Atrocity and Law in post-conflict Colombia

 

The armed conflict in Colombia is entering a post-conflict phase. The conflict has generated over 8 million registered victims. Atrocities have been committed by all sides to the conflict (the Colombian Army, the right-wing paramilitary forces and the left-wing guerrilla groups such as FARC-EP and ELN). Civilians have been the principal casualties in an armed conflict spanning over 50 years. More people in Colombia are internally displaced than in anywhere else in the world (7.2 million). But the conflict’s most emblematic atrocity is the extrajudicial killings of innocent civilians during the so-called ‘false positives’ scandal.

False Positives Scandal

After the demobilization of the AUC (right-wing paramilitary groups), a ‘cash-for-kills’ policy was introduced by Defense Minister Camilo Ospina (during ex-President Alvaro Uribe’s presidency). This policy awarded extra pay ($1,500) for Colombian Army personnel in exchange for evidence of ‘positive combat kills’ (see Directive #29/2005). The result was a state-sponsored onslaught against the most vulnerable of Colombian citizens. Poor or mentally ill civilians were lured by offers of employment and driven for hundreds of miles into FARC-EP controlled areas. They were executed and dressed in FARC-EP combat uniforms. Photographs were taken and the kills were presented as ‘combat-kills’. According to one study, which focuses on the links between US Aid and the false positives scandal, there were over 5,763 extra-judicial executions between 2000 and 2010.

National Prosecutions

The false positives scheme came to light in 2008 when 22 men from Soacha disappeared and were found dead hundreds of miles away in North Santander. Colombia is under a legal duty to prosecute those responsible for international crimes. There have been some prosecutions. Up to February 2016, the Colombian courts passed 817 convicting sentences against 961 members of the armed forces. There are also a number of ongoing investigations. However, the dispensation of justice has been slow. In one case, in Soacha, a mother has waited over nine years for the legal system to bring charges against military officers.

Furthermore, there are still thousands of individuals under investigation. But a new obstacle to justice has emerged. The recently concluded peace agreement has led to defendants arguing for a postponement of investigations until a new ‘Special Tribunal for Peace’ is up and running.

The Special Tribunal for Peace

At the end of 2016, over four years of negotiations concluded in the adoption of a peace agreement by the Colombian government led by Juan Manuel Santos and the largest rebel group, FARC-EP. President Santos has received the Nobel Prize. The leadership of the FARC-EP will enter Colombian politics. The Colombian population has been promised a sustainable peace, justice and reparations for the victims.

One of the central pillars of the post-conflict justice mechanisms is the creation of a new Special Jurisdiction for Peace (known as the “JEP” in Spanish). The JEP creates a special system of transitional justice that will be tasked with dealing with the atrocities committed by all sides during the five-decades-long armed conflict. In brief, the system is designed to provide ‘alternative sentences’.

A new Special Tribunal for Peace will be set up to hear individual cases. If an individual wants to access these (more lenient) sentences, they must come forward, plead guilty, provide a full account of the events that occurred, and undertake to make reparations to the victims of their actions. An individual, found guilty of serious crimes, may enter the JEP and receive a sentence of up to eight years in prison. This form of ‘limited justice’ aims at satisfying the requirements of peace (the rebels laying down their weapons) and the requirements of justice (satisfying the rights of victims to the truth and accountability).

The peace agreement causes new delays to criminal justice

There have been several reports of suspended prosecutions. A case in Caldas, involving the kidnapping and and murder of José Alirio Jaramillo Grisales, implicates three high-ranking military officers. This case has been suspended pending the creation of the new Special Tribunal for Peace. On 9 July 2017, a judge in Manizales, suspended an ongoing court case against nine armed forces personnel suspected of committing extrajudicial executions as part of the ‘false positives’ scandal. Nine military personnel are accused of assassinating Walter Ray Caldas Cano, Alix Amparo Insuati Serna, Joiver Fernando Henao, Alexánder Mota,

Juan Carlos Perafan Guevara and Jorge Antonio Benavides Enríquez. In Soacha, María Ubilerma Sanabria, mother of 16 year old victim Jamie Valencia, was denied justice when her case was suspended.

Defense lawyers have argued that the ‘ordinary’ justice system is not competent to hear the cases against the military officers. This has convinced judges. For example, a case in Manizales, the judge was convinced that the cases should be heard at the new post-conflict tribunal owing to mostly economic reasons. The judge stated that there would be little point in proceeding against the generals given the likelihood that the case would be taken to the new post-conflict tribunal. According to the judge, there would be no point in wasting time and resources and the case ought to be suspended.

This is plainly wrong. Firstly, the new tribunal does not yet exist. Thus, judges are creating a legal limbo which may become a dangerous precedent. Those suspected of committing crimes against humanity against the civilian population are not investigated by ordinary justice system – but neither are they investigated by the newly created post-conflict system.

Further, these decisions fail to implement the peace agreement. The peace agreement foresees a time-lag between the creation of the new system and the ongoing ‘normal’ justice system. The peace agreement states that ongoing cases will continue until the Special Tribunal for Peace is prepared to take over specific cases (see Point 48, Part 5, Peace Agreement). Judges in the ordinary criminal justice system simply cannot know that the new system will hear the case. That is a matter for the JEP tribunal itself when it comes into operation.

The judges may have been led astray by an interview given by the Interior Minister, Juan Fernando Cristo, in which he states that: “All the ongoing cases against the Armed Forces for crimes committed because of the armed conflict, or in direct or indirect relation with the armed conflict, will be made aware to the JEP [my translation]”. The key here is that it cannot yet be know which cases will be judged ‘linked to the armed conflict’.

