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About the Authors: Ashutosh Anand is an undergraduate law student at the National University of Study and Research in Law, Ranchi, India. He can be reached at ashutosh.anand@nusrlranchi.ac.in. Kaustubh Kumar is an undergraduate law student at the National University of Study and Research in Law, Ranchi, India. He can be reached at kaustubh.kumar@nusrlranchi.ac.in. Image by Kevin Schmid available here. Introduction Since the beginning of the Russia-Ukraine war, investors have strongly felt the need for remedies offered by international investment arbitration in light of the injury and vulnerability to their investments in Ukraine. Considering this, claims for material damage compensation are a common component in every dispute of investment arbitration. Tribunals comprehensively deal with such claims but do not provide much heed to another type of damages, i.e., moral damages. Moral damages, or non-material damages, are awarded to remedy the non-material injury, such as individual suffering or agony, loss of loved ones, or personal aspersion concerning an incursion upon one’s home or private life. The claims for moral damages in investment arbitration are relatively recent, but their significance and frequency have grown in recent years. Moral damages in international investment arbitration can play a decisive role in the recent Russia-Ukraine war. Formerly, during the Crimean invasion in 2014, Ukraine’s lawfare response through investment law to the Russian incursion presented an instructive and unique case study of the systematic use of legal means against a belligerent State, and the same could not be a far-flung expectation in the current war. Therefore, it becomes essential to discuss some ambiguous aspects of moral damages. One such ambiguity arises when the legal entity claims moral damages on psychological or emotional grounds. It is a settled law that a legal entity can only suffer from reputational harm, as it is erroneous to deduce that a legal entity can bear any psychological violence or emotional distress. However, some tribunals, going contrary to the general rule, have granted the legal person, i.e., the entity, the claim for reparation of moral damages based on psychological violence or emotional distress, which was endured by the entity’s employees. This has resulted in a discrepancy in law. With the primary objective of examining whether a legal entity/corporation can claim moral damages based on psychological or humane causes, this piece begins by analysing the present legal regime related to moral damages from the gargantuan lens of international investment law. Then, the piece sheds light upon the general rule concerning a corporation’s claim for moral damages on a psychological basis. Additionally, the piece analyses the Desert Line v. Republic of Yemen case, which has constructed an innovative jurisprudence on this issue. Towards the end, the piece argues for the flexible approach of the inclusion of humane causes for a legal entity’s claim, which is best suited to meet the ends of justice. Moral Damages and the Current Legal Regime Compensation of moral damages originates from the obligation under customary international law of full reparation, whether material or moral, of an injury created by an internationally wrongful act. Article 31(1) of the International Law Commission Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001 [hereinafter “ILC provisions”], mentions the expression “full reparation.” Further, Article 32(2) of the ILC provisions state, “injury includes any damage, whether material or moral….” Moral damages may remedy multifarious non-material harm in investment arbitration, including damages to reputation and personality, as well as loss of business credit, reputation, goodwill, and opportunities in the case of legal entities and corporations. Although certain tribunals have acknowledged moral damages as a potentially legitimate basis for recovery under international law, awarding moral damages in international investment disputes is still relatively uncommon. Tribunals are usually cautious of claims of moral damages, strictly examining the grounds for awarding the damages and capping the amount granted . Nevertheless, some Tribunals have considered granting moral damages to the aggrieved parties, including legal entities, by relying on certain tests, such as award under ex æquo et bono competence, exceptional circumstances test, and malicious and fault-based conduct of the state test. Moreover, reiterating the foregoing ILC provisions, a plethora of ICSID Tribunals, in addition to Tribunals of other jurisdictions, have frequently provided that there is no provision in ICSID Convention, Arbitration Rules, and Additional Facility that bars the Tribunal from awarding moral damages, and that international arbitration tribunals are fully competent to award compensation for moral damages. Accordingly, it is irrefutable that reparations based on individual pain and suffering are valid claims that fall under the category of moral damages. Psychological Damage: Deciphering General Rule Regarding Moral Damages An individual may experience psychological violence, emotional distress, or any other suffering of that nature. Nevertheless, by applying common reasoning, it can be surmised that a legal person cannot have such a privilege. As a result, moral damages such as mental harm or emotional distress cannot be claimed by a legal person. However, if the investor is an individual who is protected under the investment treaty, that person may, indeed, experience mental distress or psychological abuse and hence be eligible to claim compensation. Another exception to this general rule is the incorporation of the “Full Protection and Security” clause (hereinafter “FPS”) in the agreement. The FPS clause is the relevant instrument that empowers the corporation to claim such damages in front of an arbitral tribunal. The host State has a responsibility under the ‘FPS standard’ to (i) not harm investors/investments by the actions of State organs or actions otherwise attributable to the State and (ii) protect investments and investors from private parties during times such as civil unrest. Therefore, under the presence of the FPS clause, an entity can claim damages on behalf of its employees on physiological and moral grounds. Desert Line Dictum: Going Away from the General Rule Although the general rule of moral damages favors the law that a corporation cannot claim moral damages by citing psychological distress, the Desert Line v. Yemen case offered a novel perspective to the issue. It is one of the first and landmark cases concerning moral damages. In this case, the Claimant-Corporation claimed the amount as moral damages under three heads: breach of the obligations under the investment treaty by the Respondent, psychological violence suffered by the corporation’s executives, and loss of reputation suffered by the corporation. The Tribunal accepted that moral damages were available to both legal and natural persons due to the harm resulting from the violation of an investment treaty. The Tribunal awarded moral damages based upon the loss of reputation of the Claimants. However, upon closer examination of the argumentation leading to the conclusion of reputational harm, it becomes evident that the Claimant contended that its executives faced anxiety and stress of being threatened, harassed and detained by both the Respondent-State and the armed tribes as well. The Claimant’s executives were also alarmed by the Respondent-State with respect to the Contracts. As a consequence, the Claimant has suffered a considerable injury to its credit and reputation. The strength of the argument was based on the individual pain and suffering of the employees. Consequently, the Tribunal awarded the Claimant US$ 1,000,000, recognizing that the Claimant’s “prejudice was substantial since it affected the physical health of the Claimant’s executives and the Claimant’s credit and reputation.” While taking into consideration the lines produced above from Desert Line, it is noteworthy that the Tribunal not only described the loss to the company (credit, reputation and prestige) but also mentioned the harm to the company’s executives as primary to its reasoning in favor of moral damages. Therefore, it can be asserted that the Tribunal upheld the principle that a corporation can claim damages based on the actions that harmed members of its staff. Way Forward: A Strict Application of Rules Appear Strenuous to Justice Despite being contrary to the general rule, the Desert Line decision has been applied by multiple Tribunals in determining whether a corporation can claim psychological damages. However, it is pertinent to note that the Desert Line Tribunal failed to provide the rationale for its reasoning connecting the psychological violence suffered by the executives of the corporation to reputational harm, which led to the award of moral damages to the Claimant-Corporation. A more detailed explanation in this regard would have bolstered the precedential value of the decision. Nevertheless, going along with the rigorous application of the standing rules precludes compensation to the corporation for damage to the personal rights of the executives. Such an approach might result in practical difficulties. For instance, if these harms are excluded, and the appropriate place for filing such a suit would be local courts, in the words of scholars like Dr. Sabahi (Sabahi 2011, 139-140) and Dr. Dumberry (Dumberry 2010, 247), these courts might be unable to manage the case with the degree of independence as desired or provide justice to the aggrieved party. Multiple ICSID Tribunals have endorsed this view. To remedy this legal limitation, one could refer to the state espousal doctrine, which is dictated by the Vattelian fiction that an individual’s injury is equal to the home state’s injury of the individual, to envisage a doctrine of ‘corporate espousal,’ through which injury to an employee of a corporation would be regarded as injury to the corporation itself. This is the underlying premise from which the right to claim moral damages arises and can be employed in disputes arising out of the recent Russia-Ukraine war.

Amanda Colding (J.D. Candidate, Class of 2024) is a contributing editor. Her interests include private-sector international law, human rights law, gender-based violence advocacy, refugee rights, and youth and disability rights. Amanda holds a B.A. in English from Spelman College in Atlanta, Georgia, where she studied abroad in Durban, South Africa, for a semester. Before law school, Amanda served as a Freedom Corps Fellow at the Working Families Party and a coach for Progressive Pipeline’s cohort of fellows. Currently, she works as the team coordinator for the International Human Rights Law Clinic and will be working with the United Nations in Geneva, Switzerland, next semester. She speaks French at an intermediate level. Climate Change in Africa On the continent of Africa, many countries are suffering the damaging effects of climate change which is impacting each community’s way of life. According to the World Meteorological Organization (WMO), African communities are encountering highly destructive floods and droughts that are affecting states’ economic systems. In the WMO’s words,“[r]ising water demand combined with limited and unpredictable supplies threaten[s] to aggravate conflict and displacement.” The WMO’s State of the Climate in Africa 2021 Report has highlighted the extreme events the continent has experienced, ranging from extreme floods and tropical cyclones to droughts, heatwaves, wildfires, and sand storms. While South Sudan and Nigeria have experienced extreme flooding, cyclones have moved through Madagascar and Mozambique. Algeria has undergone a series of 43 wildfires in June 2022 and 22 wildfires the following August. The report also indicates the cross-cutting impacts of these climate crises on agriculture, community displacement, and the economy. The droughts and floods in 2021 propelled hunger and malnourishment across countries in Africa. These factors, coupled with economic slowdowns and downturns, contributed to food insecurity and inhibited the progress toward the zero hunger goals in Africa. East Africa encountered long droughts from below average raining seasons which raised food prices and made food unavailable or inaccessible. This left more than 58 million East Africans to suffer from food insecurity and famine. At the same time, in West Africa, cereal production was impacted by sporadic and late rains which increased food prices and decreased agricultural outputs . From October to December 2021 23.7 million people in the Sahel and West Africa suffered from a food crisis or worse. In African countries drought-related hazards have led to the loss of over half a million people’s lives and an economic loss totaling over 70 billion USD. The Grand South region of Madagascar faced its worst drought in thirty years in 2021. This left the population struggling on the verge of famine during the year. Madagascar had also fallen victim to an Armyworm outbreak which led to 60% of crops being lost. Malagasy locusts also infested more than 48,00 hectares of land. As a result, 1.14 million people experienced high levels of food insecurity from April to September 2021. North Africa has seen multiple harsh fires that have burned thousands of hectares of land, damaged orchards, and disturbed livestock. In Algeria, 40,00 hectares of land were burned, more than 5,000 hectares of fruit trees were lost, and 19,000 farm animals were killed. As these climate crises increasingly contribute to food insecurity, they are also causing high levels of displacement and a surge in climate refugees. Many internally displaced people in Africa live in the areas most impacted by climate change while lacking the necessary resources to guard against climate change’s effects. This situation highlights the inequality and disproportionate impact that climate change has on Africa. Although the continent as a whole only contributes to “2% to 3% of global greenhouse gas emissions,” its people are among the first to feel climate change’s worst effects. Inherent Risk for All Countries According to UN projections, Africa’s population is set to double in 2050 and one in four people will live in Africa. By 2100, Africa’s share of the world population is set to rise from 17% to 40%. As Africa’s population grows, more and more African people will be disproportionately impacted by the climate crisis By 2100 the climate crisis will have worsened and there will be a severe increase in the number of climate refugees emigrating from East, West, North and South Africa. The United Nations High Commissioner for Refugees (UNHCR) addresses the impact climate change has on migration and declining living conditions. UNHCR addressed the way that natural resources like drinking water have become scarce in regions that host refugees. The High Commissioner also highlights the way climate change acts as a threat multiplier when it comes to existing tensions and conflicts. Due to extreme weather events, 20 million people on average are forced to leave their homes and move to other regions in their countries annually. This will expand the population of refugees that are forced to leave their countries due to their home state being uninhabitable. The crisis will push more climate refugees to seek safety and resources in bordering African countries and more Western countries. Public-Private Partnerships as a Way Forward Although countries in Africa are facing the dire consequences of climate change, there are still many opportunities to enforce global cooperation to tackle the climate crisis that affects us all. Developed countries who once exploited African countries by extracting resources through oppressive practices have the chance to create legislative frameworks that incentivize public-private partnerships with African governments. These nations have an opportunity to create legislative frameworks that protect against corruption and exploitation in African countries while also encouraging private entities to invest in green technologies that could help tackle the climate crises faced in each country in Africa. African countries are in such a great position to lead the world in global climate action because their economies do not have to overcome pre-existing carbon-based economic infrastructures. While other countries will be occupied working to decarbonize their economies and transform old carbon-based economic structures, Africa has the opportunity to invest in a robust green sustainable economy. The continent can be the first to take on this innovative approach to the economic market and show other countries how to build an economy that is centered around creating a sustainable environment while they work to decarbonize. As noted by the founding CEO of the Climate Action Platform for Africa “[t]he continent doesn’t have an ‘old economy’ that needs to be decarbonized. It can invest right away in the green economy that we need — an economy that’s net positive for the planet and the people.” This would be possible through the young workforce that continues to grow as well as the continent’s large plots of land and renewable resources. Investing in a wholly green economy would open up a path for new economic opportunities in Africa. The Climate Action Platform for Africa is a public benefit organization that demonstrates the value of climate mitigation efforts through projects that utilize its natural resources, land, and young workforce. In the Climate Action Platform for Africa there are three pathways that Africa can pursue to create a green- and sustainable-based economy. One of these pathways would be uplifting sustainability as a core principle when adopting technology and business models for consumption and production. Sustainable technologies could lead to “job creation, better public health and improved climate change resilience for the continent.” Another way Africa can shift to a more sustainable and green economy is through keeping bulky raw processing industries on the continent rather than exporting to other places that will use coal and additional polluting energy sources to process them. This “reduce[s] emissions from global value chains” while also increasing economic investment and job creation on the continent. Africa also maintains a substantial amount of forests, grasslands, peatlands, and mangroves which plays a substantial role in the decarbonization process by slowing climate change and environmental degradation. To maintain these efforts it is essential that the international community works to compensate these communities and employees who work to keep the lands nurtured and alive. Currently, according to the Infrastructure Consortium for Africa (ICA), investors struggle with investment because of a lack of political will and certainty in the implementation of public-private partnerships. Other barriers to expanding public-private partnerships that the ICA mentions include the lack of institutional capacity, unrealistic expectations, financial risk, the regulatory environment, potential corruption, and the lack of transparency. Developed countries can play an essential role in overcoming these challenges by creating legislative incentives for private actors to invest in the maintenance of green habitats through tax breaks. This would require countries to enter into bilateral treaties with African countries to allow investment in green technologies in Africa while also encouraging sustainable environmental efforts. One case study of public-private partnerships working for the benefit of another region’s economy is that of the Central Partnership for Central America (PCA). In partnership with Vice President Harris, the World Bank, and private sector actors, the PCA “mobilized $3.2 billion in investments with a 10-year goal to create one million jobs and economically enable 20 million individuals.”Although this is set to happen over a set period of time, 450,000 people have been included to use MasterCard, Visa, Bancolombia, and Davivienda and two million people have accessed broadband services through Microsoft and Millicom. Microsoft delivered internet access to children in rural indigenous communities totalling around 4000 people. To transform Africa’s economy into a green, sustainable one African countries should turn to resources that guide the States in a way that is financially responsible for investors and safe for the public sector. The Infrastructure Consortium for Africa, the World Bank, and Partnerships UK also came together to create “Attracting Investors to African Public-Private Partnerships: a Project Preparation Guide” to outline the ways to make transforming public-private partnerships in Africa into a reality. It addresses the necessity for a policy framework, a legal framework, and an investor framework that ensures an investor’s participation in public-private partnerships while also encouraging full integration of the partnership in the public sector. This strategy to achieve a green sustainable economy through public-private partnerships provides a great opportunity for countries like the United States, the United Kingdom, Belgium, and France to confront their histories of colonization and imperialism which left many African countries that were rich in raw materials and resources behind in the developed world. It gives developed countries that reaped many of the rewards from their exploitative and corrupt practices the chance to contribute some form of reparations to the countries that have suffered the most since the Berlin Conference. This would require these countries to cede power in efforts to save the world from the global climate crisis that’s leaving countries like Senegal at risk of extreme flooding which threatens to displace 80% of its colonial capital by 2080.

