Archive for
September, 2011

Glazier: More on Why the Al-Nashiri Charges Are Flawed

by Kevin Jon Heller

The following is a guest-post by David Glazier, Associate Professor of Law at Loyola Law School in Los Angeles.  Our thanks to him for providing it.

As Kevin noted on Wednesday, the Department of Defense approved military commission charges against Abd Al Rahim Hussayn Muhammad Al Nashiri, alleged USS Cole bombing mastermind, clearing the way for his arraignment and subsequent trial.  Al Nashiri will face nine separate charges and a possible death sentence.  Having been in command of a U.S. Navy guided missile frigate the day the Cole was struck, I am particularly eager to see justice done for this act of terrorism.  But having spent most of the decade since 9/11 studying the law of war in general and military commissions in particular, I firmly believe that these are the wrong charges before the wrong court.

A military conviction will both require a strained application of the law of war and establish dangerous legal precedent.  The Supreme Court has held that military commission jurisdiction is strictly limited to conduct taking place during an armed conflict.  Although some commentators continue to disagree, U.S. courts are clear that this is satisfied by acts on and after September 11, 2001 thanks to the congressionally enacted Authorization for the Use of Military Force (AUMF).  But to hold that the October 2000 Cole bombing, as well as the earlier failed attack on the USS The Sullivans, took place during an armed conflict requires conceding to al Qaeda the nation-state’s prerogative to declare hostilities.  Since a warship is a lawful object of attack, we can then object only to the means used, not to the attack itself.  Ruses, including the use of false flags to approach an enemy, are permitted in naval warfare, allowing al-Nashiri to raise defenses wholly irrelevant in a federal terrorism prosecution, which would hold that any pre-9/11violence against the American military was a serious crime regardless of how conducted.  Moreover, such a precedent could logically allow future terrorist groups to announce they were at war with the United States and lawfully kill our service personnel if they just adopted means conforming to the law of armed conflict.

There are also very serious issues with the specific charges.  The core justification for the multiple charges based on the Cole attack is that they involved perfidy by using a civilian boat, dressing in civilian clothing, and “waving at the crewmembers onboard.”  Nothing in the law of war requires naval forces, as distinct from land and air forces, to wear uniforms, while the prosecution’s assertion that waving to a U.S. Navy ship can constitute a war crime threatens to make our military into the butt of jokes around the world.  But the biggest problem with the charge is that the crime of perfidy requires inducing the adversary to falsely believe that the attacker is entitled to special protection under the law of war.  It is logically impossible to do this to persons who do not know they are at war.  The Cole crew understood that they were making a peacetime refueling stop and operated under U.S. standing rules of engagement and antiterrorism instructions, not the law of armed conflict.  The United States has consistently treated the Cole as a non-wartime matter, launching only FBI agents in response, denying the crew awards for combat valor, and assessing the performance of captain and crew against peacetime standards, all of which the defense will fairly argue should bar unilateral ex post facto reclassification of the bombing as part of an armed conflict.  (The crew of The Sullivans never even knew an attack had been attempted.)

A “terrorism” charge is even more facially nonsensical based on the required nexus to an armed conflict for commission jurisdiction.  The charge sheet says that the bombers “engage[d] in an act that evinced a wanton disregard for human life” in order to “influence and affect the conduct of the United States government by intimidation and coercion.”  But that, in a nutshell, is the essence of what constitutes armed conflict!  War, as the Prussian strategist Carl von Clausewitz famously put it, “is the continuation of politics by other means.”   An act of violence conducted during wartime that is not intended to advance the purposes of winning the war; that is, to compel the enemy to submit to the desired ends of the other party, is unlawful gratuitous violence, that is to say, an actual war crime.

The government also presses a conspiracy charge despite the fact that virtually all serious law of war scholars agree it is not a recognized war crime; four Supreme Court justices went on record with this view in Hamdan v. Rumsfeld.  (The fifth vote to halt the trial came from Justice Kennedy, who felt that the conspiracy issue should be deferred until a completed trial record was before the Court.  Ironically a military commission ultimately acquitted Hamdan of that charge.)  Again, these would not be issues in a regular federal prosecution where both terrorism offenses and conspiracy are well established crimes, and the government would only need to factually establish a link between al-Nashiri and the attacks in question to secure a conviction.

The final three charges relate to an October 2002 attack on a French-flagged, civilian tanker, the M/V Limburg, which was under charter to a Malaysian firm when it was struck off the coast of Yemen, killing one Bulgarian crewman.  While this attack poses no temporal issue, coming more than a year after 9/11, it is still going to be necessary for the government to demonstrate that the attack was somehow part of the conflict between al Qaeda and the United States.  This is something much easier said in a press release than proved in a court of law, as Kevin previously addressed in more detail.

Al Nashiri is widely reported to have been held in CIA custody and subjected to interrogation methods, including death threats, which clearly amount to torture.  But as the federal prosecution of Ahmed Ghailani showed, neither prolonged preventative detention nor prior mistreatment is a bar to civilian conviction.  While federal courts will not admit evidence obtained through coercive interrogations, the Military Commissions Act of 2009 contains a categorical prohibition against doing so as well.  So there is no legitimate reason to favor a military trial in this case as compared to a host of legal reasons why a federal trial is vastly preferable.

BIT Provisions that Are Self-Executing But Do Not Confer a Private Right of Action

by Roger Alford

Luke Peterson passed along a tip about this interesting declaration attached to the U.S.-Rwanda Bilateral Investment Treaty:

Articles 3 through 10 and other provisions that qualify or create exceptions to these Articles are self-executing. With the exception of these Articles, the Treaty is not self-executing. None of the provisions in this Treaty confers a private right of action.

Articles 3 through 10 of the BIT address traditional substantive guarantees for investors, such as national treatment, MFN treatment, and compensation for expropriation. The other non-self-executing provisions deal with issues such as dispute settlement mechanisms, including dispute resolution of investor-state claims and state-to-state claims.

The Senate hearing on the treaty made clear that the purpose of this language was to respond to Medellin.

“Following the Supreme Court’s decision in Medellin v. Texas, 552 U.S. 491 (2008), the committee has taken special care to reflect in its record of consideration of treaties its understanding of how each treaty will be implemented, including whether the treaty is self-executing…. The resolution of advice and consent contains a statement reflecting the committee’s understanding of the extent to which this Treaty will be self-executing. This provides that Articles 3-10 of the Treaty are self-executing and do not confer private rights of action enforceable in United States courts. The remaining provisions of the Treaty are not self-executing and do not confer private rights of action enforceable in United States courts.”

I’m glad to see that the Senate is carefully addressing the issue of domestic implementation of treaties following Medellin. The dispute settlement mechanisms in the treaty are not self-executing and any arbitration award rendered pursuant thereto must be enforced using either the New York Convention or the ICSID Convention. Makes sense. But I’m curious what impact a treaty declaration will have in the future for substantive treaty guarantees that are self-executing but do not confer a private right of action. Beyond protecting the United States as a litigant, what does self-execution achieve for the substantive provisions of the BIT that are designed to protect investors?

Anwar Al-Aulaqi Killed in Drone Strike in Yemen

by Kenneth Anderson

How should we think about targeting Al-Aulaqi?  Here’s a quick take, trying to put the main questions in some logical order.  As the reader can see from other posts on this blog, many issues are contested, including what the proper legal questions are, so please understand that this is simply one way of looking at the issues – though I believe (without any special inside information) that it is more or less in line with the US government legal position.

Who? As an international law matter, is Al-Aulaqi a lawful target? The US government sees him as taking part in hostilities, part of the operational leadership of an associated force with Al Qaeda, the AQAP.  So, yes, he can be targeted with lethal force — and targeted without warning, without an attempt to arrest or apprehend as a law enforcement matter.  (Although many in the international law academic and advocacy communities have essentially taken on the ICRC’s full DPH views as expressed in its interpretive guidance, the US government has not; and although there seems to be a bit (as predicted by critics of the ICRC’s issuing of the “interpretive guidance”) of believing that if you repeat it often enough, you make it so, again that is not the US government’s view.  State practice still matters.)

Where?  Does it matter that he was in Yemen, and not an “active battlefield” in a conventional hostilities sense?The US government does not accept the idea that the armed conflict with Al Qaeda — or armed conflict generally — is confined as a legal matter to some notion of “theatres of conflict” or “active battlefields” or related terms that have been used in recent years by academics and activist groups as though these were terms with recognized legal meanings.  As I understand the US government position, it sticks by the traditional concept of “hostilities” as the legal touchstone, and that where the hostiles go, the possibility of armed conflict goes too (I try to explain this evolution of these views in this short essay).  So the fact that he was present in Yemen does not make him beyond targeting, because he is not present in some “active” battlezone such as Afghanistan.

This claim — the conflict follows the participants — frequently leads to a complaint that this means the US might target him in Paris or London.  The US position is that the standard for addressing non-state actor terrorists taking safe haven somewhere depends on whether the sovereign where the terrorist is hiding is “unwilling or unable” to address the threat.  No, there won’t be Predators Over Paris; Yemen or Somalia is another matter, as President Obama has repeatedly and without cavil said in speeches over the last few years.  And indeed, as the President said in his statement yesterday on the raid – no safe havens anywhere.

By whom can he be targeted?  The military or the CIA? US domestic law provides authority for the President to direct either the US military, or the CIA, or both acting together, to undertake the use of force abroad.  In this case, it appears from first reports that the operation was “directed” by the CIA — presumably on account of intelligence roles — and carried out operationally by the military.  As I have said on other occasions (and, heads-up, Robert Chesney is finishing an important new paper on this topic) I think there are important ways in which the legal authorities, oversight and reporting, and other activities associated with an intermingling of CIA and military special operations should be re-examined.  One in particular is some way of recognizing a category of “deniable” operations that are not truly covert.

US citizenship?  What difference, if any, does being a US citizen make? The fact of US citizenship is the factor in this situation that has most excited the blogosphere.  Insofar as Al-Aulaqi was targeted for taking operational part in groups engaged in armed conflict with the United States, historically the fact of citizenship has been neither here nor there.  That’s the easy answer — essentially just asserting the existence of the armed conflict like any other — and as a legal basis for targeting, I think the US government is on solid ground if that’s its claim.  Al-Aulaqi has entered into operational roles with a group acting in armed conflict with the United States, and is targetable on that basis, and citizenship has historically been no bar to attack.  To reiterate what is said above: in order to reach the conclusion that he is targetable, the US government has been very careful to rely not upon “internet preacher shooting his mouth off,” but instead on distinct operational roles.

Continue Reading…

The Tone-Deaf ICC Prosecutor

by Kevin Jon Heller

Moreno-Ocampo has always had the reputation of being more politically savvy than legally savvy.  Frankly, he seems completely politically tone-deaf to me.  Witness his recent comments on the implications of a possible UN General Assembly decision to give Palestine “observer state” status:

A few blocks away from the UN this week, the man at the centre of the controversy said if Palestine becomes a member state, or a lower-ranked non-member observer state, it could be eligible to pursue claims against Israel.

“If the General Assembly says they are an observer state, in accordance with the all-state formula, this should allow them . . . to be part of the International Criminal Court,” he told the Star.

Moreno-Ocampo has scrutinized the issue of the Palestinians’ claims for two years, since they filed a declaration giving jurisdiction to the court for acts committed on their territory. But there has not yet been a conclusion.

“We have the declaration, and we have been analyzing if they are a state,” he said. “Now the issue is before the UN, and whatever they decide, we will react to.”

Israel’s former UN ambassador Dore Gold told the BBC that Palestinian President Mahmoud Abbas made the bid for statehood “to open a whole new door of going to the International Criminal Court.”

Israel opposes any move to hold it accountable in the court, saying it is a Palestinian attempt to delegitimize and isolate the Jewish state.

Moreno-Ocampo’s opinion that the court would be able to act if the Palestinians get observer-state status is significant because the bid for full UN membership is expected to fall short, which would leave them to ask the General Assembly to vote on including them as an observer state instead.

I am completely in favor of the General Assembly granting the Palestinians observer-state status, and there is no question that such a decision would strengthen the legal case for the OTP recognizing the Palestinians’ declaration accepting the ICC’s jurisdiction.  But I cannot imagine why Moreno-Ocampo chose to offer his opinion on that issue now — just as debate over the Palestinian’s request for full membership in the UN is getting underway.  After all, Israel and the U.S. have made clear that fear of an ICC investigation of the situation in Gaza is one of the primary reasons they oppose observer-state status, much less full membership, for the Palestinians.  Neither Israel nor the U.S. has the ability to block a General Assembly decision to that effect.  But they can certainly make that decision more difficult and costly for various states.  So wouldn’t it have made more sense for Moreno-Ocampo to say nothing until after the General Assembly resolved the Palestinian issue?  By tipping his hand so overtly, all he’s done is make the Palestinians’ road to self-determination that much more difficult.

June 2012 cannot come soon enough.

The Fallacy of Sequencing Peace and Justice

by Mark Kersten

A few weeks ago I spoke with a senior transitional justice researcher and aspiring politician from northern Uganda about the trials (if you excuse the pun) and tribulations of achieving peace and justice in the region. He described sentiments familiar to those who have engaged in the “peace versus justice” debate:

“I don’t see it as a debate. It is common sense that in situations of what we have been experiencing, strategically we should be sequencing these issues, prioritizing and looking at what is best in the short-term and what is best in the long-term. It is very legitimate in any process that we must create an enabling environment that can guarantee justice can be done…If you start asking for justice even before you create that enabling environment, it is not even a debate, it is foolery…We must sequence them.”

I subsequently challenged him on the effectiveness of his argument to which he responded that Argentina was the ideal example of a state which had successfully sequenced peace and justice.

The “sequencing argument” has become a popular feature in the rigid and harshly dichotomous “peace versus justice” debate. The argument is attractive because it represents an attempt to find ground between the polarizing views that there is “no peace without justice” and “there is no justice without peace.” While the sequencing argument is closer to the latter in suggesting that justice may have to follow peace it largely acknowledges that justice is necessary in the long term. Unlike scholars of a realist bent who are sceptical of any attempt to achieve justice in conflict and post-conflict contexts, the point is not to reject accountability and reconciliation but to create an environment in which pursuing justice enforces rather than destabilizes peace.

The sequencing argument is rather nuanced and intuitive. It weaves together the two major strands of thinking on peace: positive peace and negative peace. Negative peace, the cessation of large-scale, direct violence, is required before justice can be pursued. If justice is sought prior to the “silencing of the guns”, then it risks prolonging the conflict. However, once a negative peace is secured, justice should be pursued. Only by identifying and rectifying past wrongs – including human rights abuses – can a more encompassing, positive peace be achieved. In short, the sequencing argument suggests a trajectory of:

violent conflict –> negative peace –> justice and accountability –> positive peace

Proponents of the sequencing argument have, however, not thoroughly scrutinized how their theory translates into practice. On the ground, the sequencing argument presumably looks a little like this: in order to achieve a cessation of violence, parties enter inclusive peace negotiations to achieve a power-sharing agreement and peaceful transition. The parties discontinue active conflict while even the most brutal and unsavoury of leaders are guaranteed amnesties as an incentive to cease violent activity. Once stability is assured and the time for accountability is ripe, those amnesties are revoked and the leaders of the conflict are brought to account, ushering in positive peace and justice.

