Kosovo: Secession dilemma déjà-vu

(Many thanks to IntLawGrrls for giving me the opportunity to contribute this guest post!)

Since 17 February 2008 – the day of Kosovo’s declaration of independence from Serbia – it has become rather pressing to understand whether this act has legal precedential value and hence what its consequences are. The International Court of Justice (below right) issued an Advisory Opinion on Kosovo this past summer. (Prior IntLawGrrls posts available here.) But that opinion has not shed much, if any, light on the question of precedence.
Whether the Court was asked, on the one hand, to analyze the legal consequences of the independence of Kosovo, or, on the other hand, merely to “narrow[ly] and specific[ally]” reply whether “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo is in accordance with international law,” remains, of course, a separate debate.
Be it as it may, the dilemma remains:

Is Kosovo a precedent for (remedial) secession?

My article recently published in the Goettingen Journal of International Law, "Secession in Theory and Practice: The Case of Kosovo and Beyond," attempts to put forward a lucid account of the legal implications of Kosovo’s independence. To do so, the article explores the international regulations on secession, as well as the circumstances that led to the case at hand.
The paper carves out the place of secession in international law by appeal to fundamental principles and legal doctrine, and concludes:
► There is no general jus secedendi, or right to secede.
► There are instances in which a right to secession is recognized under international law. These refer to states explicitly acknowledging a right to secession in their domestic law, or multinational states recognizing that their constituent peoples have the right to self-determination.
► There is one controversial case that divides scholarship, the one of remedial secession.
► Lastly, there is a trend towards the legality principle governing secessions, as distinguished from the traditional neutrality doctrine.
It is useful to consider the theory on secession with state practice, to the extent that such practice can be discerned from major socio-political events of Kosovo’s history – from the battle of Kosovo Polje in 1389 to Security Council Resolution 1244 (1999) that set up the United Nations Interim Administration Mission in Kosovo (UNMIK). From the juxtaposition of this theory and practice, a second conclusion can be drawn: Kosovo is a case of remedial secession and thus it represents a potential legal precedent.
And yet the exceptionality discourse!
While the elements of remedial secession are gathered, states deprived this instance of practice of its precedential value, and made it a legally insignificant act.
Some explanations are in order.
An action that is novel or inconsistent with current practice gains precedential value if other states accept it; acquiescence and protest are the fundamental state reactions to an action, therefore those are of interest in the case of Kosovo. Serbia, as the state with most interest in resolving the Kosovo case, has strongly protested against the legality of Kosovo’s secession. Other states protested or decided to withhold recognition. All officially identify the potential of setting a legal precedent as reasoning.
The fascination about the Kosovo case lies in the discourse of those states that chose to support and recognize Kosovo as an independent state, describing it as a sui generis/special/exceptional case. Throughout the years that it has sought independence from Serbia, Kosovo has maintained that it has the legal right to do so. In this context, the most staggering statement is made by Kosovo itself in its own declaration of independence:

Kosovo is a special case arising from Yugoslavia’s non-consensual breakup and is not a precedent for any other situation.

The Kosovo secession has been articulated, but as a non-precedential situation. In the end, as scholars Georg Nolte and Helmut Philipp Aust wrote in an article published last year,

states are both subjected to international law and create and authoritatively interpret it.

And in this case, even the recognizing states have consciously and clearly opted not to create a general rule governing remedial secession. Ultimately, states have guarded the status quo, and continued to act allergic to a right to remedial secession with set boundaries and clear coordinates. Ironically, the consistent state practice is evidence of the absence of a customary right of remedial secession.
In other words, the international community missed a rare opportunity to clarify the concept of remedial secession and to reassert its preventive force as a non-traditional human rights protection mechanism. The consequences of not assuming the precedent are, regrettably, far more important.
The force of remedial secession lies in its prevention potential – empowering minority groups to hold governments accountable to their international obligations. It is not an implosive weapon within the Westphalian system, but rather a non-traditional human rights mechanism.
By presenting Kosovo as unique, the international community undermined the theory of remedial secession, and made states and their borders sacrosanct even when a government, by way of its discriminatory and repressive actions against part of its population, puts its own raison d’être into question. It is a perverse implication, one that states will have to deal with when another unique Kosovo enters the international arena.
Thirty-nine years ago, Bangladesh seceded from Pakistan. The debate whether Bangladesh set a precedent for a right to remedial secession continues. Regrettably, Kosovo is merely a Bangladeshi déjà-vu.

Parsing the elements of aggression

Updating an earlier pre-Kampala post and further to our ongoing series on the crime of aggression, this post deconstructs the final definition of the crime of aggression adopted last month in Kampala for inclusion, upon sufficient state party ratification, in the Statute of the International Criminal Court.
As posted, the crime was defined in Annex I of a resolution of the Assembly of States Parties as follows:

Article 8 bis
Crime of aggression
1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.
2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression.

