drafting legislation to criminalise terrorist offences and 207. While the cost-effectiveness of individual targeted sanctions has been made the subject of a recent study by the Targeted Sanctions Consortium (TSC) (in The Effectiveness of United Nations Targeted Sanctions (November 2013), (last visited 7 July 2017), a comparable study has—to the best of my knowledge—not yet been undertaken with regard to abstract-general law-making by imposition. 208. On ‘diffusion of law’ see Richard M Buxbaum, ‘Law, Diffusion of ’ in Neil J Smelser and Paul B Baltes (eds), International Encyclopedia of the Social and Behavioral Sciences, 2nd edn (Amsterdam, Elsevier, 2004) 9206–13, 9206. 209. See Martin S Flaherty, ‘Judicial Foreign Relations Authority After 9/11’ (2011/12) 56 New York Law School Law Review 119–64, 140–144 (distinguishing between ‘executive’, ‘legislative’, and ‘judicial globalisation’). 210. Ibid, 142. 211. Security Council CTC, (last visited 7 July 2017). 212. On the OSCE as a legislative network, see Anne-Marie Slaughter, A New World Order (New Jersey, Princeton University Press, 2004) 128. The OSCE is a regional arrangement under Ch VIII of the UN Charter, comprising 57 state parties, see Organization for Security and Co-operation in Europe, (last visited 7 July 2017).

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to ensure its conformity with human rights.213 Another network that has become active in the field of counter-terrorism is NATO (North Atlantic Treaty Organisation) which established a network of civil experts on terrorism.214 Additionally, there are other regional organisations that form legislative networks on counter-terrorism, eg, the Intergovernmental Authority on Development in Eastern Africa (IGAD)215 or the Inter-American Committee on Terrorism (CICTE).216 Besides international and regional organisations, there are individual states, such as the US, that have become engaged in crossborder norm diffusion through governmental aid programmes.217 What are the reasons for law-making by diffusion under the cooperation paradigm? In a rather broad sketch one may distinguish between the following rationales for diffusion of norms through international legislative networks: cross-border learning and (a flexible, informal type of ) problem-solving are likely to count as the major goals of diffusion.218 First, where universal or regional norms do not command the adoption of a specific solution or regulatory design (as is regularly the case), international law-making by diffusion allows learning from the experience of others. The rationale of cross-border learning assumes that governments pose themselves the question: ‘Under what circumstances and to what extent would a programme now in effect elsewhere also work here?’219 Take the example of

213. Ministerial Statement on Supporting the United Nations Global Counter-Terrorism Strategy, Organization for Security and Co-operation in Europe, 30 November 2007, MC.DOC/3/07, para 22. See also the Ministerial Council Ministerial Statement on Supporting and Promoting the International Legal Framework against Terrorism, Organization for Security and Co-operation in Europe, 5 December 2006, MC.DOC/5/06. 214. On NATO’s counter-terrorism activities see (last visited 7 July 2017). However, NATO’s activity is primarily on an operative, non-legislative level, eg conducting a number of counter-terrorism activities, such as Operation Active Endeavour (OAE, a maritime surveillance operation in the Mediterranean). 215. IGAD, in 2006, launched the ‘Capacity Building Programme against Terrorism’ (ICPAT), see (last visited 12 July 2017). See also R Tavares, Regional Security: The Capacity of International Organizations (Oxon, Routledge, 2010) 52. 216. On the role of CICTE in providing legal assistance on counter-terrorism, see JR Perales, ‘Crime, Violence, and Security in the Caribbean’ (2008) 29 Woodrow Wilson Center Update on the Americas 4 (last visited 7 July 2017). 217. See Leslie E King and Judson M Ray, ‘Developing Transnational Law Enforcement Cooperation: The FBI Training Initiative’ (2000) 16 Journal of Contemporary Criminal Justice 386–408. 218. This is an adaptation to the legal context of the reasons given by Holzinger and Knill (n 158) 782–86. 219. Holzinger and Knill (n 158) 783 (quoting R Rose).

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material support to terrorism. International law requires the criminalisation of material support to terrorism, but leaves open which conception of material support states adopt.220 Consequently, there are very broad approaches to material support, like in the US, where even peaceful aid (such as provision of training on how to use international law for resolving disputes peacefully) may be criminalised.221 On the other side of the spectrum, there are narrower approaches to material support, for example in the case of Canada. Canadian law requires that the contribution must be ‘made for the purpose of enhancing the ability of any terrorist group to facilitate or carry out a terrorist ­activity’.222 The Canadian approach to material support is more appropriate, if the social goal of a society is to cut off terrorist organisations from the means to carry out their attacks while at the same time allowing for ‘socially acceptable’ forms of interaction with, say, charity organisations. On the other hand, the US approach is more appropriate, if any contribution to a terrorist organisation is considered a potential ‘dual use’ (ie furthering both legitimate and criminal aims). Second, transnational legislative networks allow for flexible and informal transnational problem-solving. According to Holzinger and Knill transnational problem-solving is: driven by the joint development of common problem perceptions and solutions to similar domestic problems and their subsequent adoption at the domestic level. Transnational problem-solving typically occurs within transnational élite networks or epistemic communities, defined as networks of policy experts who share common principled beliefs over ends, causal beliefs over means and common standards of accruing and testing new knowledge.223

What are the problems with norm diffusion through transnational legislative networks? Transnational learning assumes that governments act rationally, ie that they are willing to change existing policies for ‘superior’ ones.224 Given that diffusion is an informal way of transnational law-making, its success largely depends on the political will of the relevant actors of the international community. The ability to engage in transnational learning furthermore ­presupposes the existence of a certain level of existing homogeneity between

220. See GA Res 60/288, UN Doc A/RES/60/288, 20 September 2006, Annex II para 2; SC Res 1373 (2001), UN Doc S/RES/1373, para 2. 221. Holder v Humanitarian Law Project, 561 US 1 (2010). 222. Canada Criminal Code, RSC 1985, C-46, s 83.18(1). 223. Holzinger and Knill (n 158) 783 (referring to PM Haas). 224. Holzinger and Knill (n 158) 783 (referring to PM Haas).

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the legal systems of the law-creator and the law-recipient.225 Finally, transnational learning is only possible if governments are actually able to collect all the necessary information on foreign regulatory designs.226 Not all of these conditions are likely to be fulfilled in every case. Subsequently, counting on transnational learning may be a rather optimistic rationale. Transnational problem-solving as the other rationale underlying diffusion of norms through transnational legislative networks has its drawbacks, too. As Louis de Koker writes in a critique on the FATF (that could be generalised for the situation of other transnational legislative networks): [t]he FATF remains an exclusive club representing a number of influential nations. Its decision-taking processes are largely non-transparent, even to the participants and citizens of its member nations. It acts as an expert group but its expertise is generally not backed by verifiable data and its experts are generally anonymous.227

In other words, while the problem with transnational learning is its unreliability, the problem of transnational problem-solving is the lack of formalised law-making processes and the exclusivity of membership in transnational networks.

5. Conclusion Global terrorism remains a major threat to international peace and stability in the future. In cases of truly transnational threats such as global terrorism, states have a great incentive to deepen and increase cooperation through lawmaking, primarily in order to minimise ‘security externalities’ and to prevent ‘weakest link scenarios’. The integration of counter-terrorism into the international legal agenda has changed international law as well as the techniques of its creation. The process is still ongoing. Just as the establishment of individual rights at the international level in the course of the human rights movement after the Second World War, the new internationally created legal obligations for individuals impact the very foundations of the international legal order.

225. See ibid, 791. 226. See ibid, 783. 227. Louis de Koker, ‘Applying Anti-Money Laundering Laws to Fight Corruption’ in Adam Graycar and Russell G Smith (eds), Handbook of Global Research and Practice in Corruption (Cheltenham; Northampton, Edward Elgar, 2011) 340–58, 356.

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A reconstruction of this evolution transcends the confines of a traditional doctrinal analysis of international norms. Taking the individual—as an actor on the international plane—seriously, means to question some of the doctrinal dichotomies, like ‘law’ versus ‘non-law’, ‘mediated law’ versus ‘unmediated law’. Transnational law offers a—both conceptual and methodological— framework within which a reconstruction of these legal developments is possible. Global counter-terrorism norms differ from ordinary international legal norms in terms of their quality. Some are of a regulatory nature, some have statute-like density, and there is the potential for self-execution. With the global counter-terrorism norms gaining authoritativeness, we witness the emergence of transnational counter-terrorism legislation. In the last decade universal counter-terrorism law-making emerged as a truly experimental field of international law-making. The emerging transnational counter-terrorism legislation challenges public international law (as it used to be) in two significant ways. A first new problem is that of ‘integration’. Given the (particular) nature of the reasons for cooperation in this field (in particular, anticipated disastrous external effects of deficient domestic law-making on terrorism as well as weakest link problems), international law-making has to get closer to the normative situation of individuals ‘on the ground’. The problem of integration relates to the gap between ‘the international’ and ‘the domestic’ in counter-terrorism and innovative ways on how to bridge that gap (eg through unorthodox ways of law-making by transnational regulatory resolutions, the establishment of transnational legal networks to shape and disseminate norms and legal standards). A second problem is that of integrity.228 It has been argued here that there are reasons why the integrity of these provisions must be safeguarded already on the transnational level of norm creation, not just on the level of domestic implementation. ‘Integrity’ requires global counter-terrorism law-making to be informed and constrained by concerns of transnational constitutionalism, either through a clear statement on the supremacy of human rights over regulatory norms, or—preferably—through spelling out in the legal instruments the

228. For a different ‘principle of integrity’, see Ronald Dworkin, Law’s Empire (Cambridge, The Belknap Press of Harvard University Press, 1986) 176. Dworkin’s principle of integrity (as applied to the law-maker) establishes the requirement to make the ‘total set of laws morally coherent’, ibid. This theory-specific use is not what is meant here. Rather, the principle of integrity refers to the practice of establishing as well as the need for conformity of transnational law-making with higher (normative) standards.

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consequences of human rights for regulatory issues, eg the limits set by the right to freedom of association for rules on material support to terrorism.229 The actors involved in transnational law-making are only just starting to recognise what integrity requires in practical terms. Some developments can be explained by a principle of integrity, eg the reference to human rights and other standards in suppression conventions and recent quasi-legislative resolutions by the Security Council. It cannot be sufficiently stressed that the consequences of (a principle of ) integrity in transnational law-making are just beginning to be drawn. The ‘rights-centred approach to counter-terrorism’, announced by the UN Secretary General in November 2014, is a significant step towards taking the principle of integrity seriously on the level of UN law-making.230

229. For conceptions of transnational constitutionalism, see Wen-Chen Chang and­ Jiunn-rong Yeh, ‘The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions’ (2008) 27 Penn State International Law Review 89–124; Nicholas Tsagourias (ed), Transnational Constitutionalism: International and European Perspectives (Cambridge, Cambridge University Press, 2010). 230. See n 137.

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Diplomatic Assurances in Cases of Expulsion to Torture: A Critical Analysis Mehrnoosh Farzamfar* Abstract: Diplomatic assurances in the cases of expulsion to torture, or simply promises not to torture, have raised substantial questions regarding the legality of this practice in international law. The main reason for this criticism is that this practice is mitigation on the principle of non-refoulement to torture, as the most prominent norm of customary international law or jus cogens. This article investigates the origin and nature of this practice and discovers how security concerns of states in the aftermath of the 9/11 attacks and the global war on terror have brought diplomatic assurances into the spotlight more than ever. Thereafter, by critically analysing the existing case law encompassing diplomatic assurances for expulsion to torture, this article suggests that a more structured framework, perhaps something similar to treaties, is needed in order to strengthen the enforcement and monitoring mechanisms of promises not to torture. Keywords: diplomatic assurances, torture, expulsion, non-refoulement

1. Introduction ‘Countries like the United Kingdom have tried to circumvent this problem [extraordinary rendition] by getting “diplomatic assurances” in which they ask those countries to be kind enough not to torture—These diplomatic assurances are a clear attempt to circumvent the absolute prevention of refoulement.’ Manfred Nowak, the former UN Special Rapporteur on Torture1

* I would like to thank Dr Magdalena Kmak for her inspiration of the topic and constructive feedback on an earlier version of this work. I am particularly grateful to Dr Bríd Ní Ghráinne for her invaluable advice and encouragement during the drafting and submission processes of this article. My special thanks are also extended to the editorial board and anonymous reviewers of the Finnish Yearbook of International Law (FYBIL) for their support and critical comments. The responsibility for all deficiencies remains mine. 1. This quotation is extracted from an interview which Kanishk Tharoor, the editor at openDemocracy, conducted with Mr Manfred Nowak, the United Nation’s Special ­Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on 15 January 2007. For the full interview, see (last visited 19 July 2017).

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Perhaps one of the most controversial and paradoxical issues in international law is the concept of diplomatic assurances in the cases of expulsion to torture. Diplomatic assurances, in general meaning, are those agreements between states which include human rights safeguards to facilitate and legitimise the removal, expulsion or extradition to third states of non-nationals, who are at risk of torture and other cruel, inhuman or degrading treatment or punishment.2 Being committed to the notion of war on terror and the importance of national security has urged states to impose extraordinary renditions3 against the alleged suspects of terrorism. The rendering procedure is irrespective of the fact that unfounded detentions or expulsion to torture and other cruel, inhuman or degrading treatment or punishment might be imposed on the individuals. Notwithstanding the importance of safeguarding national security, the principle of non-refoulement to torture, as a fundamental norm of customary international law, has created essential concerns regarding the legality and permissibility of expulsions if there is a risk of torture. This practice, as many have stipulated, has a reverse effect of the universal ban on torture and cruel, inhuman or degrading treatment by justifying the return and rendering of suspects to countries where they face a risk of torture.4 A valid position for diplomatic assurances in international law is under scrutiny from two aspects: the origin and the very nature of this mechanism are as ambiguous as its scope and applicability.5 Neither treaty maker, nor legislator has ever publicised the emergence and creation of diplomatic ­assurances

2. Nina Larsaeus, ‘The Use of Diplomatic Assurances in the Prevention of Prohibited Treatment’, Oxford University Working Paper Series, Refugees Studies Centre (RSC) Working Paper No 32 (2006) 3. Also see Gregor Noll, ‘Diplomatic Assurances and the Silence of Human Rights Law’ (2006) 7 Melbourne Journal of International Law 104–26, 104. In this regard, also see Human Rights Watch, ‘Human Rights Watch Questions and Answers on “Diplomatic Assurances” against Torture’, (last visited 10 July 2017). 3. The phrase extraordinary rendition refers to ‘transfer of a person from one State to another, for the purpose of arrest, detention, and/or interrogation by the receiving State’. On this definition, see Michael John Garcia, ‘Renditions: Constraints Imposed by Laws on ­Torture’, Congressional Research Service (CRS) Report for Congress Members and Committees 7-5700 (2009) 1. 4. See the statement by the 5th UN High Commissioner on Human Rights, Louise Arbour on the human rights’ day, < www.hrw.org/news/2006/11/10/diplomatic-assurances-againsttorture> (last visited 19 July 2017). 5. Mariagiulia Giuffré, ‘Access to Protection: Negotiating Rights and Diplomatic A ­ ssurances under Memoranda of Understanding’ in Jean-Pierre Gauci, Mariagiulia Giuffré and ­Evangelia (Lilian) Tsourdi (eds), Exploring the Boundaries of Refugee Law: Current Protection Challenges (Leiden, Brill Nijhoff, 2015) 50–89, 53 and 54.

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in international law.6 As a result, states, in practice, tend to take advantage of this grey area by contracting out of their international human rights obligations and duties to third parties.7 As Klabbers righteously formulated, ‘this shady agreement has emerged from amorphous networks of civil servants without public or parliamentary control and it is the outcome of some guidelines for blacklisting individuals in the form of so-called non-papers’.8 Despite all the scepticism, the existence of diplomatic assurances, in the cases of the expulsion of suspected terrorists to torture, is an undeniable fact: it has become a longstanding routine, which has been commonly practiced by some states in the post 9/11 years. What human rights advocates and organisations are in strong consensus over are the lack of effectiveness and inefficiency of these measures in safeguarding individuals from torture.9 This position thoroughly opposes those who believe that diplomatic assurances grant states practical solutions to enforce their sovereignty and the right to remove undesirable and threatening non-citizens from their territories without violating international law in general, and their human rights obligations specifically. By considering both sides of the argument regarding the practice of diplomatic assurances, meaning, on the one hand, the importance of safeguarding national security and, on the other hand, the absolute and non-derogable nature of the prohibition of non-refoulement to torture,10 the main objective 6. William Thomas Worster, ‘Between a Treaty and Not: A Case Study of the Legal Value of Diplomatic Assurances in Expulsion Cases’ (2012) 21 Minnesota Journal of International Law 253–346, 261–65. 7. Bríd Ní Ghráinne, ‘Challenges in the Relationship between the Protection of Internally Displaced Persons and Refugees’ (PhD thesis, University of Oxford, 2014) 149. 8. Jan Klabbers, ‘Constitutionalism and the Making of International Law: Fuller’s Procedural Natural Law’ (2008) 5 No Foundations Interdisciplinary Journal of Law and Justice 84–112, 104. 9. Amnesty International, Return to Torture: Extradition, Forcible Returns and Removals to Central Asia, Amnesty International Doc No EUR 04/001/2013 (2013) 8. Also see UNHCR, ‘UNHCR Note on Diplomatic Assurances and International Refugee Protection’, 10–12 (last visited 10 July 2017). Also see Human Rights Watch, ‘Still at Risk: Diplomatic Assurances No Safeguard against Torture’, Vol 17, Human Rights Watch Doc No 4(D) (2005) 1824. Also see Human Rights Watch, ‘Empty Promises: Diplomatic Assurances No Safeguard against Torture’, Vol 16, Human Rights Watch Doc No 4(D) (2004) 4–6. 10. It is noteworthy that absolute human rights and non-derogable rights do not necessarily correspond with each other. Absolute rights are those which cannot be balanced against by any interest, under normal circumstances, but shall be subjected to restrictions by opposing interests. The rights to freedom of opinion and freedom of expression, as stipulated under Article 19 of the 1966 International Covenant on Civil and Political Rights (ICCPR), are two examples of absolute, but derogable rights. Non-derogable rights are

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of this article is to critically analyse the existence and application of diplomatic assurances in the cases of expulsion to torture from the perspective of international law. For the purpose of this legal analysis, this article will investigate the concept, nature and position of diplomatic assurances in international law. It will argue how a lack of a legal framework for the creation of these measures has affected its justifiability and effectiveness and, further, after the 9/11 attacks, questioned the jus cogens status of the principle of non-refoulement to torture. Considering the fact that terrorism is a global threat, not limited to one territory, this article supports the idea that diplomatic assurances have to be governed by a treaty network that safeguards human rights in the process of expulsion. For the purpose of this argument, the current article is divided into three main sections. The first part demonstrates that diplomatic assurances is a grey area in international law, as the origin and formation of this practice are matters of controversy and there is no definition available for this term. The second part elaborates on the legally substantial criticisms on the practice of diplomatic assurances by discussing the dichotomy between this practice and the principle of non-refoulement to torture in international law. In the same section, this article replies to the question of what justifies the creation and use of diplomatic assurances in spite of the contradictory relation this practice has with the principle of non-refoulement to torture in international law. The last part critically analyses the effectiveness of diplomatic assurances in the cases of expulsion to torture from an international law perspective and concludes that the existing framework is not enough to guarantee the prevention and protection of terrorism suspects from torture. Moreover, by closely studying available international and regional sources, ie treaties, legislations and other legal documents and by referring to relevant case laws in various jurisdictions, this article demonstrates how mitigating on jus cogens norms of human rights, without legal measures subjected to judicial control, is practically infeasible. Because the discussion in this article is merely focused on torture, Article 3 of the 1984 United Nations’ C ­ onvention against

those which cannot be limited or waived in emergency situations (such as in times of war or other public emergencies). For instance, the right to life is a non-derogable right which should be respected in emergency situations (like in times of war), but one shall be deprived of it if it is a punishment of a crime (the prohibition of capital punishment is not so far included in all core international and regional human rights instruments). On the contrary, the prohibition of torture is one of the rare human rights, which is at the same time absolute and non-derogable. This means that under no circumstances, neither normal nor emergency, one can be subjected to torture. In this regard, see Manfred Nowak and Elizabeth McArthur, The United Nations Convention against Torture: A Commentary (Oxford, New York, Oxford University Press, 2008) 119.

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Torture and Other Cruel, Inhuman or Degrading ­Treatment or ­Punishment (hereinafter, the ‘1984 CAT’)11 and Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter, the ‘1950 ECHR’)12 are the central premises for this argument. Therefore, some of the cases studied in this article are from the Committee against Torture and the Human Rights Committee, as they are the United Nations’ monitoring bodies for the 1984 CAT and the 1966 International Covenant on Civil and Political Rights (hereinafter, the ‘1966 ICCPR’) respectively.13 In addition, the cases that are referred to from the jurisprudence of the European Court of Human Rights (hereinafter, the ‘ECtHR’), are from before and after the 9/11 attacks in order to study the effects that incident had on the precedent of the Court. The reason for this selection is to demonstrate the drastic change the ECtHR has made in its jurisprudence in torture-related cases before and after 9/11. From national case-law, two cases from the United States have been put under scrutiny since the US Government has been the leader of the global war against terror. This article also benefits from a wide range of monographs and articles written by scholars in the field.

2. The Definition and History of Diplomatic Assurances in International Law The ambiguity of the concept of diplomatic assurances commences with its definition. As a matter of fact, there is no single document in international law which has clearly defined this term in a unified manner. As an unwritten practice in international relations, diplomatic assurances are defined by their application; thus, the term refers more to a broad set of practices rather than to a concrete legal institution.14 The only documents providing some sporadic and isolated definitions of diplomatic assurances are human rights watchdog organisations and a few scholarly publications. In accordance with

11. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or ­Punishment, 10 December 1984, in force 26 June 1987, 1465 UNTS 85. 12. European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, in force 3 September 1953, 5 ETS. 13. International Covenant on Civil and Political Rights, 16 December 1966, in force 23 March 1976, 999 UNTS 171. 14. Evelyne Schmid, ‘The End of the Road on Diplomatic Assurances: The Removal of ­Suspected Terrorists under International Law’ (2011) 8 Essex Human Rights Review 219–35, 221.

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some of these references, the phrase diplomatic assurances, also known as diplomatic guarantees or memoranda of understanding (MOU), are those agreements between states which include human rights guarantees to facilitate and legitimise the removal, expulsion or extradition of non-nationals, who are at risk of torture and other cruel, inhuman or degrading treatment or punishment, to third states.15 It is noteworthy to mention that the description above does not present a precise definition of diplomatic assurances, because it has overlooked the substantial differences between the concepts of extradition and expulsion in international law. Extradition is a formal procedure involving the deportation of a person from one state (known as the requested state) to another state (known as the requesting state) for the purpose of conducting criminal prosecution or enforcing a sentence.16 As a general rule, international law dictates no duty or obligation on any state to extradite; hence, as Gilbert has formulated, it is inferred to be more a matter of ‘international comity and reciprocity’.17 This means that the requested states, on the basis of the principle of sovereignty and their free will, decide whether to grant or not to grant the right of access to the individuals who are within their territories to the requesting states. This free will, in international law, has been projected in the form of bilateral and/or multilateral treaties resulting in a legal obligation to extradite. Therefore, any responsibility or obligation arising from these agreements is controlled by the rules of the laws of treaties. Contrary to extradition, which necessitates the formal acts of two states, expulsion is a unilateral procedure initiated by the sending state, which means that the receiving state is not necessarily requesting the deportation of the individual. However, the act of deportation in the cases of expulsion must be subjected to safeguards and guarantees, which comply with international rules and standards. That is why the concept of diplomatic assurances has been created in the framework of expulsion. On this ground, the United Nations’ High Commissioner for Refugees (the United Nations’ Refugee Agency, hereinafter, the ‘UNHCR’) has defined diplomatic assurances, in the context of transferring a person from one state to another, as ‘an undertaking by the receiving State to the effect that the person concerned will be treated 15. Larsaeus (n 2) 3. In this regard, also see Noll (n 2) 104 and Human Rights Watch (n 2). 16. Sibylle Kapferer, ‘The Interface between Extradition and Asylum’, Legal and Protection Policy Research Series, UNHCR Department of International Protection, Doc No PPLA/2003/05 (2003) 1. 17. Geoff Gilbert, Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms (The Hague, Martinus Nijhoff Publishers, 1998) 58, 199, 212 and 322.