Continue Reading…

The Latest Argument Against U.S. Ratification of UNCLOS: China

by Julian Ku

John Bolton and Dan Blumenthal have an op-ed in tomorrow’s WSJ offering a new argument against U.S. ratification of the UN Convention on the Law of the Sea. It’s all about China.

…With China emerging as a major power, ratifying the treaty now would encourage Sino-American strife, constrain U.S. naval activities, and do nothing to resolve China’s expansive maritime territorial claims.

At issue is China’s intensified effort to keep America’s military out of its “Exclusive Economic Zone,” a LOST invention that affords coastal states control over economic activity in areas beyond their sovereign, 12-mile territorial seas out to 200 miles. Properly read, LOST recognizes exclusive economic zones as international waters, but China is exploiting the treaty’s ambiguities to declare “no go” zones in regions where centuries of state practice clearly permit unrestricted maritime activity.

Take the issues of intelligence, surveillance and reconnaissance, both by air and sea. LOST is silent on these subjects in the exclusive zones, so China claims it can regulate (meaning effectively prohibit) all such activity. Beijing also brazenly claims—exploiting Western green sensibilities—that U.S. naval vessels pollute China’s exclusive zone, pollution being an activity the treaty permits coastal states to regulate out to 24 miles.

China wants to deny American access to its nearby waters so it can have its way with its neighbors. Beijing is building a network of “anti-access” and “area denial” weapons such as integrated air defenses, submarines, land-based ballistic and cruise missiles, and cyber and anti-satellite systems designed to make it exceedingly hazardous for American ships and aircraft to traverse China’s exclusive zone or peripheral seas.

If the Senate ratifies the treaty, we would become subject to its dispute-resolution mechanisms and ambiguities. Right now, since we are the world’s major naval power, our conduct dominates state practice and hence customary international law—to our decided advantage.

As I’ve made clear before in other posts, I think joining UNCLOS is clearly a mixed bag for the U.S. I am not sure the China threat to the U.S. Navy (a threat I do think is very real), is going to be affected by the U.S. joining the treaty.  No matter whether the U.S. joins UNCLOS, China will advance exactly the same strategies against the U.S. Navy.

Moreover, the Exclusive Economic Zone is a concept that does not, in general, strongly support the Chinese position on excluding U.S. military vessels.  The dispute resolution procedures of UNCLOS are not very weighted against the U.S. since both nations would only agree to arbitration in such matters, where each would get to appoint at least one of the arbitrators. And it is also worth noting that China is even more skittish about international dispute resolution than the U.S. is. Apart from WTO proceedings, China has not been a party to any international court proceeding in since 1927.  And as I will argue in a forthcoming paper, it has strenuously avoided giving international courts any jurisdiction.  I think it is fair to say that international tribunals might be biased toward the U.S., but they might be even more biased against China.  Certainly, China believes this bias is true and why it has steadfastly demurred against calls from its neighbors to take their disputes to an international tribunal.

In any event, there is a certain irony to reading that John Bolton favors customary law over treaty law.  If the U.S. wants to shape the evolution of rules on EEZs, I don’t know why it is easier to do so from outside the treaty rather than inside the treaty. Being inside the treaty has lots of downsides, but I think critics are ignoring the upsides, and therefore simplifying what is really a tough decision for U.S. policymakers.

Does Public International Law Have Anything to Say About the Economic Crisis?

by Kenneth Anderson

Like many OJ readers, I am anxiously reading the newspapers on the sovereign debt crisis in the Eurozone.  My international law teaching is almost entirely international economic law, so I have reasons to follow these events closely.  In important ways, crises of these kinds make one feel as though our fates lie in the hands of central bankers, and the armies of macroeconomists supporting them.  At the same time, however, the current crises are governance events – in the sense of domestic voting populations, parliaments, ministers, and the interactions of these actors with national, international, and transborder institutions.  My question is what, if anything, international law scholars have to offer in understanding and interpreting these events, and what international law scholars might think they imply for transborder and international institutions, for governance and its theorizing, and for the future of the European Union as a governance project.

One answer is, not much.  The economic realities will shape institutions over the long term, and international law scholars will have to see what emerges over time.  Alternatively, these kinds of crises can be seen to confirm whatever one’s prior view was – particularly on the question of whether the problem was trying to do too much politically in European unification, or too little.  But it seems to me that there should be things to be said about such things as the possibilities and limits of inter-governmental bargaining through regulator networks, for example, or the limits of collective action, or the re-shaping of governance relations in a multipolar world and the role of the BRICs, or the future possibilities for governance in the EU, etc. I don’t mean that lawyers should play macroeconomist – or that lawyers who do governance issues should suddenly decide that they can interpret sovereign debt contracts.

But there are governance issues here. One answer is that it is way too soon to know what happens and scholarship has to wait.  Fair enough; I’m more or less content anxiously to read the newspaper and wait on events; I do read sovereign debt contracts and their covenants as part of my studies, though for anything complicated I consult my colleague Anna Gelpern, and I can’t predict what will happen or even who exactly will adjudicate them.  Haircuts? Defaults?  Sovereign eurobonds?  Leveraged borrowing against the rescue fund?  Northern euro and southern euro? Quite apart from the economic law questions, I have broader questions – what are the possibilities of emigration from Greece to more prosperous parts of the EU, for example, and the implications for welfare states?  What about free movement of people within the eurozone in the teeth of radically differentiated austerity conditions across the EU?  What about Barroso’s speech on ever closer union as the solution?

There are a lot of folks in our scholarly world who write about forms of governance, global and EU constitutionalism, network regulatory theory, etc.  I wonder where these fields go next.  Will we see a wave of cases in the ECHR and the ECJ that seek to address welfare austerity issues? Or economic migration?  I don’t know, but these are the sorts of questions that keep nagging at me as a scholar in trying to understand the crisis in Europe.

Regular readers have heard me say before that I sometimes think a lot of public international law has collapsed into international criminal law in international tribunals, at least as scholarship goes. This might be a moment to ask what happened to the rest of it.  Not that I’m offering anything – and I am happy to say that it’s too soon to say much.  Also, unsurprisingly, I find that events confirm remarkably closely my views of governance.  But I have this nagging question as to whether we as scholars ever will find something to say about the crisis of today and its long term implications for governance.

Note to young and aspiring scholars: The national security-terrorism decade is over in international law, transborder law, and domestic constitutionalism, even if there are many dangling issues that haven’t been worked out, such as the scope of covert action, drones, targeted killing, trying terrorists, detention, etc.  The 90s were liberal internationalism; the 00s were non-state actor terrorism and state counterterrorism.  Like it or not, questions answered or not, events have moved on.  It is now the turn of two different things, which are nonetheless closely intertwined: International, transborder, and domestic constitutional economic law, on the one hand, and the international law of competitive and jostling rising great powers, on the other.

(PS. One blog that does engage these areas is The Multilateralist, by my estimable American University colleague, David Bosco. Here is David’s sobering takeaway from the IMF meetings in DC  over the weekend.)

The United States’ Radical Charges Against Al-Nashiri

by Kevin Jon Heller

The United States has formally referred military-commission charges against Abd al-Rahim Al-Nashiri for his alleged involvement in a number of terrorist attacks between 2000 and 2002.  Here is Bobby Chesney’s helpful description of the charges:

Charge 1: Using Treachery/Perfidy (10 USC 950t(17)) – the idea here is that the use of a civilian boat, civilian clothing, and so forth to get close to the USS Cole exploited the protection for civilians under the law of war.

Charge 2: Murder in Violation of the Law of War (10 USC 950t(15)) – the idea here is that the perfidious attack rendered the resulting murders violations of the law of war).

Charge 3: Attempted Murder in Violation of the Law of War (10 USC 950t(28)) – same as above as to the Cole, but a separate specification mounts this charge also in relation to the failed attack on the USS [The] Sullivans in January 2000.

Charge 4: Terrorism (10 USC 950t(24)) – The first idea here is that the attack on the Cole was intended to influence the government through unlawful violence.  A second specification presents the same claim as to the 2002 attack on the MV Limburg.

Charge 5: Conspiracy (10 USC 950t(29)) – The conspiracy charge as referred is a touch narrower than it was when first specified.  References to activities in Qatar and Bosnia have been deleted, for example.  But the bottom line is the same: a conspiracy with other al Qaeda figures to commit terrorism and murders in violation of the law of war, supported by various overt acts.  Interestingly, the convening authority deleted the first specified overt act, having to do with allegations that al-Nashiri between 1994 and 1999 traveled to various locations to obtain training and participated in fighting.

Charge 6: Intentionally Causing Serious Bodily Injury (10 USC 950t(13)) – similar to the murder count, related to the Cole attack.

Charge 7: Attacking Civilians (10 USC 950t(2)) – Based on the Limburg attack.

Charge 8: Attacking Civilian Objects (10 USC 950t(3) – same as above

Charge 9: Hazarding a Vessel (10 USC 950t(23) – same as above

There are numerous problems with the specific charges, such as the idea that a perfidious act that causes the death of individuals who are otherwise lawfully targetable (i.e., combatants) qualifies not only as the war crime of perfidy, but also as the war crime of murder.  There is, of course, no support for that position in the law of war.

The more fundamental problem with the charges, however, is one that I’ve discussed before: namely, that was no armed conflict between the U.S. and al-Qaeda at the time of the attack on the USS Cole or the attempted attack on the USS The Sullivans.  Both attacks took place prior to the AUMF, so the (flawed) argument that the AUMF recognized a global non-international armed conflict (NIAC) between the U.S. and al-Qaeda is unavailing.  As a result, the U.S. has only two possible arguments: (1) that any terrorist attack on a military target is governed by the laws of war; or (2) that bin Laden’s “declaration of war” on the U.S. in 1996 triggered the laws of war.  The first argument finds no support whatsoever in international humanitarian law — and, indeed, is far more radical than the U.S. claim (also flawed) that it can simply concatenate any terrorist attack anywhere into a global NIAC.  The second argument is even more incoherent, and simply continues the regrettable — and wholly opportunistic — U.S. tendency to elide the difference between international armed conflict (IAC) and non-international armed conflict.  As the eminent American scholar Quincy Wright noted long ago, “insurgents or native communities, not being recognized states, have no power to convert a state of peace into a state of war.  So their declaration or recognition of war would have no legal effect.”  The same is true for other non-state actors, such as terrorist groups like al-Qaeda.  Bin Laden’s “declaration of war” on the U.S. is thus irrelevant to whether there was an armed conflict between al-Qaeda and the U.S. at the time of the attacks alleged in the charges against Al-Nashiri.

Because there was no armed conflict between the U.S. and al-Qaeda at the time of the attack on the USS Cole or at the time of the attempted attack on the USS The Sullivans, none of the charges related to those events can properly be considered war crimes.  That leaves the charges concerning the October 2002 attack on the MV Limburg.  Was that attack governed by the laws of war?  I’m skeptical, for reasons that should be familiar to readers by now, but the issue is at least more difficult for the attack on the MV Limburg than for the pre-9/11 attacks.

There is, however, a much deeper question raised by the charges involving the MV Limburg: why does a U.S. military commission have jurisdiction over that attack?  The MV Limburg was a French oil-tanker owned by Belgium and chartered by Malaysia; as far as I know, no American was harmed in the attack or was even aboard the ship.  (The one fatality was Bulgarian.)  So what is the jurisdictional nexus?

The charge sheet is silent on that issue.  The only possible argument for jurisdiction that I see involves the definition of “unlawful enemy combatant” in 10 U.S.C. 948(a) (emphasis added):

(1) Unlawful enemy combatant. – (A) The term “unlawful enemy combatant” means – (i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal
established under the authority of the President or the Secretary of Defense. (B) Co-belligerent. – In this paragraph, the term “co-belligerent”, with respect to the United States, means any State or armed force joining and directly engaged with the United States in hostilities or directly supporting hostilities against a common enemy.

The argument here would be that that France was a co-belligerent of the U.S. in the conflict with al-Qaeda, bringing the attack on the MV Limburg within the purview of a military commission.  But that argument is not without its difficulties.  To be sure, France supported and participated in the war in Afghanistan, which makes it appear to be a “co-belligerent” in that war.  But it is far from clear whether France can be considered a “co-belligerent” of the U.S. in the global NIAC between the U.S. and al-Qaeda — even if we bracket the fact that no such armed conflict exists.  To the best of my knowledge, France has never embraced the U.S. position that the laws of war apply to any terrorist attack anywhere; indeed, this report by the International Centre for Counter-Terrorism says that France views terrorism as governed by the law-enforcement paradigm.  If so, the claim that France is a a co-belligerent of the U.S. outside Afghanistan rings hollow — and undermines the validity of the charges against Al-Nashiri involving the attack on the MV Limburg.

Readers, your thoughts?

Conflicting Impulses: The Debate on Amnesties in the Case of Uganda’s Thomas Kwoyelo and Beyond

by Mark Kersten

This past summer, Uganda did something it had never done before: it put a rebel from the notorious Lord’s Resistance Army (LRA) on trial for international crimes. The trial of Thomas Kwoyelo marked yet another fascinating twist in Uganda’s experience of confronting past atrocities. The government’s Directorate of Public Prosecutions alleged that Kwoyelo was guilty of 12 charges of grave breaches of the fourth Geneva Convention and 53 counts of violating Uganda’s penal code. Last week, however, judges deemed prosecuting Kwoyelo unconstitutional and ordered him to be set free.

The primary obstacle to trying any former rebels in Uganda is the state’s Amnesty Law (2000) which was passed with the backing of powerful local northern Ugandan leaders. It effectively guarantees that any individual who either escaped or was captured and subsequently renounced rebellion can be granted reprieve from any prosecution. The trial of Kwoyelo raised, once again, unresolved issues about the use of amnesty laws in societies emerging from violent political conflicts characterized by widespread atrocities.

During three months of research, I had the opportunity to attend much of Kwoyelo’s trial and speak to many of those involved and affected by his case. From its inception, there was always something peculiar and uncomfortably political about the proceedings. The case opened, quite literally, to the tune of a marching band.

While rather clumsy in their approach – much to the chagrin of the presiding judges – Kwoyelo’s defense team argued that prosecuting their client was unconstitutional. Because other former combatants, including some who were senior to Kwoyelo, had been granted amnesty, trying Kwoyelo constituted an infringement of his right to fair treatment and equality before the law. Not being able to decide on the constitutionality of the case, the ICD referred it to the Constitutional Court, which agreed with the defense and ordered Kwoyelo to be granted an amnesty and be released:

“We are satisfied that the applicant has made out a case showing that the Amnesty Commission and the Director of Public Prosecutions have not accorded him equal treatment under the Amnesty Act. He is entitled to a declaration that their acts are inconsistent with Article 21(1) (2) of the Constitution and thus null and void. We so find.

We order that the file be returned to the court, which sent it with a direction that it must cease the trial of the applicant forthwith.”

The importance of the Kwoyelo trial, both legally and politically, is rather obvious. Had Uganda successfully tried and convicted Kwoyelo (and they still might), it would have given the government a plank upon which to build a complementarity challenge to the ICC’s jurisdiction, something the government had expressed interest in doing. However, the spectre of a successful trial also instigated fears in northern Uganda. Former senior rebel commanders explained their uneasiness of potentially becoming the Government’s next targets for trial if Kwoyelo was denied amnesty. The instability incurred by revoking thousands of amnesties would be absolutely devastating to a region and people eager to move forward.