 

International Criminal Justice – Is Colombia ‘unwilling or unable’ to prosecute?

 

In suspending the case and passing the buck to the JEP, the judge in Manizales actually said: ‘what is it to wait six more months? [my translation]’. In this context, the suspension of the case against the military raises concerns in relation to Colombia’s international obligations. Article 17 of the Rome Statute states that if a state party is ‘unwilling or unable’ to prosecute a case that comes within the jurisdiction of the ICC then it can legitimately initiate proceedings. There must be an ‘unjustified delay in the proceedings which in the circumstances is inconsistent with the intent to bring the person concerned to justice’ (Rome Statute, Article 17 (2) (b)). Article 13 states that the investigations can be initiated by the ICC Prosecutor propio motu. If Colombia continues to deny victims access to justice in cases that come within the jurisdiction of the ICC, then there may be good reasons for the Prosecutor to submit a request to the Pre-Trial Chamber for authorization to initiate an investigation. This may be self-serving insofar as it has become clear that the ICC needs to investigate non-African cases for reasons of political legitimacy. In January, ICC Prosecutor Fatou Bensouda made it clear that some of the changes to the peace agreement were worrying and that the ICC would be watching the situation.

However, ICC involvement may also destabilize the fragile peace process. As such, all parties ought to proceed with caution. The best option is for the Colombian ordinary justice system to implement the peace agreement. The agreement states quite clearly that ongoing investigations against those accused of crimes against humanity or war crimes ought to continue. Therefore, for so long as the JEP is still ‘under construction’, the ordinary justice system should carry out its legal duty and prosecute those suspected of extrajudicial killings. The Colombian system ought to be given a chance. But very soon, the ICC may feel that it has no choice but to intervene.

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An Islamic Hybrid Tribunal?

Recently, there was a piece by Rob Cryer on the OUP blog that analysed the potential criminal liability of Daesh and its members in relation to war crimes, crimes against humanity and genocide, see here.

A response to this piece was offered by Sergei Sayapin on EJIL talk re: the suitability of instituting a ‘hybrid’ tribunal for Daesh.  This would be substantively based on ‘islamic’ international criminal law.

This was interesting for three main reasons.

  1.  I wonder whether there is such a thing as ‘islamic’ international criminal law.  I don’t think there really can be given the basic fact of international law being identifiable through the consent of states.  Would definitely need to read F. Malekian, The Principle of Islamic International Criminal Law but don’t have the time!
  2. The cost of the tribunal would be enormous.  This is based on the evidence of what the ICTY and ICTR cost.  Hundreds of millions of dollars.  Would this money be better spent rebuilding Syria?  This is an issue for transitional justice in general.  Are the benefits of international criminal justice worth it?  Not sure that number of sentences in ICTY and ICTR make a dent in the criminal responsibility of actors these two conflicts.
  3. Linked to no. 1 – would not the Sunni/Shia divide in Islam, and in the ME in general, preclude the possibility of an ‘agreed’ hybrid tribunal.  Insofar as the tribunal is ‘Shia’ based – this could alienate supporters of Daesh such as Saudi Arabia.

For these reasons, I think an ICC focused transitional justice would be better.

 

 

Fragmentation and Integrity

In order to evaluate whether ‘law as integrity’ resolves the problem of the fragmentation of law in transitions it is necessary to discuss the Hart-Dworkin debate.  It is not possible to deal comprehensively with all the nuances and propositions involved in this debate.  As Scott Shapiro has argued, this ‘debate’ is really several different debates.  It deals with a host of inter-connected issues.  It involves several different contributors.

Yet, the Hart-Dworkin debate is fundamental to the question at hand in one important respect.  James Gallen’s version of the jus post bellum relies on Dworkin’s theory of ‘law as integrity’.  A central aspect of Dworkin’s theory is that there is a fundamental coherence to law and legal reasoning.  This coherence is founded in the moral and political principles of a political community.  Thus, Gallen’s jus post bellum makes the same claims about post-conflict law.  Firstly, that there are political principles that underpin transitional societies.  Secondly, that these principles are the foundation of the jus post bellum as integrity.  The following section explains the Hart-Dworkin debate.  This makes it easier to see why Dworkin argues that integrity is a solution to incoherence.

The Hart – Dworkin debate

Dworkin’s theory of ‘law as integrity’ was developed in response to an earlier theory about the validity of law.  This earlier theory can be categorised as legal positivism. Legal positivists share a central proposition:  whether any law is valid and part of any legal system depends on its sources and not its merits.

This simply means that the law is derived from the acts of ‘officials’. It does not matter that the law in question is a bad law that officials should not have engaged with.  Neither do excellent norms become law by virtue of their desirability. Law is law by virtue of its being posited, or practiced, or recognised by an official or institution of the State.  This view of law and legal practice is sometimes known as ‘conventionalism’. The theory is that law is identified from the conventions of officials, for example, judges and legislators.  The benefit of this view is that it promotes legal certainty.  It does this by providing an easy method by which to give people fair warning about what the law requires and permits.