The definition then goes on to provide a list of “acts of aggression” (such as invasion, bombardment etc.) that are drawn verbatim from Article 3 of Resolution 3314. These enumerated acts reflect their historical origins. Absent are acts that might be considered modern forms of aggression, such as cyberattacks or deliberately inflicted environmental degradation, although such acts may be assimilated into the provisions adopted.
The definition and elements of the crime of aggression contain several notable features.

First: Phenomena defined
Article 8bis defines two phenomena:
► A crime of aggression (Article 8bis(1)), and
► An act of aggression (Article 8bis(2)).
The former involves individual criminal responsibility, and the latter encompasses state conduct. The act of aggression committed by a state serves as a predicate for the prosecution of the crime of aggression. Thus, an individual will be held liable when he or she plans, prepares, initiates, or executes one or more act of aggression through the machinery of a state.
The need to prove an act of state gave rise to extensive negotiations over which body — the U.N. Security Council, the U.N. General Assembly, the International Court of Justice, or the International Criminal Court itself — would be empowered to make this predicate determination. (Delegates ultimately decided upon a Security Council filter, which would be followed by an ICC Pre-Trial Chamber filter in the event that the Council did not make the necessary determination in cases involving state referrals or proprio motu referrals. There is no filter when the Security Council triggers a prosecution.)

Second: Broad scope
Article 8bis(2) is worded in such a way that deems any violation of the territorial integrity, political independence, or sovereignty of another state, as well as any use of armed force that is inconsistent with the U.N. Charter, to be an “act of aggression.”
Accordingly, the mere crossing of an international border by military forces without the consent of the neighboring state, for example, could be condemned an “act of aggression,” regardless of the circumstances, the consequences of the state’s actions, the motive or intent behind the operation, or the existence of Security Council approval. Such an act could then serve as the predicate to a prosecution for the “crime of aggression” if it satisfied the requirements set forth in Article 8bis(1). Because there is no express reference to codified and uncodified exceptions to the Charter’s prohibition on the use of armed force, any use of armed force — even one taken in self-defense or with Security Council approval — technically constitutes an act of aggression according to the definition.

Third: Departures from Resolution 3314
Although supporters of this definition tout its Resolution 3314 pedigree, the definition adopted for inclusion in the ICC Statute departs from the former instrument in subtle yet significant ways. Most importantly, Resolution 3314 — and the U.N. Charter, for that matter — envision a continuum of unlawful uses of force, only some of which rise to the level of aggression. Indeed, the Resolution’s preamble states that

aggression is the most serious and dangerous form of the illegal use of force.

The definition adopted for the ICC, by contrast, envisions every violation of Article 2(4) of the U.N. Charter, as well as violations of a state’s sovereignty (whatever that means), to be acts of aggression that may give rise to prosecution.

Fourth: Leadership clause
The crime of aggression is subject to a leadership clause, providing that only those individuals in the top echelons of a military or civilian hierarchy can be prosecuted for the crime of aggression.
Foot soldiers will not be subject to such charges, but can still be prosecuted pursuant to Article 8 of the ICC Statute for any war crimes committed in connection with the act of aggression. A footnote to the corresponding amendments to the Elements of Crimes, in Annex II of the adopted resolution, makes clear that more than one person may be criminally liable for a particular act of aggression. The crime of aggression will be subject to all the forms of responsibility set forth in Article 25 of the ICC Statute.

Fifth: Mental state elements
In terms of mens rea, according to the Elements of Crimes, the first element of the crime is a conduct element subject to a mens rea of intent.
Subsequent circumstantial elements, such as the fact that the defendant occupied a leadership position, are subject to a knowledge mental state pursuant to Article 30(3) of the ICC Statute (“‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”). This formulation seems to exclude a constructive knowledge, or “should have known,” standard. The “knowledge of fact” mental state requires a showing that the defendant was aware of the factual circumstances that rendered the applicable state’s use of force inconsistent vis-à-vis the U.N. Charter (e.g., that there was an armed attack against another state, that there was no Security Council authorization, and that the putative Victim State di dnot launch a prior attack).
Thus, the perpetrator is not required to have knowledge of the precise legal doctrines governing uses of force.

Sixth: Non-international conflicts
Like Resolution 3314 that preceded it, the draft definitions of the crime of aggression have always been state-centric, envisioning aggression as a phenomenon of states, formal military organizations, and international borders. Controversially, there is no notion of a crime of aggression that may be committed by non-state actors, such as insurgents or terrorists, or by states against their own citizens.
That said, Article 8bis(2)(g) may facilitate prosecutions for aggression in ostensibly non-international conflicts by designating the sending of armed bands into another state to carry out acts of armed force as a prosecutable act of aggression. In addition, although the amendments do not address this directly, acts by non-state actors may be attributed to a state according to general principles of state responsibility, thus satisfying the jurisdictional precondition of state aggression. These principles of attribution may enable aggression charges to be brought in armed conflicts that on their surface appear to be internal, but which may in fact sufficiently involve other states acting through non-state proxies.