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in accordance with conditions set by the sending State or, more generally, in keeping with its human rights obligations under international law’.18 In other words, diplomatic assurances are the practice of setting some conditions on the receiving state by the sending state. This practice, also sometimes referred to as rendition or extraordinary rendition, is resorted to with the frequently high demand of sending states to remove persons, whom they suspect of involvement in terrorist activities and/or consider as an imminent threat to their national security.19 More specifically, these assurances are imposed on the countries where individuals are transferred through informal measures, which do not offer any procedural safeguards. Diplomatic assurances, in general, include guarantees that the person, who is to be removed, will not be subjected to torture or other forms of ill-treatment. Moreover, these conditions could, for instance, encompass the promise not to impose the death penalty or to consider fair trial in the process of future prosecution. Accordingly, diplomatic assurances in general consist of two types of commitments. First is the guarantee not to torture, and the second is the fulfilment of other human rights obligations.20 The first commitment, which is at the centre of discussion in the current article, exists in all instances of diplomatic assurances, whereas the inclusion of other human rights (such as the right to a fair trial or not to be subjected to the death penalty) might be mentioned merely in some. In addition to the problem of definition, the origin and history of diplomatic assurances in international law are not clearly definite, either. Nevertheless, renditions associated with issuing diplomatic assurances have been playing a determining role in the foreign policy of many states for decades, even since before the 9/11 attacks.21 The United States of America has been rendering people to its own territory and/or to other states since the presidency of Ronald Reagan in 1983.22 Similarly, the European countries have extensive experience in utilising diplomatic assurances in the context of extradition for common and not necessarily political crimes in order to prevent

18. UNHCR (n 9) 2. 19. UNHCR (n 9) 2. 20. Martin Jones, ‘Lies, Damned Lies and Diplomatic Assurances: The Misuse of Diplomatic Assurances in Removal Proceedings’ (2006) 8 European Journal of Migration and Law 9–39, 12. 21. The instances of states’ practice in this regard could be seen in Human Rights Watch, ‘Empty Promises’ (n 9) and also in Human Rights Watch, ‘Still at Risk’ (n 9). 22. Noll (n 2) 107.

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the death penalty.23 An early instance of assigning assurances on the receiving state happened in 1876, when Lord Derby of the United Kingdom strikingly rejected the extradition of a suspect for the alleged forgery to the Unites States of America. The reason for the UK’s refusal was that the US Government, at that time, failed to provide an assurance not to try the suspect for any other offence.24 The practices, which human rights’ watchdogs have criticised, are expulsions to torture and other cruel and inhuman treatments. The reason for this scrutiny is that the monitoring of compliance with no-torture assurances, in practice, is more difficult compared to those safeguarding against the death penalty. The practice of requesting assurances against torture and other ill treatments has a shorter principled history compared to assurances against the death penalty. As a result of the 9/11 attacks, the use of diplomatic assurances in cases of expulsion to torture increased significantly. The states that claimed to be in the global war against terror have used diplomatic assurances more often, while returning the alleged suspects of terrorism to the receiving countries. What we have little doubt about is that currently dependence on diplomatic assurances, in the context of removal procedures such as expulsion or deportation, has an established stand between states.25 By relying on these assuring measures, the sending states claim to be able to expel individuals without acting in breach of their obligations under applicable international and regional human rights treaties, as well as national laws. The frequency of employing diplomatic assurances in the cases of expulsion to torture, nonetheless, has not been affected at all by serious concerns which human rights advocates have expressed on the contradiction of the assurances with the principle of non-refoulement and the lack of effectiveness in safeguarding the human rights of returnees. The following section of this article will explicitly study the issue of this contradiction, its implications in legality of diplomatic assurances, and available justifications to solve this tension in the cases of expulsion to torture.

23. Alice Izumo, ‘Diplomatic Assurances against Torture and Ill Treatment: European Court of Human Rights Jurisprudence’ (2010) 42 Colombia Human Rights Law Review 233–77, 235. 24. Eric Metcalfe, ‘The False Promise of Assurances against Torture’ (2009) 6 Justice Journal 63–92, 64. 25. UNHCR (n 9) 2.

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3. The Dichotomy between Diplomatic Assurances in the Cases of Expulsion to Torture and the Principle of Non-Refoulement to Torture 3.1. The Contradiction of Diplomatic Assurances with the Principle of Non-Refoulement to Torture The French-originated term, refoulement, has a specific legal implication in international refugee law, which means removal, return or expulsion of individuals who have the right to be refugees or to be internationally protected from persecution.26 The prohibition of refoulement or, in other words, the principle of non-refoulement, as the cornerstone of international refugee protection, was first stipulated in Article 33(1) of the 1951 Geneva ­Convention relating to the Status of Refugees (hereinafter, the ‘1951 R ­ efugee C ­ onvention’).27 This Article provides the main goal of the 1951 Refugee Convention; hence, no reservation against is permitted. According to ­Article 33(1), no Member State is allowed to refouler, meaning to expel or return a refugee, in any manner whatsoever, to the country where her/his life or freedoms would be in danger on account of her/his race, religion, nationality, membership of a particular social group or political opinion. Regardless of the fact that the principle of non-refoulement was initially introduced by the 1951 Refugee Convention, its scope of application in international law is broader than this Convention and includes all instances of renditions in migration law. Bearing in mind the narrowest possible interpretation of ‘danger to life and freedom’ stipulated in Article 33(1) of the 1951 Refugee Convention, this phrase definitely includes torture and other forms of ill-treatment, which would inflict bodily and physical harm.28 The principle of non-refoulement and the prohibition of torture are closely linked in a manner that the former is the continuation and inevitable consequence of the latter. The prohibition of refoulement, in the context of the prohibition of torture, in international law has deep roots

26. In this regard, see the definition of the United Nations Educational, Scientific and Cultural Organization (UNESCO) on the concept of refoulement, (last visited 10 July 2017). 27. Convention relating to the Status of Refugees, 28 July 1951, in force 22 April 1954, 189 UNTS 137. 28. Manfred Nowak, ‘“Extraordinary Renditions”, Diplomatic Assurances and the Principle of Non-Refoulement’ in Kälin Walter (ed.), International Law Conflict and Development: The Emergence of Holistic Approach in International Affairs (Leiden; Boston, Martinus Nijhoff Publishers, 2010) 107–34, 109.

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in both treaty law and customary international law. Besides Article 33(1) of the 1951 Refugee Convention, Article 3 of the 1984 CAT and Article 16 of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance29 have pointedly prohibited the expulsion, return (refoulement) or extradition of persons to another state where there are substantial grounds for believing that they would be in danger of being subjected to torture. It is no exaggeration to state that the absolute nature and non-­ derogability of the prohibition of torture is the most explicit and repeated provision in nearly all core international and regional human rights instruments. This absolute prohibition includes Article 5 of the 1948 Universal Declaration of Human Rights;30 Articles 2(2) and 15 of the 1984 CAT; A ­ rticles 4(2) and 7 of the 1966 ICCPR; Article 3 of the 1950 ECHR; Articles 5(2) and 27(2) of the 1969 American Convention on Human Rights (hereinafter, the ‘1969 ACHR’);31 the whole spirit of the 1985 Inter-American Convention to Prevent and Punish Torture,32 especially Articles 1 and 5; Article 5 of the 1981 African (Banjul) Charter on Human and Peoples’ Rights (hereinafter, ‘the 1981 Banjul Charter’);33 and Article 8 of the Arab Charter of Human Rights.34 The persistence in practice and the consensus (also known as the opinio juris)35 over the prohibition of torture in international law is such that this norm has not only become a rule of customary international law, but this prohibition has also reached the status of a peremptory norm of international law or jus cogens.36 The prohibition of torture applies not only to member

29. International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, in force 23 December 2010, 2716 UNTS 3. 30. Universal Declaration of Human Rights, A/810 at 71, 10 December 1948. 31. American Convention on Human Rights, 22 November 1969, in force 18 July 1978, 36 OASTS. 32. Inter-American Convention to Prevent and Punish Torture, 9 December 1985, in force 28 February 1987, 67 OASTS. 33. African (Banjul) Charter on Human and Peoples’ Rights, 27 June 1981, in force 21 ­October 1986, (1982) 21 ILM 58. 34. Arab Charter on Human Rights, 22 May 2004, in force 15 March 2008, 18 Hum. Rts. L.J. 151. 35. States’ general practice and the consensual acceptance (opinio juris) of a norm are two constituting elements of customary international law by quoting the determination of Article 38(1)(b) of the Statute of the International Court of Justice: ‘b. International custom, as evidence of a general practice accepted as law;’. 36. See paras 5 and 6 of Commentary under Article 26 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its fifty-third session (2001), Supplement No 10 (A/56/10), ch IV.E.1. In this regard, also see Prosecutor v Anto Furundžija, Case no IT-95-17/1-T, ICTY Trial Chamber Judgment (10 December 1998), paras 153–57.

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parties of the above-mentioned instruments, but also to non-Member States that are obligated under the law of treaties to abide by a rule of customary international law.37 In addition, according to Article 53 of the Vienna Convention on the Law of Treaties (VCLT), any agreement between states which is against the norms of jus cogens is void and inherently inapplicable in international law. This legal foundation provides reliable substance to illustrate the distinct contradiction between diplomatic assurances in the expulsion of individuals to the countries where they are at risk of torture and the prominent position of the principle of prohibition of refoulement to torture in international law. The absolute obligation of non-refoulement to torture encompasses all types of transfers, from formal processes of extradition or expulsion to administrative deportation and extra-legal renditions. For the same reason, the former United Nations’ High Commissioner for Human Rights, Louise Arbour, has stated that: Any extradition, expulsion, deportation, or other transfer of foreigners suspected of terrorism to their country of origin or to other countries where they face a real risk of torture or ill-treatment violates the principle of non-refoulement which prohibits absolutely that a person be surrendered to a country where he or she faces a real risk of torture.38 Notwithstanding the contradiction between the principle of non-­ refoulement and sending the individuals to possible torture, states have been intermittently obtaining diplomatic assurances that torture and cruel, degrading or inhuman treatment would not be inflicted by the proposed receiving states. Some governments claim that the threat of international terrorism and the importance of safeguarding national security in the aftermath of the 9/11 attacks necessitate a reform in norms and rules of international law and that under certain circumstances some exceptions should be applied to the principle of non-refoulement to torture.39 Moreover, some scholars have taken a step further in questioning the implications of the principle of non-refoulement and argue that since there is vast room for interpretation of some key terms, ie the concepts of persecution, torture, degrading or cruel treatment, the content of this principle is to be bound and determined by individual ­circumstances.

37. Article 38, Vienna Convention on the Law of Treaties, 23 May 1969, in force 27 January 1980, 1155 UNTS 331; (1969) 8 ILM 679; UKTS (1980) 58 (hereinafter, the ‘1969 VCLT’). 38. Louise Arbour, ‘Address of Louise Arbour, UN High Commissioner for Human Rights’ (2006) 55 International and Comparative Law Quarterly 511–26, 517. 39. In this regard, see the Observations of the Governments of Lithuania, Portugal, Slovakia and the United Kingdom Intervening in the case of Ramzy v the Netherlands, European Court of Human Rights, Application no 25424/05 (21 November 2005).

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Therefore, the role of national and international actors in promoting their own correct version of interpretation should not be undermined.40 In the following section, the arguments, which justify the application of diplomatic assurances despite its dichotomy with the prohibition of refoulement to torture, will be discussed.

3.2. Possible Justifications for the Creation and Application of Diplomatic Assurances in Cases of Expulsion to Torture Because of the significance of the values it protects, the prohibition of torture has been enhanced to the level of a peremptory norm or jus cogens in international law.41 Unlike ordinary rules of customary international law or treaty obligations, which could be altered by other treaties or by withdrawing from the treaty or which could be waived by establishing (a) new custom(s) through persistent objectors,42 any consensus against jus cogens is substantially void and legally ineffective.43 This view is explicitly asserted under Article 53 of the 1969 VCLT, in the judgment of the International Criminal Tribunal for the former Yugoslavia (hereinafter, the ‘ICTY’), in the case of Prosecutor v Anto Furundžija44 and in paragraphs 8 and 10 of the General Comment No 24, adopted by the Human Rights Committee, regarding the issues related to the reservations to the 1966 ICCPR.45 The Human Rights ­Committee, in

40. Jari Pirjola, ‘Shadows in Paradise—Exploring Non-refoulement as an Open Concept’ (2007) 19 International Journal of Refugee Law 639–60, 639. 41. See paras 5 and 6 of Commentary under Article 26 of the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (n 36). In this regard, also see Prosecutor v Anto Furundžija (n 36) paras 153–57. 42. The classic example of a persistent objector to a norm of customary international law is Norway, which was well-elaborated in the Anglo-Norwegian Fisheries Case. In this case, the International Court of Justice (hereinafter, the ‘ICJ’) ruled that even if the norm of ‘ten-mile rule relating to straight base-lines’ existed by the rule of customary law, it appeared to be ‘inapplicable […] against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast’. For more details on this part of the ICJ’s judgment, see Anglo-Norwegian Fisheries Case (the United Kingdom v Norway) ICJ Reports (1951) 116, para 131. 43. Mark E Villiger, Customary International Law and Treaties: A Manual on the Theory and Practice of the Interrelation of Sources, 2nd edn (The Hague, Kluwer Law International, 1997) 33–35. In this regard, also see Sean D Murphy, Principles of International Law, 2nd edn (Saint Paul, Thomson Reuters West Academic Publishing, 2012) 78–83. 44. Prosecutor v Anto Furundžija (n 36) paras 153–55. 45. CCPR General Comment No 24 on Issues Relating to Reservations Made upon ­Ratification or Accession to the Covenant or the Optional Protocols thereto, or in ­Relation to Declarations under Article 41 of the Covenant, CCPR/C/21/Rev.1/Add.6, 4 November 1994.

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the said General Comment, rendered that no reservation is allowed against the prohibition of torture for the reason that this prohibition serves a peremptory norm of international law, and hence, it is non-derogable. The absolute nature of prohibition of torture creates an extra-territorial responsibility for the states outside their own territorial jurisdiction. This means that states are not only responsible for tortures happening within their own borders, but also they are not allowed to expel, extradite or remove, in any way, an individual to a country where the person is at risk of torture. Committing so is, prima facie, a violation of peremptory norms of international law. Further, the instances of national security have barely in practice justified the expulsion of individuals to places where they are at risk of torture. An example of the supremacy of non-refoulement to torture over security concerns was stipulated by the case of Tapia Paez v Sweden, in which the Committee against Torture argued that ‘the test of article 3 [of the 1984 CAT i.e. the prohibition of ‘refouler’ to torture] is absolute’, and concluded that ‘the nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention’.46 Therefore, whenever substantial grounds exist for believing that an individual would be in any possible danger of being subjected to torture, upon expulsion to another state, the state party is under obligation not to return the person. The jurisprudence of the Committee against Torture in deciding on the case of Tapia Paez v Sweden was to apply objective and subjective assessments to the possible torture. Subjective testing is to determine if the applicant is personally at risk of being subjected to torture if returned and objective testing means that torture must be a necessary and foreseeable consequence of the return of the person to his/her country.47 Thereafter, the Committee against Torture ruled that the nature of the alleged crime committed by the applicant was not a matter of concern when determining under Article 3 of the 1984 CAT.48 Notwithstanding the prominent position and fundamental character of the principle of non-refoulement under the 1984 CAT, its applicability under the 1951 Refugee Convention is not as absolute as non-refoulement to torture. Article 33(2) of the 1951 Refugee Convention provides permissible exceptions to the general principle of non-refoulement. According to this Article, refugees to whom there are ‘reasonable grounds’ against to be considered as a

46. Tapia Paez v Sweden, Communication No 39/1996, Committee against Torture (28 April 1997), UN Doc CAT/C/18/D/39/1996, para 14.5. 47. Ibid, para 3.2. 48. Ibid, para 14.5.

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‘danger to the security’ of the country in which they are (the host country), or who have been ‘convicted by a final judgment of a particularly serious crime’ are excluded from refugee protection.49 Refugee law has apparently validated security concerns of the receiving states against those who have committed certain serious crimes before or upon arrival. Article 33(2) of the 1951 Refugee Convention, alongside Article 1(F) of the same Convention, known as exclusion clauses, have so far been the legal grounds for those states which, in practice, have expelled refugees to the countries of origin. It is pertinent to mention that, similar to Article 33(2) of the Refugee Convention, other instruments have predicted circumstances under which an individual would be expelled from a territory. Under Article 13 of the 1966 ICCPR, Article 1 of Protocol No 7 of the 1950 ECHR, Article 22 of the 1969 ACHR and Article 12 of the 1981 Banjul Charter, there are certain procedural guarantees to expel non-nationals if national security interests are involved. For instance, in the case of Chahal v the United Kingdom, a UK case prior to the 9/11 attack, the corresponding Government held that the security of the host nation would overrule the provision of Article 3 of the 1950 ECHR. For the purpose of this argument, the UK Government had referred to Article 1(F) of the 1951 Refugee Convention (the exclusion clauses) and the exemption to the principle of non-refoulement (Article 33(2) of the same Convention).50 Contrasting with the opinion of the UK Government, the ECtHR reaffirmed the absolute nature of Article 3 of the 1950 ECHR, and identical to what it had previously decided in the landmark case of Soering v the United Kingdom,51 ruled that no balancing act is allowed while considering the issues under Article 3 of the 1950 ECHR. Nevertheless, the peak of interfering security concerns into refugee and migration law occurred right in the aftermath of the 9/11 attacks by adopting new United Nations’ counter-terrorism measures. A few days after the terrorist attacks against the World Trade Centre complex in New York City, the United Nations’ Security Council adopted Resolution S/RES/1373(2001), with the title of ‘Threats to international peace and security caused by terrorist acts’. According to this Resolution, ‘all States shall deny safe haven to those related to terrorism52 and prevent these suspects from access to their ­territories’.53 49. Article 33(2), 1951 Refugee Convention. 50. Chahal v the United Kingdom, Application no 70/1995/576/662, European Court of Human Rights, Grand Chamber, Judgment (11 November 1996), paras 75–76. 51. Soering v the United Kingdom, Application no 14038/88, European Court of Human Rights, Plenary Court, Decision (7 July 1989), paras 88 and 109. 52. UN Security Council Resolution 1373(2001), S/RES/1373(2001), 28 September 2001, para 2(c). 53. Ibid, para 2(d).

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This was a turning-point in the decisions of many courts and states in fearlessly expelling suspects of terrorism by simplistically adopting diplomatic assurances. To illustrate this trend, the Swedish Government in the cases of Agiza v Sweden54 and Alzery v Sweden,55 for example, decided to exclude the applicants from international protection, and extradited Mr Ahmed Hussein Mustafa Kamil Agiza and Mr Mohammed Alzery to Egypt on the ground of security threats. This decision was made on the basis of the information the Government of Sweden had obtained from the United States’ intelligence service and by relying on the diplomatic assurances the Swedish State’s Secretary signed with Egyptian officials in the Swedish Embassy in Cairo. Refugees who have allegedly committed terrorism-related crimes are the most legally challenging dilemmas for the host states. On the one hand, these applicants are de facto refugees and shall not be sent back, but on the other hand, they do not deserve international protection since they are subjected to the exclusion clause set in Article 33(2) of the 1951 Refugee Convention and that post 9/11 security policies prevent them from receiving international protection. In cases where the host states deport these refugees to their countries of origin, there is a high probability that the returnees will be subjected to persecution, which might possibly include torture, as well. In these situations, states tend to apply the general principle of aut dedere aut judicare as a legal ground for exercising a quasi or subsidiary universal jurisdiction for the purpose of either prosecution or extradition of the suspected individuals who are physically present in their territory.56 The challenge with the first option, ie prosecuting the suspects, is that the standard of proof in criminal proceedings is thoroughly different from what is applied in the refugee status determination (RSD). The former employs the standard of beyond reasonable doubt, while the latter is heavily based on the minimum standard of serious reasons for considering.57 As a consequence of this difference, a terrorist suspect who is not eligible for refugee protection because of meeting the minimum standard of serious reasons, cannot easily reach the high threshold of beyond reasonable doubt during criminal proceedings. Consequently, he/she remains in the territory of the host state and is held in detention with no specific legal explanation, meaning that he/she is neither a refugee, nor

54. Ahmed Hussein Mustafa Kamil Agiza v Sweden, Communication no 233/2003, Committee against Torture (24 May 2005), UN Doc CAT/C/34/D/233/2003. 55. Mohammed Alzery v Sweden, Communication no 1416/2005, Human Rights Committee (10 November 2006), UN Doc CCPR/C/88/D/1416/2005. 56. Gideon Boas, Public International Law: Contemporary Principles and Perspectives (Cheltenham, Edward Elgar Publishing Ltd, 2012) 262. 57. Larsaeus (n 2) 6.

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a criminal. In order to avoid this legal vacuum, states prefer to choose the extradition option. However, with this choice the chaos of contradiction with the principle of non-refoulement (if the applicant is to be subjected to torture) remains. For the purpose of evading this plight, states have conceived the idea of promising each other not to torture by signing and exchanging the socalled diplomatic assurances on a political level, within their diplomacy and international relations. As an example, the Supreme Court of Canada, in the case of Suresh v Canada (Minister of Citizenship and Immigration), upheld that exceptional circumstances might justify the deportation to possible torture.58 The Court continued that per contra no deportation had been conducted so far under this exception, because the use of diplomatic assurances against torture had dismissed the need for it.59 All in all, the justification of resorting to diplomatic assurances in the cases of expulsion to torture has evoked worries in asylum lawyers and human rights advocates that this trend may lead to eroding earlier, more robust human rights commitments, especially by elaborating on the inefficiency of these guarantees to prevent torture.60

4. The Effectiveness of Diplomatic Assurances in the Cases of Expulsion to Torture: A Critical Analysis Available reports and recent case law have so far illustrated that diplomatic assurances, in practice, have not been successful in protecting people at risk of torture from such treatment on return, considering the fact that they have been sought from the countries where torture is a common practice.61 The main factor that devalorises the effectiveness of diplomatic assurances is the very secretive and unclear nature of torture by itself.62 Article 1(1) of the 1984 CAT defines torture as: Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third

58. Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3, Canada Supreme Court (11 January 2002) para 71. 59. Ibid, paras 123–25. 60. Jan Klabbers, Treaty Conflict and the European Union (Cambridge, Cambridge University Press, 2009) 8. 61. In this regard see Human Rights Watch, ‘Human Rights Watch Report on Cases Involving Diplomatic Assurances against Torture’, (last visited 11 July 2017). Also see Human Rights Watch, ‘Empty Promises’ (n 9). Also see Human Rights Watch, ‘Still at Risk’ (n 9). 62. Human Rights Watch (n 2) 2 and 4.