This positivist view of law has been very influential in modern international law.  Legal positivism is recognised explicitly in Article 38 (1) of the Statute of the International Court of Justice.  Article 38 sets out three primary sources of international law and two subsidiary sources.  The primary sources are international treaties, customary law and general principles of law recognised by civilized nations.  The subsidiary sources are judicial decisions of international tribunals and the writing of publicists (academics).  As George Schwarzenberger has noted, the ‘significance of this enumeration lies in its exclusiveness.  It rules out other potential law-creating processes such as natural law [or] moral postulates…’.  International law derives from rules announced, practiced, invoked, enforced or endorsed by States.  States are able to identify the relevant rules according to this positivist method.  They are then able to modify their practice in relation to these posited rules.

Against Hart’s view, Dworkin argued that the law is much more than social conventions recognised by the relevant agents.  His dissatisfaction with conventionalism derived from a study of how judges made decisions in difficult cases.  Difficult or ‘hard’ cases are situations where the law is unclear.  One classic example is the question of whether a skateboard is a vehicle for the purposes of a prohibition on vehicles in a park.  There may be no explicit rule posited against skateboards in a park.  Yet, the purpose of prohibiting vehicles may suggest that skateboards should also be prohibited from parks.

Faced with this type of problem, Dworkin argued that judges had to be more flexible in their application of the law than the theory of conventionalism permits.  For Hart, the application of law in hard cases required judicial discretion.  They would essentially create the law to fit the new situation.  However, Dworkin was unsatisfied with this explanation.  In Dworkin’s view, Hart’s concept of law means that in hard cases judges must legislate retroactively in deciding a case according to their own discretion.  Unlike Hart, Dworkin believed that judges in hard cases do not exercise judicial discretion to ‘create’ or ‘make’ new law.

Instead, he argued that the law is essentially an argumentative practice.  In Dworkin’s view, judicial decision-making requires a certain interpretive attitude on the part of judges.  In order to understand what the law requires judges are required to engage in the practice of constructive interpretation.  This method of interpretation requires ‘imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong.’ Thus, as an interpretive concept, the identification of law depends on what the interpreter (the judge) thinks is the best possible interpretation of the law in any particular situation.  The answer to the question on skateboards in parks depends on what the judge thinks is the purpose of the rule.  If the purpose is pedestrian safety then the judge may include skateboards as prohibited because of the speed at which they travel.  Alternatively, skateboards may be thought safe enough and they would fall outside the rule.  For Dworkin, adjudication depends on judges making these moral enquiries.  As such, morality is a part of the identification of the law.

However, this reliance on the merits or purpose in the identification of the law raises problems.  It means that what the law is cannot be divorced from the question of what the law ought to be in the singular case. From the perspective of international law this creates many problems.  Mixing morals into the identification of law might afford powerful States the opportunity of legalising their own policy objectives. This would make modern international law indistinguishable from an apology for the practice of powerful States.

Dworkinian theory recognises the problem.  As surety against the blurring of law and morality, Dworkin argues that it is not open to the interpreter to define ‘best’ in any possible way that they like.  Instead, ‘the history or shape of a practice or object constrains the available interpretations of it…’. In this way, Dworkin argues that interpretivism in law is rooted in empiricism.  The judge in Dworkin’s theory cannot appeal to any interpretation of the law that they might desire.  This is the essence of the theory of law as integrity.  Dworkin argued that judges must find a ‘third way’.  They must i) ‘fit’ the law into  previous legal practice and ii) ‘justify’ the law according to the best possible example of law that it can be.  Thus, law as integrity requires that judges appeal to the underlying political and moral principles of the community to discover what the law is.  However, they must also fit their interpretation of the law with the rules and practices which make up the legal order.  This is the meaning of integrity.  They must seek to explain their interpretation according to the purpose of the whole system of law.

Nevertheless, adherence to this view means that the political principles of communities are part of the legal system.  Further, they are a hierarchically superior part of the legal system.  The totality of the system is based on these moral and political principles.  Law as integrity requires that the judge always assumes that the law makes moral sense. Thus, justification requires judges to identify the political or moral principles which overarch the history of the legal practice.  Then they must select an interpretation of the law which shows that practice in its best light.  The theory is designed to present the legal order as a coherent scheme of justice.  The moral political principles that underpins the political community and the law of that community must be in harmony.  Thus,  Dworkinian theory argues that the complexity in law is overcome through interpretivism.   An aspect of that is resolving the indeterminacy of language.  Another aspect of that is resolving the fragmentation of law.

Colombia’s Transitional Justice Accord

The big news from Colombia this week was that the Santos government and the FARC-EP have reached agreement on a Transitional Justice Accord (TJA).  This comes after agreement has been reached in the areas of agrarian reform, political participation and the cultivation of illicit drugs.  The peace talks have been ongoing since 2012 saw the signing of the General Agreement on Conflict Termination (see here).

The new TJA

The Transitional Justice Accord sets out a new Special Jurisdiction for Peace.

This creates a new, presumably temporary body, in the Colombian justice system.  The aim of the new court is “to do away with impunity, obtain truth, contribute to victims’ reparations, and to judge and impose sanctions on those responsible for serious crimes committed during the armed conflict, particularly the most serious and representative ones”.

It is unclear how long the court will be active for.  Some in Colombia predict that the ‘post-conflict’ Colombia will last about 7 years and that it will be violent as the FARC-EP lay down their weapons and criminal gangs attempt to take advantage of the resources they leave behind (see Ariel Ávila).

A hybrid court. The Chambers will be presided over by a majority Colombian judges but will include a minority of international appointees.  The effect of the internationalized panel follows the trend of using international actors to underwrite aspects of the domestic peace process.