Spencer M. Perry (JD '23) is a Berkeley Law student pursuing a career in international criminal law as a federal prosecutor. Before law school, Spencer worked on foreign affairs and criminal justice issues in the Obama White House and the office of then-Senator Kamala D. Harris. Spencer began his career advocating for same-sex marriage rights in California. Introduction Russian troops invaded Ukraine promising liberation but delivering terror. The extent of Russian war crimes was illustrated in early April 2022 when a retreating front left evidence of genocide in its wake. The civilians of Bucha were left dead and mutilated in the street, in their homes, and in mass graves.[2] Some bodies were burned and others thrown into wells, poisoning water supplies.[3] Many were killed with their hands bound behind their backs.[4] The death toll reached 461 on August 2022.[5] Bucha is emblematic of Russia’s war crimes in Ukraine. The Russian military marched across eastern borderlands towards Kyiv, razing homes[6] and hospitals[7] in its wake. Fleeing refugees are shot[8] and buried in unmarked trenches.[9] Evidence amasses indicating that each atrocity was an intentional state-led attack.[10]Journalists, UN observers, and now International Criminal Court (ICC) investigators document each atrocity, hoping that the world might rise to defend humanity and to hold Russian war criminals to account. While the rest seek an immediate reaction, the ICC’s investigation and pending litigation demand persistent toil before they bear fruit.[11] The ICC seeks justice through deliberate investigation and adjudication. Resolution in a quiet courtroom stands for the hope that our virtues might eclipse our vices—that justice can be delivered in ink, not blood. That hope is only achieved when its shepherd, the tribunal, has an avenue to execute its mission: holding war criminals accountable. The tribunal’s chances of success are bound to its ability to prevail over a suspect’s attempts to subvert prosecution. Suspect governments may do so by misusing a state secrets privilege. An absolute state secrets privilege emboldens such sabotage. An absolute privilege forces a court to accept a state secrets assertion without examining the contested material. A qualified privilege tempers bad faith interference by permitting a court to examine the material and weigh the interests for and against disclosure.[12] The ICC’s formulation of the state secrets privilege is dangerously absolute and therefore jeopardizes its investigation into Russian atrocities in Ukraine. Existing scholarship underestimates the risk that an absolutist state secrets privilege diminishes the ICC’s prospects for ensuring Russian accountability and inadequately examines an alternative: a qualified privilege. Descriptive analyses of the absolutist state secrets privilege abound.[13] Some pay particular attention to when state privileges may be asserted in international criminal tribunals and how tribunals might overcome assertions.[14] Others compare the absolutist and qualified approaches in international criminal contexts.[15] None observe Russia’s likely invocation of the state secrets privilege in Ukraine-related ICC litigation or argue that a qualified privilege may be applied to avoid disaster: an investigation deadlocked by an unsubstantiated state secrets claim and the most powerful international war crimes tribunal made impotent by an absolute privilege.[16] The ICC’s present investigation into Russian war crimes in Ukraine is imperiled by the Court’s absolute deference to state secrets claims. This paper argues that the international community should employ a qualified state secrets approach in the ICC because maintaining its absolute approach will foreclose the possibility of holding Russian war criminals to account. Part I presents the ICC’s absolute state secrets privilege and a qualified alternative. Part II describes and examines the consequences of the United States’s absolute approach and analyzes why the ICC can expect similar results. Part III argues that the qualified path better serves a tribunal’s mission to pursue accountability. Part IV examines why any attempt to prosecute Russian war crimes in Ukraine should incorporate a qualified state secrets privilege to achieve criminal accountability and success. I. Absolute and Qualified State Secrets Privileges in International Criminal Law International criminal tribunals are not born equal. The multistate communities that establish them decree their scope, structure, and procedure, often sewing politics between the lines of their charters. The procedures for evaluating state secrets claims set in tribunals’ governing documents are often ambiguous, prompting divergent approaches to implementation. The International Criminal Tribunal for the former Yugoslavia’s (ICTY) qualified state secrets privilege approach and the ICC’s absolute approach are derived from the varied procedures set in their charters. This section reviews this split, emblematic of the two prevailing approaches to state secrets privilege in international criminal law, beginning with the ICTY’s qualified approach.[17] The qualified approach was first applied by the ICTY in the case against General Tihomir Blaškić, the Ahmići Massacre executioner. At dawn on April 16, 1993, General Blaškić sat with his entourage on a wooded hill outside the Lašva Valley. The young Croatian general left nothing to chance. Phone lines were cut.[18] Roads were blocked.[19] Within forty-eight hours, Ahmići’s small civilian population of Muslim Bosniaks was dead.[20] Ruins smoldered for weeks, landmarked only by the remains of two decimated mosques.[21] Over 100 bodies lay under rubble and in open fields, some straining towards the surrounding woods, frozen in their efforts to escape.[22] The Ahmići Massacre was just one episode in the Srebrenica Genocide. The fall of Yugoslavia coincided with rising ethnographic tensions catalyzed by nationalistic rhetoric.[23] Skirmishes grew bloody, militias assimilated into militaries, and ethnic minorities bore the violent consequences of leaders’ scapegoating rhetoric.[24] The UN Security Council, eager to stabilize post-Soviet Europe, established the ICTY to adjudicate then-suspected war crimes.[25] Newly-reformed Croatia ostensibly cooperated with the ICTY’s inquiry, simultaneously disappearing evidence and sabotaging the investigation.[26] Croatian obstruction only ebbed when its new national leadership made some of the state-sponsored obfuscation public in an effort to strengthen European partnerships.[27] But Croatia’s residual concerns for national shame tempered full disclosure of war crimes evidence. An assertion of state secrets privilege halted the ICTY’s investigation into General Blaškić’s crimes. Briefed and argued, the Trial Chamber delivered a ruling to end the Prosecutor and Croatian government’s scrum over disclosure. The Chamber dismissed Croatia’s absolutist vision of the state secrets privilege in favor of the Prosecutor’s proposed qualified approach.[28] The Chamber held that “national security claims by a resistant state do not deserve automatic deference,” that “[t]he state's valid interest in the protection of sensitive information must be weighed against the need for probative evidence,” and that the state’s secrecy claim may be overcome by humanity’s need for evidence.[29] The Chamber proposed a process tailored to accommodate the inquiry while maintaining secrecy: upon a specific assertion of privilege detailing what and why particular material implicates national security, the court must review contested material in camera[30] (and may review ex parte upon request).[31] The tribunal must admit material where the prosecution’s need overcomes the state’s concern for national security and must secrete the rest.[32] An absolute bar to tribunal examination is only appropriate in an “exceptional case” where a state shows that some materials are extremely “delicate” through generic representations and to the tribunal’s satisfaction.[33] The Tribunal applied the new procedure, analyzed the contested material, and unanimously quashed the Prosecutor’s subpoenas.[34]While observers are left to wonder what materials were contested, the powerful procedural precedent remains. Indeed, Blaškić is the closest an international criminal tribunal has ever been to overcoming a state secrets privilege claim because it is the only case in which the court examined the contested material before honoring the claim.[35] The ICTY’s inception and the Blaškić case predate the ICC, the permanent international criminal tribunal and default venue for the world’s most heinous offenses. Reflecting apprehension for the consequences of the Blaškić decision, the ICC’s governing charter (the Rome Statute) stipulated a far more defendant-deferential approach than the ICTY’s state secrets privilege.[36] The Rome Statute permits the ICC to reject its prosecutor’s requests for material or its own subpoenas when a state “confirm[s]” that disclosure to the court would “prejudice” its national security.[37] That deference to a party’s claim without interrogation effectively delegates investigative discretion to national governments. The statute places the fate of the investigation and, “potentially, . . . the case” in the hands of a state “with no direct way for the Court to gainsay[,] second-guess,” or even review “the state’s assessment.”[38] The ICC is optionless if the sought information can only be retrieved with state approval and a state asserts a state secret claim. The prosecutor can attempt to bargain with the state, but any offers or sanctions are at the other side of political quagmires in the ICC Assembly of State Parties or the UN Security Council.[39] At bottom, the successful result of a state secrets claim is all but a foregone conclusion in the ICC, but the ICC has never heard a claim. The ICC’s power to overcome state secrets claims pales in comparison to that of the ICTY. The ICC’s inquiry is defeated by an obstinate state’s mere assertion of the privilege, while the ICTY’s inquiry soldiers on to examine the contested evidence and overcome the assertion when the weight of humanity’s demand for justice overcomes a state’s interest in national security. The ICC is satisfied to keep the contested material a mystery while the ICTY examines it in camera. The ICTY’s qualified state secrets approach presents far greater adjudicative opportunities than the ICC’s absolutist one. II. The Untenable Consequences of an Absolutist Privilege: An American Comparison Contemporary American state secrets doctrine illustrates the perils of an absolute approach. American courts have slowly sandbagged state secrets, ultimately creating a nigh impenetrable barricade barring disclosure.[40] The fallout demonstrates the stopping power of an absolutist privilege in practice and the likely outcome if the privilege was raised in the ICC. The American state secrets privilege was qualified at conception. In United States v. Reynolds, the Supreme Court embraced a balancing test weighing the public interest in limiting the risk of disclosing military secrets against the private interest in relief.[41] Reynolds directed courts to tip the scale toward the public interest if the material wasn’t necessary for the non-claimant’s case or if the non-claimant could find the material elsewhere, albeit at the risk of foregoing the government’s authenticating seal through compelled governmental disclosure.[42] Reynolds further directed future courts to only inspect potentially privileged material when surrounding circumstances show that the claim is unreasonable, relying on the executive principals’ good faith and virtue.[43] The Court ultimately designed a qualified privilege pitting interest against interest with deference to government.[44] In the seventy years since Reynolds, courts have warped deference into devotion. State secrets claims rarely barred disclosure of information at the heart of litigation before the World Trade Center was attacked.[45] Courts feared that adopting an absolutist interpretation of the privilege “and the consequent denial of a forum without giving the plaintiff her day in court . . . [was] indeed draconian.”[46] Today, in a good faith effort to revalue national security interests, courts near-totally accept privilege assertions with lip service to the Reynolds balancing test.[47] Courts even maintain the privilege when “the very subject of the action [is] a state secret,” perhaps a clear showing of necessity and therefore a situation that the Reynolds Court expected to warrant disclosure.[48] For all practical purposes, America’s state secrets doctrine has turned absolute. The doctrinal shift from qualified to absolute has turned the state secrets privilege into a bar to litigation in American courts despite widespread criticism.[49] The public[50] and practitioners[51] alike decry the court’s willingness to foreclose remedy without interrogating the very materials they safeguard. Broadly, the new absolute approach to the state secrets privilege undermines accountability in America.[52] The extinguishing power of an absolutist state secrets doctrine applies to American and international courts alike. Like the American people, the international community fears a doctrinal obstacle that all but bars accountability.[53] The absolute approach to the state secrets privilege in America is a bellwether for those in the international community assessing the ramifications of applying a similar doctrine in international criminal courts. The consequences of the American approach show that an absolute privilege will swiftly defeat a tribunal’s investigations into secretive states. The Qualified Privilege’s Superiority The split between qualified and absolute approaches to state secrets in international criminal law is emblematic of an underlying debate. Advocates of a qualified privilege believe it is necessary to pave an avenue to accountability and to deter future war crimes. Those in favor of an absolute privilege fear that war crimes demand a proportionate military response before a tribunal can hope to apprehend or prosecute perpetrators and that broad secrecy protection is necessary to enable that response. This section does not engage the broader debate; it only seeks to compare the two approaches and analyze which ensures the best chances of legal accountability for Russian war criminals. I conclude that a qualified privilege does produce a better chance at holding Russian war criminals accountable than the absolute approach. There is a third, alternative approach to state secrets doctrine worth evaluating before analyzing the comparative merits of the qualified and absolute approaches: eliminating the state secrets privilege altogether. One might presume that eliminating an inhibitory privilege maximizes the chances of criminal accountability. But eliminating the privilege impracticably ignores compelling countervailing forces. Deference to sovereignty, manifested in a state secrets privilege, is an international political necessity[54] and a representation of the legal principle of state sovereignty.[55] International criminal tribunals cannot abolish the state secrets privilege because political demand and national sovereignty demand it. The qualified and absolute state secrets privilege are the sole subjects of this paper’s analysis because they have proven politically viable and sufficiently deferential to sovereignty. The question remains: which approach maximizes a powerful interest in criminal accountability? A qualified state secrets approach broadens the path to criminal accountability. A qualified approach tempers zealous prosecution with adherence to the principle of presumed innocence. Advocates of a qualified approach do not perceive that compromise as a failure. While they fear that a doctrinal barrier to prosecution might allow some war criminals to run free,[56] they caution against a future where judicial expediency dispenses with deliberation–one where punishment is dictated by vendetta, not fact.[57] Instead, qualified state secrets doctrine advocates assert that accountability can be achieved through dispassionate truth seeking. Blaškić’s qualified approach reflected those ideals of “duty and process” by allowing the court, a neutral magistrate, to examine the contested evidence and weigh competing interests in disclosure.[58] Put simply, an international criminal tribunal’s capacity to hold criminals to account is heightened when the tribunal can evaluate and find that the international interest in justice overcomes the state interest in national security represented by a state secrets claim. The absolute approach trades the prospect of accountability for broader immediate response capabilities. Advocates of an absolute state secrets privilege allow that atrocity is inevitable; power is fragile and control through abusive oppression is a time-tested tactic.[59] The only hope of redress short of a hot war is to protect clandestine statecraft, espionage, and warfare for the sake of, paradoxically, peace.[60] Responses to atrocity are empowered when their tools and tactics are predictably secret and cannot be exposed by a retaliatory (or diligent) war crimes prosecution.[61] An absolutist doctrine may inadvertently protect bad actors in the long-run when a response to atrocity fails and war criminals avail themselves of state secrets claims before a tribunal, but its advocates retain that the risk is a permissible cost for emboldening swift military responses to war crimes.[62] At their core, absolutist advocates believe executive action is better equipped to curtail abuse than adjudication. An absolute state secrets doctrine may limit legal accountability, but it effectively prevents war crimes by enabling immediate response. Four features of the absolute approach show the qualified approach’s superior ability to ensure accountability. The first is the absolutist approach’s self-defeating paradox: you cannot prevent war crimes by creating a system that hides them. Sacrificing chances for adjudication for the sake of emboldening responders creates cycles of violence.[63] Shielding a responding state from accountability may elicit a disproportionate and brutal response in the interest of ending the conflict quickly[64] only to see that escalation repaid twofold.