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person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.63

As it can be seen in this definition, the 1984 CAT did not give a list of examples for acts of torture. That is why the Trial Chamber of the ICTY, in the case of Prosecutor v Zejnil Delalic, et al (also known as the Čelebići Case), ruled that the ambit of acts which would constitute torture could not be set within a certain limitation.64 Instead, Article 1(1) of the 1984 CAT has formulated certain criteria in establishing what kind of act could possibly constitute torture. These conditions are that the act inflicts severe physical and/or mental pain or suffering to a person, and that the painful act should be performed by public official(s) or other person(s) acting in official capacity, and that the infliction of the pain must be for the purpose of obtaining information, imposing punishment or discrimination for any ground. As it could be comprehended from these criteria, torture is not a single conduct in itself, or a specific type of act, but rather it is the legal qualification of a series of events and behaviours, based on an overall assessment of all these events and conduct in certain environments and under specific circumstances. The existence of particular mental elements or mens rea to this crime (intention to obtain information, to punish and/or discriminate for any reason) makes this assessment even more far-reached. Therefore, many states, in assessing the risk of torture in practice, apply a wide margin in interpreting the intensity or nature of certain actions under different circumstances. For instance, while an action in normal circumstances might not be considered torture, under certain conditions—such as the vulnerability of the victim due to his/her age, gender or health status—it might qualify as torture. Moreover, for the reason that the prohibition of torture is an unmitigated burden on states in international law, government officials torture their targets in secret.65 Furthermore, to ensure that the act of torture is not traceable, medical personnel are employed to monitor and shield the procedure.66 Due to the secretive nature of torture and the lack of transparency in guarantee

63. Article 1(1) of the 1984 CAT. 64. Prosecutor v Zejnil Delalic, et al., Case no IT-96-21-T, ICTY Trial Chamber Judgment (16 November 1998) para 469. 65. Human Rights Watch (n 2) 4. 66. Human Rights Watch (n 2) 4.

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deals, prominent human rights organisations like Human Rights Watch67 and Amnesty International,68 as well as the UN’s Human Rights C ­ ommittee,69 70 71 UN bodies mandated on torture, and some scholars have adopted a restrictive position towards diplomatic assurances. These groups are under the impression that what has caused the inefficiency of diplomatic assurances in torture cases, is that the arrangements between the states are completely confidential and secretly drafted. No public announcement or access to the documents is allowed.72 Thus, the advocates of this approach object to any agreement or promise of not to torture as a matter of principle and insist that governments prohibit reliance on diplomatic assurances in any case where there is a risk of torture.73 In support of their proposition, there are many ground-breaking cases to which they refer: Agiza v Sweden,74 Alzery v Sweden,75 Arar v Ashcroft, et al,76 Ben Khemais v Italy,77

67. Human Rights Watch (n 2) 4. Also see Human Rights Watch, ‘Still at Risk’ (n 9). Also see Human Rights Watch, ‘Empty Promises’ (n 9). 68. Amnesty International, ‘Dangerous Deals: Europe’s Reliance on “Diplomatic Assurances” against Torture’, (last visited 11 July 2017). 69. For instance, see the case of Mohammed Alzery v Sweden (n 55). 70. For instance, see the cases of Tapia Paez v Sweden (n 46), Ahmed Hussein Mustafa Kamil Agiza v Sweden (n 54), and Mafhoud Brada v France, Communication no 195/2002, Committee against Torture (24 May 2005), UN Doc No CAT/C/34/D/195/2002. In this regard, also see the Report by the United Nations’ Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, adopted by the General Assembly in its 60th session, UN Doc A/60/316 (30 August 2005). 71. Noll (n 2). In this regard, also see Jones (n 20). 72. Anthony Aust, ‘Alternatives to Treaty-Making: MOUs as Political Commitments’ in ­Duncan B Hollis (ed), The Oxford Guide to Treaties (Oxford, Oxford University Press, 2012) 46–72, 59. 73. Lena Skoglund, ‘Diplomatic Assurances against Torture—An Effective Strategy? A Review of Jurisprudence and Examination of Arguments’ (2008) 77 Nordic Journal of International Law 319–64, 321. In this regard, also see Report of the Commissioner for Human Rights of the Council of Europe, Mr Alvaro Gil-Robles, on his visit to the United Kingdom on 4th—12th November 2004 for the attention of the Committee of Ministers and the Parliamentary Assembly, CoE Doc No CommDH(2005)6 (8 June 2005), paras 29 and 30. In addition, on the positions of Amnesty International and Human Rights Watch, see respectively: Amnesty International (n 68) and Human Rights Watch, ‘Still at Risk’ (n 9). 74. Ahmed Hussein Mustafa Kamil Agiza v Sweden (n 54). 75. Mohammed Alzery v Sweden (n 55). 76. Maher Arar v Ashcroft, et al, United States Court of Appeals (Second Circuit), Docket No 06-4216-cv (2 November 2009). 77. Ben Khemais v Italy, Application no 246/07, European Court of Human Rights, Chamber Judgment (24 February 2009).

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Mamatkulov and Askarov v Turkey,78 Garabayev v Russia,79 and the Matter of Ashraf al-Jailani.80 What all these cases have in common is that the returnees were subjected to torture in spite of the fact the diplomatic assurances were signed and exchanged between the representatives of the sending and receiving governments. The second reason the supporters of the restrictive approach present on inefficiency of diplomatic assurances is laid in the legal character of these agreements. Although the subject matter of diplomatic assurances against torture is the transfer of people and dealing with the most fundamental human right (meaning freedom from torture), these provisions neither have any root in international human rights instruments, nor in any extradition treaties. Article 2(1)(a) of the 1969 VCLT determines that the imperative requirement for an international agreement between states to be considered as a treaty is to be governed by international law. Not being a treaty created under the rules of laws of treaty is exactly what diplomatic assurances lack in essence. Accordingly, diplomatic assurances are not governed by international law, and as international law scholars have analysed, they are, in character, sets of political agreements with no legal effect.81 These agreements are verbally discussed for every individual case and at last are written through the completion of general memorandum of understanding, a framework agreement signed by diplomatic agents.82 No sanction supports their enforcement in international law; therefore, these promises are not legally binding on the state parties.83 As opposed to the restrictive approach, an optimistic position stands in favour of diplomatic assurances. Government agents, which are the main supporters of this approach, believe that by implementing effective monitoring and enforcement arrangements, there should be no problem in accepting diplomatic assurances. By employing an optimistic interpretation, this position argues that all legal grounds for limiting the principle of non-refoulement (these grounds were explained in the previous part of this article) permit ­evaluating the risk of torture (torture risk assessment).84 Interestingly, the 78. Mamatkulov and Askarov v Turkey, Application nos 46827/99 and 46951/99, European Court of Human Rights, Grand Chamber, Final Judgment (4 February 2005). 79. Garabayev v Russia, Application no 38411/02, European Court of Human Rights, ­Chamber Judgment (7 June 2007). 80. In the Matter of Ashraf al-Jailani, File #A 73 369 984, Executive Office for Immigration Review (EOIR), United States Immigration Court, York, Pennsylvania, (17 December 2004). 81. Aust (n 72) 46. 82. Skoglund (n 73) 334. 83. Aust (n 72) 47. Also see Nowak (n 28) 131. 84. Larsaeus (n 2) 12–17.

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proponents of the optimistic approach to diplomatic assurances employ the same premises compared to the restrictive opponents in supporting their proposal. As stipulated at the beginning of this section, the first reason which restrictive opponents of diplomatic assurances provide is the very nature of torture and difficulty in assessing the instances of acts reaching the threshold of the definition of torture. As explained earlier, the assessment of the risk of torture is highly dependent on the circumstances of the allegedly harmful inflicted act. On the contrary, scholars who stand for the optimistic approach reason that diplomatic assurances are in character legally binding under international law simply because they would otherwise bring no added value to the risk of torture assessment.85 This group argues that, indeed, it is because of the difficulty of clarifying the instances of the torture that we need to assess how much the individual is at a real risk of being subjected to torture.86 There is a high threshold for establishing non-refoulement under Article 3(1) of the 1984 CAT. There must be substantial grounds for believing that a person is at a real risk of being tortured if returned. In this regard, the Committee against Torture in its General Comment No 1 concluded that ‘the level of risk must be assessed on grounds that go beyond mere theory or suspicion and this risk must be personal and present’.87 In addition, the defenders of allowing diplomatic assurances stipulate that the lack of effectiveness in diplomatic assurances is mainly because not much has been done to strengthen the post-return monitoring mechanisms. In the cases of Agiza v Sweden and Alzery v Sweden, for instance, the reason that diplomatic assurances failed was the lack of mechanisms for monitoring and enforcement, not the mere fact of procuring those assurances for return. Hence, provided that the states concentrate on setting enforceable safeguards and monitor them constantly, there is no need to exclude the use of diplomatic assurances completely.88 The UNHCR has also seconded this avenue as an alternative to the principle of non-refoulement within the application of the 1951 Refugee Convention in its specialised note on diplomatic assurances.89

85. Larsaeus (n 2) 8 and 9. 86. Brian Gorlick, ‘The Convention and the Committee against Torture: A Complementary Protection Regime for Refugees’ (1999) 11 International Journal of Refugee Law 479–95, 495. 87. CAT General Comment No 1: Implementation of Article 3 of the Convention in the Context of Article 22 (Refoulement and Communications), A/53/44 annex IX, 21 November 1997, paras 6 and 7. 88. Noll (n 2) 105. 89. UNHCR (n 9) paras 20, 34 and 51.

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In the controversial case of Othman (Abu Qatada) v the United Kingdom, the ECtHR followed the same optimistic approach explicitly and thereby abandoned its precedent jurisprudence in not compromising on the absoluteness of the principle of non-refoulement to torture. This is how the ECtHR, in the case of Othman (Abu Qatada) v the United Kingdom, overruled its judgments on the absolute nature of prohibition of torture as held in the previous pioneering cases of Chahal v the United Kingdom, Soering v the United Kingdom, and Saadi v Italy.90 In the case of Othman (Abu Qatada) v the United Kingdom, after assessing the risk of torture the applicant would have faced in Jordan, and balancing that with the predicted measures in the diplomatic assurances, the ECtHR concluded that the agreed guarantees could grant the applicant enough protection; therefore, his deportation to Jordan would not be in violation of Article 3 of the 1950 ECHR.91 The threshold on which the ECtHR assessed the risk of torture in this case was set so low that it enabled the Court to avoid breaching the prohibition of refoulement.92 Moreover, the ECtHR surprisingly argued that the fact that a country like Jordan did not generally comply with its multilateral human rights obligations did not imply—in the Court’s view—that its bilateral commitments could not be taken seriously, as the extent to which a state has failed to respect its multilateral obligations is, at most, only one of the factors to consider when assessing the reliability of bilateral assurances.93 Besides creating this new precedent on how to evade the absolute nature of torture, the ECtHR introduced for the first time the violation of Article 6 of the ECHR, as a derogable right, while deciding on expulsion and extradition orders.94 This completely misled the Court in ignoring the inherent weaknesses of the assurances due to the lack of experience of the monitoring body (the Adaleh ­Centre) and the fact that this Centre had no freedom in action.95 Apparently, the Court also chose to turn a blind eye on the possible interventions of the 90. Chahal v the United Kingdom (n 50), Soering v the United Kingdom (n 51) and Saadi v Italy, Application no 37201/06, European Court of Human Rights, Grand Chamber, Judgment (28 February 2008). 91. Othman (Abu Qatada) v the United Kingdom, Application no 8139/09, European Court of Human Rights, Chamber Judgment (17 January 2012), paras 190 and 207. 92. Christopher Michaelsen, ‘The Renaissance of Non-Refoulement? The Othman (Abu Qatada) Decision of the European Court of Human Rights’ (2012) 61 International and Comparative Law Quarterly 750–65, 760 and 761. 93. Othman (Abu Qatada) v the United Kingdom (n 91) paras 193–94. 94. Mariagiulia Giuffré, ‘An Appraisal of Diplomatic Assurances One Year after Othman (Abu Qatada) v United Kingdom (2012)’ (2013) 2 International Human Rights Law Review 266–93, 273. 95. Othman (Abu Qatada) v the United Kingdom (n 91) para 200.

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US authorities while the suspect was in prison by subjecting him to rendition to a place outside Jordan.96 By referring to the new jurisprudence of the ECtHR as established in ­Othman (Abu Qatada) v the United Kingdom, it is clear that the Court, whose primary duty is to be a pioneer in safeguarding human rights, has become, in this particular case, an advocate against fundamental norms of human rights, once it fell under the political pressure in an overly-securitised environment. Notwithstanding the attempt of the ECtHR to translate human rights protection into a highly political issue, ie national security and the global war against terror, the Court closed its eyes to the possibility that diplomatic assurances could be easily disobeyed without the existence of any legal measures subjected to judicial control. The ECtHR, through its ruling in Abu Qatada, once again, revealed how ‘the dilemmatic relationship between law and policy persists’,97 and that the courts are not in the position to fill in the gaps in law or solve the dichotomy between law and politics. This proves that in order to ensure the protection of returnees’ human rights in the process of torture-related expulsion cases, the establishment of a mechanism similar to treaties is needed.

5. Conclusion Admitting that terrorism is not a new concern in international law, we have witnessed how the 9/11 attacks have changed the way in which states perceive their security matters. In the contemporary era of the global war against terror, security measures are outdistancing the principles considered as jus cogens or non-derogable in international law. Diplomatic assurances in the context of extradition law are one of those efforts to limit the scope and applicability of jus cogens norms of international law. Courts within different jurisdictions have allowed extradition to countries known for engaging in torture practices in instances where the receiving country has agreed this would not occur in the case of a specific returnee. When faced with extradition or deportation requests, courts tend to apply a high threshold on determining what constitutes torture, as well as requiring evidentiary proof that the individual is at risk, the gathering of which is beyond the capacity of the returnees in detention and by ignoring the fact that torture happens in secret.98 The debate on the position supporting diplomatic assurances and their effectiveness is endless. The discussion includes two extremes: one is restriction of 96. Othman (Abu Qatada) v the United Kingdom (n 91) para 200. 97. Jens Vedsted-Hansen, ‘The European Convention on Human Rights, Counter-Terrorism, and Refugee Protection’ (2010) 29 (4) Refugee Survey Quarterly 45–62, 62. 98. Human Rights Watch (n 2) 4.

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assurances and the other is being optimistic and allowing them a wide margin for compromising on one of the fundamental human rights, ie the prohibition of torture.99 Whether and/or when diplomatic assurances can, in reality, protect the suspects of terrorism is a complicated and multi-layered assessment. The analysis of this efficiency directly connects to the success or failure of states in fulfilling their obligations under the principle of non-refoulement to torture. What case law and existing narratives have shown us, however, is that diplomatic assurances have failed to achieve what they promised. A possible remedy might be for diplomatic assurances to be governed by universal and multilateral obligations of human rights treaties or bilateral treaties, instead of being rapidly exchanged in secret, under disputable frameworks on a political level. In any case, feasible answers to global terrorism should not be found in demolishing fundamental rules of international law and, especially, jus cogens norms. If a terrorist suspect is a threat to peace and security, regardless of the country he/she settles in, the threat still remains to all. While dealing with terrorism, boundaries need to surrender their conventional power and states have to share the responsibility of this phenomenon. After all, it is essential to note that terrorism is not a matter of domestic affairs or the problem of one state anymore, but it is rather a global threat that needs to be addressed through the cooperation and shared responsibility of all actors in international law. That is why all states need to be reminded of their human rights obligations under international law and follow what has been reinforced by the current United Nations’ Special Rapporteur on torture, Mr Juan E Méndez: Diplomatic assurances do not release States from their non-refoulement obligations nor are they necessarily the best way to prevent torture and refoulement. Indeed, diplomatic assurance has been proven to be unreliable, and cannot be considered an effective safeguard against torture and ill-treatment, particularly in States where there are reasonable grounds to believe that a person would face the danger of being subjected to torture or ill-treatment. […] Like his predecessor, the Special Rapporteur regards the practice of diplomatic assurances ‘as an attempt to circumvent the absolute prohibition of torture and non-refoulement’.100

99. Mireille Delmas-Marty, ‘The Paradigm of the War on Crime Legitimating Inhuman Treatment?’ (2007) 5 Journal of International Criminal Justice 584–98, 594. Also see Jeffrey G Johnston, ‘The Risk of Torture as a Basis for Refusing Extradition and the Use of Diplomatic Assurances to Protect against Torture after 9/11’ (2011) 11 International Criminal Law Review 1–48, 7. 100. Report by the United Nations’ Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E Méndez, adopted by the Human Rights Council in its 16th session, UN Doc A/HRC/16/52 (3 February 2011), paras 62 and 63.

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Delimiting the ICC’s Ominous Shadow: An Analysis of the Inability Criterion’s Nebulous Contours Vincent Dalpé* Abstract: Article 17(3) of the Rome Statute allows the International Criminal Court (ICC) to gain jurisdiction over a case that already is the object of domestic proceedings. In order to grant jurisdiction in this situation, Article 17(3) will require the Court to demonstrate that the state concretely is ‘unable’ to carry out the proceedings in question. This is what we call the ‘Inability Test’. As of yet, this test has never been discussed in depth in ICL case law. Its vague and rather awkward wording leaves a fair amount of room for speculation. As a result, this test may currently receive two contradictory, yet plausible interpretations: one where the Court may intervene easily and one where the Court may only intervene in highly exceptional situations. Where the eradication of impunity calls for an approach facilitating the Court’s intervention, the protection of state sovereignty calls for a restrictive approach, confining the Court’s interventions to a handful of pre-determined scenarios. I propose to settle this situation by retaining an interpretation striking a balance between these two conflicting fundamental objectives. In order for this balance to be achieved, I propose to assess inability by using an objective framework based on prosecution timelines. I argue that having recourse to an objective framework would enhance the predictability of the Court’s intervention and would foster better coordination between domestic and international authorities. Keywords: Rome Statute, complementarity, inability, total collapse, partial ­collapse, unavailability

1. Introduction International criminal law (‘ICL’) prosecutions are typically very complex. Indeed, a prosecution before an international criminal tribunal will on ­average take as long as four point nine (4.9) years before completion.1

1. Dawn L Rothe, James D Meernik and Thordis Ingadóttir, The Realities of International Criminal Justice (Leiden, Martinus Nijhoff Publishers, 2013) 17.

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The politically sensitive character of this endeavour, the vast number of ­victims and the remoteness of some of the evidence are only a few e­ xamples of the many challenges facing authorities carrying out this difficult task. For states seeking to carry out these prosecutions in the aftermath of mass atrocity, the challenge may sometimes even be amplified by a lack of resources and expertise. A number of state parties to the Rome Statute of the International Criminal Court have undertaken this challenge since the Statute has come into force, deploying an impressive amount of effort in order to come to grips with impunity.2 While some of these states have been lauded for their achievements, others have unfortunately been criticised by human rights activists for lagging behind. This has been the case for Colombia, ­Afghanistan, and Guinea, which all began carrying out proceedings nearly a decade ago. In some cases, delays have been engendered by shortcomings as basic as shortages of pencils and paper.3 In other cases, the intensity of armed conflict has hampered the judicial system to the extent where it is no longer able to operate in entire regions of the country.4 Where a state’s attempts at getting to grips with impunity prove to be ­fruitless, Article 17(3) of the Rome Statute enables the International Criminal Court (‘ICC’) to gain concurrent jurisdiction. This provision allows the Court to initiate proceedings if the state in question is ‘unable’ to carry out the proceedings genuinely.5 Based on the slow progress characterising some of the situations under the ICC’s radar, one may wonder whether any of these situations could amount to ‘inability’ in the near future. This criterion reads as follows: In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national ­judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.6

This provision reduces the complex task of assessing domestic proceedings in the aftermath of mass atrocity to three, ill-defined sub-criteria: ‘total c­ ollapse,’ ‘substantial collapse’ and ‘unavailability’ of the national judicial system. In spite of their crucial importance in the articulation of the Rome Statute’s 2. See International Criminal Court, Preliminary Examinations, (last visited 11 July 2017). 3. Will Colish, ‘The ICC in Guinea: A Case Study of Complementarity’ (2013) 26.2 Revue Québécoise de droit international 23–45, 41. 4. Kai Ambos, The Colombian Peace Process and the Principle of Complementarity of the International Criminal Court: An Inductive, Situation-based Approach (Berlin, Springer Science & Business Media, 2010) 90. 5. Rome Statute of the International Criminal Court, 17 July 1998, A/CONF. 183/9. 6. Article 17(3), Rome Statute of the International Criminal Court, 17 July 1998, A/CONF. 183/9.

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international system of accountability, the precise meaning of each of these sub-criteria remains difficult to determine. Neither the Court’s case law nor the literature are of much help in ­clarifying this provision’s content. Despite having been the object of litigation in the Libya case, the inability criterion still remains to be fully articulated by the ICC’s jurisprudence.7 The Court has refrained from expanding on this ­subject in every one of its admissibility decisions, probably preferring to concentrate on other, more pressing issues.8 Similarly, little scholarly attention has been devoted to this criterion. This is surprising given the otherwise ­abundant literature on the ICC and complementarity.9 On this issue, Frédéric Mégret highlighted in 2009 that: In the presence of so much hesitation, one could have expected the literature to bring novel perspectives. And yet, the few studies dedicated to complementarity’s 7. Prosecutor v Saifal-Islam Gaddafi and Abdullah Al-Senussi, Doc no ICC-01/11-01/11, ­Pre-Trial Chamber, Decision on the Admissibility of the Case Against Saifal-Islam Gaddafi (31 May 2013). 8. While some admissibility decisions do make mention of this criterion, all except the Libya case have found it to fall outside the subject matter of the issue in dispute. Prosecutor v Thomas Lubanga Dyilo, Doc no ICC-01/04-01/06, Pre-Trial Chamber I, Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58 (February 24, 2006) para 29–40; Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Doc no ICC-01/0401/07 OA, Appeals Chamber, Judgment on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case (25 September 2009) para 85; Prosecutor v Francis Kirimi Muthaura, Uhuru Muigai ­Kenyatta and Mohammed Hussein Ali, Doc no ICC-01/09-02/11 O A, Appeals Chamber, Judgment on the Appeal of the Republic of Kenya against the Decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’, para 40. 9. Most of the standard works in this area discuss inability in relatively superficial terms. See Rod Jensen, ‘Complementarity, “Genuinely” and Article 17: Assessing the Boundaries of an Effective ICC’ in Jann Kleffner and Gerben Kor (eds), Complementary Views on Complementarity: Proceedings of the International Roundtable on the Complementary Nature of the International Criminal Court, Amsterdam, 25/26 June 2004 (The Hague, TM C Asser Press, 2006) 147–70; Florian Razesberger, The International Criminal Court: The Principle of Complementarity (Berlin, Peterlang, 2006) 31–62; Carsten Stahn, ‘Taking Complementarity Seriously’ in Carsten Stahn and El Zeidy (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge, Cambridge University Press, 2010) 233–81; Ben Batros, ‘The Evolution of the ICC Jurisprudence on Admissibility’ in Carsten Stahn and El Zeidy, ibid 558–603; William Burke-White and Scott Kaplan, ‘Shaping the Contours of Domestic Justice: The International Criminal Court and an Admissibility Challenge in the Uganda Situation’ in Göran Sluiter (ed), The Emerging Practice of the International Criminal Court (Boston, Martinus Nijhoff Publishers, 2009) 79–115; Mohamed El Zeidy, The Principle of Complementarity in International Criminal Law: Origin, Development and Practice (Leiden, Martinus Nijhoff, 2008) 157–238; William Schabas, The International Criminal Court: A Commentary on the Rome Statute (New York, Oxford University Press, 2010) 330–53.