The trend towards accountability in international criminal justice continues.  There will be no amnesty for crimes against humanity, genocide, serious war crimes, hostage-taking or other serious privation of liberty, torture, forced displacement, forced disappearance, extrajudicial executions, or sexual violence.  This is much in line with Christine Bell’s assessment of the terrain (see On the Law of Peace at Ch. 12).

However, there is an amnesty for ‘political’ crimes.   This begs the question of what counts as a ‘political’ crime.  Some crimes which cannot be amnestied i.e. ransom kidnapping or extortion, were linked to the ‘political cause’ (i.e. it brought resources to the FARC-EP struggle against the government, or the paramilitaries against the FARC-EP).  The TJA says that the details of what crimes are ‘political’ will be worked out in the new amnesty law.

This new law will presumably attempt to provide a ‘grey area’ which provides a measure of flexibility in deciding when an amnesty applies.  International Humanitarian Law makes provision for amnesties in some situations : see Art 6(5) 1977 Protocol II to the Geneva Conventions.

Jurisdiction

The court will have jurisdiction over all those who “whether directly or indirectly, may have participated in the internal armed conflict, including the FARC-EP and state agents, for crimes committed in the context and for the purpose of the conflict, with particular respect to the most serious and representative cases.”

This may include civilians who participated in the conflict, i.e. by sponsoring the paramilitaries in their commission of atrocities can be investigated and tried according to this mechanism.  However, crimes which fall outside of the conflict, such as certain extrajudicial killings will need to remain in Colombia’s normal judicial system.

Accept or Deny?

It will be split into two ‘Chambers’ to deal with three types of perpetrator –

1. those that admit to their guilt

2. those that are late in admitting to their guilt

3. those that persist in denying their guilt

Different penalties attach to each of these situations.

Those of type 1 will have a restriction of liberty in ‘special conditions’.  This will guarantee that they participate in “work, tasks, and activities” aimed at “the satisfaction of victims’ rights” by “compliance with reparative and restorative functions.” This sentence can last 5 – 8 years.

Types 2 and 3 will be investigated and tried at the new court.  Sentences can be between 5 – 8 years for those that admit their guilt.  Those that do not admit to their guilt are open to tougher sentences upon being found guilty after a trial at the new court (up to 20 years).

It is interesting to note that the expressive function of sentencing may simply be unable to deal with the types of crimes and atrocities being considered.  There is also the problem of child soldiers.  How will the special court deal with the situation where a child is recruited into the FARC-EP (for example) and then proceeds to commit atrocities or war crimes, (such as perhaps recruiting child soldiers).  There may be interesting crosscurrents with the Dominic Ongwen trial at the ICC which will need to deal with the limits of international criminal justice in just this type of case.

Disarmament

The FARC-EP have 60 days after this date to being the process of ‘laying aside weapons’ (translation from ‘dejacion de armas’).

Deadline

Although it is not in the text of the TJA, Santos declared that there are 6 months to agree all outstanding matters and reach a final peace accord.  This makes 23 March 2016 as the end-date for signing the comprehensive and final peace agreement.

Iran-type ‘snapback provisions’ and R2P mandates?

This post deals with the UN Security Council Resolution (UNSC) 2231 (2015) on the recent Iran Nuclear Deal.  The focus is on the so-called “snapback provisions” which according to  Jean Galbraith might provide a new procedural technique to circumvent the problem of the ‘reverse veto’.

The ‘reverse veto’ problem is a result of UNSC voting procedure.  As Galbraith says,

“the default position [is] that a resolution needs another resolution to terminate it and therefore that all P5 [permanent five, US, UK, France, China and Russia] members must acquiesce in this termination.”

The idea that the UNSC has the power to modify its voting procedures was raised by David Caron in 1993.  It involves understanding that any P5 member could agree to waive its veto.  This is, in effect, what happens when a time limit is placed on any UNSC resolution, i.e. a resolution that is agreed will end on such and such a date.  According to Caron,

“the Council could simply designate a termination date or terminating event for any authorization. This approach waives not only the veto, but the vote altogether.”

UN Peacekeeping Operations usually follow this ‘time-limit’ model.  See the UNSC Resolution 2234 (2015) for a recent example in relation to the Cyprus mission (UNFICYP).

In Resolution 2231 on Iran, the relevant provision is paragraph 7(a) which terminates the sanctions on Iran from the relevant provisions in UNSC Resolutions 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010) and 2224 (2015).

However, paragraph 7(a) can itself be terminated according to an agreed procedure.  If this happens, then the effect of 7(a) is terminated and the sanctions on Iran ‘snap back’ into force.  Importantly, the termination of 7(a) does not require the agreement of all the P5 members.  Instead Galbraith notes that,

“paragraph 11 states that if the Security Council receives a complaint from one of the parties to the Iran deal alleging that there is “significant non-performance of commitments” under the deal, then the Security Council is to “vote on a draft resolution to continue in effect the terminations in paragraph 7(a) of this resolution.”

Then, if the draft resolution pursuant to paragraph 11 does not pass then all the UNSC resolutions which had been terminated by 7(a) come back into force (after a short time lag and unless the UNSC decided otherwise).

Although completely hypothetical at this stage, this modified voting procedure may have interesting implications for future UNSC decision-making.  For example, could this type of procedure have offered a way forward vis-a-vis the war in Libya?