Of course, the granting of an amnesty and the defeat of the government’s case against Kwoyelo is equally as controversial. International human rights groups sent representatives to monitor the trial and provide assistance to government lawyers. Predictably, Human Rights Watch argued that amnesties “for crimes such as war crimes and crimes against humanity run counter to international law and practice.” In the wake of the Kwoyelo verdict, Amnesty International released a statement which declared that:

“What we are witnessing here is simply pervasive impunity for serious crimes and human rights violations…Neither Thomas Kwoyelo, nor others accused of committing war crimes should be granted amnesty.”

Human rights groups and fervent human rights advocates and scholars have been engaging in what amounts to talking amnesties out of reality. They claim not only that it is morally and legally wrong to grant amnesties but ominously warn that doing so is to risk ever becoming a functioning, liberal democracy.

However, that granting amnesties for crimes such as those allegedly committed by Kwoyelo “run contrary to international law and practice” is not obvious. To borrow from the decision in an Appeal’s Chamber ruling at the Special Court for Sierra Leone: a duty to prosecute international crimes and a prohibition on the use of amnesties may be crystallizing, but has not yet crystalized. Continue Reading…

Photo of the Day

by Kevin Jon Heller

DSK Asserts Immunity in Civil Lawsuit

by Julian Ku

Former IMF Chief Dominique Strauss-Kahn has asserted immunity under international law from the lawsuit filed by Nafissatou Diallo, the maid who is accusing him of sexually attacking her. 

“Mr. Strauss-Kahn enjoyed absolute immunity under customary international law not only while he was head of the IMF, but also for the period of time after he had resigned from his post and was ordered to remain in the United States in his criminal matter,’’ the Frenchman’s high-powered lawyers said in a sensational motion to dismiss, filed today in Bronx Supreme Court.

“That is because, under applicable and controlling international law, Mr. Strauss-Kahn’s absolute immunity persisted until he was able to leave the United States,” the document said, according to Agence-France-Presse.

I am dubious of this claim for two reasons. It is true that customary international law can be invoked to provide immunity in a U.S. court, even absent a treaty, it is rarely done so and (to my knowledge) has not been done so since most of these rules were codified in statutes and treaties.  Second, as Chimene Keitner argued here in an earlier post, DSK has a very weak claim to immunity  because the IMF may have waived whatever immunity he might have had and since he was not likely to be acting in his official capacity. Still, there is a plausible argument here, just not a very convincing one.  Will it convince the Bronx court judge?

Hello World – The ICRC Starts a Blog

by Kenneth Anderson

We’d like to officially welcome the ICRC’s new blog, Intercross, which can be found here at the ICRC website.  It looks terrific and should be a great source for many different communities.  As the saying goes … Hello World!

A Shipwreck and Sovereign Immunity

by Duncan Hollis

Over the last year, we’ve hosted a number of discussions centered on immunity issues and how US courts deal with them.  For the most part, however, these discussions focused on individuals claiming immunity from becoming the subject of criminal or civil proceedings.  Last week, however, the 11th Circuit gave us a very different type of immunity case — the sovereign immunity a State has over its naval shipwrecks.  In 2007, Odyssey Marine Exploration, Inc. discovered the remains of a 19th Century Spanish vessel in international waters west of the Straits of Gibraltar.  It instituted admiralty proceedings in Florida to effectuate its claim to the sunken treasure it found there (including thousands of silver coins being transported at the behest of private Spanish interests) and the vessel’s remains. Spain, among others then intervened, claiming the vessel was the Mercedes, part of a Spanish squadron that had met the following fate:

On the morning of October 5, 1804, when the Spanish squadron was only one day’s sail from Cadiz, it was intercepted by a British squadron. Four Royal British Navyships, under the command of Commodore Graham Moore, had been sent by the British Navy Admiralty to intercept Spanish warships transporting treasure back to Spain. The Spanish frigates, having sighted the British frigates headed towards them, assumed a combat formation. A British officer was sent aboard [one of the Spanish vessels] and informed the Spanish that the British King had ordered the British Navy to detain the Spanish squadron and take it to England. The Spanish refused the British order, and what was to become known as the Battle of Cape Saint Mary soon commenced. Only a few minutes after the battle began, the Mercedes exploded. . . Except for fifty sailors, everyone aboard the Mercedes was killed . . . The remaining three Spanish frigates surrendered and were taken by the British squadron to England.  Partly as a consequence of the Battle of Cape Saint Mary, Spain declared war against Great Britain and entered into the Napoleonic Wars as an ally of France.

Based on the wreck’s identity as the Mercedes, Spain asserted sovereign immunity over the res of not only the vessel, but its cargo.  Odyssey objected as to the identity of the ship, the application of sovereign immunity to its cargo, and invoked a commercial activity exception to any immunity findings.  The District Court, however, concluded the res was the Mercedes and that it was entitled to sovereign immunity.

On appeal, the 11th Circuit affirmed the District Court decision that the vessel was the Mercedes and that Spain was entitled to a presumption of immunity under Section 1609 of the Foreign Sovereign Immunities Act:

Section 1609 of the FSIA states: “Subject to existing international agreements to which the United States is a party at the time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment[,] arrest[,] and execution except as provided in sections 1610 and 1611 of this chapter.”  28 U.S.C. § 1609.  The Mercedes is Spain’s sovereign property that is within the United States.  While the Mercedes itself is not within the United States, that alone does not defeat the court’s ability to obtain jurisdiction over it.  A court may have either actual or constructive possession over the res . . . A salvor is thus able to bring a shipwreck found in international waters constructively within a court’s territorial jurisdiction by having a portion of the shipwreck within the jurisdiction.  R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943,967-69 (4th Cir. 1999) (concluding a shipwreck found in international waters can “constructively” be considered within the jurisdiction of the district court, although the district court’s sovereignty over the wreck is a “‘shared sovereignty,’ shared with other nations enforcing the same [law of all nations]”).  Odyssey has deposited parts of the Mercedes with the district court, constructively bringing the shipwreck within the court’s territorial jurisdiction.  Because this is an in rem action based on the arrest of sovereign property, § 1609 provides the Mercedes with presumptive immunity from arrest.

Odyssey did not invoke either of the statutory exceptions to Section 1609, but instead invoked the “subject to existing international agreements” language in Section 1609, arguing that the 1958 High Seas Convention’s restrictive approach to immunity should govern the case.  The Court disagreed, finding that, for Spain, “providing protection and safe passage to property of Spanish citizens was a military function of the Spanish Navy, especially in times of war or threatened war.”

All of the foregoing seems pretty sensible with respect to the Spanish vessel, but why give the cargo the same immunity if it hadn’t actually belonged to Spain?  The 11th Circuit invokes a 1902 Treaty as requiring it to do so:

In 1902, the United States and Spain signed a treaty mandating “[i]n cases of shipwreck . . . each party shall afford to the vessels of the other, whether belonging to the state or to individuals, the same assistance and protection and the same immunities which would have been granted to its own vessels in similar cases.” 1902 Treaty of Friendship and General Relations Between the United States of America and Spain, art. X, July 3, 1902, 33 Stat. 2105.  Under this treaty, the United States must afford the Mercedes, as a shipwrecked Spanish warship, the same protection it would give a shipwrecked United States military vessel.  The United States considers the cargo of a shipwrecked U.S. military vessel part of the shipwreck and gives it the same immunities as the shipwreck.  Under the [Sunken Military Craft Act], the rights, title and interest of the United States in any sunken military craft are protected absent an “express divestiture of title.”  § 1401, 118 Stat. at 2094. The definition of a “sunken military craft” includes a sunken warship or other military vessel, as well as “all or any portion of . . . the associated contents of a craft.”  § 1408(3)(C), 118 Stat. at 2098.  “Associated contents” are defined as “the equipment, cargo, and contents of a sunken military craft that are within its debris field . . . [and] the remains and personal effects of the crew and passengers of a sunken military craft that are within its debris field.”  § 1408(1), 118 Stat. at 2097 (emphasis added).  Thus, under the 1902 treaty, the Mercedes and its cargo are entitled to the same immunities provided by the SMCA.

It’s an interesting opinion, both for the close statutory analysis of the FSIA, but also for giving judicial effect to the 1902 treaty (albeit, I assume, because Section 1609 requires that effect, although its possible I suppose one might alternatively see the 1902 Treaty as self-executing).  I wonder what those readers expert in sovereign immunity issues make of this case?

An Arab Fling: The West and International Justice in Libya

by Mark Kersten

It was so promising. Everyone appeared to be on board when, last February, the international community decided that the situation in Libya should be investigated by the International Criminal Court. Not only did the UN Security Council refer the situation in Libya to the Court, but it did so unanimously. However, despite hefty rhetoric about the importance of bringing the Libyan leader to justice, Western states have been happy to instrumentalize the Court in order to isolate Gaddafi and have just as keenly abandoned their interest in bringing the Libyan tyrant to The Hague. Their initial and overwhelming zeal for international justice also obscured their complicity in sustaining Gaddafi’s regime and its crimes against the Libyan people.

Readers of the UN Security Council Resolution 1970 will note that the resolution imposes a temporal limit on the ICC’s jurisdiction. While the Rome Statute declares that the Court can investigate events since July 1, 2002, the ICC was instructed to only investigate alleged international crimes in Libya since February 15, 2011. In addition, the referral explicitly removes citizens of non-state parties from the jurisdiction of the Court. Despite the questionably legal nature of such restrictions, the referral was celebrated as marking a new chapter in international justice and the relationship between the ICC and the Security Council. Yet, ironically, as the intervention in Libya began to succeed and Gaddafi became increasingly isolated, commitment to achieving international justice waned.

That Western states sought to prohibit the Court from investigating any Libyan crimes prior to February 15, 2011 is unsurprising. Doing so would have exposed a litany of instances in which Western states propped up the Gaddafi regime and were complicit in systemic and systematic human rights violations.

It doesn’t take much research to discover the extent to which Western states and Libya developed a remarkably cozy political, military and economic relationship. Virtually every major Western state had significant dealings with Gaddafi and his regime. Despite protestations from human rights groups and Gaddafi’s victims, he was no longer the “criminal” tyrant who presided over a “reign of terror”, as described by Ronald Reagan. Instead, he was convinced to take responsibility for Lockerbie, renounce sponsorship for international terrorism and become a partner in the fight against radical Islam, and dismantle his nuclear and weapons of mass destruction programmes. Justified by realpolitik, Gaddafi became a “friend”, an “ally” and “one of ours”. It was a remarkable transformation and one which ushered in a wave of bilateral deals which helped keep his police state in power and his people oppressed.

Getting Gaddafi on the right side of terrorism and nuclear proliferation was necessary and the concessions achieved by restoring Gaddafi’s image were surely worth it. However, as Stephen Glover has argued: “What is not defensible is the subsequent indulging of this horrible man, and treating him as though he were a normal leader of a normal country.” Continue Reading…

Tactically Precise, Strategically Incontinent?

by Kenneth Anderson

I think the Washington Post gets the right position on the utility and effectiveness of drones in targeted killing — including their limits.  The editorial principally addresses two different things, both raised in John Brennan’s summary statement of the administration’s counterterrorism policy at Harvard Law School a week ago.  The first is the question of whether there is a “legal geography of war,” as I have put it; the administration’s short answer, as is mine and the Post’s, is “no.”  The second is the question of whether drones, just as a strategic matter for the US (meaning, looking solely to US interests, rather than a universal moral or welfare-maximizing policy for everyone, all sides and all civilians), have knock-on bad effects that should put a damper on them.

A few days ago I criticized the eminent columnist David Ignatius and his view that the US is “addicted” to drones.  His view is that the “blowback” effects of drone use can easily, and apparently already do, outweigh their utility to the United States, used to the extent we do today and propose to expand into the future — and that is so, he says, even though he concedes that they are indeed more precise and sparing of collateral damage.  I criticized that quite sharply — mostly because he then stops short, without telling us what the alternative is, except to launch fewer or no attacks.  After all, he doesn’t seem to want to urge that we launch attacks with less precise weaponry.  I guess I’d sum up Ignatius’ view — I think this is fair and a characterization he’d agree with, not snark — that he regards drones as tactically precise, strategically incontinent.

(Update:  Chris got an excellent discussion of this going on his FB page; one of the comments is posted in the comments below, and I’m going to cut and paste the rest into the comments in the next day, in case anyone wants to follow that discussion or join in.  Thanks to Mark Shulman and Dan Goldfisher for taking time to respond, and I’ll move their comments from FB here in the next day.) Continue Reading…

Mark Kersten, Guest-Blogging

by Kevin Jon Heller

I am delighted to announce that Mark Kersten will be guest-blogging at Opinio Juris for the next two weeks.  Mark is the founder of the superb blog Justice in Conflict, which I’ve recommended before.  Here is his bio:

Mark Kersten is a PhD student in International Relations at the London School of Economics and author of the blog Justice in Conflict. His research examines the nexus of conflict resolution and the pursuit of international criminal justice. In particular, his interests are focused on the effects of the ICC on peace processes and negotiations in northern Uganda, Libya and Darfur. To this end, Mark has recently returned from a three month fieldwork stint in Uganda. His posts primarily consider the political, rather than legal, tensions and issues that emerge when justice is pursued in active conflicts.

Welcome, Mark!  We look forward to your posts.

Vorsprung Durch Technik

by Kevin Jon Heller

Check out the following ad for the new Audi A6:

You know you’re in trouble when a German company is using the decaying state of America’s infrastructure to sell cars.  Then again, when you think about it, the ad is actually kind of a Republican utopia: austerity and expensive, environment-destroying luxury goods all in one.  Why fix the roads when your car doesn’t mind them?

Sexism in Reporting on the ICC

by Kevin Jon Heller

I’ve been following the Kenyan confirmation hearing relatively closely, and I’ve continually found the reporting at — which aggregrates articles from numerous leading newspapers on the continent — to provide extremely good coverage of the proceedings.  An article today from the Nairobi Star, however, caught my eye for all the wrong reasons (my emphasis):

A dissenting judge of the International Criminal Court Appeals Chamber who voted against dismissing Kenya’s appeal for admissibility of post-election violence cases says the pre-trial chamber rushed the decision on admissibility. Judge Anita Usacka, a Latvian, published her dissenting opinion yesterday.

She thought that too much weight was placed on expeditiousness of the proceedings to the expense of Kenya’s sovereign rights and principle of complementarity. She said despite Kenya’s plea for a few months to show additional proof of ongoing investigations, the pre-trial chamber judges led by Judge Ekaterina Trendafilova overlooked these and went on to issue a final decision on the matter within eight weeks of the filing.

She said Ekaterina‘s assertions that the proceedings needed to go ahead quickly were misplaced as suspects were neither in detention nor their right to be tried without undue delay will not have been compromised at the very stage “It must be concluded that the expeditiousness was unduly emphasized and given too much weight in the pretrial chambers, especially in comparison to appellant’s sovereign right to investigate and prosecute the case itself,” she said.

Anita also accused the pretrial chamber of not giving due regard to the fact that this was the first time such a challenge was being filed and that there were too many “uncertainties” on many legal issues not previously handled in the court’s jurisprudence. These included among other things definitions of a “case”, “investigations”, “prosecutions” among others and which the judge accused the pretrial chamber of unilaterally fixing meanings without giving parties chance to contribute.