[65] In short, an absolute privilege not only limits chances of criminal accountability, it grows the tribunal’s docket. Conversely, a qualified privilege deters war crimes by permitting a prospect for transparency and accountability. Second, the ramifications of an absolute privilege on a tribunal’s popular support hamper criminal accountability. An absolute state secrets privilege emboldens the sentiment that states can escape scrutiny with a meritless privilege claim. That solemn conclusion undermines investments in international criminal tribunals,[66] eviscerating their chances of holding war criminals to account. Third and most essentially, the absolute approach’s limit on judicial inquiry acutely narrows opportunities for adjudication. Preventing the tribunal from examining contested information and weighing competing interests in disclosure only permits surface-level evaluation of a claim. A tribunal faced with a state secrets claim has a far greater opportunity to reach adjudication if it can examine the contested records and weigh competing disclosure interests than it would if it could only gleam a claim’s merits from bare assertions and circumstance. Between the two, the qualified approach broadens opportunities for accountability while the absolute approach narrows them. Fourth and finally, while the qualified state secrets approach has not yet yielded to a war crimes prosecution’s investigation, it remains the accepted formulation that maximizes the opportunity to hold war criminals accountable. International criminal tribunals have so far failed to overcome state secrets claims, including in the ICTY when a qualified approach empowered the tribunal to interrogate the material in question and weigh competing interests to reach its determination. But the universe of state secrecy claims in international criminal courts is small and doesn’t exhaust hope for overcoming privilege claims. A future tribunal’s prospects for overcoming a state secrets claim are greater when the claim faces a qualified approach’s scrutiny than when it faces an absolute approach’s near-bar to litigation. In short, international criminal tribunals inability to overcome a state secrets claims does not support the notion that qualified and absolute approaches yield equally impassible results. The facial differences between the qualified and absolute approaches show the qualified approach’s superior capacity to deliver accountability in the future. On the whole, a qualified state secrets doctrine better serves the criminal accountability in international criminal tribunals. The absolute approach exacerbates the frequency of war crimes, it inhibits a tribunal’s capacity to pursue war criminals, and it narrows the opportunities to overcome a state secrets privilege claim. Comparatively, the qualified state secrets approach delivers the best chances of overcoming a state secrets claim and, therefore, holding war criminals to account. IV. A Qualified Doctrine Can Hold Russia to Account International criminal tribunals should embrace a qualified state secrets privilege to open avenues to criminal accountability as the investigation into Russian atrocities in Ukraine progresses.[67] If Russian war criminals are brought to trial at the ICC, the risk of a Russian state secrets assertion is near certain.[68] The ICC’s absolute approach effectively lends Russian defendants an easy avenue to escape serious investigation and ultimate accountability. Russia will surely sew disinformation and activate saboteurs to hamper the ICC’s investigation. Russia has a proven pattern: it will ostensibly comply with international accountability mechanisms as it undermines their efforts[69] and, if seriously threatened, close the iron curtain and condemn investigations as illegal or unconscionable.[70] The prospect of good will is nil. Acquiescence fails against this unscrupulous actor. Success necessitates an opportunity for adjudication and an undeterrable dedication to duty. An opportunity to adjudicate, in turn, demands a qualified privilege.[71] Without it, carpet assertions of state secret privilege could cripple the investigation. That sort of blow would likely lead a lame tribunal into obscurity. Though a significant barrier itself, a qualified privilege stands as the only politically viable[72] approach that permits effective adjudication against this criminal superpower. Conclusion This brief analysis addressed the perils of an absolute state secrets privilege and the need for a qualified approach in the ICC’s pursuit of Russian war criminals. Its terms are general and comprehensive scholarship demands more specific examinations of how applying a qualified privilege doctrine will influence future adjudication.[73] Yet the point remains that rising threats to humanity in Ukraine demand a workable solution. International criminal tribunals are uniquely qualified to address the world’s most extreme evils.[74] Put plainly, crimes against humanity deserve a response from humanity and international criminal tribunals are the only criminal mechanisms that exercise humanity’s authority.[75] In an age when human rights are imperiled[76] and international criminal tribunals offer a rare forum for justice,[77] we should buttress international criminal tribunals’ capacity to hold war criminals accountable. That capacity is at dire odds with a quicksand snare eking toward an absolute state secrets privilege. The qualified approach appropriately tempers state interests in sovereignty and national security with multi-state interests in human rights and unencumbered adjudication.[78] The qualified approach raises the hopes of successful prosecution to their zenith. An absolute approach, manifested in the ICC’s governing statute, destroys it. The world cannot acquiesce to forceful assertions of state secrets privilege and risk an outcome where war criminals walk free. Our humanity and the people of Ukraine depend on it. ◍ [1] Trigger warning: this essay includes descriptions of violence and war. [2] Cara Anna, War Crimes Watch: A Devastating Walk Through Bucha’s Horror, AP News, April 9, 2022, https://apnews.com/article/russia-ukraine-europe-war-crimes-7791e247ce7087dddf64a2bbdcc5b888. [3] Id. [4] Id. [5] Olena Harmash, Recalling Bucha Deaths, Zelensky Describes ‘Horrific Year in Kyiv Region, Reuters (Mar. 30, 2023, 8:31 AM), https://www.reuters.com/world/europe/recalling-bucha-deaths-zelenskiy-describes-horrific-year-kyiv-region-2023-03-30/. [6] Emma Graham-Harrison, ‘90% of houses are damaged’: Russia’s Syria-honed tactics lay waste Ukraine towns, The Guardian, March 4, 2022, https://www.theguardian.com/world/2022/mar/04/ninety-per-cent-of-houses-are-damaged-thousands-trapped-in-ukraines-small-towns. [7] Samantha Lock et al., Strike on children’s hospital ‘ultimate evidence that genocide is happening’ - as it happened, The Guardian, March 9, 2022, https://www.theguardian.com/world/live/2022/mar/09/ukraine-news-russia-war-ceasefire-broken-humanitarian-corridors-kyiv-russian-invasion-live-vladimir-putin-volodymyr-zelenskiy-latest-updates. [8] Peter Beaumont et al., Russia Accused of Shelling Mariupol Evacuation Route as Civilians Flee Sumy, The Guardian, March 8, 2022, https://www.theguardian.com/world/2022/mar/08/ukraine-war-civilians-sumy-irpin-refugees-russia; Yaroslav Trofimov, Russian Artillery Kills Ukrainian Civilians Fleeing Kyiv Suburb, Wall St. J., March 6, 2022, https://www.wsj.com/articles/russian-artillery-kills-ukrainian-civilians-fleeing-kyiv-suburb-11646575238. [9] Besieged Ukraine City of Mariupol Buries Dead in Mass Grave, Associated Press, March 9, 2022, https://apnews.com/article/russia-ukraine-mariupol-mass-grave-af9477cd69d067c34e0e336c05d765cc. [10] Yaroslav Trofimov & Alan Cullison, Ukraine Faces Fresh Wave of Attacks Focused on Population Centers, Wall St. J., March 6, 2022, https://www.wsj.com/articles/ukraine-resumes-evacuation-attempts-as-russia-presses-offensive-11646564330; Citing U.S. Intelligence, Biden Says Putin Has Decided to Invade Ukraine, N.Y. Times, March 13, 2022, https://www.nytimes.com/live/2022/02/18/world/russia-ukraine-biden-putin?. [11] Situation in Ukraine: ICC Judges Issue Arrest Warrants Against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, International Criminal Court (Mar. 17, 2023), https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and. [12] B. Sidler, Absolute Privileges, 43 Chi.-Kent L. Rev. 55, 55-56 (1966) [13] See generally Principles of Evidence in International Criminal Justice (Karim A. A. Khan, Caroline Buisman, & Christopher Gosnell eds., 2010); Emily Ann Burman, In Pursuit of Accountability: The Red Cross, War Correspondents, and Evidentiary Privileges in International Criminal Tribunals, 80 N.Y.U. L. Rev. 241 (2005). [14] See generally National Security and International Criminal Justice (Herwig Roggemann & Petar Sarcevic eds., 2002); Ruth Wedgwood, The International Criminal Tribunal and Subpoenas for State Documents, 71 Int’l L. Stud. 483, 484-95 (2015); Ariel Zemach, National Security Evidence: Enhancing Fairness in View of the Non-Disclosure Regime of the Rome Statute, 47 Israel L. R. 331, 335-45 (2014); David A. Nill, National Sovereignty: Must it be Sacrificed to the International Criminal Court?, 14 B.Y.U. J. Pub. L. 119, 130-35 (1999); Albin Eser & Kai Ambos, The Power of National Courts to Compel the Production of Evidence and its Limits, 6 Eur. J. Crime Crim. L. Crim. Just. 3, 3-18 (1998). [15] Ruth Wedgwood, International Criminal Tribunals and State Sources of Proof: The Case of Tihomir Blaskic, 11 Leiden J. Int’l L. 635, 644-48 (1998); Wedgwood, supra note 14, 484-90; Jacob Katz Cogan, The Problem of Obtaining Evidence for International Criminal Courts, 22 Hum. Rts. Q. 404, 407-10, 414-23 (2000); see also Guenael Mettraux, Comparing the Comparable: 2006 Military Commissions v. the ICTY, J. Int’l Crim. Just. 59, 60-66 (2007) (comparing American and ICTY national security evidentiary privilege doctrines). [16] The international community already struggles to adjudicate war crimes. David P. Forsythe, The UN Security Council and Response to Atrocities: International Criminal Law and the P-5, 34 Hum. Rts. Q. 840, 840, 862 (2012) (“[T]he [Security] Council has been consistently ‘seized’”); Those Who Commit Atrocity Crimes will ‘Ultimately be Brought to Justice’, Residual Mechanism for Criminal Tribunals Head Tells Security Council, United Nations (Jun. 8, 2021), https://www.un.org/press/en/2021/sc14544.doc.htm (“Delegates [w]arn about [d]angers of . . . [d]enying [g]enocide”). States are turning to dubious alternatives, including universal jurisdiction: legal action taken against a war criminal by a third-party state. Compare Kenneth Roth, The Case for Universal Jurisdiction, 80 Foreign Aff. 150, 150-52 (2001), and Mark R. von Sternberg, A Comparison of the Yugoslavian and Rwandan War Crimes Tribunals: Universal Jurisdiction and the “Elementary Dictates of Humanity,” 22 Brook. J. Int’l L. 111, 155-56 (1996), with Henry A. Kissinger, The Pitfalls of Universal Jurisdiction, 80 Foreign Aff. 86, 86, 95 (2001) (“The danger lies in punishing the efforts to extremes that risk substituting the tyranny of judges for that of governments”) and Yana Shy Kraytman, Universal Jurisdiction – Historical Roots and Modern Implications, 2 Brussels J. of Int’l Stud. 94, 108-17 (2005). [17] The ICTY and the ICC belong to a small universe of international criminal tribunals. The ICTY is an ad hoc tribunal created by the UN Security Council in 1993 to address crimes committed during the Srebrenica Genocide. About the ICTY, United Nations International Criminal Tribunal for the former Yugoslavia, https://www.icty.org/en/about# (last visited Apr. 10, 2022). The ICC is the only permanent tribunal. It was created in 2002 by the States Parties to the Rome Statute, a body representing a majority of UN members and all but one of the five permanent members of the Security Council at enactment. About the Court, International Criminal Court, https://www.icc-cpi.int/about/the-court (last visited Apr. 10, 2022); International Criminal court, Britannica, https://www.britannica.com/topic/International-Criminal-Court (last visited Apr. 10, 2022). The ICTY and ICC’s personal jurisdictions vary but they share several other features: they address war crimes, were chartered by significantly similar groups of states, and reflect the mainstream conceptions of international criminal law procedure of their time. International Criminal Tribunals, International Justice Resource Center, https://ijrcenter.org/international-criminal-law/internationalized-criminal-tribunals/ (last visited Apr. 10, 2022); Gideon Boas, Comparing the ICTY and the ICC: Some Procedural and Substantive Issues, 47 Netherlands Int’l L. Rev. 267, 282-90 (2000). [18] Tyler Mars, Witness Tells U.N. Tribunal of Shelling, Deaths, L.A. Times, June 16, 1996, https://www.latimes.com/archives/la-xpm-1996-06-13-mn-14466-story.html. [19] Transcript of Witness Abdulah Ahmić Testimony, Prosecutor vs. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, 3539-40, 3545, 3549 (Int’l Crim. Trib. for the Former Yugoslavia Jun. 10-11, 1999) (recounting testimony from a survivor given to the tribunal). [20] Ahmići: 48 Hours of Ashes and Blood, SENSE Transitional Justice Center (2019), https://ahmici.sensecentar.org/. [21] Tadeusz Mazowiecki, Situation of Human Rights in the Territory of the Former Yugoslavia: Final Periodic Report 4 (United Nations Commission on Human Rights, 1995). [22] Jonathan C.R., Ahmici Massacre – Bosnian Turning Point, Wash. Post, June 20, 1993, https://www.washingtonpost.com/archive/politics/1993/06/20/ahmici-massacre-bosnian-turning-point/1b312bef-89ba-4f40-8a99-3dcc6fec6b81/ (“[M]ost were those of elderly people, women, children, and infants.”) (original brackets omitted). [23] Prosecutor v. Kupreskic et al., Case No. IT-95-16, Summary of Trial Chamber Judgment, 1 (Int’l Crim. Trib. for the Former Yugoslavia Jan. 14, 2000); see generally Janusz Bugajski, Genocide After Emotion: The Postmotional Balkan War, 40 ORBIS 638 (1996); The Fall of Srebrenica and the Failure of UN Peacekeeping, Human Rights Watch (Oct. 15, 1995), https://www.hrw.org/report/1995/10/15/fall-srebrenica-and-failure-un-peacekeeping/bosnia-and-herzegovina#_ftnref10; David N. Gibbs, How the Srebrenica Massacre Redefined US Foreign Policy, 3 Class, Race and Corp. Power, Article 5, 2-4 (2015). [24] Gibbs, supra note 23, at 2-4. [25] S.C. Res. 827, ¶ 2; The Tribunal - Establishment, United Nations International Criminal Tribunal for the Former Yugoslavia, https://www.icty.org/en/about/tribunal/establishment# (last visited Feb. 21, 2022). [26] Ahmići: 48 Hours of Ashes and Blood, supra note 20 (stating that Croatian authorities moved inculpatory archival material beyond ICTY investigators’ reach and Croatian intelligence infiltrated the ICTY Prosecutor’s offices). [27] Id.; R. Jeffrey Smith, Croatia Moves to Expose Its Ugly Secret, Wash. Post, May 18, 2000, https://www.washingtonpost.com/archive/politics/2000/05/18/croatia-moves-to-expose-its-ugly-secret/f3cf2035-524e-45dc-a365-700a517b734c/. [28] The Trial Chamber held that “Articles 19 and 29 of the [ICTY’s governing statute], Security Council resolution 827, the Secretary-General’s Report, implementing legislation of States, and the status of the International Tribunal as a Chapter VII measure” compelled the ICTY to uphold the subpoena because there is “a clear obligation on both States and their officials to comply fully with [the subpoena’s] terms,” invoking state secrets claims does not automatically excuse a State or State official from compliance, and States must comply with requests for assistance or orders issued by the Tribunal. Prosecutor v. Blaškić, IT-95-14-T, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoena Duces Tecum, ¶¶ 86, 150 (Int’l Crim. Trib. for the Former Yugoslavia Jul. 18 1997) (hereinafter “Trial Chamber Decision”); Ruth Wedgwood, Case Analysis: International Criminal Tribunals and State Sources of Proof: The Case of Tihomir Blaskic, 11 LJIL 635, 639-42 (1998). [29] Wedgwood, supra note 28, at 643 (citing Trial Chamber Decision, supra note 28, at ¶ 131). [30] ICTY, Rules of Procedure and Evidence, Rule 66(C), IT/32/Rev.10 (Dec. 3 1996) (“Where information is in the possession of the Prosecutor, the disclosure of which may . . . affect the security interest of the State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from the obligation to disclose”). ICTY RPE, Rule 66(C) was subsequently amended. The current Rule 66(C) states: “Where information is in the possession of the Prosecutor, the disclosure of which may . . . affect the security interests of any State, the Prosecutor may apply to the Trial Chamber sitting in camera to be relieved from an obligation under the [Rules of Procedure and Evidence] to disclose that information.” ICTY, Rules of Procedure and Evidence, Rule 66(C), IT/32/Rev.50 (Jul. 8 2015). [31] Roland Bank, Cooperation with the International Criminal Tribunal for the Former Yugoslavia in the Production of Evidence, Max Planck Yearbook of United Nations Law, 233, 241-51 (2000). [32] Trial Chamber Decision, supra note 28, at ¶¶ 147-48, 148 n. 248 (allowing in camera and ex parte examination of contested material to determine the legitimacy of the state secrets claim). [33] Identities of human intelligence sources, for instance. Trial Chamber Decision, supra note 28, at ¶ 115 (“[T]he Judges of the [ICTY] . . . recognized the need to project the secrecy of information relating to national security.”). [34] Wedgwood, supra note 14, at 663 nn.34-36. Some have pondered how the tribunal might have proceeded had it overruled the state secrets claim only to face a noncompliant Croatia. See, e.g., Peter Malanczuk, A Note on the Judgement of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia on the Issuance of Subpoenae Duces Tecum in the Blaškić Case, 1 Yearbook of Int’l Humanitarian L. 229, 230-36 (2009). Some expect that the geopolitical forces empowering the ICTY prosecutor could compel reconstructing Croatia. Asa W. Markel, The Future of State Secrets in War Crimes Prosecutions, Mich. St. J. Int’l L. 411, 412 (2007) (regarding potential noncompliance with an ICC order); Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities, 95 Am. J. Int’l L. 7, 12 (2001); Eric Gordy, The Blaškić Trial: Politics, the Control of Information