The International Legal Prohibition on Perfidy and Its Scope in Non-International Armed Conflicts

by Robert Lawton Pratt

Since the beginning of its conflict with al Qaeda, the United States has faced an enemy that relies on its ability to blend into the civilian population to mount attacks and sustain its war-fighting efforts. Disguised as civilians, members of the group have gained proximity to valuable targets and conducted deadly attacks they could not have achieved if they wore their terrorist affiliations openly. In Iraq, Afghanistan, and elsewhere, other terrorist and insurgent groups also rely on similar tactics to inflict maximum damage. Suicide bombers use civilian objects to attack civilian targets, including markets, mosques, and other public places. Combatants hide amongst the local population, cloaking themselves in the legal protections afforded civilians. Facing these enemies in dense, urban environments, U.S. forces often have to work within and rely on their civilian surroundings to attack these combatants and to protect themselves.

These battlefield realities raise questions about compliance with the law of armed conflict—particularly with the prohibition on perfidy and its application in these contexts. Article 37 of Additional Protocol I of the Geneva Conventions defines perfidy as any act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Effectively, this provision prohibits parties to armed conflicts between states (i.e., international armed conflicts or “IACs”) from abusing legal protections afforded civilians and some combatants in order to harm the enemy. Examples of this crime include feigning surrender or injury to lure an enemy into an attack or feigning civilian status to gain and betray the confidence of the enemy.

Though both customary international law and Additional Protocol I prohibit perfidy in IACs, whether and to what extent this prohibition applies within the context of non-international armed conflicts (NIACs) remains relatively unclear. NIACs, such as the United States’ conflict with al Qaeda, include conflicts between states and non-state actors or between non-state actors only. To clarify the extent to which the perfidy prohibition applies in this conflict context, this article begins by presenting the legal and practical arguments for and against applying the prohibition on perfidy to NIACs and subsequently assesses the prohibition’s scope using the recent U.S. military commission case against the U.S.S. Cole bombers and the CIA’s involvement in a Mossad car bomb operation that killed a Hezbollah leader. From this analysis, it is clear that the international legal prohibition on perfidy extends to NIACs through customary international law and that a critical component of the crime is the attacker’s abuse of law of war protections.

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VOLUME 56 :: No. 3

Does International Human Rights Law in African Courts Make a Difference?

by Daniel Abebe ~ May 20, 2017

Is international human rights law effective in Africa? Extant studies assess effectiveness by focusing on the potential of individual African regional and sub-regional courts to promote human rights and influence domestic actors. However, few if any studies actually evaluate the entire human rights jurisprudence of the five major African courts with jurisdiction to hear human rights claims. In this Article, I examine the entire human rights caseload of these courts from 1988 through 2015 along four important dimensions of effectiveness: (1) court structure; (2) volume of cases; (3) compliance rate; and (4) funding and independence. The Article finds that African regional and sub-regional courts are facing significant challenges as they struggle with structural deficiencies, meager caseloads, low compliance rates, and persistent budgetary issues. The Article then describes the institutional, procedural, and operational challenges that limit the effectiveness of African regional and sub-regional courts and concludes that, based on a case-specific model of effectiveness, much improvement is necessary before the courts can become effective in vindicating human rights claims.

The Stewardship of Trust in the Global Value Chain

by Kishanthi Parella ~ May 20, 2017

Global governance has not yet caught up with the globalization of business. As a result, our headlines provide daily accounts of the extent and consequences of these “governance gaps.” The ability of corporations to evade state control also contributes to an unusual, even frightening, phenomenon: corporations are governing like states. Some governance functions traditionally delivered by state actors are now increasingly undertaken by transnational corporations. One area that is experiencing this substitution is dispute resolution of human rights. Corporations and other business enterprises, individually or collectively, are creating a variety of grievance mechanisms to address human rights and other conflicts associated — even caused — by their business activities.

When these roles are fulfilled by state actors, we rely on procedural fairness to guide, even discipline, decision-makers. Procedural fairness improves our faith in decision-makers and their institutions even if we might disagree with the outcomes reached. What does procedural fairness mean when it is undertaken by a corporation providing quasi-public governance? What factors might improve its disciplining potential on corporations and increase the likelihood that the watching public, local and global, might accept the outcomes reached? Current guidance to corporations is based upon public law traditions. Consequently, success has been limited because these approaches fail to address the characteristics and dynamics of governance by the business sector.

By contrast, this Article offers a new framework for procedural fairness that is based upon a neglected but significant source: contract law. This framework draws upon interdisciplinary research on relational contracts to develop a strategy for trust-building that can improve the quality of governance performed by the transnational business sector.