At first I thought this might simply be an unusual house style, so I did a quick search and found this Nairobi Star article written by the same journalist (my emphasis)…

Markovic on Prosecutorial Ethics

by Kevin Jon Heller

I want to call readers’ attention to a very interesting new essay by Milan Markovic, forthcoming in the Texas International Law Journal, that urges the ICC to adopt a code of conduct for prosecutors in the OTP.  Here is the abstract:

A largely unexamined area of law is the intersection between legal ethics and international criminal law. This article addresses this topic by focusing on certain controversial actions taken by the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) in connection with the Lubanga and Al-Bashir cases.

Although the ICC has adopted codes of conduct for judges and defense counsel, the OTP has no specific ethics code. This is problematic because the ICC Statute imposes conflicting obligations on the ICC Prosecutor, and as this article will show, the Prosecutor has resolved his conflicting obligations in the Lubanga and Al-Bashir cases in ways that have arguably undermined the ICC’s credibility.

A code of conduct cannot eliminate prosecutorial discretion. Nor can it ensure that ICC prosecutors will always act ethically. Nevertheless, this article contends that the approach of relying on Chambers to determine whether the Prosecutor has acted appropriately in resolving his conflicting duties under the ICC Statute has delayed proceedings and provides insufficient guidance to the OTP. A preferable approach would be to provide prospective guidance to the OTP in managing its conflicting duties through a code of conduct. This article also proposes specific rules that may mitigate some of the conflicts that have already arisen in the ICC’s first cases.

This strikes me as an excellent proposal — and timely, given that Moreno-Ocampo’s tenure ends next June.  The essay is available on SSRN here.

WikiLeaks, Chevron, and Ecuador

by Kevin Jon Heller

Kate Sheppard has an interesting post at Mother Jones today discussing a series of WikiLeaks cables that detail Chevron’s attempts to convince the Ecuadorian government to end the lawsuit against it.  Here are the two key cables she discusses:

This from a March 2006 cable written by US officials in Quito:

“In previous meetings, Chevron reps have suggested that the [US government] pressure the [Government of Ecuador] to assume responsibility for the environmental damage in the areas once operated by Chevron. Given the complex legal questions and the questions of fact disputed in the case, it does not seem likely that any available inducements would convince the [government of Ecuador] to assume what may amount to billions of dollars of environmental liability.”

Another cable from April 2008 also provides insight into Chevron’s attempts to get the government of Ecuador to help them get rid of the case:

“Meanwhile, Chevron had begun to quietly explore with senior [government of Ecuador] officials whether it could implement a series of social projects in the concession area in exchange for GOE support for ending the case, but now that the expert has released a huge estimate for alleged damage, it might be hard for the GOE to go that route, even if it has the ability to bring the case to a close.”

More cables about Chevron and Ecuador here, here, here, and here.

In contrast to Chevron’s half-baked allegations of judicial corruption in Ecuador, allegations of political corruption by Chevron seem wholly justified.

News About Drones

by Kenneth Anderson

There has been a flurry of news reports on drones in the last few days; let me crib from Lawfare’s collection of links:  “The U.S. is building secret drone bases in Africa and the Arabian Peninsula. Read Tim Mak’s report in the Politico here, the Washington Post’s coverage by Craig Whitlock and Greg Miller here, and the Telegraph’s Mike Pflanz’ story here.”  We can add the WSJ story, too, and video accompanying the story (the WSJ links require subscription). Continue Reading…

Oral Argument in U.S.S. Nicholas Piracy Case

by Kevin Walsh

[Kevin Walsh is Assistant Professor of Law at the University of Richmond School of Law]

The United States Court of Appeals for the Fourth Circuit heard arguments this week in the second of two pirate prosecutions in federal court in Norfolk, Virginia. The first appeal, which the court heard in the spring, has been held up on a procedural issue and is being stayed pending the decision of this week’s consolidated appeals. This second appeal–United States v. Abdi Dire (the lead case, together for argument with four other appeals)–was the second argued this week in the Red Courtroom on the fourth floor of the Lewis F. Powell, Jr. Courthouse in Richmond. These appeals arise out of the convictions, after trial, of five Somali pirates for their attack on the U.S.S. Nicholas (preview post here). (For an AP write-up of the argument, see here.)

The panel that heard arguments was the same panel that heard arguments in the appeal arising out of the U.S.S. Ashland prosecution: Judge King, Judge Davis, and Judge Keenan.

Appellants divided their argument among three lawyers, each of whom addressed a distinct issue: whether the facts proven amounted to piracy under the law of nations; whether certain statements made by the captured pirates should be suppressed; and whether three 924(c) counts should be merged for sentencing.

The panel did not ask the first appellants’ lawyer many questions about the definition-of-piracy issue. Judge Davis expressed some skepticism about counsel’s argument that the Congress that adopted the statute criminalizing piracy as defined by the law of nations intended to adopt a fixed snapshot definition as of the time of enactment. Judges Davis and King pressed counsel for authorities on this “immutability” issue.

With respect to suppression, Judge King pressed counsel to acknowledge that appellants were not challenging as clear error District Judge Davis’s factual finding that one of the questioning agents informed the interrogees, through an interpreter, “If you want a lawyer, we will give you one.” Counsel answered that appellants were challenging District Judge Davis’s ultimate legal conclusions regarding suppression because he failed to assign enough weight to other aspects of the questioning, such as the Somalis’ lack of education and the interpreter’s statement that he did not recall interpreting Miranda warnings like one sees on television.

On the 924(c) merger issue, counsel for appellants apparently piqued the panel’s interest in the need to address, at some point, how to decide what constitutes a distinct unit of prosecution. But in response to Judge Davis’s question about whether the defense had requested a special verdict on the 924(c) counts, counsel responded that they had not. Judge King also noted that winning on the 924(c) issue would not matter if the appellants lost on Count I (the piracy issue).

Counsel for the United States opened by discussing the facts of the attack and emphasizing the humane treatment of the captured pirates. The first question–asked by Judge Davis–was about the 924(c) issue. Argument did not turn to the definition-of-piracy issue until more than halfway through the allotted time. None of the judges evinced significant skepticism of the government’s arguments on this issue. There was a brief discussion of the Alkolac decision handed down yesterday (previously covered here). With respect to the suppression question, there was a brief interchange about whether the government was required to provide Miranda warnings for questioning of the captured pirates when questioned on board the USS Nicholas; counsel responded that the government did so to avoid the need to put the court to the test of deciding whether Miranda warnings were required.

Appellants’ brief rebuttal addressed the 924(c) and definition-of-piracy issues, including a discussion of Alkolac.

While it is always dangerous to infer too much from observing arguments, the questioning did not seem to reveal a panel prepared to reverse. Prediction: Unanimous vote to affirm.

The Fourth Circuit Joins the International Law Improv

by Kevin Jon Heller

Following Talisman Energy, the Fourth Circuit has now held in Aziz v. Alcolac, another ATS case, that the mens rea of aiding and abetting under the “law of nations” is intent, not knowledge.  That’s plainly wrong, as I have pointed out before, so there is no point dwelling on the new decision.  But this paragraph deserves specific mention, because it illustrates how shockingly bad the court’s “analysis” of international law really is:

We part company, however, with the D.C. Circuit’s decision to decline to give greater weight to the Rome Statute as the authoritative source on the issue before us. While we agree with the premise that the Rome Statute does not constitute customary international law, we find that its status as a treaty cuts in favor of accepting its mens rea standard as authoritative for purposes of ATS aiding and abetting liability. Again, we are mindful that the Rome Statute “has been signed by 139 countries and ratified by 105, including most of the mature democracies of the world.” Khulumani, 504 F.3d at 276 (Katzmann, J., concurring). In our view, then, the Rome Statute constitutes a source of the law of nations, and, at that, a source whose mens rea articulation of aiding and abetting liability is more authoritative than that of the ICTY and ICTR tribunals.

In other words, the Fourth Circuit acknowledges that the drafters of the Rome Statute specifically disclaimed the idea that the intent standard reflected customary international law — but then adopts that standard anyway.  Why the Rome Statute is more important than customary international law with regard to the “law of nations,” the Fourth Circuit never explains.  It just likes the intent standard better.

Also note that the Fourth Circuit conveniently ignores Article 25(3)(d) of the Rome Statute — just as the Second Circuit did in Talisman Energy.  As I noted with regard to the latter decision:

Article 25(3)(d) imposes criminal responsibility on any person who “[i]n any other way contributes to the commission or attempted commission of… a crime by a group of persons acting with a common purpose” when that contribution is either “made with the aim of furthering the criminal activity or criminal purpose or “made in the knowledge of the intention of the group to commit the crime.”  The precise relationship between Article 25(3)(c) and Article 25(3)(d) is much debated by ICL scholars, but it is clear that the Rome Statute does not unequivocally adopt the purpose standard for all forms of aiding and abetting.  Indeed, the crimes at issue in ATS cases will almost always (always?) be committed by “a group of persons acting with a common purpose,” precisely the kind of criminality that, according to Article 25(3)(d), can be knowingly aided and abetted.

Finally, given the Fourth Circuit’s bizarre preference for conventional law over customary law, it’s worth pointing out that Article 25(3)(d) is copied
 Article 2(3)(c) of the
 Bombings of
 1997 (ICSTB),
 which has been ratified by 145 states — 25 more than the Rome Statute.  So if we are determining the law of nations simply by counting up the number of states who have endorsed a particular mens rea for aiding and abetting by ratifying treaties, the knowledge standard still wins.

I’d ask why the Fourth Circuit didn’t bother to mention the ICSTB, but you already know the answer to that.

PS. It’s interesting that the Fourth Circuit quotes s.102(3) of the Restatement (Third) of Foreign
Relations Law, adopted by the American Law Institute, with regard to the sources of international law.  Here is what that sections says (emphasis added):

(3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted.

That quote, of course, completely undermines the Fourth Circuit’s own analysis.  As it acknowledges, the States Parties to the Rome Statute did not intend the law therein “for adherence by states generally.”

9/11 and The Tail of Historic Events

by David Caron

[Ed. note: David Caron is the C. William Maxeiner Distinguished Professor of Law at the UC Berkeley School of Law and the President of the American Society of International Law. This post is also published in the ASIL Newsletter.]

The continuing influence (the “tail”) of historic events such as 9/11 has numerous dimensions.  In international law, the event and the responses to the event can mark a shift in customary law, for example.  Such events also influence who we are as a community and what we focus upon.  The various global challenges and points of law that international law faculty study in any given decade in some respects are unchanging, but in other respects shift dramatically. The shifts occur for many reasons, but the pull of a historic event, trend, or situation clearly appears to be one reason. When the event, and the tail of the event, is significant, a shift in focus is clearly appropriate.  Given that law schools tend to each respond separately to the same perceived demand, shifts in focus tend not to be in only a few schools, but in many and all at once.  If the shift in focus is accomplished through hiring decisions, that shift can be with us for a generation.  In this column I offer three modest observations about historic events and what we as a community focus upon.

Historic Events Sometimes Shift the Focus of Legal Scholarship

A significant historical event can lead to a wave of scholars that explore a legal aspect of that event.  As we mark the 10th anniversary of the attacks on September 11th, it is clear that one of the many aspects of society that has been transformed is international law faculties.  Before 2001 there were the occasional courses on constitutional law of foreign affairs or international law of terrorism, and there, less often, was a course on “national security law.”  Over the past decade, we have seen many law schools hire faculty in this area.  Some of the new faculty are drawn from military service, others from service in national security organizations or yet others from a new generation of scholars with an interest in the global challenge of terrorism or in this aspect of law.  Correspondingly, we have seen a blossoming in conferences, courses, specialized student journals, and legal commentary.  As with national security law, a transformation in law faculties can be seen in the area of international criminal law and humanitarian law as well over the past 15 years.  The violence amidst the breakup of Yugoslavia and in Rwanda resulted, among many other things, in the establishment of the ad hoc international criminal tribunals for those two areas.  Along with the more recently added International Criminal Court and several hybrid tribunals, there has been an intense focus on increased accountability for war crimes and crimes against humanity.  And over these same years we have seen a dramatic increase in the number of faculty focused on international criminal law or international humanitarian law, as well as growth in the number of courses, clinics, internships, and commentary.  (One international criminal law scholar recently commented that there are more such scholars than there are defendants, although I would think that true only if one excluded those who should be tried on the national level.)

Yet not all historic events, trends, or situations result in a shift in focus of law scholars. For example, there does not appear to have been the same sort of shift in scholarship or law school programs in response to the Cold War, although it can be argued that the Cold

War infused a realist sense into much of international law scholarship. To the extent we accept that some events lead to shifts while others do not, perhaps the cause is that some historic events, trends, or situations have more influence because those particular contexts intrinsically possess more room for law to contribute or speak to the challenge involved.  In other words, it may be that the challenge involves statutes and treaties, or questions – preferably justiciable – concerning responsibility and rights.  Perhaps this explains why the challenges posed by disasters that far too often rend our world are not generally addressed in legal scholarship.  Perhaps it is the resistance of international development (a fundamental situational challenge of global order) to legal theorizing that explains what I regard as a not sufficiently widespread scholarly focus on the topic.

Historic Events Can Create Institutions and Paths Toward Academia

In 1983, I arrived at the Iran-U.S. Claims Tribunal to take up my position as a clerk to the American Arbitrators.  Over dinner my first night there, Judge Howard M. Holtzmann predicted that a lasting legacy of the Tribunal would be the generation of clerks it would introduce to international arbitration.  And, indeed, it can be argued that the Iran-United States Claims Tribunal not only became the training ground for many of the leading practitioners of this generation, it also led to a wave of scholars in schools around the world in the fields of private and public international dispute resolution.  Similarly, the criminal tribunals, not only generated substantial jurisprudence, but also resulted in positions that have allowed young professionals to deepen their expertise in the field.  In recent years, the creation of more visiting assistant professor positions (“VAPs”) have become a pathway for aspiring young academics.  These positions within the law school world are a relatively recent alternative to certain professional careers that serve as pathways to academia.  A notable example of such a path is the Office of the Legal Adviser that for decades has been a training ground that allowed promising recent graduates to mature into attractive potential academics.  It is in this same way that some institutions created as a consequence of historic events such as the Iranian Revolution potentially provide crucial intermediate positions between law school and academia.

Responding to Historic Events and the Tail of Hiring Decisions

When I first joined a law faculty, a senior colleague remarked that a dangerous tendency in the world of legal scholarship is “that you go only with what you know.”  One enters the academy with experience in, for example, the legal implications of DNA testing, and one mines that vein of experience far longer than one should.  One has been given by society the privilege of a position of reflection in which one can commit time to learn new areas as needed.  But instead one finds that he or she races faster and faster in the area already known best.  Law schools in my limited experience tend to respond to the challenges posed by historic events through hiring decisions because there is a sense that redeploying the resources they have is unlikely.  Yet in our wonderful community, there are so many examples of scholars who are curious and learning new areas well into decades of their lives when others have long retired.  (Our beloved Eric Stein comes to mind.)  What a privilege we have to challenge ourselves with change so that we might together bring our combined excellence to bear on the most difficult problems of the day.  I look forward to it and to joining you in that effort.