and Command Responsibility, 36 Southeastern Europe 60, 80-82 (2012). Others argue that the ICTY would be subject to Croatia’s whims. Anne-Laure Chaumette, The ICTY’s Power to Subpoena Individuals, to Issue Binding Orders to International Organisations and to Subpoena Their Agents, 4 Int’l Crim. L. Rev. 347, 380-89 (2004); Jacob Katz Cogan, The Problem of Obtaining Evidence for International Criminal Courts, 22 Hum. Rts. Q. 404, 418 (2000). I expect that both could be true; Croatia would relinquish some material and keep damning documents secret, thereby achieving some degree of international collegiality while maintaining a degree of dignity. [35] Markel, supra note 34, at 417-19. [36] Markel, supra note 34, at 419-21. [37] Rome Statute of the International Criminal Court art. 72, Jul. 17 1998, U.N., UN Doc. A/CONF. 183/9 (hereinafter “Rome Statute”). The “prejudice” standard was accepted in lieu of proposals that strengthened ICC compulsion power, including a draft provision that required a confirmation of “serious prejudice” (Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, The Netherlands art. 82(55), para. 2, option 2, subparas. (c)-(d), Feb. 4, 1998, U.N.G.A., UN Doc. A/AC.249/1998/L.13 (hereinafter “Zutphen Report”)) and another that vested the ICC with absolute compulsion power (Zutphen Report at art. 82(55), para. 2, option 1 (“A State Party shall not deny a request for assistance from the Court.”); Draft Statute for the International Criminal Court in Report of the Preparatory Committee on the Establishment of an International Criminal Court art. 91, para. 8, Apr. 14, 1998, U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court, UN Doc. A/CONF/183/2/Add.1). [38] This standard holds true even when the ICC is given complementary authority relative to a national prosecution because the national prosecution has proven “unwilling or unable genuinely” to carry out an investigation or prosecution. Wedgwood, supra note 14, at 647. [39] Rome Statute, supra note 37, at art. 72(7)(a)(ii). [40] See, e.g., Ian MacDougall, CIPA Creep: The Classified Information Procedures Act and Its Drift in Civil National Security Litigation, 45 Colum. Hum. Rts. 668, 684-85 (2013). Some scholars dispute the conclusion that modern American state secrets doctrine is absolute. See James Zagel, The State Secrets Privilege, 50 Minn. L. Rev. 875, 888-903 (1966). They comprise the minority view, one that this paper does not engage for the sake of brevity. Future scholarship may apply this minority view to the ICC’s potential prosecution of Russian war crimes in Ukraine. [41] United States v. Reynolds, 345 U.S. 1, 7-10 (1953); Carrie Newton Lyons, The State Secrets Privilege, 11 Lewis & Clark L. Rev. 99, 103 (“A critical aspect of the Reynolds holding is the Court’s formulation of a balancing test . . . . Essentially, courts are to weigh the showing of necessity made by those seeking the information against the appropriateness of the government’s invocation of the privilege.”). [42] Reynolds, supra note 41, at 11 (“[T]he showing of necessity which is made will determine how far the court should probe in satisfying itself that the occasion for invoking the privilege is appropriate.”). [43] Reynolds, supra note 41, at 8 (“[The privilege] is not to be lightly invoked. . . . The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing that the privilege is designed to protect”). [44] The Reynolds parties settled after the Supreme Court remanded. John Ames, Secrets and Lies: Reynolds’ Partial Bar to Discovery and the Future of the State Secrets Privilege, 39 N.C. J. Int’l L. 1067, 1073 (2014). The government effectively kept secret the records of an ill-fated U.S. Air Force flight that cost the lives of the plaintiff-widows’ spouses. Those records were disclosed in 2000, revealing that the only potentially sensitive information at risk was how a B-29 plane operated. Herring v. United States, 424 F.3d 384, 389 (3d Cir. 2005) (“There was no fraud because the documents, read in their historical content, could have revealed secret information about the equipment being tested on the plane and, on a broader reading, the claim of privilege referred to both the mission and the workings of the B-29.”). [45] MacDougall, supra note 40, at 685 (“Prior to 9/11, courts considered this denial of forum remedy rare.”) (citing Fitzgerald v. Penthouse Int’l Ltd., 776 F.2d 1236, 1241-42 (4th Cir. 1985); Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1299-1307 (2007); Robert M. Chesney, State Secrets and the Limits of National Security Litigation, 75 Geo. Wash. L. Rev. 1249, 1299-1307 (2006); Steven D. Schwinn, The State Secrets Privilege in the Post-9/11 Era, 30 Pace L. Rev. 778, 779-81 (2009). [46] In re United States, 862 F.2d 472, 477 (D.C. Cir. 1989). [47] See, e.g., David Rudenstine, The Courts and National Security: The Ordeal of the State Secrets Privilege, 44 U. Balt. L. Rev. 37, 59-81 (2014). [48] El-Masri v. United States, 479 F.3d 296, 306 (4th Cir. 2007) (affirming dismissal by a claim involving a six-month detention involving torture due to a mistaken identity because the detention and torture were deemed states secrets); MacDougall, supra note 40, at 684-93. [49] MacDougall, supra note 40, at 686; Shirin Sinnar, Procedural Experimentation and National Security in the Courts, 106 Cal. L. Rev. 991, 1001-06 (2018). [50] See, e.g., Elizabeth Goitein & Frederick A. O. Schwarz, Jr., Congress Must Stop Abuses of Secrets Privilege, Brennan Center for Justice, December 14, 2009, https://www.brennancenter.org/our-work/research-reports/congress-must-stop-abuses-secrets-privilege. [51] See, supra note 39. [52] Aziz Huq, Dangerous Discretion, State Secrets, and the El-Masri Rendition Case, Jurist, Mar. 12, 2007, https://www.brennancenter.org/our-work/research-reports/dangerous-discretion-state-secrets-and-el-masri-rendition-case; Daniel J. Huyck, Face to Black: El-Masri v. United States Validates the Use of the State Secrets Privilege to Dismiss “Extraordinary Rendition Claims, 17 Minn. J. Int’l L. 435, 457-58 (2008) (“dismissing El-Masri’s claim based on the state secrets privilege blocks almost every formal channel for government accountability”); Rudenstein, supra note 47, at 37-45. [53] Zemach, supra note 14, at 349 (“[E]ven weak states are in a position to defy international justice”); Wedgwood, supra note 28, at 647 (“[T]he ICC . . . must defer to national prosecutions of war crimes, unless the nation state is ‘unwilling or unable genuinely’ to carry out the investigation or prosecution.”) (quoting Rome Statute, supra note 37, at art. 17); Id. (“[T]he ICC cannot demand to see the national security documents on which to ground an independent assessment of prejudice to national security, nor can the ICC presume to weigh in the balance the relative equities of protecting national security information versus the importance of pursuing a prosecution. If the state’s refusal to turn over national security information is made in good faith, that is the end of the matter, and potentially, the end of a case.”). [54] Wedgwood, supra note 28, at 646 (discussing the political evolution of the ICC’s state secrets privilege evolution); see supra note 34. [55] Michael J. Struett, The Transformation of State Sovereign Rights and Responsibilities Under the Rome Statute for the International Criminal Court, 8 Chapman L. Rev. 172, 172-73 (2005); Adrian Jones, Continental Divide and the Politics of Complex Sovereignty: Canada, the United States and the International Criminal Court, 39 Canadian J. Pol. Sci., 277, 237-42 (2006). [56] Wedgwood, supra note 14, at 483 (“The internationalization of war crimes prosecutions is seen as a way to restore confidence and allow reconciliation.”); Internationalized Criminal Tribunals, International Justice Resource Center, https://ijrcenter.org/international-criminal-law/internationalized-criminal-tribunals/ (last visited Mar. 13, 2022) ("International criminal tribunals exist to investigate and prosecute individual people for serious violations of international criminal law or international humanitarian law – such as war crimes, genocide, and crimes against humanity – when national authorities are unable or unwilling to do so."). [57] Sang Hyun-Song, The Role of the International Criminal Court in Ending Impunity and Establishing the Rule of Law, United Nations, https://www.un.org/en/chronicle/article/role-international-criminal-court-ending-impunity-and-establishing-rule-law; Wedgwood, supra note 28, 644 (noting that the ICTY predicted that “that many national governments may resist [disclosure], despite the ethical standards that surround the international judiciary, for there is often a reluctance to disseminate sensitive information even to a highly regarded official of foreign nationality.”); compare James F. Alexander, The International Criminal Court and the Prevention of Atrocities: Predicting the Court’s Impact, 54 Vill. L. Rev. 1, 9-29 (2009) with Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 Am. J. Int’l L. 7, 10-25 (2001). [58] Wedgwood, supra note 28, 644 (“[a]ny blanket exemption for national security information could cripple the enforcement of command responsibility, since the records of military operations lie at the center of proof of a commander's conduct.”). [59] Emily Sohn, Is War Inevitable? Debate Ranges Among Anthropologists, NBC News, July 18, 2013, https://www.nbcnews.com/sciencemain/war-inevitable-debate-rages-among-anthropologists-6c10680040; Frank Vogl, Is Genocide Inevitable?, The Globalist, June 15, 2015, https://www.theglobalist.com/is-genocide-inevitable/. [60] Lynn F. Fischer, Espionage: Why Does it Happen?, Department of Defense Security Institute, 1, https://www.hanford.gov/files.cfm/whyhappens.pdf; Less Pressman et al., Sabotage and National Defense, 54 Harv. L. Rev. 632, 644-46 (1940). [61] Thomas G. Stacy, The Constitution in Conflict: Espionage Prosecutions, the Right to Present a Defense, and the State Secrets Privilege, 58 U. Colo. L. Rev. 177, 237-46 (1987); Erin M. Stilp, The Military and State-Secrets Privilege: The Quietly Expanding Power, 55 Catholic U. L. Rev. 831, 836-37 (2006). This factor does not assume that a responding force’s efforts are necessarily criminal; it merely assumes that secrecy makes them more effective. See, e.g., Note, The Military and State-Secrets Privilege: Protection for the National Security or Immunity for the Executive?, 91 Yale L. J. 570, 570-73 (1982). [62] Wedgwood, supra note 14, at 494 (“In a world in which it is dangerous to compromise human intelligence sources and the capability of national technical means, this is a wise exception.”). [63] The court worried that reducing weight on the scale by yielding to “Croatia's claim of an unbounded national security privilege would shield ‘documents that might prove of decisive importance to the conduct of trials’ and would ‘be tantamount to undermining the very essence of the International Tribunal's functions.’” Wedgwood, supra note 14, at 493 (citation omitted). [64] Conor Friedersdorf, Using the ‘Top Secret’ Stamp to hide Lies and War Crimes, The Atlantic, Apr. 8, 2014, https://www.theatlantic.com/politics/archive/2014/04/using-the-top-secret-stamp-to-hide-lies-and-war-crimes/360228/; Claire Finkelstein, How the State Secrets Doctrine Undermines Democracy, Bloomberg Law, Mar. 28, 2022, https://news.bloomberglaw.com/us-law-week/how-the-state-secrets-doctrine-undermines-democracy. [65] Lionel Beehner, Torture, the United States, and Laws of War, Council on Foreign Relations, Nov. 11, 2005, https://www.cfr.org/backgrounder/torture-united-states-and-laws-war. [66] Facing Political Attacks, Limited Budget, International Criminal Court Needs Strong Backing to Ensure Justice for Atrocity Crimes, President Tells General Assembly, United Nations, Oct. 29, 2018, https://www.un.org/press/en/2018/ga12084.doc.htm; Jane Stromseth, Is the ICC Making a Difference?, Just Security, Dec. 6, 2017, https://www.justsecurity.org/47717/icc-making-difference/. [67] Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 State Parties and the Opening of an Investigation, International Criminal Court, March 2, 2022, https://www.icc-cpi.int/Pages/item.aspx?name=2022-prosecutor-statement-referrals-ukraine. [68] Anthony Deutsch & Toby Sterling, ICC Faces “Myriad Challenges” to Prosecute War Crimes in Ukraine, Reuters, March 4, 2022, https://www.reuters.com/world/icc-faces-myriad-challenges-prosecute-war-crimes-ukraine-2022-03-04/; Zoha Siddiqui et al., Could Putin Actually Face Accountability at the ICC?, Foreign Policy, March 4, 2022, https://foreignpolicy.com/2022/03/04/icc-investigation-russia-ukraine-putin-war-crimes/; Haggae Matsiko, Are Super Powers Undermining the ICC?, Global Policy Forum, June 9, 2010, https://archive.globalpolicy.org/security-council/security-council-as-an-institution/the-power-of-the-veto-0-40/the-veto-and-the-icc-in-the-security-council/49195-are-super-powers-undermining-the-icc.htm; Morgan Chalfant, Secretive Russian GRU Tests Trump with Brazen Tactics: Russia’s Most Aggressive Spy Agency Poses Global Challenge, The Hill, September 13, 2018. [69] Filippa Lentzos & Jez Littlewood, How Russia Worked to Undermine UN Bioweapons Investigations, Bulletin of the Atomic Scientists, December 11, 2020, https://thebulletin.org/2020/12/how-russia-worked-to-undermine-un-bioweapons-investigations/; Derek Averre & Lance Davies, Russia, Humanitarian Intervention and the Responsibility to Protect: The Case of Syria, 91 Int’l Aff. 813, 823 (2015). [70] Andrei Kolesnikov, Russian Ideology After Crimea 18-20 (Carnegie Moscow Center, 2015); Mikhail Suslov, Russian Conservatism as an Ideology: The Logic of Isolationism in Contemporary Russian Conservatism 88-94 (Mikhail Suslov & Dmitry Uzlaner eds., 2019); Alexandra V. Orlova, Sovereignty, Dissent, and the Shaping of International Consensus Around Human Rights: An Examination of Russian “Disengagement” from the European Court of Human Rights, 35 Ariz. J. Int’l Comp. L. 435, 462-66 (2018). [71] A qualified privilege could be effectuated by amending the Rome Statute to reflect the qualified approach (Rome Statute, supra note 37, at arts. 121-22 (prescribing the process for ratifying amendments); Assembly of State Parties, Amendment to Article 8 of the Rome Statute of the International Criminal Court (Intentionally Using Starvation of Civilians), C.N.394.2020.TREATIES-XVIII.10.g (2019) (recently amending the Rome Statute)) or establishing an ad hoc tribunal to address Russian war crimes in Ukraine akin to the ICTY (Guénaël Mettraux, General Remarks – The Creation and Jurisdiction of the Ad Hoc Tribunals in International Crimes and the Ad Hoc Tribunals 3-4 (2010); Overview, Rome Statute of the International Criminal Court, https://legal.un.org/icc/general/overview.htm (last visited Mar. 14, 2022)). [72] This paper does not address the important practical question of whether and how the State Parties to the Rome Statute can adapt the Rome Statute to include a qualified state secrets privilege. Others have argued that it is possible under the very circumstances presented by the Russian atrocities in Ukraine: a hyper-secretive state with exclusive domain over necessary information and an international community uniformly opposed to placation. Markel, supra note 34, at 419-34; Wedgwood, supra note 14, at 495 (noting that the Blaškić procedure has yet to prove “a workable institution or a stillborn structure” in the ICC). [73] Kevin M. O’Connell, Thinking About Intelligence Comparatively, 11 Brown J. World Aff. 189, 191-98 (2004) (implying that American, British, Russian, Chinese, and Israeli governments are among the most secretive in the world); Monroe Leigh, The United States and the Statute of Rome, 95 Am. J. Int’l L. 124, 128 (2017) (“[An] important aspect of the [United States]’s objection to the treaty [to establish a permanent International Criminal Court] is that, if . . . the ICC exercises jurisdiction over a member of one of the military services or over a civilian official such as the secretary of defense . . . , the ICC will place itself in the position of passing judgment on the legality under international law of U.S. national-security decisions.”); Simon Chesterman, The Spy Who Came In from the Cold War: Intelligence and International Law, 27 Mich. J. Int’l L. 1071, 1123-24 (2006). [74] Compare Patricia M. Wald, The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-to-Day Dilemmas of an International Court, 5 Wash U. J. L. 87, 113-118 (2001) (recounting the ICTY’s unique advantages) with Bartram S. Brown, Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals, 23 Yale J. Int’l L. 383, 430-33 (1998) (arguing international criminal tribunals’ failures). While many scholars agree that international criminal tribunals are best suited for their challenging tasks, they contend that they achieve limited results. Christopher Rudolph, Constructing an Atrocities Regime: The Politics of War Crimes Tribunals, 55 Int’l Org. 655, 685-91 (2003). [75] Rome Statue of the International Criminal Courts, United Nations Office of Legal Affairs (1998), https://legal.un.org/icc/general/overview.html; Clare Frances Moran, The Problem of the Authority of the International Criminal Court, 18 Int’l Crim. L. Rev. 883, 886-92 (2018); Tonya J. Boller, The International Criminal Court: Better than Nuremberg?, 14 Ind. Int’l & Comp. L. Rev. 279, 313-14 (2003). [76] Michelle Bachelet, U.N. High Commissioner for Human Rights, Remarks on the State of the World’s Human Rights after COVID-19 at the Network 20/20 Summit (Oct. 29, 2020), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=26445&LangID=E. [77] International criminal tribunals also have the capacity to establish and maintain human rights norms. See, e.g., Hyun-Song, supra note 57; Tara Kibler, The Nuremberg Trials and Their Profound Impact on International Law, HeinOnline Blog (Oct. 1, 2019), https://home.heinonline.org/blog/2019/10/the-nuremberg-trials-and-their-profound-impact-on-international-law/; Wolfgang Schomburg, The Role of International Criminal Tribunals in Promoting Respect for Fair Trial Rights, 8 Nw. J. Int’l Hum. Rts. 1, 1-2 (2009). [78] Roggemann, National Security and Protection of the State in National and International Criminal Procedure: Systematic and Comparative Aspects, in National Security and International Criminal Justice, supra note 14, at 3-10.