Modified Voting Procedures and the responsibility to protect…

The responsibility to protect doctrine is hampered by several ‘structural problems’. One of these is the so-called ‘end-state problem’.  This relates to a situation where after the initial authorisation to use force is passed (as in UNSC Resolution 1973 (2011) on Libya) there is ambiguity and dilemma when faced with what to do after the initial mandate has been carried out.  As Roland Paris has noted recently,

“In cases where outside forces set out to secure a population under threat, they may achieve their initial objective but then face a quandary: how to disengage or withdraw without recreating the same threatening conditions that prompted military action in the first place.”

In Libya, the act of repelling the attack on Benghazi by Qadaffi forces did not secure their long term future.  There could easily have been a second attempt at attacking Benghazi.  In this hypothetical scenario, Qadaffi might have been less vocal and more careful about his intention to attack the city making it more difficult to intervene successfully.  As such, the intervention had a dilemma.  The mandate lacked an effective ‘end-state’ solution.  To retreat would risk the failure of the initial mandate (protect civilians) but to stay-on and defeat Qadaffi (which is effectively what occurred) would violate the terms of the mandate which did not authorise ‘regime change’.

Could the way the UNSC dealt with the Iran Deal provide a way forward?

A simple scenario would have included a provision in Resolution 1973 which provided a timetable towards the termination of the authorisation to use force if there was a complaint from a P5 member that the relevant powers (in this case UK and France) were violating, or stretching out their mandate.  This might be the case if a P5 member thought that the mission was turning too far towards regime change.

A more extreme example, but perhaps consistent with the responsibility to protect might have set out the following compromise:

  • the UNSC could have passed a resolution which authorised a “protective occupation” (to be carried out by French and UK forces, perhaps) which would defend Benghazi.
  • the UNSC could have demanded that France, UK and a Special Representative of the UN Secretary-General to initiate peace talks between the rebels and the Qadaffi regime.
  • The Arab League, the African Union and other interested parties such as the World Bank could have participated in peace talks.
  • The UNSC would have amended the UNSMIL mandate and strengthened it.
  • The presence of French and UK military on Libyan soil, backed up by a UNSC resolution might have induced Qadaffi to the negotiating table.
  • Crucially, a ‘snapback’ provision, could have been included which initiated the termination of this resolution in the event that one or two members of the UNSC complained about any aspect of the implementation of its terms.
  • This would provide a time limit, a sort of countdown to termination, which provides time for the resolution of the particular problem- whether its about the occupation, sanctions, asset freezes, the peace negotiations, etc.

This is slightly different to the Iran Deal in that it is ‘snapping-back’ to the authorisation of a military occupation rather than ‘snapping back’ to a sanctions regime.

In the end, the potential for abuse remains but it might provide a way out of the initial deadlock and towards a more active dealing with situations which require an intervention but which also demonstrate a range of opinions over the ‘end-state’ problem.

Whether ‘snap-back’ provisions could be useful in agreeing resolutions which take steps to end the war in Syria might also be interesting avenue to consider.

Meonexia and the justice of the Greece debt crisis

In my research on the jus post bellum, which at least to some, means ‘justice after war’, I have come across an interesting concept – meionexia.

This Greek word can be translated as ‘not demanding all that one is due’ and it can be traced back to Aristotle’s account of justice.  However, I came across its modern theorization in the work of Larry May.

According to May, after conflict, it is sometimes unjust for the war winner to demand all that it is due, for example in reparations or war crimes trials.  A real-world example he provides is South Africa, where after the apartheid, criminal trials and punishments ‘were not pursued even though the victims had the right to demand them as a matter of strict retributive justice’ (Larry May, Jus Post Bellum, Grotius and Meionexia, in C.Stahn, J. Easterday and J. Iverson (eds.) Jus Post Bellum – Mapping the Normative Foundations, (OUP, New York: 2014), 20).

Further, in post-WWII Germany, the Allies saw the need to invest in Germany and rebuild the nation, rather than simply demand crippling reparations, which would have destroyed the Germany state.  Sometimes, reparations should be paid by those most able to pay, rather than those who have a strict duty to do so.

Obviously, the idea is that if parties to the conflict truly seek a just and lasting peace, then the transition process must require a relaxation in the demands that ‘strict retributive justice’ requires.  A similar dynamic is in view when we consider contemporary practice in relation to amnesties (see the recent decision of the Inter-American Court of Human Rights in Case of the Massacre of El Mozote and nearby places v. El Salvador (Merits, reparations and costs) (25 October 2012) IACthHR Series C. No. 252, paras. 283 – 296).

May’s interpretation of the idea of meionexia is also related to well-known standards of equity (in Greek epikeia).  May’s views on debt are worth quoting in full with regard to the present position of the Greek government and its creditors (Germany, France, Italy, Spain  are the primary creditors).

“Even if one is due something it may be that demanding it is not fair in some cases, and hence that it would be unjust to demand all that one is due.  This may be unfair in the sense that it may fail to see that the person who is properly your debtor simply has gotten into this position not by his or her fault.  Or the person who is in your debt may simply not have the means to pay you on demand without undermining his ability to support his family.  The aspect of justice that encompasses fairness seems to be affronted if a person demands all that is one’s due in such situations” (emphasis added) (May, Jus Post Bellum, Grotius and Meionexia, 21.)

Some argue that if Greece is allowed to escape its debts then the principle of equal treatment will be offended.  Why then should not Spain, Ireland, Italy, etc. be allowed to escape paying their debts?  Why should anyone pay their debts?  I believe this form of argument is unhelpful, since the situations in each case are different, crucially, the ability to pay is not the same across the board.  Further, situations where nations start off with unequal shares, i.e. the wealth is unequal will be exacerbated if a strict notion of justice is applied.  If each demands all and only what is due in this case, it will lead to greater inequality since the rich will continue to get richer, while the poor get poorer.  So the point is that demanding strict equal treatment sometimes, perhaps paradoxically, increases inequality.