A Huge Loss at the Second Circuit for Chevron

by Kevin Jon Heller

Fantastic news:

New York – A federal appeals court vacated an order Monday by a New York judge that barred an $18 billion judgment in Ecuador against Chevron Inc. for contaminating the Amazon.

The three-judge panel of the 2nd U.S. Circuit Court of Appeals had previously expressed skepticism that a New York judge could wield jurisdiction outside the U.S.

The lead lawyer for the plaintiffs, Pablo Fajardo, told The Associated Press by phone on Monday that they expected to be able to begin to collect by the first quarter of 2012 the damages that a Lago Agrio, Ecuador, court ordered Chevron to pay.

“We can now at least dream there will be justice and compensation for the damage, the environmental crime, committed by Chevron in Ecuador,” he said, adding that the decision “lets the world see that we are right, not just in Ecuador but in any court in the world.”

Representatives for the oil company did not immediately respond to requests for comment Monday.

Chevron has appealed the Lago Agrio decision, which was issued in February, and Fajardo said he expects an appeals court ruling in Ecuador in the next few months.

In New York, U.S. District Judge Lewis A. Kaplan had barred collection of the award, after determining that Chevron could prove that lawyers had manipulated a corrupt legal system in Ecuador to secure the judgment. The company had argued that the plaintiffs would collect the judgment before an appeals process was completed in Ecuador.

But a lawyer for the Ecuadorean plaintiffs told the appeals court in oral arguments Friday that they would not attempt to recover damages until the appeals process in Ecuador was completed.

The award followed nearly two decades of litigation.

When Kaplan issued his bizarre decision, I wondered what authority a U.S. judge had to interfere with Ecuador’s judicial process.  (Can you imagine what the reaction would have been if the situation was reversed?)  Apparently I wasn’t the only one who was skeptical.

There is still a long way to go legally, but this is an important step in holding Chevron accountable for the massive environmental damage it has caused to the Amazon rainforest.

For more information about what is referred to as Chevron’s “Rainforest Chernobyl” — the company deliberately dumped more than 18 billion gallons of toxic waste-water and spilled approximately 17 million gallons of crude oil in the area — see the ChevronToxico website here.

Pakistan Will Refer Drone Strikes to UN Special Rapporteur?

by Julian Ku

It is hard to know how seriously to take this report, or even if it is accurate. But if it is accurate, this could be trouble for the U.S. drone strike program in Pakistan.

ISLAMABAD: Human Rights Ministry (HRM) has decided to take up matter of drone attacks with United Nations under international humanitarian law and file an official complain to Special Rapporteur on extrajudicial, summary or arbitrary executions.

Addressing a media briefing on Monday, Adviser to Prime Minister Mustafa Nawaz Khokar said the matter would be discussed with all stakeholders of the government after taking them on board an official complain will be lodged.

He categorically made it clear that drone strikes are not acceptable. He said so far the debate has only circled around loss of collateral damages and not about the specific legislation of the strikes in the light of international humanitarian law (law of war).

This is somewhat at odds with John Brennan’s assurance this past weekend, that our allies are increasingly on board with drone strikes.  But then again, Pakistan’s government is not exactly the most unified entity, and it is entirely possible that part of the government is seeking to expose drone strikes to international scrutiny and another part is encouraging them.  But given the gradual pushback from folks like Alston, I am not sure that the complicated and sophisticated legal approach outlined by Brennan is going to make a difference among overseas critics.

Philip Alston on Targeted Killing

by Kevin Jon Heller

Philip Alston has posted an important new essay on targeted killing on SSRN.  Here is the abstract of the essay, which is forthcoming in the Harvard National Security Journal:

This Article focuses on the accountability of the Central Intelligence Agency (CIA) in relation to targeted killings, under both United States law and international law. As the CIA, often in conjunction with Department of Defense (DOD) Special Operations forces, becomes more and more deeply involved in carrying out extraterritorial targeted killings both through kill/capture missions and drone-based missile strikes in a range of countries, the question of its compliance with the relevant legal standards becomes ever more urgent. Assertions by Obama administration officials, as well as by many scholars, that these operations comply with international standards are undermined by the total absence of any forms of credible transparency or verifiable accountability. The CIA’s internal control mechanisms, including its Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a ‘free pass’ to the CIA in this area; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself. As a result, there is no meaningful domestic accountability for a burgeoning program of international killing. This in turn means that the United States cannot possibly satisfy its obligations under international law to ensure accountability for its use of lethal force, either under IHRL or IHL. The result is the steady undermining of the international rule of law, and the setting of legal precedents which will inevitably come back to haunt the United States before long when invoked by other states with highly problematic agendas.

The essay’s emphasis on transparency and accountability is particularly critical — and distinguishes it from the burgeoning legal literature on targeted killing.  Alston is particularly well-placed to comment on the subject, having spent six years as the UN’s special rapporteur on extrajudicial, summary or arbitrary executions.  (He’s also a graduate of Melbourne Law School, I’m proud to say.)

To crib from Larry Solum, read Alston!

Prosecution Lineup in the Kenya Case

by Kevin Jon Heller

I don’t know very much about the individual prosecutors, but the lineup doesn’t exactly strike me as indicative of an anti-African, neo-colonialist international organization:

Ms Adesola Adeboyejo is to handle the Muthaura hearings for the Office of the Prosecutor.

Adeboyejo has worked at the International Criminal Court for Rwanda (ICTR) as a prosecutor and handled the case against Pauline Nyiramasukuko and the former commandant of the non-commissioned officers’ school in Butare, Colonel Tharacisse Mvunyi.

Based on her submissions and evidence before the ICTR case, the court slapped a 50 plus years jail sentence on Mvunyi.

Adeboyejo has also served as a legal officer at the ICC’s Office of Public Counsel for Victims.

She is to be assisted by prosecution counsel Adeboye Akingbolahan, Olivia Struyven, Desiree Lurf, Shamiso Mbivso, Ramu Bittaye, Arthur Siribu and Nawamaka Enjebe.

The ICC has many problems. Lack of diversity isn’t one of them.

What Are the U.S. Objections to the Law of the Sea Treaty?

by Julian Ku

International lawyers from outside the U.S. often wonder why exactly the U.S. has yet to join the UN Convention on the Law of the Sea. This is a good question, since most U.S. international lawyers support joining the treaty, they are not usually able to give a fair description of the basis for opposing the convention.  I am a squish on the Convention, seeing it as both good and bad, but leaning toward slightly more good than bad.  But opponents of the Law of the Sea Treaty in the U.S. are not unreasonable, even if they are not always completely persuasive. That said, they can still be pretty easily rebutted.  Here is an account of Utah Senator Mike Lee’s speech recently outlining his (and most conservatives’) objections to ratifying the treaty.  According to the article, Sen. Lee has three main objections.

1) UNCLOS creates a “tax” on U.S. development of deep seabeds, by requiring contributions to the International Seabed Authority.

2) UNCLOS has, as key parties, many regimes hostile to the U.S., and state sponsors of terrorism. They would be in a position to judge or oversee U.S. actions.

3) UNCLOS creates an international dispute settlement system composed of judges who will probably be hostile to U.S. interests.

These are not unreasonable, but they are not completely convincing.  After all, the U.N. itself effectively imposes a tax on the U.S. (we call them dues).  Both the U.N. and the WTO contain regimes hostile to U.S. interests.  So while it is not ideal, it is hard to see why UNCLOS is being singled out as much worse or dangerous than other far more intrusive treaties.  And Lee is leaving out an assessment of some of the benefits of the treaty. Unless Lee thinks the U.S. was mistaken in joining the U.N. and WTO, I don’t find his analysis here very credible. But you can judge for yourself.

Brennan, Detention and Congress

by Deborah Pearlstein

In addition to Brennan’s fascinating remarks on targeting, etc. last night, which Marty reprints below, he took occasion to address the legislation now pending in Congress that aims to guide (to use a word) U.S. terrorism detention operations. For those who lost track over the summer, when last we left off, both houses of Congress were considering bills that would (variously described) authorize/reauthorize/clarify/expand U.S. authority under domestic law to engage in detention (and to some extent targeting) operations in its ongoing counterterrorism efforts. Among key questions, what the new law would do on the question of who may be detained militarily in these operations.

On this question, here’s the draft language from the Senate version, section 1031(b)(2): “A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” I asked Brennan last night if he wished to address the administration’s view of this provision, as well as the provision in the draft bill that would mandate military custody for terrorist suspects. While I thought Brennan was very clear in his response as to the administration’s strong rejection of the mandatory military custody provision (which he called a “nonstarter”), his most substantive comment on the re/authorization language was to indicate that he had never felt in his position that the United States lacked the power to do things he felt the administration needed to be able to do in the interest of national security.

So what to make of the draft language? It seems critical to look at the language from both the 5-foot level and the 5,000-foot level. That is, what does this mean for future detainees exactly, and what does this mean for the United States’ counterterrorism efforts more broadly? First, from 5 feet. What if anything does this do to the standard now prevailing in the D.C. Circuit for the Guantanamo detainees? In my view, while it does nothing to clarify matters – leaving the definition again too vague to be helpful – and for that reason potentially much to confuse current litigation. The D.C. Circuit has been working with a definition, the product of Congress’ existing authorization, the executive’s suggestion and the court’s conclusion, to this effect: “[A]ny person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.” Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010).

Is the new, section 1031 definition broader or narrower than the current D.C. Circuit definition? It will be eventually, again, for the courts to decide, but I read it as, if anything, narrower. Among the failings of the Al Bihani definition, I’d thought, was the “purposefully and materially support” piece. It essentially made detainable under the laws of war (as incorporated by the domestic authorizing statute) anyone who was even marginally prosecutable under the criminal law. And I’d never been able to find any support in international law for the proposition that armed conflict detention and/or targeting authority extended broadly to “material supporters.” The new definition eschews the problematic material support language, instead exemplifying the kind of individuals detainable under the law as including those who have “committed a belligerent act or [have] directly supported such hostilities.” I know no one who disputes the detainability of those who actually commit a belligerent act in the context of armed conflict. I don’t know exactly what “directly support[] hostilities” means (and I dare anyone to argue that the definition of this phrase is made clear, or any in any way clarified, by the present bill), but at least it harkens to a recognizable (if admittedly also unsettled) standard in international law by invoking the idea that participation must be “direct” in some sense. How’s that for an endorsement?

Now back up to the 5,000-foot level…

Importance of the Brennan Speech (II)

by Marty Lederman

The first part of John Brennan’s speech, as I explain below, is an explication of the Administration’s understanding of the U.S. armed conflict with al-Qaida and its co-belligerents, the legal constraints governing our use of force, and the self-imposed parameters of the government’s use of force outside of “hot battlefields.”  That is to say, it is a description of the way in which the U.S. can and does use military force to counter one part of the terrorist threat–that presented by al-Qaida and other groups associated with al-Qaida with which we are engaged in armed conflict.

The remainder of the Brennan speech is largely devoted to arguing that it is not only unhelpful and inaccurate, but in fact counterproductive, to view the entirety of counterterrorism efforts through the lens of the use of military force, of “war.”  For this reason, the Administration is strongly opposed to several current efforts in Congress to require the use of military means in contexts that would be contrary to historical practice (including in the Bush Administration), where other means have been and continue to be much more appropriate and effective.  I can’t put this point much better than Juliette Kayyem recently made it, in a column that presages the details that John Brennan described last night:

[O]n the 10th anniversary of 9/11, there has been much talk of how the war on terror, at home and abroad, has kept us safe. . . .  This telling requires a sleight of hand and a lot of forgetfulness.  It equates the Obama administration’s use of the military through drone attacks and special operations as an extension of Bush’s “war.”  But narrowly targeted military strategies to combat specific threats are not the same as the global war on terror that we lived under during the Bush administration.

So, it’s time to set the record straight:  The war on terror is over.  To still call the effort to dismantle, kill, and disrupt Al Qaeda and its affiliates the war on terror is to treat the United States and its government as frozen in time.  It assumes that there has been no learning, no growth, no recognition of mistakes, no priority shifts, no advancement in capabilities. It assumes time has stood still.

It has simply not been more of the same. The CIA’s “black sites”–secret prisons in other countries–are closed.  Enhanced interrogation is outlawed.  The laws of war have been restored.  Guantanamo remains open not because Obama wants it that way, but because Congress has barred the expenditure of funds to bring its prisoners to the United States for trial.

Thus, to pretend that there has been no rejection of what came before–of what defined the “war”–is a mistake.  It took court decisions, public opposition, congressional changes, new leaders within the Bush administration, and finally a new president to end the war on terror as we knew it.

And the effort was worth it.  Because we got better.

Brennan’s speech is largely devoted to sounding similar themes.  “I am deeply concerned,” he said, “that the alternative approach to counterterrorism being advocated in some quarters would represent a drastic departure from our values and the body of laws and principles that have always made this country a force for positive change in the world.  Such a departure would not only risk rejection by our courts and the American public, it would undermine the international cooperation that has been critical to the national security gains we have made.  Doing so would not make us safer, and would do far more harm than good.  Simply put, it is not an approach we should pursue.”

With particular respect to the matters of detention and prosecution, these are the highlights, which are hardly in need of elaboration or explanation…

Importance of the Brennan Speech (I)

by Marty Lederman

In his speech last evening, Deputy National Security Advisor John Brennan clarified and strengthened a number of important points that the Obama Administration had previously articulated or suggested, and helpfully tied them together to provide a more comprehensive account of the President’s counterterrorism approach, particularly with respect to the U.S. commitment, emphasized by Brennan, on adherence to the rule of law and respect for international law norms.  In this post, I’ll focus on his remarks about the use of force.  In the next post, I’ll briefly discuss some of the more important aspects of the speech dealing with detention and prosecution.

It’s evident that a principal purpose of this section of the speech concerning the use of force, especially outside the “hot battlefield” of the Af/Pak theater, is to further distance the Administration from the “Global War on Terror” framework that infected U.S. characterizations of our counterterrorism strategy shortly after September 11th.  “[W]e are at war with al-Qa’ida,” emphasizes Brennan–not with all terrorists the world over.  (Brennan explains that our “ongoing armed conflict with al-Qa’ida stems from our right—recognized under international law—to self defense.  This is not news, or controversial.  See, e.g., U.N. Resolution 1373 (Sept. 28, 2001).  There is no such self-defense rationale available as a matter of the jus ad bellum with respect to all international terrorist groups.)

But what about Brennan’s references, early in his speech, to al-Qaida “adherents” and “affiliates”?  Although Brennan explains that “adherents” of al-Qaida–including “individuals . . . with little or no contact with the group itself”–have become a serious national security challenge because they can and do conduct attacks in the United States, the U.S. is not at war with each of them.  That is to say, the U.S. is not resorting to the use of military force against them.  Brennan also points to the danger of al-Qaida “affiliates”; but he does not suggest that the U.S. practice is to use military force against all al-Qaida “affiliates,” either.  As the Administration’s recent National Strategy for Counterterrorism explained, “‘Affiliates’ is not a legal term of art.  Although it includes Associated Forces [i.e., cobelligerents of al-Qaida and the Taliban engaged in the conflict against the U.S., against whom force may be used], it additionally includes groups and individuals against whom the United States is not authorized to use force based on the authorities granted by the Authorization for the Use of Military Force. . . .  The use of ‘Affiliates’ . . . is intended to reflect a broader category of entities against whom the United States must bring various elements of national power, as appropriate and consistent with the law, to counter the threat they pose.”  In other words, military force is authorized against al-Qaida, the Taliban and their cobelligerents.  But the increasing threats from groups and individuals who are more loosely inspired by or affiliated with al-Qaida will appropriately be countered using other tools of counterterrorism strategies, apart from the use of force.