Manavendra Gupta is a 2023 LL.M. candidate at Berkeley Law. The average consumer often experiences a power imbalance when embroiled in disputes with giant corporations. These legal conflicts arise in various forms and exist globally. Be it homebuyers betrayed by builders who divert their deposits and fail to deliver homes on time, patients in hospitals during COVID-19 whose medical bills were not honored by insurance companies, consumers who are duped through improperly inflated utility bills, or customers whose grievances are ignored by e-commerce giants. Litigation seldom benefits the average person. The endless resources of corporations for inflicting long-drawn, expensive court battles dwarf the meager resources of working families. In these cases, a method of redress having the virtues of both a fair and cost-effective mode of adjudication and a firm and rapid enforcement of relief is required. This kind of adjudication comes in the mechanism of a smart contract (“SC”). N. Szabo, “Smart Contracts: Building Blocks for Digital Markets”, Extropy 16 (1996). Combining SC and traditional arbitration merges SC's speed with arbitration's fairness. This creates a robust dispute resolution model. SC is noted for its instant enforceability. It works on an “if-then” code model and is embedded with a prescribed criterion. When the criterion is met, the blockchain automatically releases the virtual currency kept in escrow. Think of it like a vending machine, where you decide what you want and insert money into the device. Once you click on the button or insert the code for the item of the same value, the machine automatically releases it. With a slight tweak, SC can replace the traditional consumer contract that inevitably favors the corporation. The problem with SC is that its execution is a little too rapid, and the process lacks any method of adjudication. Some adjudication becomes essential because of SC’s inherent limitations, such as permanence and immutability. SC is also unable to account for commercial realities between contracting parties. If SC is used alone, consumers would execute the contract immediately, but corporations would feel aggrieved for not being heard on their objections. Without due adjudication, execution of SC would be quick but not necessarily fair. On the other hand, arbitration promises fast and cost-effective adjudication but lacks a mechanism for speedy enforcement of the award. If arbitration is used alone, assuming consumers have favorable awards, then they will still need to resort to the very courts they wanted to avoid for enforcement. Many consumer contracts include the arbitral remedy, but this has proved highly ineffective. The corporation either appoints the arbitrator unilaterally or else habitually challenges the award, preventing speedy enforcement. For consumer disputes, the “SC-arbitration” model with a fusion of SC and arbitration is the best of both worlds. Under this scheme, the consumer can use the transparent digital ledger in the SC blockchain to easily understand contractual obligations, monitor the transactions undertaken by the corporation, and ensure that funds are utilized appropriately. SC may also suit a corporation that faces defaults by its subscribers. When a dispute arises, a short cooling-off period can be mandated before execution of the SC for the aggrieved party. This quickly invokes the arbitral remedy. Arbitration can adapt to evolving technologies and even operate virtually. Therefore, it can be embedded in the SC itself. Parties can agree either to nominate an arbitrator in advance from a randomly generated list on the SC blockchain or opt for institutional arbitration. The mode of appointment should be required when “signing” the SC to prevent a unilateral appointment of an arbitrator by the corporation. SC can then make the award of the arbitrator the prescribed criterion required to be met in its blockchain for contract execution. The “multi-sig” algorithm can be used for this purpose. See K. Itakura and K. Nakamura. A public-key cryptosystem suitable for digital multisignatures. NEC Research and Development, 71:1–8 (1983). Multi-sig confers rights on multiple users, including third parties, to execute a digital transaction. The arbitrator can (as one such user), upon delivering the award, transfer the virtual currency stored in the blockchain instantaneously to the successful party with the mere click of a button. Even in the absence of virtual currency, where parties are dealing in fiat money, SC can securely encrypt the bank account details of parties in the blockchain. The bank can be added to the multi-sig list and can hold another key to execute the SC upon notification by the arbitrator. Thus, the SC-arbitration model will prove to be a fair, speedy and self-contained remedy. The SC-arbitration model can significantly solve the problem of unequal bargaining power in commercial transactions and deliver a just outcome. Where SC will be deficient in adjudication, the arbitral method will provide fair decision-making. When arbitration is weak in enforcement, SC provides strength. As the world is rapidly shifting from brick-and-mortar establishments to AI and e-commerce, the SC-arbitration model simply and efficiently resolves global disputes.

About the Author: Mr. Mayank Jain is a 3rd year B.A. LL.B (Hons.) student at O.P. Jindal Global University. Image by Official U.S. Navy Page available here. Introduction Under Paragraph 6 of the United Nations Convention on the Law of the Sea (UNCLOS) Preamble, the area of the seabed is regarded as res communis, i.e., the common heritage of mankind. This essentially means that all resources that can be explored and exploited in the seabed area, like polymetallic nodules and sulphides, are for the benefit of the global community. The 1994 Agreement, which covers the implementation of Part XI of UNCLOS, created the International Seabed Authority (ISA) for this purpose. The ISA was created with the intent to (i) control all forms of exploration and exploitation activities in the seabed area and (ii) protect the marine environment from the harmful effects of deep seabed mining. The biggest shortcoming of the ISA is the fact that the body to date has only been able to issue exploration contracts; no actual seabed mining activity has taken place. Thus, the regulatory framework envisioned under this body is merely theoretical and is yet to manifest into reality. To conduct deep seabed mining, prior permission must be granted by the ISA. Annex III Art. 3 of UNCLOS sets out two preconditions to conduct deep seabed mining: (i) there must be a State party, and (ii) approval must be taken from the regulatory body. This means that mere signatories are disenfranchised from carrying out mining projects under the UNCLOS regime. Furthermore, Art. 137 of UNCLOS prohibits unilateral seabed mining, thus, making ISA approval mandatory. To fulfil the objective of the common heritage of mankind, Art. 140 of UNCLOS states that the ISA must distribute any financial or other economic benefits derived from the activities in the seabed region to other nations. Analysing the US Model This piece primarily aims to analyse the following question: do the rules of the ISA’s mining regime create any legally binding obligations for non-state parties or signatories? Art. 38(1)(b) of the Statute of the International Court of Justice lists international customs as a source of law. The International Court of Justice (ICJ) in the North Sea Continental Shelf case concluded that for a rule to be deemed as customary international law, it must envisage two elements: (i) consistent and wide State practice, and (ii) opinio juris, i.e., following such a rule because it is presumed to create legally binding obligations. In Eritrea-Ethiopia Claims Commission, the Commission adopted the “nearly universal acceptance” as the standard for determining whether an impugned rule had customary status. The International Law Commission (ILC) has noted that the number of parties to a treaty may be a significant factor in determining whether a particular rule in the instrument reflects customary status. Many States that do not support the regime also argue that deep seabed mining outside the Convention would not only be viable but also not legal. Ever since the implementation of Part XI, there has been overwhelmingly consistent State conduct evidencing prohibition of unilateral seabed mining. This regime has also allowed for all claims regarding seabed mining to be dealt under a centralised system. Leaving aside the exception of Kosovo, nearly 165 countries have acceded to UNCLOS, around 150 of those countries have ratified the 1994 Agreement, and nearly 30 States sit as observers at ISA. Even the mere observer status is testimony to the fact that these States recognise the existence and the functions to be carried out by ISA. Art. 7(1) of the 1994 Agreement provided for provisional application of the agreement for certain actors including those that were signatories to the 1994 Agreement. The United States of America (US) was also granted this provisional status as it had shown its partial interest in the regime by signing the agreement. The US believed that the 1994 Agreement intended to restructure the mining regime on the free market concept, which is in line with the US narrative that the common heritage of mankind is analogous to private economic activity. However, the failure of the US to ratify the Convention resulted in the expiry of their provisional application on 16 November 1998. The US still actively engages in the working of the ISA as an observer. The empirical case study of the US helps to answer whether the mining regime has gained customary status. Art. 34 of the Vienna Convention on the Law of the Treaties highlights the sovereign independence and equality of States by stating that a Convention creates no legal obligations or rights for a State which has not consented to such an instrument, i.e., the State is a Non-State Party (NSP). One such NSP is the US which, despite participating heavily in the negotiations leading to the formulation of the UNCLOS, decided not to ratify it due to its apprehensions of a breach of its sovereignty. It is imperative to observe how the US has responded to the guidelines that have been formulated by ISA. The US has made it clear that the regulatory mining regime that purports the concept of the common heritage of mankind of seabed resources is against the essence of private economic activity. The US enacted the Deep Seabed Hard Mineral Resources Act, 1980 (Act) to explore and exploit seabed mineral resources. The US has granted licenses under the Act to a corporation called Lockheed Martin; however, the company has expressed concerns that it would be unable to carry out any activity in the seabed area because the legal rights of that area are protected under the UNCLOS, which includes the ISA. Even the organisation that administers the Act, US National Oceanic and Atmospheric Administration (NOAA), along with the Department of State have acknowledged the concerns of Lockheed Martin of requiring international security of tenure. Surprisingly, both NOAA and the Department believe that the US would have to accede to the UNCLOS to maintain international security. The US position became amply clear in 2017 when the time came to renew the mining licenses of the various organisations. NOAA stated that, (i) the purpose of the Act was to allow deep seabed mining activities pending the US ratification of UNCLOS, and (ii) the Act may give organisations rights domestically but not internationally, as the USA fails to go through the internationally recognised process mandated by the ISA for State parties to the UNCLOS. Hence, this creates a dilemma for license holders under the Act, as their legal right does not exist in the real world. This makes it clear that even despite being an NSP, the US has actively regarded the mining regime vis-à-vis the ISA, as an inherently legal obligation. Resultantly, to conduct deep seabed mining, Lockheed Martin holds two contracts through its United Kingdom (UK) subsidiary (UKSRL). This has been possible as the UK is a State party to UNCLOS and State parties do have the power under the Convention to sponsor private corporations to conduct seabed mining activities under the ISA. An analysis of the US case demonstrates that even NSPs view the ISA regulations to be legally binding. Furthermore, under the US Act, a Deep Seabed Revenue Sharing Trust Fund was created with the intention of sharing the extracted resources with the international community. This Trust Fund fulfils a very similar purpose which is enshrined in the Preamble of the UNCLOS and for which the ISA was created: the common heritage of mankind. Assessing the situation from the viewpoint of the sole NSP, i.e., the US, it can be reasonably assumed that ISA approval when it comes to seabed mining is the non-regression standard. This means that at a point in time if a State adopts any precautionary strategy other than requisite ISA approvals before conducting deep seabed mining, the same would be insufficient and not conform to international standards. The purpose of ISA was never to mitigate all forms of harm that are accrued as a result of deep seabed mining activities but to control and regulate the harm caused to the marine environment. Conclusion It is difficult to say that the sole model of an NSP such as the US following ISA regulations is sufficient to prove the customary status of the Authority. Furthermore, the lack of implementation of these contracts by ISA cast a doubt on the legal status of the regime. A question that also requires due consideration is whether States which lack the technological and capital capability to conduct deep seabed mining activity, irrespective of their obedience to the UNCLOS, regard the ISA to have a legal authority. Nevertheless, post the implementation of the ISA contracts in the near future, a clearer picture regarding the customary character of the regime would be carved out. If this mining regime envisaged under the UNCLOS can become a source of law under Art. 38(1)(b) of the Statute of the International Court of Justice, it would be a boon for the protection of the marine environment as well as the industrial sectors dependent on seabed resources.

About the Author: Kosha Doshi is a fourth-year B.A LL.B (Hons.) student at Symbiosis Law School in Pune, India. Her primary areas of interest include Cyber Security, Artificial Intelligence, Data Infrastructure, Fintech, and TMT. Image by Solen Feyissa available here. INTRODUCTION TikTok, the popular social media video app owned by Chinese tech company ByteDance, has recently come under scrutiny for its privacy policies and potential ties to the Chinese government. With close to 95 million users in the United States alone, and an expected audience of 103 million by 2025, TikTok’s widespread popularity is undeniable. However, the app’s vast data collection practices and potential for national security risks have become concerning for many. In August 2020, the Trump administration attempted to ban TikTok by an executive order, but this was shut down by the federal courts. The Biden administration is currently evaluating the risk posed by apps connected to foreign adversaries, including TikTok. Meanwhile, members of Congress, including Senator Marco Rubio and Representatives Mike Gallagher and Raja Krishnamoorthi, have introduced a new bill to ban TikTok and ByteDance from operating in the United States. The bill, entitled the ANTI-SOCIAL CCP Act, aims to protect Americans from the threat posed by certain foreign adversaries using social media companies for surveillance, data collection, and censorship. This blog will delve into the ongoing controversy surrounding TikTok and its potential impact on privacy and national security. It explores the risks and benefits of this popular social media app and considers the potential consequences of its continued operation in the United States. NAVIGATING THE LEGAL LANDSCAPE A new bill has been introduced in the United States that has the potential to drastically impact foreign social media companies’ operations in the country. At its core, the bill directs the President of the United States to effectively ban certain foreign social media companies, specifically ByteDance and TikTok, from operating in the country. The legislation is written in such a way that the call for a ban could theoretically be expanded in the future to cover other foreign social media platforms that are deemed risky to U.S. national security. The bill outlines that 30 days after it is enacted, the President will use their powers under the International Emergency Economic Powers Act (IEEPA) to “block and prohibit all transactions in all property and interests of property of a social media company”. It indicates that the President would not have to declare a national emergency before invoking IEEPA and would not be limited by the IEEPA’s regulation regarding the import or export of information or informational materials. For a social media company to be blocked and prohibited, it must satisfy at least one of the following criteria: The company is domiciled, headquartered, or has its principal place of business in, or is organized under the laws of a “country of concern”. A country or entity of concern directly or indirectly owns, “controls with the ability to decide important matters,” or holds 10% or more of the company’s voting shares or stocks. The company uses software or algorithms that are controlled, or whose export is controlled, by a country or entity of concern. A country or entity of concern can substantially, directly or indirectly, influence the company to share data on U.S. citizens or modify its content moderation practices. ByteDance and TikTok satisfy these criteria, and the bill also defines a “country of concern” and an “entity of concern” in a way that enables additional, future applications of this IEEPA social media platform ban. The bill refers to the term “foreign adversary” in the Secure and Trusted Communications Networks Act of 2019 to define a “country of concern”. From a national security perspective, it is reasonable to consider the risk posed by entities that are part of a foreign political party, government, or military, and especially if that entity is a security agency. The reference to individuals subject to “substantial influence, directly or indirectly, from a country of concern” also appears reasonable, as there are certainly foreign countries where law enforcement agencies or intelligence services are known to place intense, coercive pressure on individuals at technology companies to compel them to cooperate with the state. This bill has far-reaching implications for foreign social media companies operating in the United States and could result in a ban on their operations if they are deemed to be a risk to U.S. national security. TIKTOK AND THE NEW FRONTIER OF CYBERSECURITY The concern surrounding TikTok has centered on the possibility that it may provide the Chinese government with data that poses a significant threat to cybersecurity. The threat scenario is based on two key assumptions: first, that the data generated by TikTok provides the Chinese state with valuable insights into systemic US vulnerabilities, and second, that the Chinese government can access this data due to TikTok’s parent company, ByteDance, being based in China. However, the Trump administration’s approach to addressing these concerns through an executive order and other proposals has been criticized for failing to differentiate between the various security risks posed by TikTok. These risks include data collection on US government employees and individuals, censorship of information in and outside of China at Beijing’s request, and the spread of disinformation on the platform. The ANTI-SOCIAL CCP Act offers a clearer articulation of these risks by breaking them down into two main categories: a company sharing or being compelled to share data with a government or entity of concern, and a company having its content moderation practices substantially influenced by a government or entity of concern. It is important to clearly distinguish between these risks as they require different mitigation actions and their likelihood and severity vary. The bill’s list of four prohibition criteria does a better job than the Trump administration’s executive order in separating these risks, but the bill could benefit from linking specific mitigation actions to specific risks. TikTok does collect a large amount of data on its users, like other social media platforms, but the lack of privacy and security regulations in the US make a significant amount of information on Americans from political preferences and demographic information to real-time GPS data and data on military personnel widely available for purchase. The bill’s proposed complete ban on TikTok may not be the most appropriate or sustainable solution to the security risks posed by foreign platforms. This raises the issue of whether a blanket solution for various risks related to content moderation, data privacy, and others is the most suitable and sustainable approach in the long run. A more effective policy framework could be one that offers a range of possible responses to the security risks posed by foreign platforms, such as a complete ban in cases where risk mitigation measures are deemed insufficient, or a more moderate approach that imposes specific content or security requirements on the company. CONCLUDING REMARKS The Biden administration has made significant efforts to address the concerns surrounding the use of foreign mobile applications, particularly TikTok and WeChat. The revocation of the Trump-era executive orders, which aimed to ban these platforms, was a positive move. The new executive order signed by President Biden, entitled “Protecting Americans’ Sensitive Data From Foreign Adversaries,” highlights the importance of evaluating potential threats to national security through rigorous and evidence-based analysis. Furthermore, the increasing involvement of security review bodies, such as CFIUS, in cross-border investment reviews highlights the concerns over national security creep. CFIUS’s reported discussions with TikTok suggest that the interagency committee is looking for ways to mitigate security risks by requiring companies to address these risks rather than undoing transactions. The need for a federal consumer data privacy law is pressing, given the fears that foreign governments may obtain personal information of US citizens through foreign mobile applications. This law must provide a balanced approach to cross-border data transfers that takes into account both national security interests and the potential harmful effects of data localization. Without such a law, the US will continue to face challenges in regulating the growing number of foreign technology companies. In conclusion, the Biden administration’s approach to TikTok and other foreign mobile applications is a step in the right direction. The need for a nuanced and balanced approach to addressing national security and privacy concerns remains crucial for maintaining a democratic society.