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regime typically picture it as a ‘general regime’ of the ICC and eventually concentrate on the procedural and territorial unfolding of jurisdiction. These studies rarely pose the question of its substantive content.10

This provision’s vagueness has given rise to a strange phenomenon, where different actors have begun speculating as to its precise meaning. Mark Ellis, for example, states that ‘if states desire to retain control over prosecuting nationals charged with crimes under the ICC Statute, they must ensure that their own judicial systems meet international standards’.11 In ICL jargon, ‘meeting international standards’ entails that domestic prosecutions should largely respect the same procedural and evidentiary standards as international criminal tribunals. By contrast, Mahnoush Arjasani and Michael Reisman argue that the ICC cannot demand more than ‘some existent national infrastructure’ and the fulfilment of some minimum due process standards.12 This example portrays the counterproductive situation engendered by ­inability’s current vagueness. In the presence of so much speculation, states seeking to comply with the letter of the Statute will find the inability criterion’s normative requirements to be confusing at best. Beyond making the process

10. This extract is a liberal translation from the original text, which is in French: ‘Face à tant d’hésitations, on aurait pu s’attendre à ce que la doctrine apporte des éclairages novateurs. Pourtant, le peu d’études consacrées au régime de la complémentarité l’envisagent typiquement comme « régime général » de la CPI, s’attardent éventuellement sur sa mise en jeux territoriale ou procédurale, mais posent rarement la question du son contenu substantif’. Frédéric Mégret, ‘Qu’est-ce qu’une juridiction « incapable » ou « manquant de volonté » au sens de l’article 17 du Traité de Rome? Quelques enseignements tirés des théories du déni de justice en droit international’ (2005) 17.2 Revue Québécoise de Droit International 185–216, 187. It should however be noted that some publications now do discuss the normative content of inability. In this regard, see: Jo Stigen, The Relationship Between the International Criminal Court and National Jurisdictions: The Principle of Complementarity (Boston, Martinus Nijhoff Publishers, 2008) 313–31; Ambos (n 5) 80–83; International Criminal Court Office of the Prosecutor, Informal Expert Paper: The Principle of Complementarity in Practice (2003); Kevin John Heller, ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due P ­ rocess’ (2006) 17 Criminal Law Forum 255–80; Harmen van der Wilt, ‘Self-Referrals as an Indication of the Inability of States to Cope with Non-State Actors’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (Oxford, Oxford University Press, 2015) 210–28; Ahmed Samir Hassanein, ‘Physical and Legal Inability under Article 17(3) of the Rome Statute’ (2015) 15 International Criminal Law Review 101–23, 104. 11. Mark S Ellis, ‘The International Criminal Court and Its Implication for Domestic Law and National Capacity Building’ (2002) 15 Florida Journal of International Law 215–41, 221. 12. Mahnoush Arsanjani and Michael Reisman, ‘The International Criminal Court and the Congo: From Theory to Reality’ in L Sadat and M Scharf (eds), The Theory and Practice of International Criminal Law: Essays in Honour of M. Cherif Bassiouni (Leiden, Martinus Nijhoff, 2008) 325–47, 330.

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of complying with the Statute somewhat irritating, this situation further risks misleading authorities into divesting some of their resources in unnecessary reforms. For these reasons, this article first and foremost is a plea in favour of a meticulously conceptualised policy of complementarity, calling for a clear, unambiguous definition of inability. In spite of the Court’s recent efforts in making its assessments more transparent, much work remains to be done.13 It will be argued that, beyond causing confusion, inability’s current grey areas risk creating a series of loopholes allowing for domestic proceedings to stagnate. In order to avoid these undesirable trends from settling into the complementarity regime, it will be argued that the Court should provide states with prosecution timelines delineating the Court’s precise expectations.

2.  Introduction to the Concept of Inability This article will start by giving an introduction to inability’s normative content. This section is intended to familiarise the reader with this provision, providing one with a basic understanding of its more uncontroversial components. This discussion aims to prepare the reader for the following ­sections, which will engage more critically with this provision’s meaning and application.

2.1.  The Sub-Criteria In order to be considered unable within the meaning of Article 17(3), a state must first fulfil one of the provision’s three sub-criteria. Each of these sub-criteria envisions a different way in which the state’s judicial system may be experiencing difficulties. The judicial system must be deemed as (1) ‘totally collapsed’, (2) ‘substantially collapsed’ or (3) ‘unavailable’. As a consequence, the provision also requires that the state be ‘unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings’.14 Each of these sub-criteria will be examined in turn.

13. As illustrated by the publication of yearly reports on preliminary examinations and the publication Office of the Prosecutor’s Strategic Plan. See Office of the Prosecutor’s ‘Policies and Strategies’ webpage, (last visited 11 July 2017). 14. Article 17(3), Rome Statute of the International Criminal Court, 17 July 1998, A/CONF. 183/9. By its very wording, the ‘otherwise unable to carry out its proceedings’ requirement seems to be sufficiently broad to encompass just any situation where justice is concretely obstructed. The lion’s share of the test lies in evidencing one of the three above-mentioned sub-criteria.

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The first sub-criterion is ‘total collapse’ and can be defined as ‘a complete breakdown of the national administration of justice, either due to the State’s loss of control over [its entire] territory or due to the national decision to efface the national administration of justice’.15 Although the term ‘total’ should hardly be understood literally, in the sense that every element of the system should be entirely paralysed, the term implies a most dramatic situation. The judicial system must be incapacitated to such an extent that even the most basic tasks must have become impossible to realise.16 Such tasks may include the investigation of facts, the interrogation of testimonies or the pressing of charges. Factors to be taken into consideration thus include the lack of necessary personnel, judges, investigators, prosecutors and the general lack of judicial infrastructure.17 In order to portray this scenario, Claudia Cardenas gives the example of a failed state.18 Another example could be the situation in Rwanda in the aftermath of the Genocide in 1994, where only a handful of judicial officials had been left alive.19 The second sub-criterion is ‘substantial collapse’. This sub-criterion envisages a slightly different scenario, where the judicial system—without being in a state of complete breakdown—remains afflicted by very serious shortcomings. Whether by shifting resources or transferring the trial to another venue, the state’s infrastructure must be too deficient for the prosecution to effectively take place.20 The precise scope of the judicial system’s infrastructural deficiencies however remains difficult to determine. In this regard, one should note that the original wording of this sub-criterion was

15. Markus Benzing, ‘The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity’ (2003) 7:1 Max Planck Yearbook of United Nations Law 591–632, 614. Similarly, see Stigen (n 11) 314; Razesberger (n 10) 148; Jann Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (Oxford, Oxford University Press, 2008) 154; Ambos (n 5) 80. 16. Hassanein (n 11) 104. 17. International Criminal Court Office of the Prosecutor, Informal Expert Paper: The ­Principle of Complementarity in Practice (2003) 31. 18. Claudia Cardenas, ‘The Admissibility Test before the International Criminal Court under Special Consideration of Amnesties and Truth Commissions’ in Kleffner and Kor (n 10) 115–41, 125. 19. Alison Des Forges and Timothy Longman, ‘Legal Responses to Genocide in Rwanda’ in Eric Stover and Harvey Weinstein (eds), My Neighbor, My Enemy (Cambridge, Cambridge University Press, 2004) 49–69, 58. 20. Benzing (n 16) 614; Stigen (n 11) 317; John Holmes, ‘Complementarity: National Courts versus the ICC’ in Antonio Cassesse, Paola Gaeta and John Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford, Oxford University Press, 2002) vol 1, 667–85, 671; Hassanein (n 11) 104; Ambos (n 5) 80.

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‘partial collapse’ and that this language was subsequently replaced by ‘substantial collapse’ ­during the treaty negotiations.21 States effectuated this modification in order to augment this sub-criterion’s evidentiary threshold, fearing an ICC that could otherwise intervene too easily.22 Jan Kleffner discusses this change by explaining that ‘[w]hile a total collapse establishes the high end of the spectrum, a substantial collapse needs to be distinguished from a situation in which a collapse is merely ‘partial’ at the low end of the spectrum’.23 One could consequently think that ‘substantial collapse’ envisages a situation where the judicial system is damaged to such an extent that it is generally no longer capable of carrying out the proceedings at hand.24 An example portraying this scenario could be the collapse of the judicial system in a particular region of the country controlled by an armed opposition group.25 This could for instance be the case for the Ituri region of the Democratic Republic of the Congo.26 The last sub-criterion is ‘unavailability.’ This sub-criterion envisages a scenario altogether different from the first two. From a textual perspective, the unavailability criterion differs from its ‘total or substantial collapse’ counterparts: the first two sub-criteria envision a type of ‘collapse’, whereas the third envisions the system’s ‘unavailability.’ One should consequently understand this sub-criterion as adding new meaning to inability’s normative content.27 Moving away from the first two ‘collapse’ sub-criteria, the assessment of unavailability should therefore not focus exclusively on the judicial system’s level of infrastructural destruction. Logically, this entails that unavailability should be able to encompass situations where the judicial system remains inadequate despite the absence of any major infrastructural atrophy. This could happen to a state facing impediments such as the lack of substantive or procedural penal legislation, lack of access to courts, obstruction of the system by ­uncontrolled

21. John Holmes, ‘The Principle of Complementarity’ in Roy Lee (ed), The International Criminal Court: The Making of the Rome Statute (Martinus Nijhoff Publishers, Leiden, 1999) 41–79, 45. 22. Holmes (n 21) 667; Ambos (n 5) 80. 23. Kleffner (n 16) 155. 24. El Zeidy (n 10) 226; Benzing (n 16) 614. 25. Keith Hall, ‘Suggestions Concerning ICC Prosecutorial Policy and Strategy’ (2003) 32 Michigan Journal of International Law 903–04; Razesberger (n 10) 48-49; Hassanein (n 11) 104. 26. Jan Wouters and Sten Verhoeven, ‘Cases Identified for Investigation and Prosecution by the International Criminal Court’ in Evelyn Ankumah and Edward Kwakwa (eds), ­African Perspectives on International Criminal Justice, African Legal Aid Special Series Vol 3 (Accra, Océ Business Services, 2005) 133–38. 27. Ambos (n 5) 83; Stigen (n 11) 317.

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elements, or the presence of amnesties and immunities.28 The literal meaning of the word ‘unavailable’ is however sufficiently broad to go beyond these few situations, encompassing just any type of impediment effectively precluding the state from producing adequate results.29 Whether unavailability should be given such a broad interpretation has long been a contentious issue.30 This article will return to this question later.

2.2.  The Case Law In terms of case law, the Court’s encounters with inability have been short and few. In most situations, the ICC has refrained from expanding on this criterion, circumventing the question on the basis that such an examination would fall outside the subject matter of the issue in dispute. Such has been the case in the Lubanga and Katanga cases.31 Only two of the Court’s encounters with inability shed some light on its concrete application. These cases are the ruling of admissibility in the Libya Case and an obiter dictum in the Bemba Case. Most important is the Libya Case, where the Court rendered a separate judgment for each of the two defendants.32 Despite having largely relied on the same facts for the two cases, the Court puzzlingly reached the conclusion that Libya was ‘unable’ to prosecute in the case of the first defendant while being ‘able’ to prosecute in the case of the second defendant. The finding of inability was made in the Gaddafi case, on the basis of the ‘unavailability’ sub-criterion.33 In order to conclude to inability, the Court considered (1)

28. International Criminal Court Office of the Prosecutor, Informal Expert Paper: The Principle of Complementarity in Practice (2003) 31; Luigi Condorelli, ‘La Cour pénale internationale: un pas de géant (pourvu qu’il soit accompli …) (1999) 103 Revue générale de droit international public 7–21, 7; Ambos (n 5) 83. 29. This word’s literal meaning may contain three potential facets: the non-existence of a remedy, the non-accessibility of a remedy, and the non-usefulness of a remedy—irrespective of its existence and accessibility. Stigen (n 11) 317–18. 30. For a detailed discussion, see El Zeidy (n 10) 226–27; Ambos (n 5) 81; Benzing (n 16) 614; Razesberger (n 10) 49. 31. See n 9. 32. It must be noted that this decision was appealed relatively recently (July 2014). The appeal was, however, limited to the Trial Chamber’s assessment of the facts, and therefore did not cover the issue of inability. Prosecutor v Saifal-Islam Gaddafi and Abdullah Al-Senussi, Doc no ICC-01/11-01/11, Appeals Chamber, Judgment on the Appeal of Mr Abdullah Al-Senussi against the Decision of Pre-Trial Chamber I of 11 October 2013 Entitled ‘Decision on the admissibility of the case against Abdullah Al-Senussi’ (27 July 2014). 33. Prosecutor v Saifal-Islam Gaddafi and Abdullah Al-Senussi, Doc no ICC-01/11-01/11, Pre-Trial Chamber, Decision on the admissibility of the case against Saifal-Islam Gaddafi (31 May 2013) para 205.

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the fact that the state was unable to obtain the accused (who was detained by rebel groups refusing to hand him over to the central state), (2) the fact that the state was incapable of guaranteeing witness security, and (3) the fact that the accused had not yet been appointed a lawyer due to a lack of control over parts of the territory.34 Importantly, the Court also specified that a state’s ability to prosecute must be assessed in the context of the relevant national system and procedures.35 A second encounter with the inability criterion worth mentioning is the Bemba Case. In an obiter, the Court also concluded to inability on the basis of the ‘unavailability’ sub-criterion. The Court illustrated its reasoning by considering the following problems: the country’s (1) shortage of judges, (2) insufficient budgetary resources, and (3) political instability. The Court ultimately concluded that the state neither possessed the investigative resources nor the judicial capacity to handle the offences adequately.36 The jurisprudence thus seems to retain a broad interpretation of the ‘unavailability’ sub-criterion. Indeed, the Court did not feel compelled to restrain the assessment of this sub-criterion to shortcomings blocking the prosecution in the absence of any major infrastructural collapse. As suggested earlier, this sub-criterion could have been limited to scenarios such as the lack of legislation, lack of access to courts, or the presence of amnesties and immunities. The factors enumerated in the Bemba and Gaddafi cases rather appear to emphasise various factors related to the judicial system’s very physical collapse. The Court has stressed factors such as the Government’s lack of control over certain regions of the country, lack of judges and lack of budgetary resources. It has also considered factors demonstrating a rather functional interpretation of this sub-criterion, emphasising the Government’s inability to effectively achieve certain precise steps. The Court mentioned the inability to obtain the accused, to guarantee witness security and to appoint a defence lawyer. As of now, the Court therefore appears to interpret ‘unavailability’ as a form of catch-all sub-criterion capable of encompassing various different considerations. Whether this broad interpretation will remain is uncertain, as none of these decisions have truly sought to engage with this criterion. Their precedent is therefore unlikely to have strong authoritative value on future decisions.

34. Ibid, paras 200–05. 35. Ibid, para 200. 36. T he Prosecutor v Jean-Pierre Bemba Gombo, Doc no ICC-01/05-01/08, Trial Chamber III, Decision on the Admissibility and Abuse of Process Challenges (24 June 2010), para 246.

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2.3.  The Drafting History The last component of this section is the provision’s drafting history. ­Consulting the drafting history may shed light on the proper interpretation to be retained. The central theme throughout the negotiations has been the protection and preservation of state sovereignty.37 Many states were daunted by the prospect of creating a court capable of interfering with otherwise strictly domestic affairs. For example, Cameroon, Tunisia and India all felt the need to underline that the Court ‘should not be used as an appellate institution ­second-guessing national procedures’.38 Clashing with this view was a different group of states predominantly concerned with the eradication of impunity. Australia, Finland and the Netherlands all felt the need to underline that according too much deference to national jurisdictions would substantially hinder the Court’s mandate. These states feared that doing so would allow for sham trials to take place.39 This illustrates adequately the fundamental tension between the preservation of state sovereignty and the eradication of impunity. This tension lies at the very heart of the Court’s work and will need to be borne in mind at all times, reminding one that states never clearly expressed their desire to relinquish all of their autonomy in the prosecution of mass atrocity. In addition, the International Law Commission’s (ILC) Draft Statute originally contained a preambular paragraph mentioning inability. This preambular paragraph, which was later removed, stated that the Court was intended to be complementary to national jurisdictions unless domestic proceedings were either ‘unavailable’ or ‘ineffective’.40 The use of the word ‘ineffective’ seems to indicate that states initially intended to require a minimal level of progression

37. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, United Nations General Assembly Official Records, Fiftieth Session, Supplement No 22,A/50/22 (1995) paras 29–51; Report of the Preparatory Committee on the ­Establishment of an International Criminal Court, Volume I (Proceedings of the ­Preparatory Committee during March-April and August 1996), and Volume II ­(Compilation of Proposals), United Nations General Assembly Official Records, Fifty-first Session, Supplement No 22 A/51/ (1996) paras 153–78. 38. Preparatory Committee on International Criminal Court Continues Considering Complementarity between National, International Jurisdictions, L/2773, 3 April 1996, 7. 39. Preparatory Committee on International Criminal Court Discusses Complementarity between National, International Jurisdictions, L/2771, 2 April 1996; See also CanadianGerman Draft Proposal on Complementarity, no reference, ICC Preparatory works 6 August 1997 (Article 35). 40. Preamble of the ILC Draft Statute, (last visited 19 July 2017) (emphasis added).

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in the advancement of domestic proceedings. Moreover, the original wording of the provision only considered whether the judicial system was partially or totally collapsed, and whether the state was unable to secure the accused and evidence.41 John Holmes, who directed the negotiations, states that these references were subsequently enriched with the phrase ‘or otherwise unable to carry out its proceedings’. He recounts that this change was made in order to allow the Court to intervene in situations that would present impunity for reasons other than the state’s failure to secure the accused or the evidence.42 These elements therefore seem to demonstrate that references to the effectiveness of domestic proceedings were removed only to be replaced elsewhere in a language that would be less explicit. It appears that, in spite of the provision’s potentially sensitive vocation, states consequently intended to preserve a ­certain level of functionality in its application.

3.  A Vague and Problematic Definition After having introduced the reader to the inability criterion, this article will now turn to the various points of contention pertaining to its application. It will be argued that the provision’s meagre normative content may give rise to a number of potential loopholes. Situations presenting a number of specific deficiencies could be allowed to stagnate for a long time before any action could be undertaken by the ICC. One should note that some situations have been under the Court’s watch for approximately 10 years at the time of ­writing,43 and that the carrying out of ICL prosecutions may pose a significant challenge for states in the wake of mass atrocity. Against this backdrop, it is not entirely unrealistic to think that some of the situations under the Court’s watch will eventually flounder. Were any of these situations to present the characteristics identified in this section, the ICC could therefore be bound to remain powerless. Impunity could prevail for a long time before any action could be undertaken, thus most likely tarnishing the Court’s credibility once over. This would indeed probably send the message that the difficult and sometimes politically sensitive task of carrying out mass atrocity prosecutions is not entirely obligatory—that the letter of the Rome Statute may somehow be optional.

41. Holmes (n 22) 49. 42. Holmes (n 22) 49. 43. Article 17, Rome Statute of the International Criminal Court, 17 July 1998, A/CONF. 183/9.

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3.1.  Uncertainties Regarding the Application of Inability Inability’s meagre normative content fails to shed light on many aspects of its application. One such aspect is the precise level of physical destruction required for the ‘substantial collapse’ sub-criterion to apply. In this respect, it remains difficult to quantify with precision the minimal amount of judicial personnel and infrastructure required by this sub-criterion. The exact number of judges, prosecutors, investigators and operating judicial facilities will for instance tend to vary according to the specificities of each situation. Perhaps even more difficult are the sub-criterion’s minimal requirements in terms of the judicial personnel’s minimal level of competency. This uncertainty is problematic as the very construction of the inability criterion does allow for the Court to find that a state is concretely blocked without satisfying the requirements of the ‘collapse’ sub-criteria. Indeed, a state may be ‘unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings’ without necessarily facing a ‘to a total or substantial collapse’ of its judicial system.44 A state could therefore argue that the deficiencies causing the stagnation of the proceedings are not caused by infrastructural deficiencies sufficiently important to amount to a ‘substantial collapse’ in and of themselves. Indeed, the literal meaning of the ‘substantial collapse’ sub-criterion does suggest that the infrastructural deficiencies experienced by the state be exceptionally important. The sheer amount of chaos and disorganisation required for the ‘substantial collapse’ sub-criterion to apply could very well outweigh the deficiencies of an inefficacious judicial system. A state could consequently be blocked by shortcomings too subtle to amount to a ‘substantial collapse’ of the judicial system, thus allowing for the situation to stagnate without any consequences. Another uncertainty is whether the ‘total’ and ‘substantial’ collapse ­sub-criteria should apply exclusively to judicial systems having literally collapsed, meaning that they have been damaged by an external force. The literal meaning of the word ‘collapse’ indeed implies that its object was in a markedly better physical condition prior to undergoing the action of collapsing. Under such an interpretation, the two ‘collapse’ sub-criteria could therefore only apply in situations where a judicial system has been adversely affected by an external force. Such an external force could for example be an armed conflict, an insurrection, or an economic depression—and would need to confine the judicial system to a state of unusual inefficiency. As a consequence, a situation where a judicial system has always been inefficient and problematic due to 44. Article 17(3), Rome Statute of the International Criminal Court, 17 July 1998, A/CONF. 183/9.

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chronic insufficiencies could not amount to a ‘collapse’ within the meaning of the inability provision. Were this curious, yet technically plausible interpretation to be retained, proceedings stagnating for reasons attributable to a country’s underdevelopment would therefore be inadmissible—thus effectively creating a loophole to the ICC’s impunity net. Such an interpretation is not entirely unrealistic, as it would in fact preclude the Court from passing value judgments on domestic judicial systems operating in their usual conditions. It should be kept in mind that this very scenario was feared by a number of states during the treaty negotiations.45 Similarly, it is uncertain whether the ‘collapse’ and ‘unavailability’ sub-criteria should rely on mutually exclusive types of evidence or not. Textually, ‘substantial collapse’ refers to scenarios where state infrastructure (ie lack of qualified personnel, adequate facilities, and control over areas) has been so severely damaged that it is generally unable to carry out proceedings. One may argue that ‘unavailability’ was added alongside the ‘collapse’ sub-criteria in order to add new meaning to the inability provision. It could therefore be understood as targeting a different kind of scenario. Such scenarios could be the absence of legislation prohibiting ICL crimes, the presence of amnesties or immunities, the lack of access to courts, or the obstruction of the proceedings by uncontrolled elements.46 This interpretation finds further support in the fact that the ‘partial collapse’ sub-criterion was changed to ‘substantial collapse’ during the treaty negotiations, again reflecting a desire to prevent the Court from interfering too easily with states whose judicial infrastructure is limited. A final example concerns the importance of the shortcomings required by the ‘unavailability’ sub-criterion. It is uncertain whether or not the ‘unavailability’ sub-criterion should necessarily apply to every situation of impunity left out by the ‘total’ and ‘substantial’ collapse sub-criteria. While interpreting the ‘unavailability’ sub-criterion broadly could be desirable in order to ­compensate for the ‘collapse’ sub-criteria’s potentially limited application, ­casting the net so wide could also risk contradicting the drafters’ intent. Indeed, the replacement of the ‘partial collapse’ wording with ‘substantial collapse’ during the treaty negotiations seems to demonstrate a desire to set a standard minimal threshold regarding the gravity of the deficiencies at hand.47 In this respect, this change in the provision’s wording would have had little

45. Holmes (n 22) 45. 46. International Criminal Court Office of the Prosecutor, Informal Expert Paper: The Principle of Complementarity in Practice (2003) 15. 47. Ambos (n 5) 80.

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or no effect had the ‘unavailability’ sub-criterion been intended to encompass cases of lesser gravity entailing the same evidence. This issue would also arise were ‘unavailability’ and the ‘collapse’ sub-criteria to be understood as encompassing mutually exclusive types of evidence, as suggested in the previous paragraph. It would then be contradictory to allow for a minor shortcoming falling under ‘unavailability’s’ specific evidentiary requirements to amount to inability while concluding to the opposite for the ‘collapse’ sub-criteria unless the shortcoming is ‘substantial’. One could consequently argue that the ­‘unavailability’ sub-criterion should only apply where the judicial system at hand presents deficiencies of similar importance to those required by the ­‘substantial collapse’ sub-criterion. Were all of the arguments raised in this sub-section to be valid, inability’s reach would in fact turn out to be somewhat limited; the ‘collapse’ sub-criteria would only apply to situations (1) presenting shortcomings stemming from infrastructural deficiencies unrelated to the country’s underdevelopment, and (2) that would hinder the judicial system to such an extent that it would generally no longer be able to function, as required by the ‘substantial collapse’ minimal gravity threshold. Similarly, the ‘unavailability’ sub-criterion would only apply to situations (1) presenting shortcomings unrelated to infrastructural deficiencies, (2) and that would be of equivalent gravity to a ‘substantial collapse’. Under such a restrictive interpretation of inability, it seems that many situations presenting impunity would unfortunately be ruled out by one of the constraints identified in this article.