Brennan then moves on to a matter about which “there is some disagreement”–namely, “the geographic scope of the [armed] conflict”…

The “Unwilling or Unable” Standard for Self-Defense

by Kevin Jon Heller

One of the most remarkable aspects of how conservative U.S. scholars approach international law is their absolute certainty that the American position on extraordinarily difficult issues is always correct.  Consider, for example, Jack Goldsmith’s articulation today of when the UN Charter permits the U.S. to use force in self-defense against non-state actors:

If the president is authorized to use force against a terrorist group by Congress, and if the U.N. Charter’s sovereignty concerns are overcome because the nation in question is unwilling or unable to address the group’s threat to the United States, and as long as the United States complies with jus in bello restrictions on targeting (distinction, proportionality, etc.), there is no further legal requirement.

Reading this, one would think it is patently obvious that international law accepts the “unwilling or unable” standard.  Goldsmith does not bother to defend that position.  (Ashley Deeks at least cites a couple of law reviews in defense of it, albeit one from 1958, in addition to — unsurprisingly — statements by American officials.)

Is the “unwilling or unable” standard the correct one?  Perhaps — but that position needs to be the end of the analysis, not the beginning.  After all, the ICJ does not accept the standard: the Court has consistently held that Article 51 of the UN Charter limits self-defensive acts against non-state actors to situations in which the non-state actor’s armed attacks are in some way imputable to the state whose territorial sovereignty is being violated.  That was the ICJ’s position in Nicaragua, and the Court reaffirmed that position in both the Palestinian Wall advisory opinion and DRC vs. Congo.  It is certainly possible to argue that the customary rules governing the use of force in self-defense have evolved to adopt the “unwilling or unable” standard.  But that is a highly contentious and extraordinarily difficult question.  As Tom Ruys has concluded in his magisterial study of Article 51 — a study that actually examines state practice and opinio juris concerning the use of armed force against non-state actors:

In the end, we must admit that this is an area which is characterized by significant legal uncertainty.  De lege lata, the only thing that can be said about proportionate trans-border measures of self-defence against attacks by non-State actors in cases falling below the Nicaragua threshold is that they are ‘not unambiguously illegal’.  De lege ferenda, we believe that customary law is evolving towards a different application of Article 51 UN Charter in relation to defensive action against a State – viz. coercive action that directly targets the State’s military or infrastructure – and defensive action within a State – viz. recourse to force against a non-State group present within the territory of another State.

Goldsmith exhibits no such tentativeness, perhaps because it is simply unthinkable to him that international law might limit the United States’ ability to use force in self-defense.  Indeed, for too many American international-law scholars, particularly conservative ones, it is meaningless to distinguish between the lex lata and the lex ferenda — international law is simply whatever the U.S. says it is.

John Brennan Speech on Obama Administration Antiterrorism Policies and Practices

by Marty Lederman

John Brennan just finished delivering this speech at the Harvard Law School.  I believe it is the most comprehensive single statement of the Obama Administration’s policies and practices with respect to al Qaeda and other terrorist threats.  There’s a lot of material here that will be of interest to OJ readers.  I will use boldface to identify what seem to me to be the highlights of the speech:
September 16, 2011

Remarks of John O. Brennan – As Prepared for Delivery
Assistant to the President for Homeland Security and Counterterrorism
Program on Law and Security
Harvard Law School
Cambridge, Massachusetts
Friday, September 16, 2011

“Strengthening our Security by Adhering to our Values and Laws”

As Prepared for Delivery –

Good evening.  Thank you, Dan [Meltzer], for your very kind introduction and for your service to our nation, in both the judicial and executive branches.  At the White House, Dan helped us navigate some of the most complex legal issues related to our efforts to keep the American people safe.  I know that President Obama is grateful for his service.  And I am grateful for having had the opportunity to sit through his many law tutorials during national security meetings in the White House Situation Room.  I dare say that those tutorials were a tad less expensive than what some of you currently are paying for his pearls of wisdom.

It’s a pleasure to be here at Harvard Law School, and I want to acknowledge Dean Minow and members of the staff and faculty who are here tonight.

I especially want to thank Professor Gabriella Blum and Benjamin Wittes of the Brookings Institution for being the driving force behind your new Program on Law and Security.  The preservation of our national security and the laws that define us as the United States of America demand that we understand the intersection of the two—indeed, how they reinforce one another.  So I commend you for your efforts, we look forward to your contributions, and I very much appreciate the opportunity to be here for your inaugural event.

It’s wonderful to see a number of friends and colleagues who I’ve had the privilege to work with over many years—public servants who have devoted their lives to protecting our nation.  And let me say what a thrill it is to see so many students here this evening.  I just hope your choice to listen to me on a Friday night is not an indictment of your social lives.

Now, I am not a lawyer, despite Dan’s best efforts.  I am the President’s senior advisor on counterterrorism and homeland security.  And in this capacity—and during more than thirty years working in intelligence and on behalf of our nation’s security—I’ve developed a profound appreciation for the role that our values, especially the rule of law, play in keeping our country safe. It’s an appreciation of course, understood by President Obama, who, as you may know, once spent a little time here.  That’s what I want to talk about this evening—how we have strengthened, and continue to strengthen, our national security by adhering to our values and our laws.
Obviously, the death of Usama Bin Laden marked a strategic milestone in our effort to defeat al-Qa’ida.  Unfortunately, Bin Laden’s death, and the death and capture of many other al-Qa’ida leaders and operatives, does not mark the end of that terrorist organization or its efforts to attack the United States and other countries.  Indeed, al-Qa’ida, its affiliates and its adherents remain the preeminent security threat to our nation.

The core of al-Qa’ida—its leadership based in Pakistan—though severely crippled, still retains the intent and capability to attack the United States and our allies. Al-Qa’ida’s affiliates—in places like Pakistan, Yemen, and countries throughout Africa—carry out its murderous agenda. And al-Qa’ida adherents – individuals, sometimes with little or no contact with the group itself – have succumbed to its hateful ideology and work to facilitate or conduct attacks here in the United States, as we saw in the tragedy at Fort Hood.

Guiding principles

In the face of this ongoing and evolving threat, the Obama Administration has worked to establish a counterterrorism framework that has been effective in enhancing the security of our nation.  This framework is guided by several core principles…

Vietnam v. China: Not a Fair Fight. But INDIA v. China….

by Julian Ku

Something I learned about while I was in China is that China claims, as a matter of international law, that it has “indisputable sovereignty” over most of the (oil-rich) South China Sea. This graphic illustrates the scope of China’s sovereignty claims. China hasn’t had a navy that could enforce this claim, until now.  So Vietnam and the Philippines have been feeling Chinese pressure on this, with the Philippines seeking to take the case to the International Tribunal for the Law of the Sea.  But China can throw its weight around these days, and smaller countries like Vietnam and the Philippines don’t have much leverage.

But as this article notes, Indian companies have signed agreements with Vietnam to explore for hydrocarbons in Vietnam’s exclusive economic zone (which is within China’s claimed sovereign territory). Indian navy ships have also been wandering around the South China Sea, and into confrontations with the Chinese navy.    This has all the makings of a great power struggle. China’s claim here is, to put it bluntly, very weak under international law.  But China has carefully avoided the jurisdiction of all international courts. Moreover, China being China, only nations like India (and the U.S.) have the ability to seriously contest its claims.   But will they?

My Exchange with Peter Margulies at Lawfare (Updated)

by Kevin Jon Heller

Peter Margulies (Roger Williams) responded to my blogging about criminal membership and al-Bahlul at Lawfare.  I wrote a response, which Lawfare’s Bobby Chesney was kind enough to post for me.  Instead of reposting the lengthy exchange here, interested readers should check out the posts at Lawfare.  You can find Peter’s original post here, and my response here.  Feel free to weigh in below!

My thanks to Peter for his response.

UPDATE: Peter and I have gone one more round.  His response to my response is here, and my response to his response to my response is here.

Victor Davis Hanson Reviews Cheney Memoirs

by Kenneth Anderson

I believe I’ve now read most of the leading reviews of Cheney’s memoirs, though I am only partway through In My Time.  (Lawfare’s Rafaella Wakeman provides a helpful roundup of the reviews.)  Of the reviews, though appearing after Rafaella’s roundup (so not included there), Victor Davis Hanson’s is the most interesting and worth reading (it is posted over at the Hoover Institution’s always interesting Defining Ideas website).

This is in large part, I think, because the mostly critical reviewers knew in advance they were preaching to a friendly audience, and don’t seem to have felt much obligation other than simply to repeat opinions from past years, rather than actually engage with the memoir on its own terms (call me cynical, but as a long-time book reviewer, let’s say I’m not persuaded that all the reviewers have read more than a few of the most controversial chapters of the book — lightly).  Hanson, by contrast, is defending Cheney, and reads the memoir more sympathetically but also far more closely.  In the end, agree or disagree either with Hanson or with Cheney, as reviews go, it is much more astute in comparing the Dick Cheney pre-9/11 with Dick Cheney post-9/11 than the rest I have read.  Whether you think it’s right or not, of the pundit commentary on Cheney’s memoir, this is the one to reckon with.

Cheney, as is the habit of nearly all prominent statesmen, has written an apologia pro vita sua covering some forty years of public service. Most of his narrative is a workmanlike account of working for Presidents Gerald Ford, George H. W. Bush, and George W. Bush, and serving in Congress for a decade. A few oddities arise—there is far less detail about George W. Bush or the background politics surrounding the Wall Street crisis of September 2008 than one might expect given Cheney’s tumultuous eight years of service following 9/11. More importantly, anyone who completes this 565-page memoir would have liked to have fathomed the inexplicable mystery of Cheney’s life: How exactly had a once beloved public servant—a soft-spoken conservative who worked with Gerald Ford to defeat rival Ronald Reagan—been reduced to demonic status during the furor that erupted after 9/11?

Cheney, remember, before 2001 was praised for his sobriety, his close congressional friends of both parties, his intimate ties to the centrist Bush family, and his unease with partisan rancor. By 2000 he had achieved “Wise Man” status even in the liberal media. As a presidential chief of staff, defense secretary, and influential congressman, Cheney was the Odyssean fixer, a multi-talented consigliore who said little, but was usually relied upon to solve crises and calm the waters. No doubt the Bush I circle wanted Cheney as vice president on the ticket in 2000 to curb the natural exuberances of the then-youthful and supposedly impulsive George W. Bush. Yet by 2008, Cheney was routinely defamed in the major papers as a ‘war criminal’ and ‘traitor,’ and his own approval ratings sunk below even those of George W. Bush.

(Tangential: Someone asked by email whether I have read all the books I’ve reviewed in my career (per my snooty comment above).  Fair question – to which I can answer, yes!  Which is one reason I never reviewed the Customary Law Study – I insisted on reading the entire thing, which took me two years, and by then I was too exhausted to write a word about it.  I probably should have a different rule for approaching dictionaries and encyclopedias, and were I to do it again, I would “lightly skim” parts.  The sections that really merited a serious debate over method and conclusions did not benefit from reading the whole thing.)

China, Taiwan and International Law: A Symposium in Honor of Professor Hungdah Chiu

by Julian Ku

Next month, the University of Maryland School of Law will host a festshcrift honoring Professor Hungdah Chiu.  Professor Chiu was a professor at U. Maryland and a well-known scholar of international law.  He also was one of the first, and still one of the most important, scholars on the study of Chinese law (including both China and Taiwan) in the United States.  (To me, though, Professor Chiu will always be Uncle Chiu, the father of one of my best boyhood friends. I didn’t realize he was a world-renowned scholar until after I entered the legal academy). In any event, I will be participating in this symposium by sharing some of my recent research on China and international courts.  But there are much better reasons to attend as well. See  below.

The program will kick off October 5, 2011 at 5:30pm in the Ceremonial Courtroom at UM Carey Law with a lecture delivered by the senior American expert in East Asian law, Professor Jerome Cohen, followed up on October 6 by a lunchtime lecture by the former Chairman of the National Security Council for the Republic of China (Taiwan), Dr. Su Chi.  The Symposium promises to be an important exchange of ideas about Cross-Straits relations, China and the International Legal Order, and Professor Hungdah Chiu’s impact on those fields and others

A Bit More on the HRC Blockade “Report”

by Kevin Jon Heller

Like Julian, I can’t find the text of a “report” per se, but I did find this on the Human Rights Council’s website:

GENEVA (13 September 2011) – Commenting on the report of the Panel of Inquiry on the flotilla incident of 31 May (Palmer Report), released this month, a group of United Nations independent experts* criticized its conclusion that Israel’s naval blockade of the Gaza Strip is legal.

“In pronouncing itself on the legality of the naval blockade, the Palmer Report does not recognize the naval blockade as an integral part of Israel’s closure policy towards Gaza which has a disproportionate impact on the human rights of civilians”, stressed the experts.

“As a result of more than four years of Israeli blockade, 1.6 million Palestinian women, men and children are deprived of their fundamental human rights and subjected to collective punishment, in flagrant contravention of international human rights and humanitarian law,” they said. “Israel’s siege of Gaza is extracting a human price that disproportionately harms Palestinian civilians.”

For the UN experts, “decisive steps must be taken to defend the dignity and basic welfare of the civilian population of Gaza, more than half of whom are children.” They continued, “The Israeli blockade of Gaza must end immediately and the people of Gaza must be afforded protection in line with international law.”

Under human rights law and international humanitarian law the people of Gaza, even while living under occupation, have the right to an adequate standard of living, and to the continued improvement of living conditions. This right includes access to affordable and adequate food, and sufficient quantities of safe, accessible and affordable water, as well as proper sanitation services and facilities. Gazans also have the right to the highest attainable standard of physical and mental health, but for many years have been experiencing declining and subsistence standards that are below minimum levels.

“At least two-thirds of Gazan households are food insecure, and evidence has shown that the so-called ‘easing’ of the blockade has not led this to improve,” observed Olivier De Schutter, the Special Rapporteur on the right to food. “People are forced to make unacceptable trade offs, often having to choose between food or medicine or water for their families”.

Approximately 35 per cent of Gaza’s arable land and 85 per cent of its fishing waters are totally or partially inaccessible due to Israeli military measures. The Special Rapporteur called on Israel “to immediately lift restrictions on access to land and sea in order for agricultural- and fishing-dependent livelihoods to rebuild and thrive, reducing aid dependency, and allowing local production of food to increase.”

90-95 per cent of Gaza’s water is polluted and unfit for human consumption, and large quantities of untreated sewage are being released into the environment every day. “This reality is a grave threat to the health and dignity of the people living in Gaza and immediate measures are required to ensure full enjoyment of the rights to water and sanitation. Israel must facilitate the entry of necessary materials to rebuild the water and sanitation systems in Gaza, as a matter of priority, otherwise this public health catastrophe will continue unabated,” stated the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque.