Alex MacLennan (J.D. Candidate, Class of 2024) is a contributor. His interests include international and comparative law, US and foreign elections, history, and economic policy. Alex holds a B.S. in Industrial Design from the University of Cincinnati. Before law school, he did product design work for various companies. He speaks enough French and German to be useful in continental European travel. The American ocelot population numbers less than 120 members, making it “one of America’s most endangered cats.” These felines have litters of two or three kittens and a fine fur that makes them targets for hunters. One thing they do not have is a passport. But why should they need a passport given that immigration laws do not apply to wild animals? Well, even though animals may not be interested in borders, borders are interested in them. A growing number of border walls now restrain the movement of animal populations—the endangered American ocelot included. Typically built to stifle human movement, these walls now threaten animal movement with a particularly detrimental effect on migratory and threatened species. This article looks at the scope of this issue, where it exists, and potential solutions. The Problem In general, governments built border walls to keep out people—not animals. The proffered reasons for the walls have included a rise of nationalistic politicians, opposition to refugee movements, and a concern over smuggling. Whether walls work to keep out humans is questionable but there is strong evidence they work to keep out animals. Today, such walls can be found in many parts of the world and animals are paying the price. Walls in Europe Europe has seen a return of border walls over the last several years as political leaders react to the refugee crisis. But while humans have found ways around the walls, animals have been less successful. Unfortunately for European animal populations, these walls can disrupt migration patterns and access to resources. Consider the small band of lynx in the Białowieża Forest traversing the Polish-Belarusian border. These cats have seen their habitat divided since the Polish government built a 115-mile long, 18-foot wall along the border. Cut off from their broader range, the lynx face greater difficulty in finding food and mates threatening individual survival and genetic diversity in the already small population. It is little wonder that a letter signed by over 500 wildlife scientists warned of consequences including “the collapse of the Polish lowland lynx population.” Nor are the lynx alone. The same letter notes the “pan-European importance” of the forest and how it is the “main dispersal route of large mammals.” Beyond the lynx, the border wall threatens species of bison and brown bears. Walls in Asia Asian animals too are threatened by border walls. Fencing along the border between India and Bangladesh has disrupted the movement of Asian elephants in their natural range. Further, walls in Central Asia have blocked camels, bears, snow leopards, and many other animals. In one example, a wall on the border between Kazakhstan and Uzbekistan blocked the migration of antelope between their seasonal habitats. Without intervention that convinced the Kazakh government to open part of the wall, the antelope faced starvation. Walls in the United States The wall on the US-Mexico border has not been particularly effective in restraining human movement but it still manages to threaten animal movement. In addition to the previously mentioned ocelot, the wall also threatens Sonoran pronghorns, Mexican gray wolves, and Peninsular bighorn sheep. As in other border wall cases, the division of these animal populations threatens to reduce already limited genetic diversity and impede their ability to adapt to a changing climate. The wall even threatens habitats before its completion due to the environmental impact of construction. In an effort to expedite construction, the 2005 Real ID Act gave the Department of Homeland Security the authority to waive laws—including environmental laws—that stood in the way of the wall’s completion. The result has been destruction of the physical landscape and threats to environmentally sensitive areas such as the Tijuana Estuary Reserve. Not surprisingly, many wildlife groups are concerned about the impact of the wall on animal populations including one paper signed by nearly 3,000 scientists. Potential Solutions Perhaps the simplest solution would be to just get rid of all the walls, but political reality makes that a tough sell. Furthermore, there are limited situations where walls restricting animal movements may carry benefits, at least to certain groups. Such examples include a fence erected by Botswana that was built to keep out cattle with foot and mouth disease but has the side effect of limiting movements of giraffes, elephants, and zebras. How to work environmental concerns into political reality is always an ongoing conversation but there are some ideas worth considering. Wildlife Gates Creating passageways through the walls is a frequently-proposed solution but has yet to fully realize its promise. On the surface, it seems like the best of both worlds: the wall still serves its intended purpose but allows animals to pass. But reality is murkier. First is a fundamental engineering and behavioral conundrum. If the wall is to serve its purpose, it must be effective in keeping out people. Smaller gates could allow some animals to pass without letting people through but that would only allow small animals to pass. Certainly any gate large enough for a bear is large enough for a person. Second, people are smarter than animals. Not only would people be better at finding the openings, but they would likely be able to solve any challenge that an animal could solve. If the gates were sufficiently guarded, the first two problems may be solvable but that still leaves a third problem: wildlife gates cannot work if they remain closed or unbuilt. In Poland’s case, the government promised 24 wildlife gates that have failed to materialize. Critics call the wildlife gate promise a “soothing agent” and question the idea of animals queuing up for the gate to open. Thus, while wildlife gates may be part of the solution, there must be the will to implement them in an effective way. For now, this remains challenging given opening gates would either increase security costs, decrease the wall’s effectiveness toward humans, or both. Convention for the Protection of Migratory Birds International cooperation can lead to the domestic protection of migratory animals. One of the largest examples of this in the United States is the Convention for the Protection of Migratory Birds signed between the US and Canada. The Convention seeks to preserve migratory birds and save them “from indiscriminate slaughter.” Both countries passed implementing legislation shortly after signing the Convention. Canada did so with the Migratory Birds Convention Act in 1917 and the US followed with the Migratory Bird Treaty Act of 1918. In Canada, the legislation led to the creation of Federal Migratory Bird Sanctuaries and regulations regarding hunting and commercialization. In the US, the law survived a constitutional challenge and currently protects over 1,000 bird species from activities including hunting and commercialization. As US District Court Judge Valerie Caproni noted in a 2020 case, “[i]t is not only a sin to kill a mockingbird, it is also a crime.” There are important lessons to learn from this long-standing convention. Primarily, it provides an example of how international cooperation is possible to address threats to animal species. In fact, the US went on to sign similar conventions with Mexico, Japan, and the Soviet Union. It also shows how international agreements can be functional when properly enforced domestically. But the parallels are not perfect. Migratory birds did not affect the movement of people in and out of the country. Not everyone agreed with the Migratory Bird Treaty Act at the time, but immigration and the border polarize the modern political conversation in a way that migratory birds never did. Overall, the Convention provides a ray of hope through its principles of international cooperation to solve a migratory animal issue but it is not a perfect parallel to today’s situation. Convention on the Conservation of Migratory Species of Wild Animals Bilateral treaties such as the Convention for the Protection of Migratory Birds are a good first step, but addressing the issue of animals and walls around the world may require intergovernmental action at the United Nations level. Fortunately, there is already a framework in the Convention on the Conservation of Migratory Species of Wild Animals. Among the Convention’s fundamental principles is that “[t]he Parties acknowledge the need to take action to avoid any migratory species becoming endangered.” The Convention further acknowledges that the Range States shall endeavor “to prevent, remove, compensate for or minimize, as appropriate, the adverse effects of activities or obstacles that seriously impede or prevent the migration of the species.” Thus, there is a recognition by the 133 Parties to the Convention that there is a need to mitigate obstacles affecting animal species. But like many international agreements, this Convention is only as powerful as the will to implement and enforce it. Given the previously discussed problems with animals and border walls, it seems that much of the Convention’s goals remain to be realized. Thus, it remains up to activists, experts, and political actors to achieve these goals. They can point to the Convention as a source of authority - even if it is not a panacea for the problem. Conclusion Governments may build walls to affect human movement but they have the (usually) unintended effect of restricting animal movement. For species with small populations, these restrictions reduce chances of mating and limit genetic diversity. And for migratory species it can mean being cut off from seasonal habitats. There are solutions that could mitigate the problem—what is needed is the political will.

Meredith Sullivan (J.D. Candidate, Class of 2025) is a contributor. Her interests include human rights, tech policy, and international and comparative law. Meredith graduated from the Dual B.A. Program between Columbia University and Sciences Po with degrees in Political Science and holds an MPhil in Middle Eastern Studies from the University of Cambridge. Before law school, she worked as a paralegal at a legal aid organization, helping tenants in Massachusetts defend against eviction. Meredith speaks fluent French and proficient Arabic, Spanish, and German. In Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito declared that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This decision held that there was no Constitutional right to abortion, overruling decades of precedent. This January would have been the fiftieth anniversary of Roe v. Wade, the landmark case that protected abortion (until viability) as a fundamental constitutional right. However, last year’s Dobbs decision returned the issue of abortion to the political process, giving states a carte blanche to impose any and all abortion restrictions (albeit with federal law mandating that doctors provide abortion in medical emergencies.) While the court has reversed course from a half century of American legal norms with the Dobbs decision, the battle over Roe and the right to abortion in the United States has not been waged in a vacuum. Despite many conservative justices’ stated reluctance to look beyond our borders and incorporate international law into their jurisprudence, global comparisons were an important undercurrent in the conservative analysis of the Dobbs case. Starting in the petition for writ of certiorari, the petitioners employed comparative legal analysis by referring to the laws of other countries to declare the United States as leading “the world in allowing nearly full developed children to be aborted.” Alito built on this in his majority opinion, discrediting Roe’s viability line as nonsensical and stating that it was “telling that other countries almost uniformly eschew such a line.” Chief Justice Roberts expanded on global comparisons in his concurrence, noting the small number of countries that permit elective abortions after viability. These viability arguments obscured the reality of abortion in other countries that have broad abortion exceptions and free healthcare, for example, in Europe. Interestingly, the petitioners and the Court took a comparative approach when contextualizing abortion laws in the United States, but neglected to mention human rights norms or international treaty obligations. However, these arguments emphasize the continued relevance of international and comparative law in the American debate on abortion. The United States plays a major role in articulating international human rights standards and itself has binding obligations under international law as a State Party to some treaties and a signatory to many other agreements. As we move into the post-Dobbs era, it is important to examine how the decision and subsequent abortion bans in many states interact with the United States’ commitments under international law. How do international legal norms apply to abortion in the United States? Since the 1994 International Conference on Population and Development in Cairo, there has been global consensus that reproductive health is a basic human right. The International Covenant on Civil and Political Rights (ICCPR) is a primary source of human rights, including the right to sexual and reproductive health. In the international law amicus briefs submitted in Dobbs, numerous scholars and practitioners argued that abortion was protected by the ICCPR under the rights to life, privacy, and non-discrimination. In 2018, the United Nations (UN) Human Rights Committee (HRC) found that Article 6 of the ICCPR, the protection of the “inherent right to life,” included the right to safe and legal abortion. Further, the HRC urged in General Comment No. 36 that as part of their obligations under Article 6, states should work to remove existing barriers to “effective access” of abortion care, and that they “should not introduce new barriers.” The HRC explicitly stated that states should not apply criminal sanctions to women or girls for having obtained an abortion or to medical providers for having assisted them. In addition to Article 6 of the ICCPR, advocates have argued that the right to abortion is protected by Article 17, the right to privacy. While a key part of Dobbs was dismissing abortion as a privacy right under substantive due process, that does not mean that international law cannot legitimately protect abortion under privacy rights. The assertion that abortion is included under the right to privacy is supported by multiple decisions of the HRC. The HRC first set this precedent in KL v. Peru (2002), declaring that Peru’s denial of abortion constituted an Article 17 violation. In both Whelan v. Ireland (2016) and in Mellet v. Ireland (2017) the Committee focused on the severe mental and emotional impact of denying abortion care and found that Ireland violated the women’s rights to freedom from cruel, inhuman or degrading treatment, privacy, and equality through its abortion ban. Although HRC decisions are not binding, they are considered reasonable interpretations of the treaty. The United States has only signed and ratified a handful of human rights treaties, notably including the ICCPR and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). While the US reservation to the ICCPR ensured that the treaty is not self-executing, in an effort to curtail domestic litigation for direct enforcement of the treaty, the United States is still bound by the ICCPR–on the federal, state, and local levels. Under the ICCPR, and taking into consideration the HRC’s General Comment Nо. 36, the United States has a positive obligation to ensure safe and legal abortion access. Тhe criminal penalties that have been enacted or are pending in bills in multiple states, for either pregnant people or medical providers, are also contrary to the HRC’s interpretation of Article 6. Further, interference with a person’s right to abortion constitutes a violation of privacy under Article 17, which implicates the half of states that have already or are expected to enact bans or gestational limits. There is also an argument that laws restricting abortion are discriminatory on the basis of sex and thus violate Articles 2 and 26 of the ICCPR. This is further advanced by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) prohibiting “any distinction, exclusion or restriction” that impairs the ability of women to exercise “fundamental freedoms in the political, economic, social, cultural” fields. Article 12 of CEDAW urges states to take all measures to prohibit discrimination in health care and ensure access to health care, including family planning services. The CEDAW Committee made it clear in its General Recommendation No. 24 that access to reproductive healthcare was a basic right under the treaty. While sex discrimination arguments do not account for all potential abortion seekers, the right to access abortions is fairly entrenched within the sphere of non-discrimination. The United States signed, but has never ratified, CEDAW; thus, the treaty is not legally binding, but under customary international law, the United States must refrain from defeating its object and purpose. Now that there is no Constitutional protection for abortion, the United States undoubtedly contravenes the object and purpose of a treaty meant to expand abortion and reproductive health care as a basic right to achieve gender equality. Non-discrimination arguments for abortion access start but do not end with sex discrimination. Under ICERD, Article 5(e)(iv) calls upon State Parties, like the United States, to eliminate racial discrimination and to guarantee the right of everyone to public health and medical care. The 2018 Report of the Special Rapporteur on extreme poverty and human rights acknowledged the unacceptable disparities in maternal mortality between white women and Black women in the United States and the persistence of racial discrimination in reproductive healthcare. Abortion access is a racial justice issue because certain individuals–Black, Indigenous, Latinx, and other people of color–are more significantly impacted by abortion bans. Due to the disparate impact of Dobbs, the United States is violating its international obligations to actively work to eliminate racial inequities and discrimination. Additionally, the UN Mandate Holders Amicus Brief discussed the intersectional implications of abortion bans; for example, prohibitions on abortion will severely impact low-income and disabled individuals and people living in rural areas. These disparate acts on certain individuals violate non-discrimination provisions of ICCPR’s Articles 2 and 26. Finally, the nascent principle of non-retrogression underscores efforts to advance human rights on the international level and hold states to their obligations. Originating in a General Comment of the Committee on Economic, Social and Cultural Rights (CESCR), this doctrine prohibits states from regressing in their protection of human rights. This emerging principle has found increasing traction in international environmental law in the past few years and stems from concern over backsliding and states non-compliance. While the United States is only a signatory to the International Covenant (ICESCR), it still cannot act in contradiction to the treaty’s purpose and object of taking positive measures to promote human rights, implicating the principle of non-retrogression. This concept is further compatible with the emphasis on positive obligations in many human rights treaties, requiring that states make good faith efforts to comply and advance the rights therein. With 13 states having fully banned abortion since Dobbs, the United States has taken a huge step back in terms of human rights progress compared to 49 years of some degree of abortion access. While the doctrine of non-retrogression is an emerging norm, it seems applicable here, especially given the intersection of abortion access (or lack thereof) with gender, race, socioeconomic status, educational attainment, disability, and public health. Thanks to Dobbs, the United States has stepped half a century back in time. For a country that has long conditioned economic aid to foreign countries on human rights metrics, this domestic backsliding is both alarming and hypocritical. The positive obligations of treaties like the ICCPR and ICERD make the current state of abortion regulations in the United States unacceptable and in flagrant violation of international law. The repercussions of reduced or unsafe abortion access infringe on other basic rights protected by the ICESCR, to which the United States is a signatory, like rights to health and education. International legal scholars and human rights organizations have also made compelling arguments that unsafe abortion constitutes cruel and inhumane treatment, which were affirmed in the aforementioned HRC decisions. However, the U.S. Reservation to the ICCPR narrowly defines cruel and inhumane treatment as limited to that prohibited by the Fifth, Eighth and Fourteenth Amendments, which makes it a less salient argument in the domestic context. Conclusion Since the early 1990s, only four countries have regressed in terms of abortion laws: Nicaragua, El Salvador, Poland, and the United States. While the Supreme Court has now actually made the United States an outlier in terms of denying pregnant people access to essential medical care, the federal government is still bound by its international obligations. By allowing states to prohibit abortion, the United States is in direct contravention of ratified treaties, like the ICCPR, and acting contrary to the object and purpose of signed treaties, like CEDAW. Further, this backsliding in abortion access constitutes a violation of the principle of non-retrogression and sets a dismal example for other countries with more nascent abortion movements. Abortion access is firmly posited as a human right in international law and by UN agencies and international treaty bodies. As we navigate increased bans on abortion and procedures across the country, comparative law and activism will perhaps be instructive; the ongoing criminal prosecution of a Polish activist for helping a pregnant woman access abortion pills is a somber example of what will happen in states where abortion is criminalized and medical providers or “abettors” are also penalized. In a post-Roe United States, international pressure and advocacy framed in terms of binding international legal obligations and human rights norms will be one potential way forward.