3.2.  Two Contradictory, yet Sensible Interpretations In light of the uncertainties regarding the application of inability, States desiring to comply with the Statute will most likely need to interpret this provision. As pointed out earlier, the inability provision inconveniently reduces the complex task of assessing domestic proceedings in the aftermath of mass atrocity to just a few lines. ‘Total collapse’, ‘partial collapse’ and ‘unavailability’ in their present form, fail to shed light on a number of practical questions. The precise number of judicial officials, as well as their level of competency in international criminal law, will for instance be difficult to determine. And the provision’s sub-criteria also seem to leave open a number of questions identified earlier, potentially opening the door to the creation of certain loopholes. The state of the law in the context of these potential loopholes is unfortunately bound to remain speculative at best. This situation is in turn complicated by the fact that this provision may even receive two contradictory, yet sensible interpretations; one being in favour of the preservation of state sovereignty, and the other being in favour of the eradication of impunity. States are thus bound to face significant difficulties in trying to gauge inability’s concrete

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application to their own situation. This sub-section will present each of the provision’s two possible interpretations in turn. Inability may be given a broad interpretation, responding to all of the uncertainties outlined previously with a solution ensuring that impunity may never prevail.48 Under this interpretation, the ‘unavailability’ sub-criterion would be applied as a residual, catch-all sub-criterion—thus effectively tackling every situation presenting impunity where the ‘total’ and ‘substantial collapse’ sub-criteria would fail to apply. Opting for such an interpretation is sensible because the very aim of the Rome Statute remains, after all, to put an end to impunity. This idea is highlighted in the Statute’s preambular paragraphs 4 and 5: ‘Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished … Determined to put an end to impunity for the perpetrators of these crimes …’ A broad interpretation would therefore be necessary in order to ensure that the Rome Statute remains effective. This broad interpretation is desirable in light of the fact that inability’s sub-criteria may otherwise be rigid and selective, only granting admissibility to a handful of cases. Were this to be the case, certain kinds of situations could simply not be addressed by inability. Such a situation would in turn create a number of loopholes to the ICC’s impunity net. Examples illustrating this problem include situations where the deficiencies of the proceedings are attributable to the country’s underdevelopment, where the judicial system’s infrastructural shortcomings are not sufficiently important to amount to a ‘substantial collapse’, or where the kind of evidence presented could not be taken into consideration due to ‘unavailability’s’ restrictive evidentiary requirements. In addition, the creation of such loopholes could have a nefarious effect. Any accused with significant power over state apparatus could be tempted to replicate such ‘loophole situations’ in order to avoid international justice. This outcome remains imaginable, as many of the Court’s accused are powerful individuals such as presidents, ministers, or high-ranking military officials. Some are likely to have a significant amount of control over state apparatus. When facing an international prosecution, any such accused will probably consider escaping justice—and inability’s potential loopholes appear as an

48. Kleffner (n 16) 152; William Burke-White, ‘Complementarity in Practice: The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo’ (2005) 18:3 Leiden Journal of International Law 558–90, 574–89; Ellis (n 12) 215–41, 221; Darry Robinson, ‘The Rome Statute and its Impact on National Law’ in Cassesse, Gaeta and Jones (n 21) 1849.

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ideal place to start. Examples illustrating this problem include situations where a state could justify the proceedings’ poor progression by underlining the general lack of resources, by allocating resources to other more pressing needs such as ongoing armed conflict or famine, by underlining the lack of experienced personnel, by underlining the sheer complexity of the prosecution—spanning to acts committed decades ago and throughout the entire country. Allowing for such escape routes to be created and replicated by the Court’s accused would in turn reduce its already limited coercive leverage on states. On the other hand, inability may also be given a narrow interpretation. It may be interpreted so as to respond to all of the uncertainties outlined in the previous sub-section with a solution ensuring the protection of ­sovereignty.49 Under this interpretation, the provision’s wording should be understood as imposing firm limits on the ICC’s reach into states’ otherwise strictly domestic affairs. In this context, allowing for a finding of ‘collapse’ to be made in the absence of the intervention of a destructive external force (such as an armed insurrection) would risk irritating certain state authorities. As outlined earlier, it is unclear whether this sub-criterion was intended to apply in the absence of such an extraordinary context. This could be a sensitive issue for a developing country whose fragile judicial system is struggling to meet international standards. State authorities could be displeased with the Court putatively passing value judgments on domestic judicial systems. One should bear in mind that the protection of state sovereignty has been the main concern throughout the treaty negotiations, and that the very possibility of passing value judgments was decried by a number of states.50 The importance of protecting state sovereignty should not be underestimated, as the Court remains dependent on state cooperation even for the most basic of tasks. In addition, the ‘unavailability’ sub-criterion may be sufficiently broad to encompass a situation where a state could still manage to come to grips with impunity autonomously. As discussed earlier, this sub-criterion’s language could potentially allow the Court to intervene as soon as a state faces serious difficulties, regardless of the possible outcome. Intervening too rapidly risks upsetting state authorities. One could rightly argue that the ICC’s intervention would contravene domestic efforts, and that abandoning the proceedings at this stage would amount to squandering the resources already invested. 49. Along those lines, see Benzing (n 16) 591–632, 595; Christopher Pitts, ‘Being Able to Prosecute Saif Al-Islam Gaddafi: Applying Article 17(3) of the Rome Statute to Libya’ (2014) 27 Emory International Law Review 1291–339, 1293; Arsanjani and Reisman (n 13) 332. 50. Holmes (n 22) 45.

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One should bear in mind that the Court has recently attracted heavy ­criticism on the African continent. Decrying the ICC’s activity as neo-­colonialist, leaders have recently voted to expand the jurisdiction of the African Court on Human and People’s Rights to include the ICC’s African cases.51 ­Unfortunately, these very same leaders have recently voted to be amnestied from any such prosecution originating from this Court.52 Against this backdrop, it seems that the ICC should not underestimate the importance of avoiding perceptions of interference with domestic matters. Electing to preserve the vagueness surrounding inability’s contours in an attempt to preserve broad prosecutorial discretion would therefore be a mistake. Moreover, it should be noted that inability stands as an exception to the general framework of complementarity. Under this framework, states are accorded primacy in the carrying out of proceedings, and the ICC is only intended to intervene in exceptional circumstances. The Rome Statute stresses the importance of giving primacy to domestic jurisdictions in its preambular paragraph 10: ‘Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions’. It would consequently not be unreasonable to interpret inability’s sub-criteria as requiring the occurrence of an exceptional event for the Court to intervene. One should not expect states to proceed as swiftly and efficaciously as an international criminal tribunal, and a failure to respect these standards should not amount to inability.53 The complementarity framework rather seems to recognise that the proceedings are to be carried out by states left with few resources in the aftermath of mass atrocity. It should therefore be expected that judicial process in these circumstances will most likely be scattered with difficulties of varying importance. Finally, one should bear in mind that states most likely never expected to create an infallible international criminal court, putting a definitive end to each and every single case of impunity in the world. Due to budgetary restraints, the Court already regularly refuses opening investigations on a large number of cases. These cases are usually rejected on the basis of their insufficient gravity. In the words of Prosecutor Moreno-Ocampo, while […] any crime within the jurisdiction of the Court is ‘grave,’ the ­Statute requires an additional threshold of gravity even where the subject-matter 51. Monica Mark, ‘African Leaders Vote Themselves Immunity from New Human Rights Court’, The Guardian, 3 July 2014, (last visited 19 July 2017). 52. Ibid. 53. In this matter, Kevin John Heller notes that the Rome Statute does not appear to oblige states to respect international due process standards. Heller (n 11).

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j­urisdiction is satisfied. This assessment is necessary as the Court is faced with multiple situations involving hundreds or thousands of crimes and must select situations in accordance.54

The Court’s success or failure in prosecuting the few cases it does choose to take on only makes a small difference in the overall state of impunity in the world. The number of cases the Court would need to prosecute in order to eradicate impunity is simply too great. One could argue that the Rome Statute’s system of international criminal justice should consequently be understood as constituting an effort towards the eradication of impunity, rather than the zealous obligation to decimate each and every single one of its manifestations in the world.

4.  How should we Understand Inability? Up to this point, this article has sought to lay out some of the difficulties pertaining to the application of inability. The last section has demonstrated the way in which this provision’s nebulous contours seem to give rise to two plausible interpretations. One interpretation emphasises the eradication of impunity and the other emphasises the protection of state sovereignty. Determining which should prevail remains a difficult question. As underlined earlier, the provision’s drafting history fails to clearly rule out any of those two interpretations, with some states clearly in support of each.55 One may even suppose that states have simply never completely agreed on the exact meaning of this provision. One could think that the treaty negotiations were facilitated by the fact that this provision could be read in two opposing ways. States favouring the protection of sovereignty could have read the provision as protecting their interests. Conversely, states favouring the eradication of impunity could have read the provision as allowing for just the opposite. As demonstrated earlier, both of these readings are indeed realistic and credible. By framing this provision in such vague and equivocal terms, states could have avoided fully engaging with this debate during the negotiations.56 54. ‘Statement by Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, Fourth Session of the Assembly of State Parties, 28 November—3 December 2005’, The Hague, 9 February 2006, 9, (last visited 12 July 2017). 55. Preparatory Committee on International Criminal Court Continues Considering Complementarity between National, International Jurisdictions, L/2773, 3 April 1996, 7. 56. Noah Weisbord notes a similar pattern for the language used in the crime of aggression, which may be read in two opposing ways. Noah Weisbord, ‘Conceptualizing the Crime of Aggression’ (2009) 20 Duke Journal of Comparative and International Law 1–68, 25.

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The provision’s meagre drafting history does leave such a possibility open. In an attempt to clarify this situation, this article will now engage in the ­difficult business of drawing a line between the two readings inability may receive.

4.1. ‘Unavailability’ as Requiring the Production of Adequate Results Despite the potential confusion outlined in the previous paragraph, a few elements do seem to point in the direction of an interpretation ultimately requiring the production of adequate results. While some states may have understood this provision differently, it seems that the general intent was to create a provision ultimately obliging states to see justice done. This view is supported by some of the provision’s language and drafting history, which altogether appear to tilt the balance slightly in favour of the eradication of impunity. None of the comments made during the treaty negotiations appear to call for an interpretation precluding the ICC from intervening in a situation where domestic proceedings would be stalled. Much of this argument is anchored in the fact that the concept of ‘availability’ (the opposite of ‘unavailability’) was already an existing concept in international human rights jurisprudence prior to the drafting of the Rome Statute. According to this body of jurisprudence, ‘availability’ refers to a situation where a state is in a position to produce adequate results. In this respect, the United Nation’s Human Rights Committee requires that the plaintiff exhaust domestic remedies which are ‘effective and available’ before having the right to be heard.57 Similarly, the European Court of Human Rights requires the exhaustion of domestic remedies which are ‘available and sufficient’.58 Finally, the African Commission on Human’s and People’s Rights also requires that domestic remedies be ‘available, effective and sufficient’.59 This body of jurisprudence uses the terms ‘effective, available’ and ‘sufficient’ interchangeably, generally referring to the remedy’s ability to produce adequate results. The ‘unavailability’ sub-criterion, in turn, seems to refer to this very same ­language, as it was explicitly pointed out during the treaty negotiations that the term ‘available’ has a strong connotation with human rights jurisprudence.60 57. Champagnie et al v Jamaica, Communication no 445/1991, Views (18 July 1994) UN Doc Supp No 51 (C/51/445) (1991) para 5.1. 58. Van Oosterwijk v Belgium, Application no 7654/76, European Court of Human Rights, Grand Chamber, Judgment (6 November 1980) para 27. 59. Dawda Jawara v The Gambia, Communication nos 147/95 and 149/96, African Commission on Human’s and People’s Rights (11 May 2000) para 31. 60. Stigen (n 11) 318.

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The Statute’s drafting history also seems to support inability’s being understood as requiring the production of adequate results. Indeed, the 1994 Draft Article 35, which preceded the actual inability provision, initially included the notion of ‘ineffectiveness’. The Proceedings of the Preparatory Committee reveal that states preferred replacing the concept of ‘ineffectiveness’ with that of ‘unavailability’ because the latter was perceived as more factual and, therefore, less subjective.61 One could think that states feared that the concept of ‘ineffectiveness’ would lead the ICC to intervene too easily in countries where judicial proceedings usually evolve slowly. Were this to be the case, ‘unavailability’ should therefore not be understood as precluding the Court from intervening where proceedings are unable to produce adequate results. In other words, this change of wording could be understood as recognising that the process of producing the desired result may sometimes be arduous, and not as recognising that certain cases of impunity should be allowed to prevail in the long term. This understanding finds further support in the reasons provided by the delegations which advocated for the ‘partial collapse’ sub-criterion to be replaced by ‘substantial collapse’. These delegations underlined that a state could remain able to carry out a prosecution genuinely despite suffering from a ‘partial collapse’.62 Again, what seemed to matter most here was that the prosecution be carried out genuinely. The provision’s drafting history therefore suggests that states never intended this provision to preclude the ICC from intervening in situations where progress has been completely halted.

4.2. Proposing a Test for Inability: ‘Apparent’ and ‘Residual’ Inability The previous sub-section sought to demonstrate how the drafters’ concerns with the protection of sovereignty should be understood. It has been underlined that delegations wished to ensure that state sovereignty be protected to the highest extent possible. However, none of their interventions intended to preclude the ICC from intervening in situations where domestic proceedings would be stalled. Delegations rather sought to preserve their jurisdiction where the state would remain able to complete the prosecution despite facing certain difficulties. With this in mind, this article will now proceed to suggesting a test for the application of the inability criterion. According to this

61. Draft Summary of the Proceedings of the Preparatory Committee During the Period 25 March–12 April 1996: Preparatory Committee on the Establishment of an I­ nternational Criminal Court: C. Complementarity, A/AC-249/CRP-4. 62. Holmes (n 22) 55.

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test, the Court should only be allowed to intervene where the situation at hand clearly fits within the boundaries established by the drafters. That is, the Court should not intervene so long as a state has not clearly revealed its inability to prosecute. At the same time, this constraint should not preclude the Court from intervening in a situation where proceedings are fruitless. The test suggested here is two-pronged. The first prong should be called ‘apparent inability’. Under this first prong, the Court should be allowed to make a finding of inability as soon as the provision applies in its simplest and most restrictive form. The provision will apply in its simplest and most restrictive form in scenarios of ‘total collapse’ and obvious cases of ‘substantial collapse’ where a very large portion of the judicial infrastructure has been destroyed. It will also apply in obvious cases of ‘unavailability’ such as immunities, amnesties, and the lack of adequate legislation. Evidencing these scenarios should be easy, as each refers to a simple, objective situation clearly blocking the proceedings. Given that many cases of impunity however risk being left out by this restrictive test, the Court should move to the second prong if the situation does not present any of the aforementioned scenarios. The second prong of the inability test could be termed ‘residual inability’. It should allow for the Court to make a finding of admissibility once it will be convinced that the proceedings at hand will probably never be completed. This test would target situations where a state has been struggling with the proceedings to such an extent that it visibly has become overwhelmed by the prosecution. The ‘residual inability’ test would allow for the state’s inability to reveal itself as the prosecution stagnates throughout the years. Rather than demanding the evidencing of significant shortcomings which may render a state unable (such as the absence of a witness protection programme), the ‘residual inability’ test would allow for the evidencing of a number of more subtle shortcomings which have rendered the state unable over the years (such as the ineffectiveness of the witness protection programme). Other examples of such shortcomings could include the intermittent access to phone and internet connection, the incompetency of translators, the systematic intimidation of witnesses, the slow cooperation of the armed forces, or the difficulty in accessing evidence sites due to poor road conditions and excessive rainfall. In contrast to the narrow interpretation of the provision, the ‘residual inability’ test would depart from a restrictive and regimented assessment of the evidence, taking into account just about any factor that could potentially be contributing to the state’s situation of inability. In counterpart to this relaxation of the provision’s evidentiary constraints, the threshold for ‘residual inability’ should remain high. While the duration of the proceedings’ stagnation would be a relevant consideration, the most important factor should first and foremost be the intensity of the overall state of ineffectiveness inherent

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to the situation. The Court should finally be allowed to make a finding of inability based on the ‘unavailability’ sub-criterion, due to the state’s inability to produce ‘adequate results’. In addition, ‘residual inability’ should be assessed by having recourse to negotiated prosecution timelines.63 Doing so seems necessary as the exact threshold of the ‘residual inability’ test is otherwise likely to be unduly subjective. Indeed, the precise point at which the ICC’s judges will be convinced that the prosecution will not bear fruit is likely to vary from one judge to the other. The Court should therefore seek to negotiate realistic prosecution timelines with state authorities at the very outset of their relationship of surveillance, detailing the Court’s minimal expectations on every front. These timelines should specify issues such as the minimal due process norms to be followed and the (approximate) minimal number of qualified personnel to be assigned to the case. The prosecution timelines should also propose a deadline for each of the major steps of the proceedings, such as the staffing of the investigative and prosecution teams, the adoption of an investigative strategy, the drafting of the indictment and so on. These timelines could also be updated sporadically, in order to adjust with the new developments. It should be emphasised that these expectations on the Court’s part should truly be minimal, in that complying with them should not be so burdensome as to take away the state’s margin of discretion in the administration of the national judicial process. Moreover, these timelines should ideally be negotiated by experts originating from the state in question, possessing excellent knowledge of the judicial system’s overall potential. Important factors to take into account in the drafting of the timelines should for instance be the judicial apparatus’ level of experience with regard to complex prosecutions, the availability of competent judiciary personnel, budgetary restraints, the complexity of the case, the nature of domestic criminal laws, the existence of an ongoing armed conflict or other pressing issues such as famine or natural disaster. Finally, the Assembly of State Parties (ASP) to the Statute should also ratify the adoption of the timelines approach. Doing so would have the desirable effect of consolidating 63. Timelines have already been employed by the Office of the Prosecutor in the Kenyan situation. This suggestion is therefore not entirely novel. These timelines were however very general and therefore lacked the level of detail suggested in this article. International Criminal Court Office of the Prosecutor, Agreed Minutes of the Meeting between Prosecutor Moreno-Ocampo and the Delegation of the Kenyan Government (2009), (last visited 12 July 2017); International Criminal Court Office of the Prosecutor, Draft Policy Paper on Preliminary Examinations (2010) para 96; Stahn (n 10) 251–52.

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inability’s currently nebulous contours in a legitimate manner. This would consequently exempt the Court from having to clarify states’ obligations in a singlehanded, undemocratic manner. Proceeding as suggested comports several advantages. First, the twopronged test would prevent the Court from intervening too rapidly where a state would remain able to complete the prosecution despite facing certain difficulties. Doing so would risk upsetting state authorities. A quick finding of inability could only be made in a situation where a concrete impediment is clearly blocking the proceedings. The state’s inability would thus need to be resolutely apparent. The second prong of the test would then comport the advantage of ensuring that no loophole may settle into the ICC’s impunity net, and that no state would be able to escape justice. This second prong would allow the Court to evidence the state’s inability by any means. Any of the provision’s potential constraints in terms of evidence should therefore be lifted. In addition, the prosecution timelines would help the ICC in making its assessments more transparent. The timelines would also facilitate findings of ‘residual inability’ by highlighting states’ constant failure to meet its objectives.

5. Conclusion This article is a plea for a clearer definition of the obligations imposed on states by inability. By outlining a number of uncertainties and potential limitations contained in the provision’s wording, this article first sought to demonstrate the existence of two risks: the risk of confusing states as to their obligations and the risk of creating loopholes to the ICC’s impunity net. The discussion subsequently moved to an analysis of the two vastly different interpretations inability may receive. Based on the Statute’s wording and on the provision’s drafting history, this article has argued that inability may, indeed, both be given a broad and a narrow interpretation. This article then sought to resolve this interpretative quandary by suggesting an intermediate interpretation, seeking to reconcile the constraints each interpretation was anchored in. More precisely, it has been argued that inability’s ‘unavailable’ sub-criterion seems to require the eventual production of adequate results, meaning that the accused in question would need to be prosecuted one day or the other. Following this prescription, this article has proposed a new test for the application of the provision, consisting of a separate step for the apparent and more subtle cases of inability. In order to fully implement this new test, allowing for the Court’s close monitoring of the situation at hand for a long period, this article has finally suggested adopting a new approach, based on the implementation of negotiated prosecution timelines.

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The Ukraine Crisis as a Paradigm of the Limits of International Law and the West’s Faults Ilja Richard Pavone* Abstract: Events in Ukraine, from the secession of Crimea to the Civil War which erupted in the South East, put international law at a crossroads. The incapacity of the international community—and in particular of the Security Council—to constrain Russia’s actions towards Ukraine is another piece of evidence of the limits of international law as postulated by Goldsmith and Posner. In this article, I will sustain that the repeated disregard of international law perpetrated by Western countries provided ‘legal arguments’ to Putin (why Kosovo yes and Crimea no?), which undermined the already fragile edifice of international law. In the first part of the article, I will discuss the legal implications of the Ukraine Civil War: do the Russian military and paramilitary activities in Crimea and in South East Ukraine amount to a direct or indirect intervention? Can they be classified as an armed attack or an act of aggression? Are we facing a non-international or an international armed conflict? In the second part of this article I will examine the main justifications for not recognising Crimea’s secession from Ukraine, confuting the legal theory (‘remedial secession’) upon which Russia justified the de facto annexation of the peninsula. In this regard a parallel is drawn with the Kosovo precedent—noticeably invoked by Russia—highlighting differences and similarities with the Crimean case. In particular, I will affirm that the theory of ‘collective non-recognition’, considered the only possible reaction to the unlawful annexation of Crimea, can be effectively applied to this case. In the conclusions I will explain why Russia’s conduct with regard to Crimea reinforces the ‘rational choice theory’, which tries to explain the logic behind states’ behaviour in international relations. Keywords: Crimea, secession, Ukraine, use of force, territorial integrity, limits of international law

1. Introduction The revolt in Kiev in 2014 and the consequent coup against President Victor Janukoviç triggered a dramatic chain of events, which led Europe back to * PhD, Researcher of International Law, National Research Council of Italy, Rome.

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the geopolitics of Yalta. The main events are represented by the secession of Crimea and its annexation to Russia, the unrest which blew up in South-East Ukraine, Russia’s engagement in a ‘hybrid war’ against Ukraine, the sanctions of the West against Moscow, the decision by NATO to deploy a rapid reaction force for the protection of the Baltic States, and the cease-fire deals of Minsk I and II (5 September 2014 and 12 February 2015) which led to the official end of the hostilities in the region.1 Noticeably, the aim of Russian President Vladimir Putin is to achieve supremacy in the Eurasian space, filling the post-soviet vacuum and setting up a symbolic ‘wall’, represented by the river Dnepr which divides Western from Eastern Ukraine.2 Some commentators found parallels between the ­German Sudetenland and the Ukraine crisis and warned Europe and the United States about the failure of the policy of appeasement adopted in 1939, which paved the way to World War II. The referendum on the secession of Crimea raised heated debate over the presumed right to the self-determination of ethnic Russians living in the peninsula on the basis of the concept of ‘remedial secession’. At the same time, the Civil War which erupted in the Eastern regions of Ukraine, where the militias of pro-Russian separatists backed by Moscow engaged in an armed conflict 1. The Minsk II Agreement, includes two documents: ‘Package of Measures for the Implementation of the Minsk Agreements’; and ‘Declaration of the President of the Russian Federation, the President of Ukraine, the President of the French Republic and the Chancellor of the Federal Republic of Germany in support of the Package of Measures for the Implementation the Minsk Agreements’. They are included—as Annex I and II—in Security Council Resolution (SC Res) 2202 (2015) of 17 February 2015, which was adopted unanimously at the 7384th Security Council Meeting. The text is available at (last visited 13 July 2017). In this regard, see Andrew Foxall, ‘The Ceasefire Illusion: An Assessment of the Minsk II Agreement between Ukraine and Russia’ (Russia Studies Centre Policy Paper No 8, 2015); Andras Racz and Sinikukka Saari, ‘The New Minsk Ceasefire: A Breakthrough or just a Mirage in the Ukrainian Conflict Settlement?’ (FIIA Comment, 2015). However, according to the ‘Report on Preliminary Examination Activities 2016’ (Office of the Prosecutor of the International Criminal Court, 14 November 2016), ‘The second agreement, monitored by the OSCE, appears to have reduced the intensity of fighting to some extent but daily violations of the ceasefire, including use of heavy weapons, and detentions by both sides, have continued’ (para 167), (last visited 13 July 2017). NATO Secretary General Jens Stoltenberg also highlighted that the cease-fire is not holding (‘NATO Secretary General Stresses Alliance’s Strong Support for Ukraine’, Statement of 10 July 2017), (last visited 13 July 2017). 2. The same etymology of Ukraine means ‘borderland’ (the Proto-Slavic noun krajь means in fact ‘edge, border’) U—Krain (close to the border). A parallel can be drawn with the Italian region of the ‘Marche’ during the Holy Roman Empire. Franck Golczewsky, Geshichte der Ukraine (Göttingen, Vandenhoeck and Ruprecht Gm, 1993).