“Urgent steps are also needed to protect the coastal acquifer, the sole fresh water source in Gaza, from further deterioration. Pollution of the acquifer from raw sewage, over-abstraction of water, and increased salinity are so severe that it may take centuries to reverse the damage caused to this vital source of water,” Ms. De Albuquerque added.

The blockade has severely hampered the ability of the health system in Gaza to properly function preventing an upgrade of its physical infrastructure, placing obstacles to the entry of medical equipment and its maintenance, and the supply of essential medicine and disposables.

“Glaring gaps in the availability of key medical services have created the need to refer patients with serious medical conditions to hospitals outside Gaza for specialized, life-saving treatment,” reported the Special Rapporteur on the enjoyment of the highest attainable standard of physical and mental health, Anand Grover. Despite a slight increase in the average rate of approval for patient referrals outside Gaza in the second half of 2010, one out of five patients still missed hospital appointments because their permits were denied or delayed. “These patients must be guaranteed access to health facilities, goods and services,” underscored Mr. Grover, stating that the Government of Israel’s obligation to respect the right to health means that it must not deny or limit equal access to health services.

According to the Special Rapporteur on extreme poverty and human rights, Magdalena Sepulveda, the Israeli blockade is the primary cause of the poverty and deprivation experienced by the people of Gaza. “In order for Gazans to have access to the economic opportunities necessary to pull themselves out of poverty”, Ms. Sepulveda stated, “all Gaza entry points must be opened to facilitate freedom of movement for individuals, the unhindered inflow of investment and industrial and agricultural inputs, and the export of products from Gaza.”

The Special Rapporteur emphasised that “there is also an urgent need to ensure that sufficient quantities of medicines, fuel, spare parts for damaged infrastructure, as well as cement, sand and other construction materials, are able to reach the people of Gaza.”

International law
Israel, as a State Party to many of the international human rights conventions, continues to bear responsibility for implementing its human rights obligations in the Occupied Palestinian Territory. The International Court of Justice, United Nations human rights treaty bodies and special procedures, and successive High Commissioners for Human Rights have consistently confirmed that international human rights law and international humanitarian law apply concurrently in all of the West Bank and the Gaza Strip.

Mr. Richard Falk, Special rapporteur on the situation of human rights in the occupied Palestinian territory, stressed that “The Palmer report was aimed at political reconciliation between Israel and Turkey. It is unfortunate that in the report politics should trump the law.” Mr. Falk continued, “the most questionable move of the Palmer Panel was to separate the naval blockade from the overall closure of Gaza to a normal supply of humanitarian supplies, including supplies needed for medical operations and sanitation. The flotilla incident was about the effort to circumvent this aspect of Israeli policies, and the organizers posed no objection to inspection carried out to prevent weapons from entering Gaza.”

The blockade of Gaza continues to violate international law, the experts concluded, recalling that this conclusion had been reached by the international fact-finding mission appointed by the Human Rights Council to inquire into the 31 May 2010 flotilla incident in its report of September 2010. “It is unacceptable that the human rights of the people of Gaza are disregarded because of the positions adopted by political leaders”, the experts said. “It is not the Hamas Government that is being punished, but ordinary Gazans.”

If anyone finds more, please comment.  I am curious, of course, about the expert panel’s view of the legality of the blockade in IAC/NIAC.

U.N. Report Finds Israeli Blockade Illegal

by Julian Ku

Ah, the U.N., such a complicated organization that almost never speaks with one voice. Hence, while the panel appointed by the Secretary-General found the Israeli blockade of Gaza legal, the panel appointed by the Human Rights Council has found the opposite.

GENEVA (Reuters) – Israel’s naval blockade of the Gaza Strip violates international law, a panel of human rights experts reporting to a U.N. body said on Tuesday, disputing a conclusion reached by a separate U.N. probe into Israel’s raid on a Gaza-bound aid ship.

I haven’t seen (or been able to find) the actual text of the HRC report. But the report doesn’t seem to indicate they took on the basic question of whether Israel can blockade Gaza, but more as to whether the blockade is a disproportionate use of force.

A panel of five independent U.N. rights experts reporting to the U.N. Human Rights Council rejected that conclusion, saying the blockade had subjected Gazans to collective punishment in “flagrant contravention of international human rights and humanitarian law”.

The four-year blockade deprived 1.6 million Palestinians living in the enclave of fundamental rights, they said.

“In pronouncing itself on the legality of the naval blockade, the Palmer Report does not recognise the naval blockade as an integral part of Israel’s closure policy towards Gaza which has a disproportionate impact

I don’t really find this analysis terribly persuasive, and I have often been disappointed by the legal sophistication or fact-finding ability in special rapporteur reports. This is ultimately a factual claim about the effect of the blockade on Gaza that may not even be true.  It would have been better if they adopted Kevin’s much more persuasive critique..

CIA Does Not Have to Respond to ACLU FOIA

by Kenneth Anderson

The ruling by Judge Rosemary Collyer was not unexpected; it provides that the CIA does not have to release records related to its drone-targeted killing program, as sought by the ACLU in a Freedom of Information Act (FOIA) suit.  The opinion is here, and Politico gives a brief summary of it here (h/t Lawfare).  Politico’s Josh Gerstein sums it up:

Ruling in a Freedom of Information Act case brought by the American Civil Liberties Union, Judge Rosemary Collyer said records about the use of drones could be withheld under the rubric of “intelligence sources and methods.” She rejected the ACLU’s arguments that lethal drones aren’t really involved in acquiring intelligence.

“At first blush, there is force to Plaintiffs’ argument that a ‘targeted-killing program is not an intelligence program’ in the most strict and traditional sense,” Collyer wrote, before concluding: “The Court has no reason to second-guess the CIA as to which programs that may or may not be of interest implicate the gathering of intelligence.”

Gerstein goes on to note that this ruling does not address other agencies of the government, such as State, which do not have these specific exemptions related to intelligence; without having done an exhaustive survey of FOIA cases, however, I would be surprised if something that the CIA could withhold on intelligence exemptions could be got sideways from other federal agencies.  Perhaps I’m wrong. Continue Reading…

Can the Vatican Be Subject to ICC Prosecution?

by Julian Ku

Well, the Center for Constitutional Rights certainly thinks so

Human rights lawyers and victims of clergy sexual abuse filed a complaint on Tuesday urging the International Criminal Court in The Hague to investigate and prosecute Pope Benedict XVI and three top Vatican officials for crimes against humanity for what they described as abetting and covering up the rape and sexual assault of children by priests.

The formal filing of nearly 80 pages by two American advocacy groups, the Center for Constitutional Rights and the Survivors Network of those Abused by Priests, is the most substantive effort yet to hold the pope and the Vatican accountable in an international court for sexual abuse by priests.

The actual CCR filing can be found here.  I think there are massive jurisdictional issues here, as well as substantive issue related to the ICC’s jurisdiction.  I’m not quite buying that the abuse scandals constitute a “widespread or systemic attack directed at a civilian population.” But CCR lawyers are very good (if a little radical, but maybe that’s why they are good).  I still am predicting no court action on this.  But CCR has already gotten most of what they want out of this filing, in terms of media coverage and public awareness.

Al-Bahlul, Conspiracy and the Subject Matter Jurisdiction of Military Commissions

by John C. Dehn

I will delay any detailed response to Kevin’s typically insightful posts about the CMCR’s recent decision, particularly its conclusion of a “substantial showing” that conspiracy to violate the laws of war is “an offense against the law of armed conflict.”  For now, I will note that I have some similar concerns to those Kevin expressed (e.g. on the relationship or relevance of joint criminal enterprise and criminal participation liability to conspiracy liability).

In fact, I am highly suspect of any claim that customary or conventional laws of war (not including the Rome Statute) affirmatively sanction the punishment of inchoate violations such as conspiracy, attempt or solicitation.  Prior to the Rome Statute, relevant treaty law addressed only completed violations.  For example, the 1949 Geneva Conventions (GCs) and their protocols require states to impose a penal sanction only for completed grave breaches. The Nuremberg IMT and ad hoc tribunals offer no real support for inchoate liability.  Interestingly, though, the Rome Statute includes both attempt and solicitation liability/responsibility, in Article 25 (b) & (f), respectively.  It also includes liability for those who “in any other way contribute to the commission or attempted commission” of a war crime.  Article 25(d) (emphasis mine).

For these reasons, there appears to be an open question regarding whether international law permits the use of the other domestic modes of inchoate criminal liability to punish non-nationals for extraterritorial violations of the law of war.  Exploring this rather complex issue requires retracing the origins of law of war violations and their punishment.

States have punished law of war violations by adversaries and their sympathizers since long before there were international laws affirmatively requiring or authorizing it.  The law of war prior to the 1949 GCs was understood to permit punishment of captured members of enemy forces as well as certain hostile civilians for violations, and indirectly required punishment – through the threat of reprisals and the command responsibility doctrine – of violations by members of friendly forces.

The 1949 GCs for the first time required states to impose a penal sanction for grave breaches (regardless of the nationality of the victim or offender), but all such punishment remained a sovereign act of the individual states party — a domestic crime with an international origin.  Additionally, this new requirement to punish certain offenses did not immediately change the view that all violations of the law of war permitted punishment.  This is why the 1956 U.S. Army Field Manual on the topic defined a “war crime” as “the technical expression for a violation of the law of war by any person or persons, military or civilian.” It continued, “[e]very violation of the law of war is a war crime.”  Although the law being violated was international in origin, the sanction was necessarily domestic in character.  This is consistent with Blackstone’s commentary on the topic, and also with the way that other violations of the law of nations by individuals, such as piracy, were traditionally punished.

Contemporary notions of “international criminal law” create the perception that customary or conventional international law must expressly or affirmatively provide for a criminal sanction for a given law of war violation.  This is required, we are told, by the legality principle: nullem crimen sine lege, which is similar to our constitutional prohibition on ex post facto laws.

But is affirmative definition or identification of conduct as a crime in customary or conventional law truly necessary?  If so, how could the customary law of international war crimes evolve or expand? All contrary state practice would necessarily be invalid under the legality principle (unless, perhaps, only nationals or territorial violations are prosecuted).  Or is it the case that these traditional understandings provide adequate notice that states may punish all law of war violations?  If the traditional understanding is that the law of war permitted such punishment, one could argue, the world is on notice and (an admittedly loose understanding of) the legality principle potentially satisfied. This would potentially leave us with two types of “war crimes” – those that are solely domestic crimes implementing lesser aspects of the laws of war and subject to standard constraints on prescriptive criminal jurisdiction (territoriality, passive nationality, etc.), and those deemed so serious that international law both requires punishment and permits the exercise of universal jurisdiction.

Both before and after the 1949 GCs, the subject matter jurisdiction of U.S. military commissions traditionally extended to all law of war violations against U.S. forces.  As Kevin noted, though, it went beyond international law of war violations during the U.S. Civil War, including a conspiracy offense (and what seems to me at least one other inchoate violation) not clearly within that law.  Colonel Winthrop’s commentary analyzed this vibrant domestic common law of war.  He noted developments in both the substantive and procedural components of this common law in the decision-making of military commissions.

But the Civil War was an internal armed conflict.  Thus, all such developments were, at best, domestic common law only.  They were one state’s practice rather than customary international law.  Such domestic common law doctrines and developments are fairly within the subject matter jurisdiction of military commissions from the perspective of U.S. law.  However, their application to extraterritorial violations by non-nationals would implicate the legality principle and the constitutional prohibition of ex post facto laws, but only if not consistent with relevant international law.

For me, then, the key question is whether the application of this admittedly domestic criminal responsibility doctrine is consistent with international law.  Does the earlier cited language of the Rome Statute reflect either customary international law or an applicable general principle of law?  Does one “contribute to the attempted commission of . . . a crime by a group of persons acting with a common purpose . . . with the aim of furthering the criminal activity or criminal purpose of the group” by entering into a criminal conspiracy so long as the group ultimately makes a substantial (rather than merely any overt) step toward completing the offense? It at least seems plausible.  I am, of course, very interested in what Kevin thinks about all of this (though I suspect that I know the answer).

Was Dean Janet Levit’s Nomination Blocked Due to Her Views on International Law?

by Julian Ku

Apparently, Sen. Tom Coburn of Oklahoma is blocking the nomination of Dean Janet Levit, of University of Tulsa Law School, to the U.S. Court of Appeals for the Tenth Circuit.  The Daily Oklahoman reports:

Oklahoma City attorney Mike Turpen, a longtime Democratic Party fundraiser with ties to the White House, said Coburn told him in July that Levit was not going to receive his backing, effectively killing any chance that she could get through the U.S. Senate.

According to Turpen and other attorneys familiar with the situation, Levit’s nomination was close to being finalized. White House visitor logs show Levit met twice in October with a White House official overseeing judicial nominations.

If the report is true, this would be a real shame because there is nothing about Janet Levit’s scholarship that suggests she would misuse international law in her capacity as a federal judge.  While she has a different approach than me on many things, her scholarship is not about the use of international law  in constitutional interpretation, which is what Coburn is supposedly concerned about.  (For a brief description of her views on various subjects, see here).

I actually suspect the real reason for blocking her nomination is not international law but pure politics. Coburn has his own candidates for judgeships out of Oklahoma, and unfortunately for Janet, she’s not one of them. But I do hope that her scholarship on international law has not played a role here in denying her the judgeship.

Criminal Membership’s Lack of Precedential Value

by Kevin Jon Heller

As I noted in my previous post, the CMCR’s opinion in al-Bahlul repeatedly cites the Nuremberg-era crime of criminal membership in defense of its belief that material support for terrorism and conspiracy qualify as war crimes.  I continue to believe that the best counter-arguments to that idea are (1) that criminal membership was not a war crime at Nuremberg (the war-crimes provision of the London Charter does not mention criminal membership; criminal membership was addressed in two separate articles); and (2) that the elements of criminal membership are materially different than the elements of either material support (criminal membership does not require action in support of the criminal organization; material support does not require membership in a criminal organization) or conspiracy (criminal membership does not require agreement or intent to commit criminal acts).

Those considerations aside, it is also important to note that it is difficult — if not impossible — to argue that international law continues to recognize the crime of criminal membership. Consider the following:

  • In December 1946, the General Assembly adopted Resolution 95(I), which “affirmed the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal” and directed the newly-created International Law Commission (ILC) to “treat as a matter of primary importance plans for the formulation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal.”  Four years later, the ILC adopted a report entitled “Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal.”  According to Principle VI, three crimes were “punishable as crimes under international law”: crimes against peace, war crimes, and crimes against humanity.  Criminal membership was not included — and indeed, criminal membership was not mentioned anywhere in the ILC report or in its accompanying commentary.
  • The ILC’s first “Draft Code of Offences Against the Peace and Security of Mankind,” adopted in 1954, did not include — or even mention — the crime of criminal membership.
  • When the Security Council created the ICTY and the ICTR, it did not give either tribunal jurisdiction over the crime of criminal membership.
  • The ILC’s 1996 “Draft Code of Crimes Against the Peace and Security of Mankind” did not include criminal membership.  Indeed, in the Commentary on the Draft Code, the ILC mentioned that the IMT “recognized the possibility of criminal responsibility based on the membership of an individual in… a criminal organization” and then categorically rejected that idea, pointing out that “[t]he Code does not provide for any such collective criminal responsibility” (p. 47 n. 30; emphasis added).
  • The Rome Statute, adopted in 1998, does not include the crime of criminal membership.
  • No other international tribunal — from the Special Panels for Serious Crimes in East Timor to the Special Tribunal for Lebanon — has ever had jurisdiction over the crime of criminal membership.