Lessons Learned from the Anwar R. Prosecution in Germany Spencer M. Perry (JD '23) is a Berkeley Law student pursuing a career in international criminal law as a federal prosecutor. Before law school, Spencer worked on foreign affairs and criminal justice issues in the Obama White House and the office of then-Senator Kamala D. Harris. Spencer began his career advocating for same-sex marriage rights in California. Trigger warning: this blog post contains descriptions of extreme violence, sexual violence, and atrocity. The Arab Spring reached Syria at the end of 2010. Protesters called for diversification in government and economic empowerment. Demonstrations reached a fever pitch in mid-March 2011 prompting a bloody crackdown. Protests were quelled with tear gas and live munitions. Protesters were suppressed, killed, or jailed in detention facilities controlled by a diverse constellation of law enforcement agencies. Branch 251 was one such prison. Sexual violence at Branch 251 was routine. Detained protestors were stripped naked in interrogations, sexually mutilated, and raped. Some detainees were impregnated by captors. Some sought surgery to care for internal wounds or abort their rapists’ children. Detainees that weren’t killed suffered social ostracization upon release. Sexual violence in conflict is a cruel weapon of fear, humiliation, and violence. Syrian forces have and continue to wield sexual violence against civilians and noncombatant detainees to quell and deter civil resistance to the Assad Regime. The international community has struggled to address Syrian aggression. But national governments have found success in affirmative prosecutions of Syrian war criminals under universal jurisdiction. On January 13, 2022, Anwar Raslan was convicted of torture and sexual abuse of Syrian prisoners in Germany. Raslan was accused of overseeing the torture of detainees at “Branch 251,” the General Intelligence Directorate’s (GID) Intelligence Section detention facility in Damascus. He was convicted of crimes against humanity including sexual violence crimes. Swedish prosecutors are in the midst of a similar effort. In February 2019, nine torture survivors in Sweden brought a criminal complaint against at least 25 senior Syrian intelligence officials for crimes against humanity. The plaintiffs were arrested during a peaceful anti-Assad demonstration in 2011. They were jailed and tortured in 15 different detention centers across the country run by Syrian intelligence services. Their abuse included battery, sexual assault, electrocution, and sleep deprivation. War crimes prosecutions are inherently fraught and the challenges to charging sexual violence as a war crime are especially arduous; victim witnesses alleging sexual violence face internalized and societal shame, and prosecutors sometimes face an unsympathetic or misinformed judiciary. Prosecutors may opt for more predictable charges, leading critics to cite a “persistent impunity for conflict-related sexual violence.” Germany’s rare success in holding Raslan accountable for sexual violence as a crime against humanity may serve as a model for the Swedish prosecution. This paper analyzes the German prosecution (see infra Part I) and Swedish complaints (see infra Part II), details the German prosecution’s successes and missteps (see infra Part III), and recommends actions to maximize chances of conviction in Sweden (see infra Part IV). I. The Successful German Prosecution of Anwar Raslan Anwar Raslan led the GID Investigations Section from April 2011 until September 2012. The GID helped lead suppression efforts against anti-government protests and rebel militias. The GID employed force, arrests, detention, torture, and extrajudicial executions to execute their mandate. Among other duties, Raslan oversaw operations at Branch 251. In the Fall of 2011, Raslan dispersed an anti-government demonstration in Douma, arrested demonstrators, and transported them to Branch 251. Raslan defected in December 2012 and entered Germany as a political asylum seeker in June 2014. He came to criticize the Assad regime and gained modest notoriety among Syrian diasporas. In February 2019, Raslan and an associate were arrested in Germany after Raslan noted their work at Branch 251 to authorities during an unrelated dispute with a neighbor. His statement came to the attention of a joining German-French investigation team (JIT) supported by Eurojust and the Genocide Network. JIT was established in 2018 to support national governments in investigating, apprehending, and prosecuting Syrian war criminals. Specialized German war crimes prosecutors alleged that Raslan ordered and commanded the systematic torture of at least 4,000 prisoners in his pursuit of opposition intelligence, causing the deaths of at least 58 prisoners. Raslan was charged with crimes against humanity including 58 counts of murder, one count of rape, and one count of aggravated sexual assault. The charges were brought under universal jurisdiction and Germany’s legal framework for war crimes. Originally, Anwar R.’s acts of sexual violence were not charged under the German implementation of the Rome Statute but under the general German criminal code. German prosecutors later updated their charges to include sexual violence charges in the German code for crimes against humanity in response to criticism. The trial against Raslan and his associate began on April 23, 2020. It was the first to hear charges brought for torture during the Syrian Civil War. The prosecution was supported in part by the testimonies of victim-witnesses, several of whom identified Raslan on sight. Several reported sexual abuse and rape at the hands of Raslan’s subordinates. The resultant stigma followed these particular victims; they reported social ostracization and violence related to their sexual abuse after release. On January 13, 2022, Anwar R. was convicted of crimes against humanity, including the murder, torture, and sexual abuse of Syrian prisoners. The court found that Raslan was culpable as an accomplice because he was plainly aware of the torture program implemented by his inferior officers, used coded language to order torture, and acted intentionally. Raslan was sentenced to life in prison with the possibility of parole. The trial was criticized for further placing victim witnesses at risk. Critics highlighted inadequate witness protection, insufficient community outreach, absent translation services, and failure to record proceedings. Critics cited the prosecution’s failure to prosecute “sexualized violence against women, men, children, and lesbian, gay, bisexual, transgender, queer, and intersexed community (LGBTQI) persons.” Nonetheless, Anwar Raslan’s conviction is a rare example where sexual violence during an armed conflict was charged and proven as a standalone offense under international criminal law and not as a form of torture. II. Nine Syrian Survivor Complainants in Sweden In February 2019, nine unnamed Syrian torture survivors gave witness evidence to the Swedish War Crimes investigations and prosecutions unit. They alleged that they were arrested, jailed in 15 detention centers across the country run by Syrian intelligence services, and tortured. The alleged abuse included battery, sexual assault, electrocution, and sleep deprivation. The survivors named 25 perpetrators and described several unnamed perpetrators. They alleged crimes including genocide, illegal abduction, torture, degrading treatment, rape, and severe bodily injury. Two survivors’ accounts are particularly relevant. Survivor 5 asserted that he was detained at Branch 251 from May 2011 to July 2011 and from December 2012 until early 2014, the same Branch overseen by Anwar Raslan between April 2011 and September 2012. Survivor 8 was held at other detention sites for two months in November 2012 where she was subjected to torture and sexual violence. In May 2019, four of the nine gave witness evidence and six offered to give testimony at future trials. They urged Swedish officials to lodge charges against and pursue the arrests of 25 named and some unnamed perpetrators. Their criminal complaint and testimony have yet to yield an incitement. Sweden’s investigative resources are structured like those leveraged by French and German authorities to pursue Raslan. Sweden and France established a JIT under EuroJust to investigate and prosecute Syrian war criminals. The Genocide Network Secretariat and UNITAD support their efforts. Sweden’s universal jurisdiction statutes broaden its capacity to fulfill complainants’ request and charge sexual violence as a war crime or crime against humanity. Sweden mirrored the Rome Statute in enacting its crimes against humanity statute in 2001 and its war crimes statute in 2014. The Act of 2014 in particular “is substantially broader in its scope” than the Rome Statute’s war crimes provisions because the Act of 2014 “does not require the existence of an armed conflict nor genocide, but rather a widespread attack on a civilian population” for its subsidiary offenses to be charged. Like the Rome Statute, the Act of 2014’s section concerning genocide includes three international crimes, two of which may apply to sexual violence. The second provision criminalizes serious harm or suffering against an enumerated group, which can include rape and other forms of sexual violence. The third criminalizes specific gender-based violence including sexual mutilation, forced sterilization, forced birth control, separation of sexes, and marriage prohibitions. The Act of 2014’s second section includes crimes for slavery, rape, forced prostitution, forced pregnancy, and gender-based persecution. Unlike the Rome Statute, this section defines rape according to the ICC’s nonbinding Elements of Crimes, ICTY caselaw, and ICTR caselaw. The second section also reaches beyond the Rome Statute in its inclusion and interpretation of sexual violence of “comparable gravity.” While the Rome Statute and related preparatory works contemplate such offenses as akin to battery, the Swedish statute references the ICTR’s Akayesu case where the charge was satisfied by extreme humiliation including forced nudity. The Act of 2014’s third section addressing war crimes aligns with the Rome Statute. It includes crimes against severe gender-based human rights violations in connection to armed conflict, which can include sexual violence, sexual slavery, degrading treatment (such as forced nudity), and sexual torture. The Act of 2014 emphasizes that when both it and other domestic crimes apply to a conduct, the conduct should be charged under the Act of 2014. Courts may observe precedents set by foreign courts (and ad hoc tribunals) in deliberating over conduct charged under the Act of 2014. Overall, the Act of 2014 “constitutes a significant development of gender-based crimes by explicitly prohibiting” specific acts of sexual violence. Should Swedish authorities announce prosecutions related to the 2019 criminal complaint filed by Syrian survivors, prosecutors may look to the precedent set in the case against Anwar R. and apply it to their statutes. III. Analysis of Factual, Statutory, and Procedural Disparities Between the Anwar R. Potential Swedish Prosecutions While similar procedures and victims’ rights protections indicate that a Swedish prosecution will match German success, the broader set of facts presented by the Swedish complainants and limited chargeable statutes undermine prosecutorial prospects. This section analyzes how different factual (see infra Part III.A.), statutory (see infra Part III.B.), and procedural circumstances (see infra Part III.C.) enable and disable the Swedish prosecution of sexual violence in Syrian detention facilities as an international crime relative to the successful Anwar R. prosecution in Germany. A. Swedish Complainants’ Broader Factual Record Undermines Prosecution The facts presented in the Anwar R. case and the criminal complaints before Swedish authorities bear striking similarities. First, the conduct alleged in the Swedish complaints took place during or shortly after Raslan’s tenure at GID. Second, both Anwar R. and the Swedish complaints concern abuses at GID civilian detention sites. One Swedish survivor was detained at Branch 251, Raslan’s bailiwick. Third and finally, the conduct alleged by survivors in Sweden matches the scheme in which Raslan participated. Raslan’s torture program “included beatings with fists and various objects, inflicting electric shocks, suspending victims from the ceiling by their wrists, sleep deprivation,” threatening detainees’ families, and “at least one case of rape and sexual assault.”; survivors recount regular beatings with fists and objects, electrocution, suspension in stress positions, and at least one instance of sexual violence. But the similarities between the courses of conduct at issue in Germany and Sweden end there. Whereas Raslan’s charged conduct was specifically cabined within GID’s operations at Branch 251, Swedish criminal complainants also detail abuse at seven or more other facilities overseen by four agencies (including GID). Most importantly, the single instance of sexual violence alleged by Swedish survivors occurred in another facility overseen by another agency approximately two or three months after Anwar Raslan left his commission. The advantages of prosecuting a similar pattern of abuse are tempered by the incongruities in space, time, and agency responsibility between alleged facts in Anwar R. and the Swedish complaints. The German precedent’s similar abuse pattern presents circumstantial evidence that government forces employ a systematic, interagency torture program and direct evidence that the torture program was employed at GID facilities, including Branch 251. But the German Court did not conclude that the Syrian torture program was implemented across agencies or by a national authority. Should Swedish prosecutors pursue conduct beyond that alleged in Branch 251, they will find the German precedent merely persuasive and circumstantial, if admissible at all. Practically speaking, the strategy decision may be at the mercy of investigators’ success in apprehending defendants. A high-ranking official may be held liable for a broad torture campaign, but an agency- or site-specific perpetrator may only face evidence tied to those affiliations. Given the opportunity to bring all their evidence to bear, Swedish prosecutors may nonetheless find limited support from the Anwar R. record given comparative factual incongruities. B. Swedish Legislative History Limits Potential Charges Both German and Swedish statutes provide ample basis for charging sexual violence in Syria as a war crime or crime against humanity under universal jurisdiction. Both Sweden and Germany retain domestic statutes implementing the Rome Statute. Both incorporate the various modes of liability typical in international criminal law, including command responsibility. Both retain substitute domestic criminal statutes chargeable in place of war crimes, such as statutes criminalizing terrorist organization affiliation. Neither country requires party linkages to their countries to exercise universal jurisdiction (though German law allows prosecutors to exercise discretion to forego prosecution when no party or victim is German). And crimes against humanity and war crimes do not face statutes of limitations in Germany or Sweden. While German and Swedish statutes’ facial similarity invites the conclusion that they equally support war crimes prosecutions, their war crimes statutes’ disparate enactment dates present a substantial challenge. Sweden’s failure to criminalize war crimes until 2014 demands that prior chargeable conduct be charged under then-existing statute, such as its crimes against humanity statute. Under both Swedish statute and the general principle of nullum crimen sine lege, individuals cannot be charged for conduct that was not illegal at the time the conduct was committed. Sweden’s inability to pursue war crimes charges is a severe limitation that devalues any prosecution brought by the Swedish complainants. But Sweden may be able to charge the alleged conduct as a war crime despite lacking a war crimes statute when the conduct occurred. Criminal charges may be brought under customary international law even when the conduct was not yet criminalized by statute. This is to say that a state can charge customary international law crimes, including war crimes, for conduct that offended customary international law when the conduct was committed despite the contemporaneous absence of an express statute to the same effect. Moreover, universal jurisdiction may be exercised to prosecute crimes under customary international law. But stretching universal jurisdiction to prosecute beyond what is express statute is unrecognized by some states and criticized by others as dangerous. Customary international law is definitionally malleable and may be ripe for prosecutorial overreach. But the prospect remains that this untested strategy has been acknowledged and, to at least one international criminal tribunal’s eyes, is an avenue open to the discretion of national governments. C. Similar Procedural Flexibility Supports the Swedish Prosecution Procedural similarities between the Anwar R. trial and a potential Swedish prosecution are near total. Both German and Swedish authorities have dedicated war crimes units investigating crimes in Syria. German courts permitted the prosecutors to present a robust record substantiated over approximately 50 days of trial, by the testimonies by survivors, insiders, and experts, and by physical evidence chiefly distilled from the Caesar Files. Similarly, the Swedish survivors’ criminal complaints rely on their own accounts and physical evidence produced in the Caesar Files. Each of those evidentiary forms are admissible and commonplace in Swedish universal jurisdiction prosecutions; indeed, Swedish prosecutors need only authenticate relevant open-source material to admit it at trial and, like Germany, Swedish victims’ rights present ample opportunity for survivors to testify. Finally and most fundamentally, Sweden’s obligations under the 1970 European Convention on the International Validity of Criminal Judgments all but require it to observe the Raslan findings. Sweden’s statutory and precedential bases for admitting diverse evidence in a war crimes prosecution are similar, if somewhat broader, than those in Germany. Those broad bases provide prosecutors greater strategic latitude, a necessary ingredient for any successful prosecution. IV. Conclusion and Recommendations Swedish prosecutors face significant strategic challenges compared to their German counterparts. The factual accounts presented by criminal complainants cover a regime-wide torture system while witnesses to crimes prosecuted in Germany attested only to conduct in Branch 251. Sweden’s delayed enactment of a war crimes statute prevents addressing alleged conduct as a war crime, thereby limiting the opportunity to earn landmark findings concerning the Assad Regime’s actions during the Arab Spring, while German authorities had (but forewent) the opportunity to pursue that conclusion. But those limitations are eclipsed by a robust record and supportive witness protection scheme. Swedish prosecutors can rely on the Caesar Files, witness accounts, open-source information, and the German court’s findings to support broad prosecutions or piecemeal, defendant-specific cases. That flexibility is a compelling, necessary boon in an impugned area of international criminal law. Against competing incentives, Anwar R. stands as a guide to Swedish prosecutors. Anwar R. illustrates that sexual violence can be proven as a standalone charge and need not be lumped into a broader torture charge. Regardless of the outcome, charging sexual violence gives greater meaning to the specific wrong committed by the accused and a greater voice to survivors. As perpetrators become available to Swedish prosecutors, they must seek sexual violence charges wherever appropriate and substantiated. Affirmative prosecution of sexual violence stands for the principle that survivors’ unique trauma will not be lost for the sake of expedience and that we can one day ensure that the body of international criminal law wholly recognizes sexual violence as a systemic threat to our collective humanity.