Finally, justice might also be said to encompass humility and moderation.  There is an arrogance in thinking that you know what you are owed and demanding it all of it.  How can the Germanys know what is fair?  How are they sure?  There seems to be epistemological dangers here.  In situations of crisis, it would be good for creditors and debtors to remain humble, moderate in their demands and prepared to accept less than what they think they are owed in justice.  This strikes me as a fruitful position to take in negotiations.

Finally, these arguments draw on just war theory and conceptions of ‘justice’ which lack a certain ‘scientific’ pedigree.  Of course, the real-world of power politics must put forward state interests, economic arguments, technical charts… It would suffice to remind creditor nations of the debts they have been forgiven in the European interest in the past.  To give May the last word, ‘there is often much more to gain by not demanding all that one is due, and even in aiding those who may not deserve to be aided, so as to further the long-term peace prospects’. (May, 22.)

The New 2015 U.S. Department of Defence ‘Law of War Manual’ and the implications for Orend’s jus post bellum

This post asks what implications the 2015 US Department of Defence Law of War Manual has for the jus post bellum scholarship.  A recent post by Greg Fox on Opinio Juris can be found here.  As a brief clearing of the ground:

(It is 1180 pages long, so no, I haven’t read it all yet).

The DOD manual and the debate over ‘transformative occupations.’

Adam Roberts coined the phrase ‘transformative occupations’ in the aftermath of the Iraq War.  According to Roberts, these types of occupations were directed at changing the legal, political and economic structures of the defeated state towards more liberal democratic international norms.  They represent a more ‘honourable’ form of regime change than pure annexation, and moreover, they have become a necessary aspect of international peace and security (following the growth of human rights norms since the end of WWII).

The problem of course, is that these types of occupations contravene what Greg Fox has called the ‘conservationist principle’ inherent in the law of occupation (see Gregory H. Fox, The Occupation of Iraq, 36 Geo. J. Int’l L. 195 (2005).  Occupiers must respect the laws in force in the country they occupy or be in breach of the Hague Regulations 1907 and the Fourth Geneva Convention (GC IV).

Iraq, of course, underwent huge legal, political and economic reform under the auspices of the Coalition Provisional Authority.  The pertinent question for the DOD (and the jus post bellum scholarship) is whether the experience of Iraq provided an updated 21st century interpretation for the law of occupation.  The UK government has already made steps towards this interpretation with the updating of its Manual in 2004.  The UK said that an occupier may ‘repeal or amend laws that are contrary to international law and is also entitled to make changes mandated or encouraged by the UN Security Council.’ (see §11.11)

But the DOD did not follow this path.  It answered ‘No’.  The Manual repeats Article 43 of the Hague Regulations almost verbatim.  It is also identical to the 1956 version of the Manual (§369).

‘The Occupying Power may subject the population of the occupied territory to provisions:

(1) that are essential to enable the Occupying Power to fulfill its obligations under the GC; (2) to maintain the orderly government of the territory; and (3) to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.’

What does this mean for the jus post bellum?  The jus post bellum, according to Brian Orend, would provide intervening forces with a set of post-intervention norms which would permit transformative occupation towards liberal democratic statehood.(see ‘Jus Post Bellum – A Just War Theory Perspective’, in Stahn and Kleffner (eds.), Jus Post Bellum – Towards a Law of Transition from Conflict to Peace (T.M.C. Asser Press: The Hague, 2008), 31.)

Brian Orend interprets Kant in arguing that the jus post bellum permits ‘forcible regime change’ as long as certain conditions of justice are adhered to.  First among these, the victorious power has adhered to the jus ad bellum and the jus in bello (i.e. has a just cause in going to war, and has fought the war justly.)

Kant writes, ‘[i]nternational right is thus concerned partly with the right to make war, partly with the right of war itself, and partly with questions of right after war, i.e. with the right of states to compel each other to abandon their war-like condition and to create a constitution which will establish an enduring peace (emphasis added).’ (see  Immanuel Kant,The Metaphysics of Morals, Part One: The Doctrine of Right’, in H. Reiss, (ed.) Kant: Political Writings (trans. H. Nisbet, CUP, 1995), 167.)

In short, a new Geneva Convention on the jus post bellum (GC V) would permit unilateral actors to undertake transformative occupations.  This could happen without the need of UN Security Council approval for reforms (the UN has authorised several post-intervention reconstruction missions since the end of the Cold War, for a review see ‘Humanitarian Occupations‘ by G. Fox – even in Iraq, see UNSC Res 1483.)

It is important to note, that if Orend’s claims about the jus post bellum were to become law, it would be the U.S. and other powerful military states that would benefit the most.  Therefore, it comes as a blow, to Orend and other jus post bellum proponents, that even those most likely to benefit from the proposed reform, reject that interpretation of the law.

The U.S. DOD interpretation of the law of occupation reaffirms the ‘conservationist principle’.  The occupying country has limited rights to change the laws in force.   The only exception is laws ‘relating to the administration of the law, such as repealing laws establishing racial discrimination or promulgating laws requiring the impartial application of the law by local officials.” (§11.9.2.2).