Blinding International Justice

by Sergio Puig ~ May 20, 2017

The past twenty years have seen a tremendous rise in international dispute settlement mechanisms. As international adjudication has become more prominent and pervasive, some of its most fundamental tenets have also come under scrutiny. Recently, a new debate has emerged regarding party-appointments — a widespread feature in international arbitration. While international arbitrators, like national judges, are supposed to exercise independent judgment and be neutral and impartial, practitioners and scholars concur that arbitrators often lean in favor of the nominating party. As a result of concerns over a lack of impartiality, “blind appointments” — where nominees do not know which party appointed them — have been suggested as a corrective intervention in the arbitration field.

This Article explores the causes, implementation challenges, and possible limitations of blind appointments in arbitration. It makes three contributions. First, it proposes a conceptual framework to understand the different biases introduced with the nomination of judges in international adjudication: compensation, affiliation, selection, and epistemic effects. Second, considering new data from investment arbitration proceedings and experimental surveys on arbitrators, it shows that blinding is a promising intervention to target affiliation effects while maintaining potential benefits resulting from party participation in tribunal formation. Third, it explains how blind appointments may have important limits as to their corrective properties and explores the conditions that are most favorable for the success of this proposal in other fields of international adjudication.

U.S. Regulation of Cross-Border Banks: Is It Time to Embrace Balkanization in Global Finance

by Alexander Coley ~ May 20, 2017

This Note analyzes the international controversy surrounding the U.S. effort to regulate cross-border banks in the aftermath of the global financial crisis. It proceeds as a case study of the Federal Reserve’s (“The Fed’s”) “Enhanced Prudential Standards,” implemented in 2014 for the purpose of increasing the resiliency of the largest banks (both domestic and foreign) operating in the United States. The Fed’s rulemaking has ruffled feathers internationally because one of the key provisions imposes a structural “ring-fencing” requirement on foreign banking organizations that does not apply to domestic ones. The rule requires foreign banks of a certain size to create intermediate holding companies in the United States, which are then subject to the Fed’s prudential regulation as independent entities. Banks, central bankers, and national regulators from around the world have criticized the rule for discriminating against non-U.S. actors, deviating from international norms, and putting the global financial system at risk.

Drawing primarily on comment letters submitted to the Fed in response to the rulemaking, this Note identifies a deeply held hostility toward “balkanization” in international finance — i.e., the fragmentation of capital and liquidity along geographical lines, as well as the proliferation of regulatory bodies charged with overseeing those pools of capital and liquidity. The principal contribution of the Note is to shed light on a serious deficiency in this anti-balkanization rhetoric: namely, that arguments against balkanization implicitly support greater consolidation in global finance. However, this conclusion is problematic because it is in tension with the post-crisis effort to end or mitigate the “Too Big to Fail” phenomenon — the situation in which a bank becomes so large that a government bailout is virtually guaranteed during times of stress. In view of this tension, the Note controversially suggests that the Fed should be applauded for resisting the anti-balkanization ideology that took hold in the decades leading up to the financial crisis. Contrary to the “common sense” view of influential banking jurisdictions and standard-setting bodies like the Basel Committee, the Note ultimately suggests that it may be time to embrace balkanization in global finance.

The Nuclear Option: Domestic Treaty Withdrawal Mechanisms

by Lucas Kowalczyk ~ May 20, 2017

Treaties are the main contractual instrument of cooperation between countries. A state can legally denounce a treaty in international law by adhering to the treaty’s withdrawal clause or to the default provisions outlined in the Vienna Convention on the Law of Treaties. Separate yet parallel withdrawal procedures exist in domestic legal systems. In a multi-year research dataset, 72% of the countries examined had enacted domestic withdrawal procedures which were more lenient than the international procedures; they lacked any notice period and required only the signature of the executive, allowing for swift withdrawal from treaties under domestic law.

Domestic withdrawal mechanisms facilitate swift withdrawal when a country is in a state of emergency and unable to continue fulfilling its treaty obligations, but is simultaneously unable to fulfill the notice period imposed by international law. These mechanisms ameliorate only domestic consequences, not international repercussions. The force of a treaty frequently stems from domestic courts, therefore, adherence to domestic, not international, law is of utmost priority. When a treaty is terminated through domestic withdrawal procedures, its force in national courts, and any legal remedy it provides, is also terminated.

Although legal under domestic law, unilateral withdrawal without notice is in violation of international law and would create enormous political costs. It is therefore dubbed the “nuclear option.” As with a nuclear strike, the domestic withdrawal mechanisms may never be invoked. Their existence, however, provides a security which likely contributes to countries’ decision to engage with the international system.

Despite the widespread repercussions that might result from such internationally sanctioned withdrawal, the domestic mechanisms remain unexamined and unacknowledged by the scholarly community. The international system requires further study in light of the current theories of compliance with the reality that states continue to retain the nuclear option. This Note attempts to explain the continued existence of domestic withdrawal mechanisms despite the presence of flexibility-enhancing mechanisms in international treaty-making.

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