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against government troops, started a domino effect very dangerous for the stability of the whole area. On 11 May 2014, the self-proclaimed R ­ epublics of Donetsk and Luhansk held successful referendums on self-rule from Ukraine; on 27 August 2014 Russia violated the Ukrainian border, sending its regular troops in support of the separatists who rapidly gained control of this area. The first cease-fire deal resulted in the recognition by Ukraine of the existence of ‘New Russia’ (Novorossiya), an autonomous entity in South East Ukraine, which determined the de facto separation of Ukraine in two entities. The contribution made by this article can be divided into two parts. It purports to classify first the Russian involvement in the Ukrainian Civil War (direct or indirect armed intervention), the nature of the conflict (noninternational or international armed conflict) and the character of the violations of international law by Russia. In the second part it addresses the arguments in favour and against the thesis of the ‘legal precedent’ invoked by Russia with reference to Crimea. I will affirm that the Crimean referendum, although not illegal under international law, is void of legal effect, and the doctrine of non-recognition can find proper application in this case. I will also demonstrate why the Russian population in Ukraine is not entitled to a right to unilateral secession under the principle of self-determination, and therefore the ballots held in Crimea, Donetsk and Luhansk are void of legal effect. A focus will be devoted to the precedents that have analogies with the Crimean case (Aaland Islands, Northern Cyprus, Kosovo), identifying similarities and differences and discussing the lessons that can be drawn from each of these past situations. In the light of Russia’s violations of international law, I will discuss the soundness of those positions in light of how the Western countries’ stance on Crimea is definitely undermined and weakened by their support of the unilateral (and highly controversial) secession of Kosovo, which undoubtedly provided a legitimate template for Russian foreign policy. I will show that the repeated deadlock in the Security Council (SC) with regard to the Ukraine crisis reinforced the ‘rational choice theory’ which tries to explain the logic behind states’ behaviour in international relations.3 Goldsmith and Posner, in particular, conducted broad empirical studies regarding the conditions under which compliance with international law occurs, particularly in the field of customary law. They criticise, among other things, the dominant account in the international legal academy, according to which legality, morality, opinion of law and related non-instrumental reasons are behind 3. Jack L Goldsmith and Erik A Posner, The Limits of International Law (Oxford, Oxford University Press, 2005). On this topic, see also Andrew T Guzman, How International Law Works: A Rational Choice Theory (Oxford, Oxford University Press, 2008); Harold Hongju Koh, ‘Why Do Nations Obey International Law?’ (1997) 106 Yale Law Journal 2600–59.

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states’ compliance with international law (opinio juris would be, therefore, one of the main reasons for compliance).4 According to their view, the rational choice approaches deriving from economic theory would explain states’ behaviours in the international arena and prove the weakness of international law. In light of this theory, the Ukraine crisis will be considered as a paradigm of the failure of the Collective Security System of the United Nations (UN), as the SC was once again unable to adopt any resolution addressing a threat to international peace and security caused by a Great Power.

2. Russia’s Legal Argumentations for the Annexation of Crimea The doctrinal bases for Russia’s interventions in Crimea and in the Eastern regions of Ukraine (initially covertly using paramilitary groups, the so called ‘little green men’, and then, in a second phase, directly and openly) stem from the ‘Putin Doctrine’, which took shape on the occasion of the military intervention against Georgia in 2008. It was more fully elaborated on in the National Security Strategy, which aims to define domestic and foreign threats and suggest measures that will guarantee the security and development of the Russian Federation.5 The Putin Doctrine has the goal of restoring Russia to its former great power status6 by re-establishing its dominance over other former Soviet Republics. Putin’s current foreign policy—led by the pursuit of regional hegemony—has resulted in the establishment of the Collective and Security Treaty Organisation (CSTO) as a counterbalance to NATO, and the customs union of Belarus, Kazakhstan, and Russia, which has evolved into the Eurasian Economic Union (a project Putin has advocated frequently and forcefully).7 As a consequence, each attempt by NATO and the EU to include 4. Jack L Goldsmith and Erik A Posner, ‘The New International Law Scholarship’ (2006) 34 Georgia Journal of International & Comparative Law 463–84, at 463. 5. ‘Concept of the Foreign Policy of the Russian Federation’, 12 February 2013, doc no 30318-02-2013; English translation available at (last visited 18 July 2017). 6. Sinikukka Saari, ‘Comprehensive Security in the Black Sea Region amidst the Ukrainian Crisis—A View from the EU’, Regional Dialogue, 30 December 2014, (last visited 13 July 2017). 7. Leon Aron, ‘The Putin Doctrine Russia’s Quest to Rebuild the Soviet State’, Foreign Affairs, 8 March 2014, (last visited 13 July 2017). Seeking an alternative to Europe, Moscow’s main energy market, Putin signed an important friendship agreement with China on 28 May 2014, which includes a USD 400 billion gas deal. See Richard Martin, ‘Russia-China Gas Deal Narrows Window for U.S. Exports’, Forbes, 30 May 2014, (last visited 13 July 2017).

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these countries within their sphere of influence is considered an undue interference in Russian internal affairs.8 Following the incorporation of Crimea, Putin’s design is now to recreate the ‘Novorossyia’ or ‘New Russia’, an area located in South East Ukraine (and which includes the cities of Luhansk, Kharkiv, Donetsk and Odessa) and which was denominated by the Tsars in the nineteenth century when it formed part of the Russian Empire. The Crimean Peninsula—separated from Russia by the Strait of Kerch—a vassal state of the Ottoman Empire since 1478, was conquered by Catherine II in 1783 as part of a broad expansion of the Russian Empire under the ­Tsarina’s reign.9 However, it was not originally included within the borders of the Ukrainian state born in the wake of World War I (Crimea became an Autonomous Soviet Socialist Republic). Kruschev, the former Soviet leader— who was of Ukrainian nationality—transferred Crimea to Ukraine on the occasion of the ‘tercentenary’ of its birth. Therefore, with the seizure of Crimea and the indirect control of Eastern Ukraine, Putin reunified these regions with their historic Motherland, more or less as the German Democratic Republic—in his view—re-united with the Federal Republic of Germany. As underlined above, even if Russia’s policy towards Ukraine may be comprehensible on the basis of the history of these countries, the legal foundations of Putin’s argumentation for the annexation of Crimea are weak and may easily be confuted. Moscow eventually justified its military occupation of the peninsula (Putin admitted that on 17 April 2014 Russian troops had been deployed to Crimea)10 by invoking certain customary rules of i­nternational law, namely protection of foreign nationals abroad and intervention upon invitation. This is certainly not a novelty in international relations. Western countries (and the United States chiefly) also defend their geopolitical interests by appealing to international law and in particular to human rights rhetoric

8. During his address to the NATO summit in Bucharest in April 2008, Putin declared that ‘presentday Ukraine was a conglomerate of various territories belonging to its neighbors’. He also argued that ‘as its inhabitants were mostly Russians and Russian-speaking people, its aspirations to integration with NATO could threaten its territorial integrity’. See Vladimir Putin’s address at the NATO summit in Bucharest, 2 April 2008, (last visited 13 July 2017). 9. Bryan G Williams, The Sultan’s Raiders. The Military Role of the Crimean Tatars in the ­Ottoman Empire (Washington, The Jamestown Foundation, 2013). 10. Reuters, ‘Putin Admits Russian Forces were Deployed to Crimea’, 17 April 2014, available at www.reuters.com/article/russia-putin-crimea-idUSL6N0N921H20140417 (last visited 13 July 2017).

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(humanitarian intervention and the extension of democracy are the most generally abused excuses). The case of Israel shows us, however, how dangerous it can be to advance territorial claims on the basis of historical justifications. Israel has appealed to history as a basis for its illegal territorial occupations, by saying that Palestine and parts of Lebanon, Syria and Jordan belonged to the Jewish lands described in the Bible. Though most of the territories occupied by Israel have not been formally integrated into the Jewish state, the country has brought some of them under its jurisdiction, including Palestine’s East Jerusalem in 1967 and Syria’s Golan Heights in 1981.11 An analysis of state practice during the Cold War allows us to observe that Western countries especially claimed the right to intervene legitimately at the explicit request of a territorial state, and/or on the pretext of protecting their own nationals abroad. Similarly, the USSR provided aid to communist governments, including those of Angola, Cuba, Ethiopia and Vietnam.12 There are an impressive number of cases, ranging from the US intervention in Lebanon (1958) and the ‘Stanleyville Operation’ by Belgian paratroopers with US support in Congo (1964) to the US invasion of the ­Dominican Republic (1965) and Grenada (1983). In the Dominican Republic and in Grenada the legitimate government was overthrown in favour of a new ‘friendly’ regime.13 France also used force in Mauritania (1977), Zaire (1978), Gabon (1990), Rwanda (1990), Chad (1992) and the Central ­African Republic (1996), not only to protect its nationals but also following a request for help by the local government. The Soviet Union, unilaterally, justified its military interventions in Czechoslovakia (1968) and in Afghanistan (1979) by invoking, in addition to Article 51 of the UN ­Charter, the consent of the territorial state.14 In Crimea, Russia initially claimed the right to intervene in defence of its nationals residing extra-territorially (nationals who constitute a majority in the peninsula), alleging that they had been mistreated by the Ukrainian

11. Susan M Akram, Michael Dumper, Michael Lynk and Iain Scobbie (eds), International Law and the Israeli-Palestinian Conflict: A Rights-Based Approach to Middle East Peace (New York, Routledge, 2011). 12. Louise Doswald Beck, ‘The Legal Validity of Military Intervention by Invitation of the Government’ (1986) 56 British Yearbook of International Law 189–252. 13. Antonio Tanca, Foreign Armed Intervention in Internal Conflict (Dordrecht, Boston, ­London, Martinus Nijhoff Publishers, 1993) 54. 14. Arthur Mark Weisburd, Use of Force. The Practice of States since World War II (Philadelphia, Penn State University, 1997) 59.

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authorities.15 It is not the first time in history that a state has relied on this doctrine in order to further its imperialistic policies. The most relevant corresponding case was the invasion of Panama by the United States in 1989, which claimed to be acting in self-defence in response to alleged increases in violence against US military and civilian personnel in Panama.16 The protection of nationals abroad was used here as a legal gloss to mask the use of direct force to overthrow the military dictator Manuel Noriega, who had been indicted in the United States on drug trafficking charges and was accused of suppressing democracy in Panama and endangering US nationals. Noriega’s Panamanian Defense Forces (PDF) were promptly defeated, forcing the dictator to surrender. Nor is it the first time that Russia has relied on the protection of foreigners abroad in order to justify military intervention: the same argument was used in 2008 in the conflict against Georgia. In fact, the Crimean crisis has brought back memories of 2008, when Russia went to war with Georgia over the break-away territory. A key factor in that conflict, however, was that Georgia acted first by attacking South Ossetia, while Ukraine has been careful, so far, not to give the Russians any excuse for opening hostilities. However, the doctrine of protection of nationals abroad establishes that a state can intervene within the territory of another country only if the lives of its citizens are really in danger and the host country either cannot or does not want to defend them.17 In this regard, we must point out that this doctrine exclusively refers to a state’s own citizens or nationals. Ethnic minorities are deliberately excluded from its field of application, due to the risk of the

15. Russia specifically argued that the new Government had decided to abolish the 2012 ­Language Policy Law which protected the cultural rights of Russians living in Crimea. However, the acting President of Ukraine and Head of the Parliament, Mr Turchynov, never signed the 23 February 2014 Law No 1190 on Abolition of 2012 Language ­Policy Law. Thus, for the time being, the 2012 Law is still valid de facto in Ukraine: see ­Ministry of Foreign Affairs of Ukraine, ‘On the Protection of National Minority Rights in Ukraine’, 4 March 2014, (last visited 13 July 2017). It also became clear at a later date that Putin had already taken the decision to take over and annex Crimea in February 2014—in an overnight meeting on 22–23 February 2014 (State-run Rossiya-1 television channel’s trailer on 15 March 2015 for an upcoming documentary ‘Homeward Bound’). 16. Louis Henkin, ‘The Invasion of Panama Under International Law: A Gross Violation’ (1991) 29 Columbia Journal of Transnational Law 293–317. 17. Chittjaranjan F Amerasinghe, Diplomatic Protection (Oxford, Oxford University Press, 2008) 27; Anne Peters, ‘Membership in the Global Constitutional Community’ in Jan Klabbers, Anne Peters and Geir Ufstein (eds), The Constitutionalization of International Law (Oxford, Oxford University Press, 2009) 173.

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protection of ethnic minorities being invoked as a legal justification for military intervention.18 In fact, mere ethnicity and cultural background does not make people ‘nationals’ or ‘citizens’ of another country under this doctrine. In the case of Crimea, as stated by the Organisation for Security and Co-operation in Europe (OSCE) High Commissioner on National ­Minorities in the statement of 6 March 2014, ‘there is no evidence of violations or threats to the rights of Russian speakers’.19 The same wording was used in the statement on the human rights situation in Ukraine adopted on 15 April 2014 by the Office of the High Commissioner for Human Rights which established that ‘Russia’s speakers have not been subject to threats in Crimea’.20 In addition, the doctrine establishes that intervening states may only rescue their citizens and repatriate them (the action must be limited in scope, time and space, as in the case, for instance, of Israel’s raid on Entebbe airport in Uganda in 1976) and, therefore, a military action must not result in the occupation of foreign territory.21 Furthermore, Russia argued that it had intervened in Crimea following a request for military aid by the self-proclaimed Crimean autonomous government and by the legitimately elected Ukraine President Viktor Janukoviç, then in exile in Russia.22 According to Moscow, the US brought about the coup in Kiev by overthrowing the lawful government and for this reason Moscow rejected the legitimacy of the new pro-West ‘revolutionary’ central government.

18. Christian Walter, ‘Postscript: Self-Determination, Secession and the Crimean Crisis 2014’ in Christian Walter, Antje von Ungern-Sternberg and Kavus Abushov (eds), SelfDetermination and Secession in International Law (Oxford, Oxford University Press, 2014) 293–312, 309. 19. OSCE, ‘Developing Situation in Crimea Alarming, says OSCE High Commissioner on National Minorities’, 6 March 2014 (last visited 12 July 2017). 20. Statement available at (last visited 13 July 2017). 21. Kristen Eichensehr, ‘Defending Nationals Abroad: Assessing the Lawfulness of ­Forcible Hostage Rescues’ (2008) 71 Virginia Journal of International Law 452–84; Natalino ­Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (Dordrecht, Martinus Nijhoff Publishers, 1985) 67. 22. During the 7125th Meeting of the Security Council of 3 March 2014 (Doc S/PV.7124), Russia’s representative, Mr Churkin, reported a request for aid received by the President of Russia from Janukoviç: ‘As the legitimately elected President of Ukraine […] I call on President Vladimir Vladimirovich Putin of Russia to use the armed forces of the Russian Federation to establish legitimacy, peace, law and order and stability in defense of the people of Ukraine’ (p 4).

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However, neither the Crimean government nor the former President Janukoviç may be considered competent to express valid consent. According to the principle of effectiveness, only a government which exercises de facto powers over its population is entitled to issue the necessary valid consent to permit foreign troops to enter into its territory, or to deny them admission.23 Effective authority is pivotal in determining who is entitled to validly extend such an invitation. This line of argument even holds true if one accepts the Russian thesis of the illegal military coup against Janukoviç. In times of unrest where there exist concurrent claims of legitimacy, effective control is the only factor that can be ascertained and attested impartially.24 In addition, according to the Constitution of Ukraine, the President has no right whatsoever to request military assistance; that is in fact the prerogative of the Parliament (Verkhovna Rada).25 Even if Janukoviç is considered an authority in exile, he does not fulfill the conditions that enable such figures to request aid from foreign states to restore them to power.26 In the past, in cases such as the Sabah Government of Kuwait (1990–1991) and of the Aristide Government of Haiti (1991–1994), the ousted authorities had been overthrown as a consequence of the illicit use of force or military coup. Consequently, the effective authority went into power in violation of international rules, the SC authorised the use of force in order to restore the ousted government, and the governments in exile were widely recognised by third states and international organisations as the legitimate representatives of their country. In the case of Janukoviç, even assuming that he was overthrown by a coup d’état, he is certainly no longer recognised as the legitimate representative of Ukraine (except by Russia) and the UN did not intervene to support him.

23. Malcolm N Shaw, International Law, 7th edn (Cambridge, Cambridge University Press, 2014) 1159. 24. On the antinomy in international law between the principles of legality and effectiveness, see Giuliana Ziccardi Capaldo, The Pillars of Global Law (Aldershot, Ashgate, 2008) 151–58. 25. Article 85, paragraph 23, of the Constitution of Ukraine of 28 June 1996 (English translation available at (last visited 13 July 2017)) states ‘The authority of the Verkhovna Rada of Ukraine comprises (…) approving decisions on providing military assistance to other States, on sending units of the Armed Forces of Ukraine to another State, or on admitting units of armed forces of other States on to the territory of Ukraine’. 26. Stefan Talmon, Recognition of Governments in International Law (Oxford, Oxford ­University Press, 1998) 113. Other scholars deny any legal personality to these entities: see Benedetto Conforti and Carlo Focarelli, Le Nazioni Unite, 8th edn (Giappichelli, Padova, 2010) 64.

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The case is even clearer in regard to the request of the Prime Minister of Crimea. It is difficult to see how the head of a federal entity of a state could issue such a declaration. Additionally, it is not unusual to evoke the figure of the ‘puppet government’ and to declare that the peninsula became a theatre of military occupation in violation of the UN Charter. In this regard, we must nonetheless emphasise that the consent of a valid government—according to the general principle of international law volenti non fit iniuria—can never imply a violation of a peremptory norm of international law, such as the rule banning the unilateral use of force.27 In regard to Putin’s doctrine and its application to the Crimean case, I want to make some points that highlight the paradoxes of his position: first, Russia relied upon the theory of ‘secession remedy’ in order to justify the secession of Crimea from Ukraine, claiming that Russians living in Crimea were subjected to widespread and systematic human rights violations. In his speech to the Duma of 18 March 2014, Putin asserted that the separation of Crimea from Ukraine would be fully justified and legitimate in light of the precedent of Kosovo.28 Putin challenged, in particular, the position of Washington that Kosovo was a sui generis case and could not therefore set any precedent aimed at justifying other secessionist claims in the world. After all, on the occasion of the adoption of the Advisory Opinion by the International Court of Justice (ICJ) on the declaration of independence of Kosovo, Russia admitted the existence of such a right ‘as a matter of self-determination of peoples’, but ‘only in extreme circumstances, when the people concerned is continuously subjected to most severe forms of oppression that endangers the very existence of the

27. The prevailing opinion among international legal scholars is that, the duty upon states to abstain from the unilateral use of force is considered an essential norm of international law (jus cogens). See Giorgio Gaja, ‘Jus Cogens Beyond the Vienna Convention’ (1981) III Recueil des Cours de l’Académie de Droit international de La Haye 271–13; Lindsay Moir, Reappraising the Resort to Force: International Law, Jus ad Bellum and the War on Terror (Oxford, Hart Publishing, 2010) 9; Oscar Schachter, ‘In Defense of International Rules on the Use of Force’ (1986) 53 University of Chicago Law Review 113–21; ‘Commentary of the Commission to Article 50 of its Draft Articles on the Law of Treaties’ (1966) 11 ILC Yearbook 247; Alexander Orakhelashvili, Peremptory Norms in International Law (Oxford, Oxford University Press, 2006) 50. Some scholars, however, criticise this assumption: see James A Green, ‘Questioning the Peremptory Status of the Prohibition of the Use of Force’ (2011) 32 Michigan Journal of International Law 215–57. 28. ‘Address by the President of the Russian Federation’, 18 March 2014, (last visited 13 July 2017).

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people’.29 However, Russia denies this supposed right to Chechens within the confines of its own state; they are a population that is overtly discriminated against and politically marginalised.30 Again, in his speech before the Duma of 18 March 2014, President Putin quoted the Written Statement of the United States of 17 April 2009 submitted to the ICJ in connection with the hearings on Kosovo (‘Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law’).31 In this regard, what was particularly interesting was how Russia had changed its mind about Kosovo and remedial secession, as in 2008 it strongly condemned the unilateral secession of Kosovo as a clear violation of Serbia’s sovereignty and territorial integrity. Russia maintained that remedial secession should be limited to truly extreme circumstances such as an outright armed attack by the parent State, threatening the very existence of the people in question. Otherwise all efforts should be taken in order to settle the tension between the parent State and the ethnic community concerned within the framework of the existing State.32

In conclusion, although Russia tries to justify its policies by referring to international law, its actions, as I will discuss below, clearly violate the basic principles of the UN Charter.

3.  Russia’s Violations of International Law 3.1.  The Breach of the Territorial Integrity of Ukraine in Crimea? World history is in some ways, of course, the history of conquest and annexation, with, however, the crucial dividing lines of 1928 and 1945, 29. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, ICJ Reports (2010) 403, Written Statement by the Russian Federation of 16 April 2009, 39ff, (last visited 13 July 2017). 30. Jean-Dominique Giuliani, ‘Russia, Ukraine and International Law’ (2015) European Issues 344 (last visited 13 July 2017). Chechnya is an Autonomous Republic located in the South East of Russia and in the Northern Caucasus mountains bordering on Georgia. Chechnya declared its independence in 1991 but Russian troops invaded and continue to prosecute a relentless military action against the separatist forces. 31. ‘Address by President of the Russian Federation’ (n 28). 32. Kosovo Advisory Opinion, Written Statement of the Russian Federation, 17 April 2009, 31ff (para 88).

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when military conquests were prohibited by the Kellogg Briand Pact and subsequently the UN Charter.33 Before these lines, conquest may have been immoral, but was not automatically illegal. A customary rule banning the acquisition of the territory of a state by  another state resulting from the threat or use of force34 formed in the aftermath of World War II, and was codified in the UN Declaration on Friendly Relations (1970).35 In fact, since the end of World War II, territorial

33. The UN Charter prohibits the threat or use of force and at the same time protects state sovereignty through the principle of non-interference in domestic affairs. See Article 2(4) (‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’) and Article 2(7) (‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII’). In the Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v Albania) ICJ Reports (1949) 4, para 35, the International Court of Justice regarded ‘the alleged right of intervention as the manifestation of a policy of force, such as has, in the past, given right to the most serious abuses and as such cannot, whatever be the present defects in international organization, find a place in international law’. Then, in Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) (Provisional Measures) ICJ Reports (1984) 169, para 205 (hereinafter Nicaragua), the ICJ defined this notion: ‘[I]n view of the generally accepted formulations, the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of sovereignty, to decide freely. One of these is the choice of political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones’. 34. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports (2004) 136, para 87. In this regard, see also Marco Pertile, ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: A Missed Opportunity for International Humanitarian Law?’ (2004) 14 Italian Yearbook of International Law 121–61. The same position had already been expressed by the International Law Commission in the works related to the Draft Article on State Responsibility for Wrongful Acts. In the comment to Article 33, devoted to the ‘state of necessity’ and approved during the 32nd Session, the Commission used these words: ‘one obligation whose peremptory character is beyond doubt in all events is the obligation by a State to refrain from any forcible violation of the territorial integrity of political independence of another State’ (Text of Articles 33 to 35, with Commentaries thereto, adopted by the Commission at its 32nd Session, in Yearbook of the International Law Commission, 1980, vol II (2), 34–60, at 50). 35. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the UN, GA Res 2625 (XXV), 24 October 1970.