Contra the jus post bellum proponents, the 2015 DOD Manual implicitly endorses the multilateral approach to post-intervention reconstruction.  It reaffirms the idea that if and when a ‘transformative’ purpose is necessary to organise the ‘end-state’ of an occupied territory/defeated state/failed state, the UNSC has the power to dis-apply the law of occupation in these situations.

Leaving aside the imperfections in UNSC Res 1483, and the fact that the UNSC is a political body making legal pronouncements, this seems to me, at least, the best option.  Orend’s call for a jus post bellum that victorious powers would interpret pins us to a unilateralism which is (in my view) sets more problematic precedents in matters of international peace and security.

Conclusion:  the jus post bellum, as interpreted by Orend, claims that powerful states have a right to undertake transformative occupations in countries they invade as long as they stick to certain principles of justice (when would a victorious power not assert they had acted justly??).

However, even the U.S. (who has most to gain in the recognition of a jus post bellum) in the recent DOD Manual on the Laws of War rejects the concept of ‘transformative occupation’! It adheres to the traditional interpretation of the law of occupation.  It is for the UNSC to present ad-hoc, and situation specific solutions to post-intervention reconstruction problems.  This is not perfect.  However, it is the best solution we have.  The DOD’s interpretation of the law is correct and the proposals for a reform of the law of armed conflict provided by Orend and others should be rejected.

Mexican Chamber of Commerce: Report on Mexico Business Outlook

Report on México Business Outlook: Half Year Reflections and Expectations

by Seb Eskauriatza

University of Birmingham, PhD Candidate

Mexican Chamber of Commerce

This article aims to report on México Business Outlook 2015, hosted by Mayer Brown International LLP on 4th June 2015.  The event is organised twice a year by the Mexican Chamber of Commerce as part of its work in promoting bilateral relationships between business communities in México and the United Kingdom (UK).  México Business Outlook 2015 has a special importance this year given that 2015 is the ‘Official Dual Year between México and the United Kingdom’.  This diplomatic initiative promotes México in the UK, and the UK in México, and it provides an exciting opportunity for each nation’s business and diplomatic communities to strengthen and deepen relationships and trade commitments.

This year’s México Business Outlook brought together business persons, diplomats, economists, politicians, academics and industry experts from finance, infrastructure and energy, banking and reinsurance.  It was also open to Mexican Chamber of Commerce members and non-members.  The collective aim was to reflect on achievements and challenges experienced in the first half of 2015.  This then led on to discussions that focused on expectations and opportunities going forward.

A Warm Welcome

After a warm welcome by Graham Wedlake, Partner in the Finance Group at Mayer Brown International, Ambassador Diego Gomez-Pickering provided an official introduction.

Ambassador Gomez Pickering recalled that, despite slower growth in the Latin American region generally (see IMF Report here), México was bucking the trend and was experiencing a relatively favourable outlook with growth expected at around 3%.  He further stated that impressive structural reforms under President Peña Nieto have had and would continue to have a positive effect for investment and growth.  Reforms of the energy and telecommunications sectors, in particular, were generating a lot of interest for British investors.  The Ambassador concluded by stating that the bilateral relationship between México and the UK was now closer than ever and that there was no better time to invest in México.

Half Year Reflections

Following the Ambassador’s introduction, a first panel of experts was moderated by Dr. Luis Duran, head of the Centre for Mexican Studies in the United Kingdom (UNAM).  The panel included Rodrigo Aguilar from The Economist Intelligence Unit, and Helen Carpendale, CEO of Kidzania London.

In this discussion, Rodrigo Aguilar presented an analysis and evaluation of the Mexican governments structural reforms.  According to Aguilar, an evaluation of the reforms can be disaggregated from the context in which they operate leading to relatively positive conclusions.    Aguilar was keen to stress the potential for growth caused by lower electricity prices.  He also highlighted new entrants such as AT&T and Virgin into the telecommunications sector.  The structural reform of the state-owned energy company PEMEX was another significant reform process.  Aguilar argued that this should be seen as a commitment by the Mexican government to modernisation in México as a whole.  Finally, he concluded that there were signs that the banking sector was beginning to expand lending to the domestic corporate sector which, in the past, has sometimes struggled for funding.

Unfortunately, his overall optimism was tempered by the problem of corruption and the relatively weak adherence to the rule of law in some parts of Mexican society.  In his view, these issues would necessarily impact on the effectiveness of the reforms but there was cause for principled optimism.

Helen Carpendale then provided a real-world example of a Mexican company that is winning plaudits around the world for its tremendous growth and success – Kidzania.  A new member of the Mexican Chamber of Commerce, Kidzania’s success as an educational platform for the next generation spoke to the innovation and ambition of Mexican entrepreneurs.  Helen Carpendale’s enthusiastic presentation provided an excellent example of the México-UK bilateral relationship in action.   It was also clear evidence of the potential and opportunities for exporting Mexican ideas to foreign markets.

The first panel was followed by a Q&A session in which Dr.  Luis Duran spoke effusively about new and exciting collaborations between Mexican and British higher education institutions.  In particular, UNAM and King’s College, London are embarking on a new initiative under the auspices of the Centre for Mexican Studies.   He stressed that greater collaboration between the UK and México on research and development would play an important role in fostering trust in respective business communities.

Baroness Jane Bonham-Carter, the Prime Minister’s Trade Envoy to México, was also able to participate in the discussion and add some encouraging details from the perspective of the UK government.  She especially drew attention to the joint aim of Mexican and British governments to expand bilateral trade from $3.5bn to $7bn in 2015 as well as the positive role that United Kingdom Trade & Investment (UKTI) could play for potential investors.