Seventh: “Manifest violation”
Not every act of aggression will support a prosecution for the crime of aggression. Rather, only those acts of aggression that by their “character, gravity and scale” constitute a “manifest violation” of the Charter, viewed objectively, can give rise to the crime of aggression.
The term “manifest,” which remains undefined, emerged as a compromise term between delegations that wanted no threshold at all, on the theory that every act of aggression should be subject to prosecution, and those that wanted a higher threshold that would limit prosecutions to “flagrant” breaches of the Charter, wars of aggression, or acts of aggression geared toward occupying or annexing territory. The term “manifest” was perennially controversial during the negotiations in light of its ambiguity of meaning:

• to some, it referred to the degree of legal clarity or ambiguity surrounding the illegality of the act of aggression;
• to others, it denoted some level of seriousness (in terms of the impugned act’s scale or consequences) or willfulness.

These semantic debates in turn revealed conflicting goals underlying the threshold element. Some states seemed intent on precluding the assertion of jurisdiction over minor acts of aggression, such as frontier scuffles or cross-border coast guard incursions; others wanted to exclude cases in which there was or would be no clear international consensus as to whether the state had committed an unlawful act of aggression. Detractors consistently argue that the modifier “manifest” accomplishes neither of these two goals and threatens to permit prosecutions of both low-level uses of force and potentially lawful and/or valid uses of force, such as

• bona fide humanitarian interventions,
• armed responses to terrorist attacks,
• actions in ex post or anticipatory self-defense,
• peacekeeping or stability missions,
• actions to enforce no-fly zones,
• actions in defense of nationals or to rescue hostages,
• exercises of hot pursuit or
• the abduction of fugitives.

Supporters in turn argued that the list of acts in Article 8bis(2) will ensure that minor incursions across an international border would not constitute an act of aggression.
Given the inconclusiveness of the travaux, when the ICC is presented the question, it should consider both seriousness and legal certainty in considering acts of aggression.

Eighth: Defenses
At no time did delegates consider amending the ICC Statute provisions addressed to available defenses, so the crime of aggression is not subject to any special defenses.
As such, individual defendants can in theory invoke all of the existing defenses, subject to whatever adaptations are necessary, set out in:
► Article 31(1) (mental disease or defect, intoxication, self-defense, the defense of others, and duress),
► Article 32 (mistake of fact or law), and
► Article 33 (superior orders).
Neither self-defense nor the defense of others is automatically proven where the defendant is acting on behalf of a state is engaged in self-defense according to Article 31(1)(c) — the only provision that implicates the aggression determination directly. At trial, the Trial Chamber may consider additional defenses pursuant to Article 31(3) and the applicable ICC Rules of Procedure and Evidence.
Presumably, that the predicate act of aggression was in fact a lawful use of force would be raised by the defendant at trial pursuant to Article 31(3). These Articles do not easily accommodate “defenses” that might be raised by the putative aggressor state to the determination of whether an act of aggression has occurred. Indeed, it is unclear procedurally whether, absent amendment to the Rules of Procedure, either the impugned state or the victim state will have standing to participate in the aggression determination by the Pre-Trial Chamber.

Result
The result is a text that remains ambiguous and open to multiple interpretations.
Although delegates ostensibly adopted these complex provisions by consensus, the above analysis reveals the existence of a high degree of disagreement, controversy, and concerted silence that belies true agreement among states as to the definition of the crime and its reach. Defendants will no doubt challenge these provisions on legality grounds, if the provisions are ever activated.

On Legality & Delay of Justice in the ECCC

(2d of a 2-part post, part of IntLawGrrls' ongoing Khmer Rouge Accountability series. Part 1 is here.)

Yesterday, I detailed the circumstances leading to Co-Prosecutors to appeal the Indictment of Khmer Rouge suspect Kaing Guek Eav, known as "Duch," on the ground that the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia erred when, on August 21, 2008, they limited indictment to:

► war crimes (grave breaches of the 1949 Geneva Conventions); and

► crimes against humanity under principles of direct and accomplice liability.

In my view, the Prosecutors are smart to have filed this appeal, which contends that Duch should also have been charged with:

► the domestic crimes of murder and torture; and

► the commission of all the charged crimes pursuant to a joint criminal enterprise, or JCE.