David Enrique Garzón Garcia is an LL.M. candidate at the University of California, Berkeley, School of Law and a guest contributor to Travaux. The history of the fundamental right to die with dignity (RDD) in Colombia has not been peaceful. In addition to the inertia of Congress to pass legislation to regulate this right, there have been heated social, media, religious, and constitutional debates, even within the Constitutional Court (CC) itself. In 1997, the CC held in Ruling C-239 that: “The fundamental right to live in a dignified manner implies the right to die with dignity...condemning a person to prolong his existence for a short time, when he does not wish it and suffers deep afflictions, is equivalent...to an annulment of his dignity and autonomy as a moral subject.” Since then, the CC has analyzed aspects of the RDD several times and has developed its meaning. In 2014, the CC, in its Ruling T-970/14, determined that, while Congress regulated the matter, the Ministry of Health and Social Protection (MHSP) should establish a procedure to carry out patients’ decisions on euthanasia. The MHSP then issued Resolution 1216 of 2015, in which it introduced the ordained procedure and limited it to adults. It is worth stating that neither Ruling T-970/14 nor C-239/97 provided this limitation. In this context, in 2017 the CC reviewed a tutela file on the matter. In Colombia, the tutela is a constitutional action that enables any person who considers that their fundamental rights are being violated or threatened to request immediate judicial protection. The tutela action is the procedural vehicle to activate concrete judicial review. The Colombian judicial review model entrusts the CC with discretionary review of tutela rulings issued by judges throughout the country to unify jurisprudential standards. In this tutela file, the plaintiffs were the parents of a 13-year-old adolescent who suffered from severe illnesses and had physical and intellectual disabilities. They requested the application of euthanasia. At the time the ruling was pronounced, the child had already died. However, the CC decided to recognize that children were also holders of the RDD. The ruling provided two criteria for the viability of the procedure, which were: (i) the condition of terminal illness, understood as a terminal illness that produces intense pain and suffering and the incompatibility of these with dignity, and (ii) the free, informed, and unequivocal consent of the patient, with the exceptional possibility of substitute consent due to the factual impossibility of direct manifestation, caused by the disease or by the cognitive development of the child. In this regard, it ordered the MHSP to ensure hospitals had committees to study requests for the euthanasia of children. Resolution 825/18 of the MHSP, issued in compliance with this ruling, established the procedure to give effect to the children’s RDD through euthanasia. In broad terms, this Resolution includes a differential approach concerning age and cognitive development. Throughout the Resolution, it is evident the MHSP’s primary purpose is corroborating, through different steps and differential mechanisms for each child's situation, that the decision is (i) voluntary, free, informed, and unequivocal and (ii) in concurrence with the child’s ability to communicate the decision, to understand, to reason, and to make judgments. However, Article 3 of Resolution 825/18 excluded children with intellectual disabilities (CID). It is relevant to note that the CC’s decision does not order, suggest, or contemplate this exclusion. That is to say, the MHSP took this decision without normative support and contrary to the constitutional framework and the rights of CID. Additionally, the preamble of the resolution does not provide any explanation of this exclusion. In other words, the remedy adopted by the CC and developed by the MHSP to avoid further violations of the right of children to die with dignity is insufficient for CID under the current procedure. As a result, the exclusion generates a discriminatory practice against CID and violates the equal protection and non-discrimination clause of the Colombian Constitution. The equal protection and non-discrimination clause is contained in Article 13 of the Colombian Constitution of 1991 and has different dimensions. From a deontic perspective, the following elements arise from the clause. First, it establishes the principle of equal treatment and protection of individuals by the authorities and in the enjoyment and exercise of rights, freedoms, and opportunities. Second, it prohibits discrimination based on sex, race, national or family origin, language, religion, or political or philosophical opinion. In different rulings, the Constitutional Court has stated that the specific enumeration of those categories is not to be understood as exhaustive, but enunciation. In that sense, disabilities are to be understood as one of the suspect categories covered by the clause. Third, it explicitly makes a preference for a material sense of equality above a formal conception. Fourth, it contains a mandate for adopting affirmative actions in favor of discriminated or marginalized groups. Fifth, it establishes the State’s duty of special protection towards individuals in a situation of manifest weakness and orders the punishment of abuses or mistreatment committed against these individuals. Concerning the second element, this provision must be understood following other human rights international instruments. Within the Colombian constitutional model, international human rights covenants signed by Colombia have constitutional weight and extend the anti-discrimination protection beyond the strict text of the Constitution. For instance, Article 26 of the International Covenant on Civil and Political Rights, of which Colombia is a party, prohibits all discrimination, including that derived from any social condition. In accordance, the CC in Ruling T-297 of 2013, stated: “Such criteria to which the constitutional norm alludes (Art. 13 C.P.), are not exhaustive categories, in such a way that any arbitrary differentiation for any reason or social condition is generally prohibited.” Consequently, the exclusion breaks the principle of equal treatment and protection and discriminates against CIDs on the ground of a suspect category. It disregards, as well, international treaties. Specifically, Articles 3, 4, 5, 6, and 25 of the Convention on the Rights of Persons with Disabilities (CRPD) proscribe discrimination on the grounds of disability. The social model of disability animates CRPD. According to Argentinian professor, lawyer, expert, and advocate for the rights of people with disabilities, Agustina Palacios, this model is based on two fundamental assumptions. The first is related to the fact that disability is not caused by "religious or scientific causes, but by social or at least predominantly social causes," understanding these as the limitations imposed by society on the person with a disability to have his or her needs met and to participate fully. The second is that "people with disabilities have much to contribute to society." In Palacios's words: "This means that—beyond people's functional diversities—disability is the result of a society that is not prepared or designed to meet the needs of everyone, but only of certain people, who, coincidentally, are considered standard persons.'' Regarding the social model of disability, Palacios states: “...the social model argues that every person, regardless of the nature or complexity of their functional diversity, should be able to make decisions that affect their development as a moral subject, and should therefore be allowed to make such decisions.” It is then imperative to eliminate the prima facie exclusion of CID from the procedure for requesting euthanasia. Exclusion is incompatible with the fact that in the universe of intellectual disabilities, there are different experiences of disability in which each case differs from the others. Automatic exclusion of CID implies applying a unique standard that may leave children with mild intellectual disabilities that do not affect their decision-making capacity in a deficit of protection. It is necessary, in terms of respect for fundamental rights, to allow these CIDs to submit the request under equal conditions and under a decision support system, with the corresponding reasonable accommodations. The adoption of reasonable accommodations in the framework of decision support systems in each case, designed to cover the necessities of each CID, would comply with the constitutional duty to ”promote the conditions so that equality may be real and effective.” Under no scenario does it mean support of a eugenic approach. On the contrary, this position advocates for a human rights approach in which the CIDs’ moral agency and decision-making capacity will be recognized and respected. CIDs with terminal illnesses, who are in great suffering and have autonomous decisionmaking possibilities, should have the same opportunities to access euthanasia as other children in that situation. Lege ferenda, it is urgent to eliminate the exclusion. For that purpose, different routes could be used. The first, which involves a greater degree of democratic deliberation, would be for Congress to pass a bill that regulates the fundamental RDD, including CID. However, this option is unlikely considering the traditional legislative inertia in this matter and the political costs in a profoundly religious country. The second would be for the MHSP, on its initiative or at the request of a party, to eliminate the exclusion directly. However, for this to happen, there would have to be political will on the part of the Government. The third way would be through the tutela action. In this case, it would be necessary to find a matter of a CID whose request is being denied and wait for the CC to select that file to establish binding jurisprudence. The fourth way, and the most likely path forward, is through the abstract judicial review of administrative acts. In Colombia, the procedural vehicle that activates this review is the action of nullity due to unconstitutionality. It is the competence of the Council of State, one of the Colombian high courts, to exercise this review. One of the advantages of this action is its public nature. In other words, any citizen, without the need to have a direct interest, has standing to file the action. Then, the claim would be a request of nullity of the exclusion, on the grounds of the reasons noted above. This is the most direct path to forcing the issue and demanding a reckoning on the unconstitutional exclusion of CIDs from the fundamental RDD.

About the author: Dr. Srikant Parthasarathy is a Professor of International Law. Image by Julia Rekamie available here. Martial law, as has been imposed by Russia in four regions of Ukraine annexed by the former on 19th of October 2022, raises two important aspects in the ‘rule of law’ interpretation in the International Law context. The last imposition of martial law was during World War II. This begs the question as to whether warring nations ,as per the ‘Rule of War’, can invoke martial law as a lawful excuse for the administration of the annexed region. Let us consider the contemporary rules of war, which is the unwritten, uncontested & derogation which is not permissible, i.e., the way in which the unfortunate circumstance of war occurs. This can include ensuring no impact to the civilian population. Whereas implementing the customary law on martial law restricts the scope of implementation of the martial law, only if the domestic courts cannot deliver the justice. In this instance, the unwritten rules on imposing martial law work within the domain of a country and where the judiciary cannot provide an effective remedy. This is, as a matter of practice, the last resort for countries In the situation of internationally warring states, the rules become complicated. The extra-territorial jurisdiction of Russia as of today is a matter within the determination of the International Court of Justice (“ICJ”), which ruled that both the nations (Ukraine and Russia) shall desist from use of force. A simultaneous interpretation of the ICJ’s ruling coupled with Russia’s martial law not only violates the international law and rules that it entails but also casts a doubt on the right of ‘self -determination’ by the people of Ukraine. Martial Law could prevent the situation of an armed conflict only insofar as the state controlled exists within the domain of a country. In this case, Ukraine’s regions are neither part of the Russian Federation nor within the domain of Russia. The origins of Martial Law and its checkered history can be traced to the manual published by the ICJ titled ‘Military-Jurisdiction-and-international-law-vol.2,’ which enumerates 17 instances where it finds Martial Law fundamentally violating human rights by referencing the Article 14 of the International Covenant on Civil and Political Rights (“ICCPR”), which guarantees an unbiased trial to every human being. While the question of ‘Martial Law’ has been controversial in Sierra Leonne’s Coup d’état, the right to fair trial was a fundamental feature of human rights as per the African Commission on Human and People’s Rights. More judicial opinions are directly from ICJ’s reference in Algeria, Cameroon, Kuwait, Uzbekistan, Venezuela, as well as Russia in the past few decades. In all the instances, the ICJ opined that Martial Law violates the principles of democracy and justice, which nations cannot invade. Now the question is whether countries can set aside those principles conveniently in the climate of war. The answer is an emphatic ‘No.’ In war, especially when the war’s legality itself is in contention, the imposition of ‘Martial Law’ can lead to only arbitrary actions, which fly under the radar of an International Crime. Martial Law is far from a peacekeeping mission or a legitimate way of overriding the rule of war and the rule of law. It is pertinent to note the United Nations’ Special Rapporteur’s comment on the situation in Chile in 1995, which reads, “the Special Rapporteur found that civilians accused of terrorism and tried by courts martial were quite frequently subjected to torture and ill-treatment. the Special Rapporteur found that civilians accused of terrorism and tried by courts martial were quite frequently subjected to torture and ill-treatment.” In addition, Court Martials do not have an appeal mechanism and the wide margin of arbitrary actions by the Military, especially in occupied zones directly affect civilians. This affects the cardinal rule of International Humanitarian Law that “Civilians shall not be harmed in any manner whatsoever.” Martial Law also has the ability of extra-territorial application and naturally presumes criminal responsibilities on the persons tried under it. This is in direct conflict with the United Nations Declaration of Human Rights and the ICCPR. It would be difficult to erase from the Republic of India’s memory the Emergency proclaimed from time to time. It is also pertinent to note that the Constitution of India has not defined Martial Law, except for the inclusion of an executive prerogative, which is the cabinet to pass such orders as it may deem appropriate. India has never issued Martial Law in the 75 years of its independence but has encountered situations closer to the martial law in the infamous Armed Forces (Special Powers) Act (1958) and Armed Forces (Jammu and Kashmir) Special Powers Act, 1990. Considering that Russia, an aggressive state, is using the Martial Law , it may be time for India to revisit its Article 34 of the Constitution, which gives discretion to the Parliament to ratify a martial law and risks the Republic of India to violation of the UDHR and the International Principles of Law. This may be an appropriate time to revisit this article of the constitution, especially when the Government is maintaining its position that “Law making is the sovereign power of the Parliament,” as law making also includes keeping a “contingent law” in check.

Shivani Dewalla is a guest contributor to Travaux. She is currently an LL.M. candidate at the University of California, Berkeley, School of Law and a member of the Berkeley Journal of International Law's symposium team. Why is a specific international treaty to protect the rights of the transgender community needed? Furthermore, why does the dearth of such agreements pose a problem for the applicability of international human rights standards and deny the extension of domestic penal laws in the absence of inclusivity? A section of the population born in a supposedly free world is persecuted, abandoned by their families, denied equal opportunity, and discriminated against in every walk of life solely because of how they identify themselves. Though several countries have passed laws regarding this subject, an absence of a binding international treaty leaves it to individual state authorities to conform to non-binding statutory norms. For instance, the resolution adopted by the United Nations Human Rights Council on June 30, 2016, to extend protection against violence based on gender identity and sexual orientation does not serve its intended purpose. Adopted by a close margin of 23-18, in addition to six abstentions, the resolution is indicative of the reluctance of countries that think that universal human rights do not include the rights of transgender people. Additionally, the non-binding nature of the resolution does not obligate states to ratify their domestic laws. This limits the resolution and its vision to mere paperwork. Finally, the resolutions have blurred the lines of sexual orientation and gender identity, which has resulted in the former overshadowing the latter. A dedicated treaty would do justice for transgender people facing discrimination in every country. It is therefore imperative that the articles of the Universal Declaration of Human Rights and International Covenant of Civil and Political Rights mandate universal transgender rights. Sexual orientation and gender identity are integral to every person’s dignity and humanity and must not be the basis for discrimination or abuse. An international treaty is necessary to make extension of rights imperative and not a subject of interpretation. The presence of an international treaty would make transgender freedoms an integral part of global human rights precedent and ensure the proper application and extension of domestic civil liberties to trangender individuals. For instance, most penal codes of countries are binary in nature, as they define a person as a man or woman. This has led to a lack of protection of the transgender population for crimes like rape and harassment, which are codified with a gendered lens. Using international treaties to expand the definition of a person beyond the traditional binary would ensure the effective implementation of laws and extend their protection to persons who do not conform to binary gender norms. Furthermore, ratifying a treaty on an international level would compel states to extend social security schemes with a count of the transgender population in the national census indicative of their ratio in society. A formal agreement would also help create specific laws that would act as a deterrent against those who choose to abandon them. This would lead to a change in binary education systems, reduce instances of discrimination in employment based on gender identification, ease the system to own property or open bank accounts (which are too often restricted to people identifying themselves as men or women) and extend the benefit of healthcare systems to those who do not tick the traditionally binary gender boxes assigned at birth. In a free world, the transgender population should have the right to choose a partner, start a family, and not be tortured or subjected to violence. Adoption and ratification of a transgender rights treaty at the international level would ensure the awareness that this issue deserves. In turn, this would foster social inclusion and acceptance on the domestic level.