Half Year Expectations

A brief break was followed by a panel moderated by the current Chairman of the Mexican Chamber of Commerce, and Partner at law firm Nader, Hayaux and Goebel, Yves Hayaux du Tilly.  The aim of the panel was to present views on expectations and forecasts for the second half of 2015 based on personal experience and individual expertise of the panelists.

In the first place, Javier Serna, the Head of Global Credit Research at BBVA, explained that the bank’s evaluation for investment in México was broadly positive.  On the macroeconomic side, he argued that the view from BBVA was that the decline of oil prices would be offset by other revenue streams.  Mario Alberto González of ProMéxico was similarly positive about the outlook going forward.  Although, he did express some concern about the way that the Mexican energy reform was skewed towards hydrocarbons to the relative exclusion of green energy investments.  It was hoped that this could be remedied in the future as the structural reform process evolved.

Following these initial presentations, Michael Thirkettle, CEO of McBains Cooper drew attention to some difficulties experienced in the infrastructure sector in México in the first half of 2015.  In particular, he was concerned that marquee projects attracting considerable attention (such as the new México airport) were not enough to sustain the industry as a whole.  As such, he was hopeful that in the second half of 2015, the Mexican government would make good on their promises to announce a new range of projects which could stimulate further growth in the sector.

In the ensuing Q&A, the discussion tended to focus on the energy sector due to the sheer size of the potential deals involved.  Robert Woodthorpe Browne MBE and Yves Hayaux du Tilly (Partner at Nader, Hayaux and Goebel), reflected on the strength of the insurance and reinsurance sectors through the financial crisis and now in the face of government spending cuts.  They also drew attention to their respective efforts in bringing Mexican and British business together through their work with Liberal International and the Mexican Chamber of Commerce.

Michael Thirkettle provided a detailed description of how McBains Cooper used the good offices of ProMéxico to enter the Mexican market.  He argued that in his experience, legal and political barriers to entry into the Mexican market were much lower than in other Latin American markets (using Brasil as a comparison).  Finally, the Q&A reflected the principled optimism surrounding investment opportunities.  Mario Alberto González summed up the mood by suggesting that it was the perfect time to get involved in México and that to linger on the sidelines was to risk missing out on significant opportunities.

Keynote Speech 

As the day drew to a close, Lino Cattaruzzi, CEO of Google México, presented the Keynote Speech.  In an energetic presentation full of visual examples and slides, Lino Cattaruzzi used the experience of Google México to describe the potential benefits of doing business in México.  He highlighted the latest demographic trends which suggest that México was a country full of young people with increasing domestic demands for technological products.  According to evidence based on consumer habits that were proving attractive for innovative Google products, he suggested that any company would be missing out on a very attractive market in failing to invest in México.

End of the Day

After a closing speech by Graham Wedlake, the cocktail reception provided a final opportunity to discuss matters in more detail and in a more intimate fashion.  Lino Cattaruzzi and the other panelists all offered their time to discuss matters at greater length with attendees.  There could be no doubt that once more the Mexican Chamber of Commerce had delivered a platform for a thorough, principled and evidence-based discussion on investment opportunities in México.  Many thanks must go to Miléne Hayaux and Lorena Fortuño in organising the event as well as all who attended and contributed.

New Foreword in the European Journal of International Law

The European Journal of International Law has started a new initiative.  Each issue of the Journal will begin with a ‘Foreword’ – supposed to provide a detailed overview, or ‘state-of-the-game’ picture about an area of international law.  These will be written by experts in each field. Professor Weiler explains here.

The first ‘Foreword’ has been written by Jan Klabbers on the theory of functionalism in international organisations law.  You can see the full article here.  Broadly, Klabbers argues that all international organisations (and by extension lawyers, practitioners and academics) have always adhered (maybe even subconsciously) to the theory of functionalism.  In brief, functionalism is a principal-agent theory.  The principals (collections of states) pass over certain functions to the agent (the international organisation).  In order to carry out these functions, the organisation is granted immunity under international institutional law.

This structure has obvious implications for third parties affected by the organisations activities.  Most recently (and Klabbers writes about this is at some length) the cholera outbreak in Haiti which according to many reports (not least the UN’s own investigation!) is directly attributable to Nepalese UN Peacekeepers.

Calls for accountability, however, have fallen foul of functionalist theory which provides for immunities for the UN.  The argument goes: if the UN was not privileged and immune from lawsuit, it simply could not perform the functions that states have asked it to perform.  Class action lawsuits against the UN in the New York courts have reaffirmed UN immunity and dealt a severe blow to Haitian families calls for accountability.

In terms of ‘post-conflict law’, the jus post bellum has touched on accountability issues as part of a project to reform the laws of occupation.  The jus post bellum emerges into a situation where there is no consensus on what obligations attach to actors (unilateral or multilateral) in transitions.  Clearly, as international organisations play the main role in international post-conflict reconstruction – there should be a re-think about what constituencies UN peacekeeping missions are accountable to.

Set against functionalism, the jus post bellum might be developed as part of the global governance discourse seeking to impact UN reconstruction missions.  However, as a matter of positive international law, the success of this project would seem, as ever, to depend on the will and interest of nation states.  At present, the legitimate diversity of opinion seems to indicate that functionalism will be with us for some time yet.  The task for international lawyers, however, and as Klabbers himself says, is to take part in its transformation.