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annexations have become progressively more out of the ordinary and the international community has not recognised many such incorporations. How does the above relate to the situation in Crimea? It should be borne in mind that Russia committed itself to respecting Ukrainian territorial integrity through the Helsinki Act of 1975, the Memorandum of Budapest of 199436 and the Black Sea Fleet Status of Forces Agreement of 1997.37 The takeover of Crimea is its first territorial acquisition since the beginning of the Cold War (when the Soviet Union acquired the former Finnish province of Petsamo,38 the Baltic States, parts of East Prussia, Western Belarus, Western Ukraine, Moldova, South Sakhalin and the Kuril Islands).39 Now, for a preliminary discussion on the violations of international law by Russia in Ukraine, I will assess the legality of the presence of Russian paramilitary groups in Crimea. Can the deployment of Russian troops in the peninsula be considered an act of aggression or an armed attack? The definition of an armed attack, as quoted in the Nicaragua, is rooted in customary international law and inscribed in the Declaration on the Definition of Aggression.40 Pertinent to this case, the resolution defines aggression as an

36. On 5 December 1994, Russia, the UK and the US signed the Memorandum of Budapest, under which signatories made promises to each other as part of the denuclearisation process of former Soviet republics following the dissolution of the Soviet Union. Under the Memorandum, Ukraine promised to remove all Soviet-era nuclear weapons from its territory, send them to disarmament facilities in Russia, and to sign the Nuclear NonProliferation Treaty (NPT). Ukraine subsequently fulfilled its disarmament obligations. In return, Russia and the Western signatory countries essentially consecrated the sovereignty and territorial integrity of Ukraine as an independent state. They did so by applying the principles of territorial integrity and non-intervention in the 1975 Helsinki Final Act to an independent post-Soviet Ukraine. The signatories are required to ‘seek immediate United Nations Security Council action to provide assistance to Ukraine’ only in the event of an act of aggression ‘in which nuclear weapons are used’. 37. The status of the Russian military bases and vessels in Crimea is regulated by the RussianUkrainian Partition Treaty on the Status and Conditions of the Black Sea Fleet, signed on 28 May 1997. This Treaty committed Russian troops—according to Article 6(1)—to respect the sovereignty and legislation of Ukraine and to refrain from interfering in its internal affairs. 38. We should specify that the province of Petsamo was given to the Soviet Union, with Finland’s consent, as war reparations. In fact, with the Treaty of Peace of 1947, Finland’s borders of 1 January 1941 were restored (thereby confirming the territorial losses of the Winter War), but it was forced to cede Petsamo with its important nickel mines, its ­Barents Sea harbour and some naval bases to the Soviet Union; see Sharon Korman, The Right of Conquest. The Acquisition of Territory by Force in International Law and Practice (Oxford, Oxford University Press, 1996) 172. 39. The South Kurils are now also claimed by Japan, which calls them the Northern Territories. 40. GA Res 3314 (XXIX), 14 December 1974.

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act against the sovereignty, territorial integrity or political independence of another state (Article 1) which can take the form of an attack against the military forces of another state (Article 3, (d)). Furthermore, the 1974 Definition of Aggression and the Amendments to the ICC Statute list ‘the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation … resulting from such invasion or attack’ as an act of aggression.41 The Security Council was unable to adopt a text deeming the referendum in Crimea a consequence of the ‘illegal use of force’ by Russia against Ukraine, as a consequence of Russia’s veto. However, the United States and Jordan expressly qualified the Russian activities in Crimea as an act of aggression. For instance, Mr Powell, representing the United States before the Security Council, stated that: ‘[…] what is happening today is a dangerous military intervention in Ukraine. It’s an act of aggression’.42 The Council of the European Union, in its conclusions of the meeting of 3 March 2014, condemned ‘the clear violation of Ukraine’s sovereignty and territorial integrity by acts of aggression by the Russian armed forces’ (para 1).43 The European Council’s position has been endorsed by many scholars.44 This position may, however, be questionable for two reasons. First, ‘technically’ Russia did not violate Ukraine’s borders. In fact, some Russian military troops were already legally deployed in Crimea under the Black Sea Fleet Status of Forces Agreement, although it is true that Russia unilaterally augmented the number of its armed forces in the peninsula without requesting the consent of the Ukrainian Government. Therefore, Russian actions certainly overstepped the boundaries of the 1997 Agreement. In fact, Article 4(1) of the treaty provides that the total number of Russian soldiers

41. Jan Klabbers, ‘Intervention, Armed Intervention, Armed Attack, Threat to Peace, Act of Aggression, and Threat or Use of Force: What’s the Difference?’ in Mark Weller (ed), The Oxford Handbook of the Use of Force in International Law (Oxford, Oxford University Press, 2015) 488–506. 42. 7125th Meeting of the Security Council, UN Doc S/PV.7125, 3 March 2014, 2ff.See also the declaration of Lithuania (N Doc S/PV.7134, 13 March 2014, 16) and France (UN Doc S/PV.7138, 15 March 2013, 5). 43. Council conclusions on Ukraine Foreign Affairs Council meeting, Brussels, 3 March 2014, available online at (last visited 14 July 2017). 44. Maurizio Arcari, ‘Violazione del divieto di uso della forza, aggressione o attacco armato in relazione all’intervento militare della Russia in Crimea?’ (2014) 8 Diritti umani e diritto internazionale 473–79; Elena Sciso, ‘La crisi ucraina e l’intervento russo: profili di diritto internazionale’ (2014) 4 Rivista di diritto internazionale 992–1031.

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present on Ukrainian territory cannot exceed the levels therein defined.45 Furthermore, ‘Russian military formations cannot carry out their activities outside the stationing locations and must respect Ukraine’s sovereignty and not interfere in Ukraine’s internal affairs’ (Article 6(1)).46 Second, the Russian troops did not use force and no casualties were recorded, as is shown by the peaceful modalities which led to the referendum and to the subsequent annexation of Crimea. For these reasons, the central issue is whether the mere presence of foreign troops on the territory of a state without the consent of its legitimate government and in breach of an agreement regulating the conditions of their deployment would amount to an act of aggression. Of course, the utilisation of Russian troops in Crimea goes beyond the level of a ‘mere frontier incident’ or ‘less grave use of force’.47 But, it is safe to assume that—under a contextual interpretation of Article 3(e) of the UN Declaration on the Definition of Aggression—the violation of an agreement governing the presence of foreign troops on the territory of a state does not automatically amount to an act of aggression. In fact, Article 3(e) refers explicitly to the ‘use of armed forces of one State in contravention of the agreement regulating their presence in the territory of another State’ and not to the mere ‘presence of foreign troops’.48 However, it is widely acknowledged that it is the element of aggressive intent which is necessary in order to qualify a military intervention as an act of aggression, with an implicit reference to intent retained in Article 2 of the Declaration on the Definition of Aggression, which declares that the Security Council may conclude that determining the prima facie existence of an act of aggression would not be justified ‘in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are

45. Antonio Tancredi, ‘The Russian Annexation of the Crimea: Questions Relating to the Use of Force’ (2014) 1 QIL–Questions of International Law, Zoom-out 5–34, (last visited 14 July 2017). 46. Aurel Sari, ‘Ukraine Insta-Symposium: When does the Breach of a Status of Forces Agreement amount to an Act of Aggression? The Case of Ukraine and the Black Sea Fleet SOFA’, (last visited 14 July 2017). 47. See Nicaragua (n 33) 191, 195. 48. Shirley V Scott, Anthony John Billingsley and Cristopher Michaelsen, International Law and the Use of Force. A Documentary and Reference Guide (Praeger Security International, Santa Barbara, 2010) 170.

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not of sufficient gravity’.49 Therefore, the lack of animus aggressionis—as in the Crimean case—would not justify the finding of an act of aggression.50 On the other hand, there is no doubting that the territory was put under military occupation, and even if the actual use of force was still contested, Russian activities constitute, at the very least, a threat of the use force, which is likewise prohibited by Article 2(4) of the UN Charter.51 However, the occupatio bellica does not confer on the occupying entity—under jus in bello— the legal title to annex the territory under its control.52 The referendum of 49. Although Article 2 is specifically addressed to the Security Council, Article 3 declares that it must be applied ‘subject to and in accordance with the provisions of article 2’: Tom Ruys, Armed Attack and Article 51 of the UN Charter: Evolution in Customary Law and Practice (Cambridge, Cambridge University Press, 2013) 158. Broms, in particular, affirmed that the inclusion in Article 2 of the Declaration on the Definition of Aggression of the phrase ‘other relevant circumstances’ should include consideration of intent: Bert Broms, ‘The Definition of Aggression’ (1977) 154 Hague Recueil 299–400. 50. Ronald J Macdonald, ‘The Use of Force by States in International Law’ in Mohammed Bedjaoui (ed), International Law: Achievements and Prospects (Martinus Nijhoff Publishers, Dordrecht, 1991) 717–42. 51. The concept of threat of use force had been intentionally redacted in an ambiguous manner by the drafters of the Charter, leaving it open to a wide range of interpretations. It meant providing the SC with a high degree of discretion in deciding when/how to intervene in matters traditionally falling within a state’s domestic jurisdiction. During the Cold War the SC was cautious in qualifying a situation as a ‘threat’ under Article 39, mainly due to the obstacle represented by the veto of the P5. A threat was first determined in 1948 with reference to the Arab-Israeli conflict in SC Res 54 of 15 July 1948, para 1 (‘the Security Council determined that the situation in Palestine constitutes a threat to the peace’). It can be said that—to a certain degree—the requirement of the unanimity functioned as an antidote against the risk of arbitrary determinations. The potentiality of a situation to provoke an armed conflict of an international nature in the short or medium term has been generally considered as the key element in determining the existence of a threat. As is well known, with the end of the Cold War and of traditional inter-state armed conflicts, the SC has progressively widened the notion of threats to peace and security through an extensive interpretation of its mandate, including, for instance, environmental degradation, infectious diseases like Ebola, international terrorism. However, the issue of threat of force remains very controversial; in fact there are few cases where threat of force has been present and not contested. One fully supportive case in this sense is the Guyana v Suriname arbitral award, which was adopted unanimously (‘the expulsion from the disputed area of the CGX oil rig and drill ship CE Thornton by Suriname on 3 June 2000 constituted a threat of the use of force in breach of the [Montego Bay] C ­ onvention, the UN Charter, and general international law’). Award in the Arbitration regarding the Delimitation of the Maritime Boundary between Guyana and Suriname, Award of 17 September 2007, 30 RIIA (2007), 1-144, para 148 (2). 52. See The Hague Regulation of 1907 (Regulations concerning the Laws and Customs of War on Land); the Fourth Geneva Convention of 1949 (Geneva Convention relative to the Protection of Civilian Persons in Time of War, Art 48) and the First Additional

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16 March 201453 may therefore be considered a pre-ordered act aimed at consolidating the status quo against the general duty not to modify the legal status of the occupied territory. As I will discuss further below, the principle of non-recognition therefore finds proper application to this case.

3.2.  Military and Paramilitary Activities in Eastern Ukraine? In the aftermath of Crimea’s secession, Russian populations in the Donbass region of Ukraine (which contains Donetsk and Luhansk) asked to join Russia. Disorder which began in April 2014 intensified, leading the Ukrainian Government to launch a military counter-offensive against the separatist force of the self-declared Donetsk and Lugansk People’s Republics, starting the ‘War in Donbass’. Russian soldiers were reported to have been massed at Ukraine’s frontier since the beginning of the unrest. Russian paramilitary groups (the ‘little green men’) and volunteers of Russian nationality provided aid to the secessionist militia, who occupied government facilities in Eastern Ukraine.54

Protocol of 1977 (Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts); Adam Roberts, ‘Transformative Military Occupation: Applying the Laws of War and Human Rights’ in Michael Schmitt and Jelena Pejic (eds), International Law And Armed Conflict, Exploring the Faultlines: Essays in Honour of Yoram Dinstein (Leiden, Brill, 2007) 439–96, at 447. The ICJ in its Advisory Opinion on the Construction of the Wall in Palestine has considered void the annexations by Israel of the West Bank and Eastern Jerusalem, upon which Israel exercises its authority as occupying country (para 75). 53. ‘Referendum by the Autonomous Republic of Crimea and the city of Sevastopol, regarding the issue of the secession of Crimea within the Russia Federation in alternative to the maintenance of autonomy under Ukrainian sovereignty’. A huge majority of voters (97%) chose to join Russia. Its result determined Crimea as an independent state and its ­Government asked Moscow to fold Crimea into Russia. The path followed by Russia in order to annex Crimea and the city of Sebastopolis is quite particular. After the proclamation of the results of the referendum, the Autonomous Republic of Crimea proclaimed itself independent; simultaneously Russia modified through a constitutional law the norm that defines the Russia territory, allowing to include within the ‘territory’ also the peninsula and the city of Sebastopolis; finally the Russian Government and the new-proclaimed independent State of Crimea signed an agreement on 18 March 2014 on the accession of the Republic of Crimea to the Russian Federation, determining in this manner a process of secession through incorporation. 54. Kirit Radia, ‘NATO Commander Offers Evidence of Russian Troops in Ukraine’, ABC News, 17 April 2014, (last visited 14 July 2017).

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Russian-backed rebels are probably responsible for the downing of Malaysia Airlines flight MH17 over Ukraine on 17 July 2014.55 A new front in the War was opened on 27 August 2014 as Russian armoured troops were reported to have crossed the border between Russia and Ukraine. Petro Poroshenko, Ukraine’s President, declared that this new offensive was a ‘stealth invasion’ by the Russian Federation.56 Russia denied any involvement in the unrest in Eastern Ukraine, having never declared war against Ukraine. There are many cases of state practice of covert actions in support of insurgents in cases where the intervening state contexts the legitimacy of the central government. Examples of unconventional military operations in favour of opposition forces are provided by the US intervention in Laos (1961), Chile (1974) and the Vietnamese invasion of Cambodia (1978). However, it was under the Reagan Administration that the United States provided wide aid through the CIA to opposition groups fighting socialist governments, in the form of the training of irregular troops, financial aid and the provision of weapons (Angola, Cambodia, Afghanistan, Nicaragua).57 During this period the United States, in disregard of the principle of non-intervention in domestic affairs, supported anti-communist liberation movements, restoring US military strength and challenging Soviet expansionism. The doctrine was designed to serve the dual purposes of diminishing Soviet influence in these regions while also potentially opening the door for capitalism (and sometimes liberal democracy) in nations that were largely governed by Soviet-supported socialist governments.58 Russians’ military activities in Crimea and South East Ukraine (as well as in Georgia) seem to recall the modalities of the US interventions in the 1980s. In fact, Vladimir Putin has seemingly adopted a ‘Russian version’ of the ­Reagan ­Doctrine, which is primarily focused on restoring Russian g­ reatness after a period of decline. Similar to the US interventions, Russia’s support 55. The Commission of Inquiry appointed by the Dutch Government (‘Dutch Safety Board’) to establish who was responsible for having shot down the plane concluded in its report of 13 October 2015 that it was hit by a Russian missile. However, the report did not clarify who materially launched the missile. The full report is available at (last visited 14 July 2017). 56. Pavel Polityuk and Polina Devitt, ‘Ukraine Accuses Russia of “Undisguised Aggression” as Rebels Advance’, Reuters, 2 September 2014, (last visited 14 July 2017). See also the interventions of the representatives of Australia, France, the UK and US—during the Security Council’s 7253rd Meeting of 28 August 2014—that openly condemned the escalation of Russian’s involvement in the Civil War ( (last visited 14 July 2017)). 57. W Michael Reisman, ‘Old Wine in New Bottles: The Reagan and Brezhnev Doctrine in Contemporary International Law and Practice’ (1998) 13 Yale Journal of International Law 171–98. 58. Henry Kissinger, Diplomacy (Touchstone Books, New York, 1994) 762.

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to the E ­ astern Ukraine insurgency clearly violated Ukrainian’s sovereignty and territorial ­integrity.59 In fact, the ICJ, in the paramount Nicaragua case, has affirmed that assistance provided to rebel forces acting in a territory of a state (ie under the form of furniture of weapons or logistic assistance), would amount to an infringement of the principle of non-interference in domestic affairs, and at the same time it would constitute a violation minoris generis of the prohibition of the threat or use of force (as such not justifying an armed response in self-defence—para 208).60 Are the actions of the paramilitary groups in Ukraine imputable to Russia? In this regard, according to the ICJ in the Nicaragua case the mere ‘provision of weapons or logistical or other support’ (and presumably ‘financing, organizing, training, [and] supplying and equipping’) by a state to a group engaged in armed attacks against another state is not sufficient for attributing the group’s armed attacks to the first state and consequently asserting that the first state has engaged in armed attacks against the second state (para 137). Under the Court’s test for imputation (‘substantial involvement’), it must be proven that the sponsoring state has also directly participated in the organization, coordination and planning of military operations.61 Therefore, Russia

59. In this regard, the ICJ in the Nicaragua’s judgment (n 33) established some principles which are generally considered as reflecting existing customary law regulating external aid to insurgent groups. As is well known, the case regarded the military, financial and logistic aid provided by the CIA to the Contras, a paramilitary group fighting against the legitimate government (the Sandinista National Liberation Front), which had overthrown in 1979 the dictatorship of the Somaza family (which lasted since 1936). The Court concluded that the ‘United States activities in relation to the contras constitute a breach of the customary international law principle of the non-use of force’ and ‘the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua’ (para 228). In Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), ICJ Reports (2005) 168, the ICJ noted that Nicaragua had ‘made it clear that the principle of non-intervention prohibits a State to intervene, directly or indirectly, with or without armed force, in support of the internal opposition within a State’ (para 164). However, it’s uncontested that the delivery of arms to insurgents, even if qualified as a use of force, does not amount to an armed attack. Rather, an armed attack is usually considered as the invasion by the regular troops of a foreign state of the territory of another state. Andrew Claphman, ‘Weapons and Armed Non-State Actors’ in Stuart Casey-Maslen (eds), Weapons under International Human Rights Law (Cambridge, Cambridge University Press, 2014) 163–83. 60. Abram Chayes, ‘Nicaragua, the United States, and the World Court’ (1985) 85 Columbia Law Review 1445–82. 61. The test developed by the ICJ has been reiterated in several occasions before the ICTY: The Prosecutor v Tihomir Blaskic, Case No IT-95-14-T, ICTY Trial Chamber, Judgment (3 March 2000) para 100; Naletilić & Martinović, Case No IT-98-34-T, ICTY Trial Chamber (31 March 2003) para 184; and adopted by the ICC in The Prosecutor v Thomas Lubanga Dyilo, Doc No ICC-01/04-01/06, Judgment (14 March 2012) para 541.

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has been recognisably violating international law and engaging in ‘indirect aggression’ by financing, training, supplying, and equipping the insurgents, but it is more difficult to ascertain that this translated into direct Russian support of specific armed attacks so as to meet the ‘substantial involvement’ test identified by the Court (which would thus mean ‘aggression’).62 The situation evolved rapidly: Russia escalated its military involvement in the Civil War from mid-August 2014, including the direct intervention of an increasing number of Russian troops, probably because its military assistance to the separatists had failed to help them sufficiently. According to NATO, on 27 August 2014 Russian military moved artillery units manned by Russian personnel inside Ukrainian territory in the far south, at Novoazovsk, in an apparent attempt to open a new front outside the rebel-held areas and closer to Crimea, and started using them to fire at Ukrainian forces.63 On 30 August 2014, the Council of the European Union expressly condemned ‘the increasing flows of fighters and weapons from the territory of the Russian Federation into Eastern Ukraine as well as the aggression by Russian armed forces on Ukrainian soil’.64 Bearing in mind the trespassing of the Ukrainian border by Russian troops, are we in the presence of a non-international armed conflict (NIAC) opposing the separatists’ forces to the governmental troops,65 or has it turned into an international conflict between Russia and Ukraine? The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) clearly stated in the Tadić case that a NIAC becomes international whether another state intervenes in the conflict with its troops or alternatively if some of the participants in the internal armed conflict act on behalf of that other state.66 However, as established by the ICTY in the Naletilić & Martinović case, it must be demonstrated that the foreign troops have been engaged alongside

62. On the substantial involvement test, Jordan J Paust, ‘Armed Attacks and Imputation: Would a Nuclear Weaponized Iran Trigger Permissible Israeli and U.S. Measures of SelfDefense?’ (2014) 45 Georgetown Journal of International Law 411–43. 63. See (last visited 14 July 2017). 64. Special Meeting of the European Council, EUCO 163/14, 30 August 2014. 65. The International Committee of the Red Cross affirmed inter alia that the unrest in Ukraine should be considered a non-international armed conflict: International Committee of the Red Cross, ‘Ukraine: ICRC calls on all sides to respect international humanitarian law’, 23 August 2014, (last visited 14 July 2017). 66. ICTY, The Prosecutor v Tadić, Case No IT-94-1, Appeals Chamber, Judgment (7 May 1997) para 84.

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the rebel forces in battles against the governmental army and they are in command of the rebel forces.67 At the moment, there is not sufficient evidence to prove ‘beyond reasonable doubt’ that the armed forces of Russia directly intervened in the territory of Ukraine in support of the Donetsk army and Russian officers have been appointed in command of the rebel troops during military operations against the governmental army.68 Therefore, it is questionable to claim that we are in the presence of an international conflict as a consequence of the direct intervention of Russia.69 Yet it is certainly a non-international armed conflict between Ukraine and the Russia-backed rebels (which eventually evolved in a ‘frozen conflict’), as it fully complies with the criteria of intensity and organisation established by the ICTY in the Tadic case.70 However, it is undeniable that Russia—despite President Putin denying any participation in the Civil War—was involved in the fighting in Ukraine, and it is becoming increasingly clear that military coercion against the sovereignty and territorial integrity of Ukraine was abundantly employed.71 Therefore, we can affirm that Russia at least threatened peace and international security in breach of Article 2(4) of the UN Charter, even if it is hard to prove a direct intervention by Russian regular troops, one of the hypotheses contemplated in Article 3(a) of the UN Declaration on the Definition of Aggression.72 67. Naletilić & Martinović (n 61) para 189. 68. For a contrasting view on this topic (considering the conflict in Eastern Ukraine as an ‘internationalized non-international armed conflict’), see Robert Heinsch, ‘Conflict Classification in Ukraine: The Return of the Proxy War?’ (2015) 91 International Law Studies 323–60, 340. 69. Shane R Reeves and David Wallace, ‘The Combatant Status of the “Little Green Men” and Other Participants in the Ukraine Conflict’ (2015) 91 International Law Studies 362–401, 381. 70. The ICTY determined the existence of a NIAC ‘whenever there is […] protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’ (para 70); see also Christopher Greenwood, ‘International Humanitarian Law and the Tadic Case’ (1996) 7 European Journal of International Law 265–83. 71. Christian Marxsen, ‘Territorial Integrity in International Law—Its Concept and Implications for Crimea’ (2015) 75 Heidelberg Journal of International Law (HJIL) 7–27, 24. 72. In a rather different position, the Office of the Prosecutor of the ICC in its ‘Report on Preliminary Examination Activities 2016’ affirmed ‘Additional information […] would suggest the existence of an international armed conflict in the context of armed hostilities in eastern Ukraine from 14 July 2014 at the latest, in parallel to the non-international armed conflict (para. 169)’. With reference to the occupation of Crimea, the Report stated ‘The information available suggests that the situation within the territory of Crimea and Sevastopol amounts to an international armed conflict between Ukraine and the Russian Federation’ (para 158). In addition, the Report listed alleged war crimes committed by both sides during the conflict (para 172–83). As a reprisal to the position of the Office of the Prosecutor, Russia—with a Presidential Decree of 16 November 2016—announced its intention not to become a Party to the Statute of the ICC. See Sergey Sayapin, ‘Russia’s

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4. The Reaction of the International Community to the Ukraine Crisis The international community addressed the annexation of Crimea by Russia and its direct involvement in the Ukrainian Civil War through the adoption of three rounds of individual sanctions (outside the UN collective security system) and resort to the theory of collective non-recognition. As a result of the exercise by Russia of its veto power within the Security Council, that body was unable to adopt a resolution qualifying the Russian’s policy towards Ukraine as a threat to international peace and security. Council members did not consider other avenues, such as a referral of the situation to the General Assembly under Uniting for Peace73 in order to establish a peace-keeping mission or unilateral interventions. NATO, on its own, which cannot intervene in the defence of Ukraine as it is not a Member State of that organisation, decided at the Wales Summit of 4–5 September 2014, to create ‘a very highreadiness force’ to deal with any eventual Russian aggression against the Baltic States and Poland. However, this mixture of economic, political and military sanctions gives rise to another layer of complex questions regarding their effectiveness and their corresponding political, economic, and social costs to the West, given Russia’s retaliatory decision to make economic reprisals which have had a considerable impact on an EU economy highly dependent on Russia, most particularly in the energy sector. Withdrawal of Signature from the Rome Statute Would not Shield its Nationals from Potential Prosecution at the IC’, EJIL: Talk!, 2016, (last visited 14 July 2017). 73. On the occasion of the Korean War, which began with an attack perpetrated by North Korea against the South on 25 June 1950, the Soviet Union blocked the adoption of a Resolution within the SC, which would have established measures aimed at restoring international peace and security in the region. With Res 377 A (V) Uniting for Peace of 3 November 1950, the General Assembly (GA) affirmed itself to be competent to address recommendations to Member States in order to adopt collective measures to maintain or to restore international peace and security in the case of deadlock in the SC. The principles enshrined in the Resolution were then applied during the Suez Crisis when the GA—faced with the inability of the SC to act following the veto by France and the UK—created a United Nations Emergency Force (UNEF I), which was deployed along the channel with the task of surveilling the cease-fire and the end of the hostilities between Israel and Egypt. Christopher C Joiner, International Law in the 21st Century: Rules for Global Governance (Rowman & Littlefield Publishers, Inc, Lanham MD, 2005) 189.