One of the most difficult aspects of adjudicating the legal liability of surviving members of the Khmer Rouge will be to identify the state of the law in 1975-1979 in keeping with the principle of legality. That is because many developments in international criminal law that are most relevant to the atrocities of the Khmer Rouge era post-date that era, as they are the result of the work of the two ad hoc tribunals in the late 1990s. These developments include:
► the almost complete convergence of the law on war crimes relevant to internal and international armed conflicts;
► the official abandonment of the war nexus for crimes against humanity; and

► the adoption of the subjective approach to protected group identity and membership for genocide.

A particular point of controversy will undoubtedly be whether a state of armed conflict existed in Cambodia during the Khmer Rouge era. Certainly, a low-level conflict existed between the Khmer Rouge central government and a resistance movement made up of members of the prior regime and others; however, many of the violations of international criminal law most associated with the Khmer Rouge were more in the nature of organized repression against actual or perceived dissidents, in the absence of any credible armed resistance. Many other violations may have had no nexus to whatever armed conflict did exist.

Eventually, Vietnam began to intervene in the Eastern zones of Cambodia, and then later launched a full-scale invasion that ousted the Khmer Rouge completely (photo upper left, credit). The moments when this conflict began to trigger the application of humanitarian law, and when the conflict officially became an international armed conflict, remain questions for litigation.
The existence of a state of armed conflict is relevant not only for any war crimes counts, but perhaps also for any crimes against humanity that might be charged. When crimes against humanity first emerged as an international law offense after World War II, the crime remained intimately tied to a state of war. Specifically, the postwar Nuremberg and Tokyo tribunals required the prosecution to demonstrate a “nexus” between the charged crime against humanity and the war of aggression launched by Nazi Germany or Imperialist Japan, because the Charters of those tribunals defined crimes against humanity as

murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The Nuremberg Tribunal interpreted the passage that I've italicized to preclude the prosecution of events preceding the commencement of World War II, which it pegged to Germany’s invasion of Poland in 1939. This rendered crimes against humanity a sort of byproduct of war rather than an autonomous offense.

The war nexus served two important purposes in the post-World War II proceedings. First, it helped to satisfy the principle of legality by tying the new charge of crimes against humanity to the relatively well-established prohibition against war crimes. Second, it justified the intrusion of international law into the domestic affairs of a sovereign state. Crimes against humanity effectively trumped domestic authority by criminalizing acts “whether or not in violation of the domestic law of the country where perpetrated.” The war nexus ensured that only after a state had already breached international peace by committing acts of aggression would crimes committed internally be susceptible to international scrutiny and prosecution.

Over time, these legality and sovereignty concerns have become less acute on account of the rise of the human rights movement, which is premised on the idea that the way in which a state treats individuals within its territory and under its control is now beyond doubt a matter of international concern. Modern jurisprudence confirms that crimes against humanity are now entirely autonomous from a state of war. When exactly that happened, however, remains an open question that will no doubt be litigated before the ECCC.

As a result of the Co-Prosecutors’ appeal, the trial of Duch, which was supposed to commence this fall, has been continued until next year. The Pre-Trial Chamber has announced that it plans to issue its decision on the appeal concerning the Closing Order on or about December 5, 2008. At that point, the case file will be transferred to the Trial Chamber to commence trial proceedings with the exchange of witness lists, a Trial Management Meeting, the Initial Hearing, etc. ....

The Cambodian people have been waiting decades for justice -- what is another couple of months at this point?

Kosovo's independence: Does legality matter?

Serbia, Spain, and other states opposed to the independence of Kosovo argue that its unilateral declaration of statehood is illegal under international law. (Prior posts here, here, and here; map credit.)
Those supporting Kosovo’s independence, including the United States, don’t seem to disagree. Rather than arguing that Kosovo’s declaration can be reconciled with principles of territorial integrity, they contend that Kosovo is “sui generis” and therefore “does not set a precedent.” In other words, no, it isn’t legal, but not to worry, it won’t happen again.
Certainly Kosovo is in some ways unique. Those making the sui generis argument point to the break-up of Yugoslavia, Security Council Resolution 1244 (1999), and the long period of UN administration as distinguishing features. Basing a claim to independence on UN intervention is in some ways reassuring, as any nascent polity receiving such intervention must have considerable international support. It is in other ways disturbing, suggesting that the decisive factor in determining the legitimacy of claims to sovereignty is not the freely expressed will of the people but the will of the international community -- not self-determination but UN-determination.
In any event, there are a lot of independence-seekers in the world who are hoping that they too are sui generis, and it won’t be long before they begin to put the question to the test. The New York Times reports that South Ossetia and Abkhazia, independence-seeking regions in Georgia, have indicated that they will ask for recognition from Russia, which has long supported them, based on the Kosovo (non-)precedent. (map credit)