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4.1.  The Failure to React within the UN Collective Security System The Ukraine crisis showed the inconsistency of international law and the West’s reticence in passing from rhetoric to action; in fact, the international community witnessed the fait accompli of Russia’s seizure of Crimea without seeming capable of mustering a concrete response. While the United States at that time under the Presidency of Barack Obama took a strong position, not only condemning Russia’s activities in Crimea and South-East Ukraine but also sponsoring specific measures and economic sanctions, some EU states acting on their own (ie Germany) have been less forceful in blaming Russia due to their economic ties to Moscow.74 The lack of any tangible will to react has been demonstrated by the failure to adopt a draft resolution on Crimea sponsored by the United States. The SC held an emergency meeting on the Russian intervention in Crimea on 15 March 2014, in which it urged all parties to pursue a peaceful resolution of the dispute through political dialogue, to reaffirm Ukraine’s sovereignty and to declare the referendum in Crimea invalid. The 15 Member Council voted 13-1 in favour of the draft resolution (China—traditionally aligned to the position of Moscow—surprisingly abstained). However, Russia was allowed to vote and to exercise its veto, despite the resolution project clearly being framed within Chapter VI of the UN Charter (‘Peaceful Settlement of Disputes’).75 As is well known, the right to veto cannot be exercised when a state is directly involved in a dispute falling under Chapter VI. Article 27(3) of the UN Charter, which sets out the requirements for obligatory abstention also for P5, establishes that ‘… provided that in decisions under Chapter VI, a party to dispute shall abstain from voting’ (nemo judex in re sua—no one can be judge in his own action).76

74. Russia is the biggest supplier of natural gas to Europe, with about a quarter of Europe’s current gas requirements met by Russian gas (Gazprom is the major supplier of gas). In particular, about a third of all German gas imports come from Russian sources ( (last visited 16 July 2017)). Russia has the biggest gas reserves in the world and a quarter of all proven recoverable reserves. James Kanter and Alan Cowell, ‘Ukraine Crisis Is Testing E.U.’s Resolve’, New York Times, 24 July 2014, (last visited 16 July 2017). 75. Raffaele Cadin, ‘La crisi in Ucraina dinanzi al Consiglio di sicurezza: ritorno a Yalta senza biglietto?’ (2014) 2 Ordine Internazionale e diritti umani 346–51. 76. Antonio Cassese, Diritto internazionale (Il Mulino: Bologna, 2006) 171.

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The draft resolution, without making any reference to Chapter VII and without describing the events in Crimea as a threat to peace (the annexation was in fact effectuated by peaceful means), simply invited the parties to pursue a peaceful settlement of the dispute.77 Therefore, SC Members should have invoked the principle nemo judex in re sua against Russia and prevented Moscow from exercising its veto power. Nonetheless, this is not the first time the SC has acted in this way; a precedent is represented by the case of the Former Soviet Union’s veto, blocking the adoption of a draft resolution under Chapter VI which condemned the USSR’s destruction of a South Korean airliner.78 Despite this, the vetoed resolution is not void of legal value insofar as it is the expression of the almost-unanimous agreement of the SC Member States on an essential legal issue. In fact, the other 13 states have solemnly reaffirmed that the secession of a territorial entity without the consent of the parent state is not valid and that the support of another country in this situation amounts to a violation of sovereignty and territorial integrity. Given the impossibility of adopting a decision in the Security Council, the United States was forced to push for the adoption, at least, of a General Assembly (GA) resolution. On 27 March 2014, the GA adopted a Resolution declaring that the Crimean referendum which led to the peninsula’s annexation by Russia had ‘no validity’, and stated that ‘it cannot form the basis of any alteration of the status of the Autonomous Republic of Crimea’ (para 5).79 The Resolution also called on other states ‘to desist and refrain from actions aimed at the partial or total disruption of the national unity and territorial integrity of Ukraine’.80 The Resolution was adopted by a vote of 100 states in favour, 11 against, and 58 abstentions.81 Armenia,

77. In fact the Council, after reiterating its effort to guarantee the sovereignty, independence, unity and territorial integrity of Ukraine (para 1), invited all parties ‘to pursue immediately the peaceful resolution of this dispute through direct political dialogue, to exercise restraint, to refrain from unilateral actions and inflammatory rhetoric that may increase tensions, and to engage fully with international mediators efforts’. Security Council Draft Resolution on Ukraine, 15 March 2014 S/2014/189, (last visited 16 July 2017). 78. Doc S/PV.2476 of 12 September 1983; Benedetto Conforti and Carlo Focarelli, The Law and Practice of the United Nations, 4th edn (MartinusNijhoff Publishers, Leiden, 2010) 82. 79. GA Res 68/262, ‘Territorial Integrity of Crimea’, 27 March 2014. 80. Ibid, para 2. 81. The 68th GA, 80th meeting, GA/11493, 27 March 2014.

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­ elarus, Bolivia, Cuba, North Korea, Nicaragua Sudan, Syria, Venezuela and B ­Zimbabwe voted against the text, while Serbia, Iran, Bosnia and Yemen were absent during the ballot. China, Egypt, India, Iraq, Mongolia, and Myanmar were among the states which abstained. China explained its abstention by referring to its longstanding policy of not getting involved in the internal affairs of other nations and respecting the sovereignty and territorial integrity of all countries. Argentina justified its abstention by blasting the United Kingdom for its ‘double standard’, having approved the referendum on the future status of the Falkland/Malvinas in 2013 while now condemning the Crimean referendum.82 An interesting case study which followed a similar path (veto within the SC and adoption of a resolution within the SC) is the referendum of the Mayotte Island. On 8 February 1976, as Comoros became independent, a referendum was held in Mayotte on the annexation of the island to France, in prejudice of the territorial integrity of the former French colony, whose territorial integrity was defended, inter alia, by the Soviet Union. In the debate on Ukraine within the SC, France inferred that ‘la Russia se trompe dans un des deux cas, en 1976 ou en 2014, elle doit choisir’, omitting the fact that it acted in the same way then as Russia does now.83 In fact, in 1976, France hindered the adoption of a draft resolution presented by Benin, Guyana, Libya, Panama and Tanzania, that would have obliged France to renounce organising the referendum (the UK and the US abstained). Then, the GA considered the referendum null and void, condemned the violation of the territorial integrity of the Comoros and called on France to leave Mayotte.84

82. Oliver Stuenkel, ‘Cristina Kirchner, the Falklands/Malvinas and Crimea’, Post-Western World, 27 March 2014, (last visited 16 July 2017). 83. ‘Explication de vote de M Gérard Araud, représentant permanent de la France auprès des Nations unies, à l’issue du vote du Conseil de sécurité sur la résolution sur l’Ukraine’, 15 March 2014, (last visited 16 July 2017). 84. GA Res 31/4, 21 October 1976, ‘Question de l’Île de Mayotte’, para 1.

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4.2.  The Economic Sanctions Having exhausted the possibility of reacting within the UN System, individual states such as Australia,85 Canada,86 Japan,87 Norway,88 Switzerland,89 the US,90 and regional organisations such as the EU91 decided to adopt a

85. Australia has imposed targeted financial sanctions and a ban on entry into Australia for people who are playing key roles in determining a Russian policy that threatens the sovereignty and territorial integrity of Ukraine. On 1 September 2014, the Australian Government unveiled further sanctions against the Russian oil and gas, financial and defence sectors (the implementing regulations entered into force on 31 March 2015). The details of the persons and entities designated for targeted financial sanctions or subject to travel bans have been published in the ‘DFAT Consolidated List’; see (last visited 16 July 2017). 86. See Global Affairs Canada, ‘Canadian Economic Sanctions’, (last visited 16 July 2017). 87. Ankit Panda, ‘Japan Sanctions Russia Over Ukraine’, The Diplomat, 29 July 2014, (last visited 16 July 2017). 88. See (last visited 16 July 2017). 89. Russia Today, ‘Switzerland Mirrors EU Sanctions Against Russia’, 28 August 2014, (last visited 16 July 2017). 90. Executive Order of US President of 6 March 2014, updated on 19 March 2014 (Executive Order 13661—Blocking Property of Additional Persons Contributing to the Situation in Ukraine). The lists of individuals and companies hit by travel bans and asset freezes were updated on 20 March 2014 ( (last visited 16 July 2017)) and on 28 April 2014 ( (last visited 16 July 2017)). On 16 July 2014, in response to the shooting down of the Malaysian Airlines passenger jet (allegedly committed by the Russia-backed insurgents in Eastern Ukraine), the US decided to escalate sanctions against Russia over its actions in Ukraine. On 29 August 2014, the US Department of Treasury disclosed Additional Sanctions on Russian Financial Institutions and on a Defense Technology Entity, ‘in response to Russia’s continued efforts to destabilize Eastern-Ukraine’. Specifically, the Treasury imposed sanctions that prohibit US persons from providing new financing to three major Russian financial institutions thus limiting their access to US capital markets. The Treasury has also designated one Russian state-owned defence technology firm pursuant to Executive Order (EO) 13661. These measures coincide with actions taken to suspend US export credit and development finance to Russia, see (last visited 16 July 2017). With EO 13662, adopted on 12 September 2014, the US Government decided to impose new sanctions on major Russian banks, and defence and energy companies; see (last visited 16 July 2017). 91. Council Regulation 269/2014 of 17 March 2014 concerning Restrictive Measures in Respect of Actions undermining or threatening the Territorial Integrity, Sovereignty and Independence of Ukraine [2014] OJ L78/6–15; Council Regulation 284/2014 of 21 March 2014 implementing Regulation (EU) No 269/2014 concerning Restrictive Measures in Respect of Actions undermining or threatening the Territorial Integrity,

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system of ‘smart sanctions’ including measures of various types and degrees of ­severity.92 Individuals and companies close to the Russian President— of ­Russian as well as Ukrainian nationality—have been hit by travel bans and asset freezes.93 Russia has responded with sanctions against a number of countries, including a total ban on food imports (fruit, vegetables, meat, fish, milk and dairy imports) from the EU, United States, Norway, Canada and Australia.94 In addition, they agreed upon reprisals, such as the interruption of the pourparler between Russia and EU on economic cooperation, and the decision to oust Russia from the Group of Eight by holding the G8 meeting—originally scheduled in Sochi—in Brussels (5–6 June 2014), without inviting Russia. The states which promoted the sanctions started from the assumption that not only Ukraine, as the direct victim of the wrongful act, but also individual countries would be entitled to react, through peaceful measures, in the event

Sovereignty and Independence of Ukraine [2014] OJ L86/27–29; Council Implementing Decision 2014/238/CFSP of 28 April 2014 implementing Decision 2014/145/CFSP concerning Restrictive Measures in respect of Actions undermining or threatening the Territorial Integrity, Sovereignty and Independence of Ukraine [2014] OJ L126/55–57); Council Decision 2014/265/CFSP of 12 May 2014 amending Decision 2014/145/CFSP concerning Restrictive Measures in respect of Actions undermining or threatening the Territorial Integrity, Sovereignty and Independence of Ukraine [2014] OJ L137/9. The economic sanctions against Russia were prolonged for the first time until 31 July 2016 (Council of the European Union, ‘Russia: EU Prolongs Economic Sanctions by Six Months’

(last visited 16 July 2017)), and subsequently were extended until 31 January 2018, (last visited 16 July 2017)). 92. Smart sanctions, also termed ‘targeted’ or ‘designer’ sanctions—unlike the traditional sanctions addressed towards states—are directed at certain individuals or groups. These kinds of sanctions became popular after the attack against the Twin Towers on 11 S­ eptember 2001. On the legitimacy of individual sanctions, Carlo Focarelli, International Law as Social Construct. The Search for Global Justice (Oxford, Oxford University Press, 2012) 483; Jan Klabbers, International Law (Cambridge, Cambridge University Press, 2013) 179; Ramses Wessel, ‘Debating the Smartness of Anti-Terrorism Sanctions: The UN Security Council and the Individual Citizen’ in Cyrille Fijnaut, Jan Wouters and Frederik Naert (eds), Legal Instruments in the Fight against International Terrorism: A Transatlantic Dialogue (Martinus Nijhoff Publishers, Leiden, 2004) 633–60. 93. A total of 150 people and 37 entities were subject to an asset freeze and a travel ban. The Council extended those measures until 15 September 2017, (last visited 16 July 2017)). 94. Jennifer Rankin, ‘Russia Responds to Sanctions by Banning Western Food Imports’, The Guardian, 7 August 2014, (last visited 16 July 2017).

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of a grave breach of an erga omnes obligation (in the present case, the violation of Ukrainian sovereignty and territorial integrity by Russia).95 In fact, the international legal order allows states not directly damaged by a wrongful act to react outside the UN system in order to force the responsible country to cease its wrongful behaviour.96 The goal of economic sanctions is exactly to bring about a change in the behaviour or policies of a state, its government or individual entities therein.97 As regards the targets of sanctions, these measures take the form of a suspension of the general rules on the treatment of aliens in regard to ­Russian ­citizens. However, it also appears that some of these individuals have U ­ krainian nationality, and have therefore been treated as de facto organs of Russia. We are, therefore, faced with an innovative approach to sanctions, which raises some doubts as to their real effectiveness.98 The sanctions are not

95. According to Article 5(c) of the Resolution of the Institut de droit international ‘Les obligations et les droits erga omnes en droit international’ (Cinquième Commission, Session de Cracovie, 2005, Rapporteur: M Giorgio Gaja): ‘Si une violation grave, largement reconnue, d’une obligation erga omnes a lieu, tous les Etats auxquels l’obligation est due:….ont la faculté de prendre des contre-mesures n’impliquant pas le recours à la force dans des conditions analogues à celles qui s’appliquent à un Etat spécialement atteint par la violation’; see Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (Oxford, Oxford University Press, 1997). In addition, Article 54 (‘Measures taken by States other than an injured State’) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001) (Doc A/56/10) establishes that: ‘This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached’. In this regard, see Linos-Alexandre Sicilianos, ‘Countermeasures in Response to Grave Violations of Obligations Owed to the International Community’ in James Crawford, Alain Pellet and Simon Olleson (eds), The Law of International Responsibility (Oxford, Oxford University Press, 2010) 1137. 96. See, in this regard, Article 4(2)(b) of the Draft Articles on State Responsibility (‘Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State: cessation of the internationally wrongful act, and assurances and guarantees of nonrepetition’). On the legitimacy of sanctions adopted by coalition of states acting in defence of a public interest, see Martin Dawidowicz, ‘Public Law Enforcement without Public Law Safeguards? An Analysis of State Practice on Third-Party Countermeasures and their Relationship to the UN Security Council’ (2006) 77 (1) British Yearbook of International Law 333–418. 97. Ali Z Marossi and Marisa R Bassett (eds), Economic Sanctions under International Law: Unilateralism, Multilateralism, Legitimacy, and Consequences (Asser Press, The Hague, 2015). 98. Pasquale De Sena and Lorenzo Gradoni, ‘Crimea: le ragioni del torto (russo) e il torto delle ragioni (occidentali)’, 21 March 2014, (last visited 14 July 2017).

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addressed at the individual who bears principal responsibility for the crisis in Ukraine—that is to say, Vladimir Putin—and, further, they do not seem to have discouraged Russia from supporting the insurgents in South-East Ukraine or pursuing its goals in Crimea. It seems, therefore, that these sanctions are a mirror of the ambivalent policies of some EU Member States and the USA (under the presidency of Barack Obama) towards Russia.

4.3. Non-recognition as a Collective Response to the Unlawful Annexation of Crimea In the highly problematic situation created by the Ukraine crisis, the United Nations, other international organisations and individual States reacted by refusing to recognise the annexation of Crimea. The non-recognition policy— based on the principle ex injuria jus non oritur—was the only collective reaction to Russia’s takeover of Crimea. Its aim was to prevent the consolidation of the unlawful situation represented by the de facto annexation of the peninsula.99 During the Cold War, in a similar situation, Western countries did not acknowledge the Baltic countries as being part of the USSR. However, the de facto situation was implicitly approved by them. Therefore, there is some analogy from history. In fact, the rationale of non-recognition is to prevent, insofar as possible, the validation of an unlawful situation by seeking to ensure that fait accompli, resulting from serious illegalities, does not consolidate and crystallise over time into new situations then recognised by the international legal order. The language and terminology used by the United Nations and Western countries in condemning and refusing to recognise Russia’s annexation of Crimea recalls the words used by US Secretary of State Henry Stimson in relation to the case of Manchuria,100 when Japan, in pursuing its expansionist

99. Generally, Ian Brownlie, ‘Recognition in Theory and Practice’ (1982) 53 British Yearbook of International Law 197–211; James Ker-Lindsay, The Foreign Policy of Counter Secession: Preventing the Recognition of Contested States (Oxford, Oxford University Press, 2012); Enrico Milano, Unlawful Territorial Situations in International Law. Reconciling Effectiveness, Legality and Legitimacy (Leiden, Martinus Nijhoff Publishers, 2005) 10; Matthew Crawen, ‘Statehood, Self-Determination and Recognition’ in Malcolm Evans (ed), International Law (Cambridge, Cambridge University Press, 2010) 203–51. On non-recognition, De Visscher affirmed in 1968: ‘Illegal violence is no longer admitted as a demonstration of effectiveness. Also total conquest (debellatio) may not be recognized by States signatory to treaties condemning recourse to war. In obedience to such a moral imperative, they may refuse to cover the illegality of an annexation.’ See Charles De Visscher, Theory and Reality in Public International Law (Princeton, Princeton University Press, 1968) 323. 100. Bernard R Bot, Non-Recognition and Treaty Relations (New York, Oceana Publications Inc, 1968) 60.

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policy into China, created a puppet government in the region in 1932 (Manchukuo). Stimson reacted by affirming that the United States would never recognise any situation (including the establishment of a new state), treaty or other agreement, procured by illegal means, particularly by the unlawful use of armed force.101 The League of the Nations declared in 1934 that Manchuria was an integral part of China and refused to recognise Manchukuo, affirming that it was incumbent upon the Members of the League of the Nations not to recognise any situation, treaty or agreement brought about by means contrary to the Covenant of the League of the Nations and to the Pact of Paris.102 The collective non-recognition process has been widely employed by the Security Council, starting (it was the first instance of the application of the non-recognition process) with the case of Rhodesia (now Zimbabwe), which seceded from the United Kingdom in 1965 and whose population was subject to an apartheid regime. The SC called upon states not to recognise or entertain ‘any diplomatic or other relations with this illegal authority’.103 The illegal occupation by Israel of Western Jerusalem, the West Bank and the Golan Heights during the Six Day War (1967) and the UN resolutions that condemned Israel can also be included in the non-recognition practice. In reference to the Golan Heights, officially a Syrian territory, the General Assembly qualified the occupation as ‘illegal and invalid’ and called upon states not to recognise it.104 The Security Council then, addressing the presence of Israel in Jerusalem, affirmed that it would not ‘recognize … actions by Israel that … seek to alter the character and status of Jerusalem, and called on States not to treat Jerusalem as the capital of Israel’.105 Judge Koojimans in his separate opinion to the International Court of Justice’s advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory noted that the obligation of non-recognition of unlawful situations applies to ‘legal claims to territory’.106 Another example is the Turkish Republic of Northern Cyprus (TRNC), established in the wake of the Turkish invasion of the Northern part of the island in 1974. The SC required non-recognition of this new entity, as its creation 101. David Turns, ‘The Stimson Doctrine: of Non-Recognition: Its Historical Genesis and Influence on Contemporary International Law’ (2003) 2(1) Chinese Journal of International Law 105–43. 102. Robert Langer, Seizure of Territory; The Stimson Doctrine and Related Principles in Legal Theory and Diplomatic Practice (Princeton, Princeton University Press 1947) 50. 103. SC Res 217 (1965), 20 November 1965, para 6. 104. GA Res 37/123A of 16 December 1982, para 5. 105. SC Res 478, 20 August 1980, para 5. 106. Construction of a Wall (n 34) Separate Opinion of Judge Koojimans, para 44.

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was the consequence of a Turkish military intervention against Cyprus. Specifically, the SC, after deploring the declaration of the Turkish Cypriot authorities on the purported secession of the Northern part of Cyprus, called upon all states ‘not to recognize any Cypriot State other than the Republic of Cyprus’.107 Turkey is the only state that has recognised TRNC. After the end of the Cold War, the non-recognition policy prevented states from recognising secessionist entities like Abkhazia and South O ­ ssetia (claiming independence from Georgia) and Nagorno-Karabakh (claiming independence from Azerbaijan).108 The formerly autonomous Republics of Georgia, South Ossetia and Abkhazia declared independence, in 1990 and 1992 respectively, following a war against Georgia. The secessionist troops were largely aided and backed by Russia (which invaded the territory of ­Georgia in August 2008). On 26 August 2008 the Russian Federation recognised South Ossetia and Abkhazia (as did Nicaragua, Venezuela, and the microstates of Nauru and Tuvalu). However, the international community has successfully put in place a policy of collective non-recognition of South Ossetia and Abkhazia as independent states. The EU, NATO, the Chairman of OSCE, and the Council of Europe have all reaffirmed support for ­Georgia’s territorial integrity, condemned Russia’s recognition of the two secessionist entities and called for the withdrawal of these declarations.109 The same line has been now taken in reference to Crimea. The list of declarations by international organisations confirming the territorial integrity of Ukraine and urging non-recognition of the validity of the referendum on secession in Crimea and its subsequent annexation to Russia is lengthy.110 At the United Nations,

107. SC Res 541, 18 November 1983, para 7. 108. Nagorno-Karabakh is an Armenian exclave in Azerbaijan, and is a territory subject to dispute between the two states. Amit K Chhabra, ‘Superpower Responsibility for State Recognition: Charting a Course for Nagorno Karabakh’ (2013) 3 Boston University Law Journal 131–62. 109. Giuseppe Cataldi, ‘From the Balkans to Caucasus: The Crisis in Kosovo and Georgia in the Light of International Law’ in A Martinez Gutierrez (ed), Serving the Rule of International Maritime Law. Essays in Honour of Professor David Joseph (London, Routledge, 2009) 234–41; Brad Roth, ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’ (2010) 11 Melbourne Journal of International Law 393–400. 110. On the illegality of the Crimean referendum see the ‘Joint statement on Crimea by President of the European Council Herman Van Rompuy and President of the European Commission José Manuel Barroso’, Brussels, 16 March 2014 EUCO 58/14,