It is also important to recognize the specific factual context that led the Allies to include the crime of criminal membership in the London Charter.  That decision was born of expedience, not principle — there were simply too many German war criminals to prosecute in traditional individualized trials.  Indeed, the United States alone had detained more than 100,000 Germans pursuant to JCS 1023/10, the “Directive on the Identification and Apprehension of Persons Suspected of War Crimes or Other Offenses and Trial of Certain Offenders.”  Relying on the crime of criminal membership was thus very much a last resort, as numerous scholars have recognized.  (See, for example, Richard Arens seminal 1951 article “Nuremberg and Group Prosecution.”)

That context is important for two reasons.  First, it gives increased significance to the fact that the Security Council did not consider dusting off the crime of criminal membership when it created the ICTR.  After all, Rwanda’s gacaca courts tried more than 1,000,000 people suspected of being involved in the 1994 genocide.  If there was ever a time for the international community to invoke Nuremberg, the aftermath of the 1994 genocide was it.

Second, and relatedly, that context indicates why the crime of criminal membership is particularly inapposite in the context of the “war on terror.”  The United States is not faced with the need to prosecute hundreds of thousands of al-Qaeda members; it is not even faced with the need to prosecute dozens.  Nuremberg’s crime of criminal membership thus not only fails to provide legal support for material support and conspiracy, it fails to provide factual support for them, as well.

Jennifer Daskal Reviews Michael Scharf and Paul Williams’ Book on the Office of Legal Adviser

by Kenneth Anderson

Our esteemed guest blogger Michael Scharf and my Washington College of Law colleague Paul Williams brought out a very interesting volume from Cambridge UP last year, Shaping Foreign Policy in Times of Crisis: The Role of International Law and the State Department Legal Adviser. Over at Lawfare, Jennifer Daskal, friend to many of us from her days at Human Rights Watch and the last couple of years at the Justice Department, and currently a Georgetown fellow, reviews the book.  (PS: And congratulations to Jen on her new baby, now a week old! ed.)

The Global War on Terrorism’s Tenth Anniversary

by Julian Ku

Like many Americans, especially those of us living or working in New York City at the time, I have very personal and powerful memories of the September 11, 2001 attacks. I will spare our readers my own reminiscences, however, and stick to something a little more relevant to this blog’s subject matter: the international law of armed conflict.

While many pundits and commentators have discussed the myriad ways that the attacks of September 11, 2001 have impacted American society, culture, daily life, literature, art, etc., it is also worth noting that September 11, 2001 was the day the “global war on terrorism” began, an armed conflict that continues to this day. The legal nature of this armed conflict was initially disputed since there was little precedent for a nation-state to declare itself in a global armed conflict with a non-state actor like Al Qaeda. But the legality of this armed conflict under international law is now the consensus view (at least in the United States).  The legality of such an armed conflict is what justifies, under international law, the continued capture, detention, punishment, and targeted killings of enemy combatants associated with Al Qaeda.

To be sure, as Kevin’s posts on the CMCR below remind us, there are many complex and difficult legal questions to sort out as this armed conflict enters its second decade.  But the basic legal framework appears to be settled and has been confirmed by two different U.S. administrations (with legal advisors as different as John Yoo and Harold Koh).  The United States is “at war” with terrorists and will likely remain so for the foreseeable future.

The Problems with “Criminal Membership”

by Kevin Jon Heller

I’ve received a number of emails arguing that I do not take seriously enough the CMCR’s analogy between conspiracy and the crime of membership in a criminal organization.  The obvious response is that: (1) criminal membership is not a war crime; (2) the elements of conspiracy and criminal membership are completely different; (3) the tribunals on which the CMCR relied for criminal membership specifically and repeatedly rejected the idea that conspiracy was a war crime; (4) the Military Commissions Act doesn’t “define” the crime of criminal membership; and (5) al-Bahlul was not charged with criminal membership.

All that aside, it’s worth pointing out that even if we completely abandon due process and say its fine to recharacterize the charges against al-Bahlul so that they resemble a crime Congress has not defined as criminal, al-Bahlul could still not be properly convicted of criminal membership in al-Qaida if we take the Nuremberg precedent seriously.  Here is what the CMCR says:

Article 9 of the London Charter empowered the IMT to “declare . . . that the group or organization of which the individual was a member was a criminal organization.” 1 T.M.W.C., supra n. 36, at 10, 255. Article 10 of the charter empowered the competent national authorities to try individuals for membership alone in any organization declared criminal by the IMT before national, military or occupation courts. Id. “In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.” Id.

Six organizations, with about 2,000,000 members in Germany and about 500,000 in the U.S. zone, were indicted as criminal organizations before the IMT.82 Following vigorous debate on the scope of membership liability, particularly concerns regarding the individual criminal liability of persons with widely disparate levels of knowledge, responsibility, and authority within their respective organizations, the IMT determined that… “a member of an organisation which the Tribunal has declared to be criminal may be subsequently convicted of the crime of membership and be punished for that crime by death.”

As the CMCR itself acknowledges, individual members of the SS, Gestapo, and Leadership Corps could only be charged with and convicted of criminal membership because the IMT, following indictment and an adversarial trial, had previously concluded that those organizations were criminal.  Has the United States ever indicted al-Qaida as a criminal organization?  Has it ever argued its criminality in an adversarial trial?  Has a court ever concluded that al-Qaida is a criminal organization following such a trial?  Has a court ever had the opportunity to exclude certain “branches” of al-Qaida from the larger organization, as the IMT did with certain Nazi organizations, such as the SS’s Riding Units?

I can already hear the response from military commission enthusiasts: how much more evidence do we need that al-Qaida is a criminal organization?  Isn’t it obvious that it is?  Such a response, of course, is tantamount to saying that we don’t have to give an obviously guilty defendant (here, al-Qaida as an organization) a fair trial — a position that hardly reflects the commitment to due process that the U.S. once took seriously, even in military trials (most notably in the NMTs).

Also note the dishonest ellipsis in the CMCR’s portrayal of Article 9 of the London Charter: “Article 9 of the London Charter empowered the IMT to ‘declare . . . that the group or organization of which the individual was a member was a criminal organization’.” Here is what the sentence actually says (emphasis added):

At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization.

In other words, the London Charter did not permit an individual to be convicted solely of criminal membership; he could be convicted of criminal membership only if he had committed at least one substantive crime as part of the criminal organization.  Indeed, both the Ministries and Einsatzgruppen tribunals held exactly that (see pp. 293 of my book.)

Here, of course, the response will no doubt be that al-Bahlul was convicted “in connection with any act of which the individual may be convicted” — namely, material support for terrorism.  In which case a conviction for one non-existent war crime would serve as the basis for conviction of another non-existent war crime.

The military commissions in a nutshell.

The CMCR Invents the War Crime of Conspiracy

by Kevin Jon Heller

Even I thought the Court of Military Commission Review couldn’t reach such an absurd conclusion.  I was wrong:

The Government has made a “substantial showing” that the conduct alleged, including appellant’s (an AUEC’s) agreement with bin Laden and others to commit the object offenses, with knowledge of and intent to further the unlawful purposes of that agreement, and commission of the enumerated overt acts including meeting with and pledging personal loyalty to bin Laden, and membership in al Qaeda was punishable by military commission as an offense against the law of armed conflict when committed (p. 97).

The CMCR’s reasoning is, not surprisingly, a complete joke.  First, the CMCR claims that “[t]he act of uniting with ‘banditti, jayhawkers, guerillas, or any other unauthorized marauders’ has long violated the law of armed conflict and that ‘offence is complete when the band is organized or joined'” (pp. 91-92). It provides no evidence for that fact, other than an opinion issued by Lincoln’s Attorney General, from which the quote is taken.  And yes, conspiracy and criminal membership are completely different crimes.  (See below.)  But fine — let’s stipulate that the United States took the position during the Civil War that “conspiracy” was a war crime.

Second, the CMCR argues that “[r]ecent treaty law acknowledges participation in a transnational organized criminal group in a manner similar to the charged conspiracy as punishable conduct.  See Convention against Transnational Organized Crime, art. 5” (p. 92).  The CMCR conveniently fails to mention, of course, that the Convention concerns “organized crime” — look, it’s right there in the title! — and has nothing to do with the law of war or war crimes.

Third, the CMCR points out that “punishment of such conduct under domestic criminal law reflects widespread agreement on this fundamental principle” (p. 92) and spends four pages listing all the states that criminalize conspiracy (pp. 93-97).  Sure, none of those states criminalize conspiracy as a war crime, but why let that inconvenient fact get in the way of the CMCR’s predetermined conclusion?

Fourth, the CMCR analogizes conspiracy to criminal membership:

Appellant’s charged conspiracy is directly akin to the criminal organization provisions of the Nuremburg Charter in Articles 9 and 10, as implemented by the IMT. See discussion supra pp. 63-65. We also find that appellant’s conduct readily meets the requirements of membership in a criminal organization. Appellant’s conduct, including his agreement with bin Laden and others to commit the object offenses, with knowledge of and intent to further the unlawful purposes of that agreement, and commission of the enumerated overt acts, including meeting with and pledging personal loyalty to bin Laden, and then joining al Qaeda was punishable by military commission as an offense against the law of armed conflict when committed (p. 97)

The CMCR somehow neglects to mention that criminal membership at Nuremberg was not a war crime — as evidenced by the fact that it was mentioned in Article 10 of the London Charter, while war crimes were listed in Article 6(b).  And it somehow neglects to mention that criminal membership and conspiracy are completely different kinds of inchoate crimes, because the whole point of criminal membership at Nuremberg was to hold defendants criminally responsible for voluntarily joining an organization they knew was criminal, even if they never agreed to commit criminal acts or intended such acts to be committed.

Fifth, and finally, the CMCR analogizes conspiracy to aiding and abetting and JCE (citations omitted):

Additionally, and like the conduct charged as providing material support for terrorism the offense of conspiracy as charged is essentially co-perpetrator or principal liability, akin to aiding and abetting, or complicity, theories of individual criminal liability long recognized under the law of armed conflict, and in the domestic law of civilized nations. This is particularly true where, as here, the accused voluntarily conspires and agrees with al Qaeda’s leadership to commit at least seven separate offenses against the law of armed conflict and with knowledge of and intent to further the unlawful purposes of that agreement, knowingly commits various overt acts to accomplish some objective of that agreement including pledging loyalty to bin Laden, joining al Qaeda, and providing various services and resources to both. The mens rea element as defined in 2006 M.C.A. § 950v(b)(28), and the 2007 M.M.C., Part IV, ¶¶ 6(28)b, and as applied by the military judge at trial also duplicates that required for “Basic JCE” (shared intent to perpetrate a certain crime), and “Extended JCE” (intent to participate in and further the criminal activity or the criminal purpose of a group).

Yep, conspiracy, a purely inchoate crime, is just like aiding and abetting or JCE, modes of participation that connect defendants to a crime that has actually been committed.  Except, of course, that conspiracy is an inchoate crime, while aiding and abetting and JCE are modes of participation.  And except for the fact that the whole point of conspiracy is to ensure that defendants who plan but do not commit crimes do not escape criminal liability.  Other than that, they are exactly the same.  (As a humorous aside, note that the CMCR has no understanding of JCE III, which is a mode of participation that is specifically designed to connect a defendant to a crime that he didn’t intend to commit.)

So, that’s it.  A Civil War-era opinion by the U.S. Attorney General; an international convention that has nothing to do with the law of armed conflict; a bunch of domestic terrorism statutes; the long-discredited non-war-crime of criminal membership; and various modes of participation.  Such is the “substantial showing” that conspiracy is a war crime.

And note, finally, the most egregious absence from the CMCR’s opinion: any reference at all to the fact that the Nuremberg Military Tribunals uniformly concluded, after extensive briefing and oral argument, that — to quote the common language from the Medical, Justice, and Pohl judgments — they had “no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.”  But that absence is understandable.  It’s not like the NMTs were organized and conducted by the United States.  It’s not like the CMCR’s discussion of criminal membership focused on how the NMTs applied that crime.  And it’s not like the CMCR discussed the NMT judgments on pages 27, 42, 65, 66, 67, 68, 69, 101, 109, and 110 of its opinion.

Must have been an honest oversight.

“International Law in Crisis”: Case Western Reserve Law Conference Webcast

by Julian Ku

I’ve been attending (and will be speaking) at a conference at Case Western Reserve University Law School in Cleveland entitled “International Law in Crisis.” You can catch the webcast here. A brief description below.

2011 is shaping up to be one of the most turbulent years in history. This timely symposium is designed to examine both the application of international law in times of crisis and whether these events are pushing international law itself to the brink of crisis, with panels examining developments in Northern Africa and the Middle East, climate change, international economic law, universal jurisdiction, piracy, and the war on terrorism. The symposium features an opening lecture by Ruth Wedgwood, President of the American Branch of the International Law Association, and a midday lecture by the Hon. Richard Goldstone, former Justice of the South African Constitutional Court and Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda.

The Rise of Drone Warfare and Targeted Killing, A Quick Retrospective

by Kenneth Anderson

From Siobhan Gorman (of the Wall Street Journal’s national security team) a nicely done retrospective on the rise of the drones as part of strategy, technology, law, ethics and philosophy.  It’s a reasonably short piece, quotes the Very Great Bobby Chesney, and gives a good sense of the history of how it came about, linking policy and strategy, all in a short piece.  If you’re looking for a good introduction to a class, or a student looking for a way into the topic, this is a good place to begin.  I sometimes get emails from folks looking for a quick way into this topic, and I will find myself pointing them here.

“CIA has never looked more like its direct ancestor, the OSS, than it does right now,” said former CIA Director Michael Hayden. “It is as intensely operational as it’s ever been.”  The CIA, which doesn’t formally acknowledge the covert program, has killed about 2,000 militants with drones, U.S. officials say, most in the past two years as President Barack Obama’s national security team aggressively expanded the program. In 2010, the number of drone strikes more than doubled, to 114, and this year, drone campaigns are expanding. The CIA now plans flights in Yemen, and the military is using drones to kill militants in Somalia.

“The United States has been fighting al Qaeda for more than a decade now, so it’s only logical that counterterrorism would be a top objective for the CIA,” said agency spokeswoman Marie Harf. “When the country goes to war, its intelligence agencies do, too. That’s always been true, from the days of the OSS in World War II until now.”

Legal challenges to the drone program have secured little traction. The main debate inside the government has been over how to execute the campaign without irreversibly damaging Pakistani cooperation.  American citizens can be targets, too. Under the legal authority for the drone program, the CIA must consult the National Security Council before capturing an American posing an imminent threat, but no additional consultation is required to kill an American, a former senior intelligence official said.

Jack Goldsmith Comes Out Against Concept of “Lawfare”

by Peter Spiro

As part of an series of “mea culpa” posts by various post 9/11 players over at the Lawfare blog, Jack Goldsmith recounts how his views on lawyering within the government’s national security complex have changed, from skepticism to acceptance.  On the use of law by those seeking to constrain the government’s discretion from the outside:

I started the decade in the camp of those who saw the novel cascade of legal criticisms and lawsuits against the U.S. government’s counterterrorism policies simply as efforts to use law strategically “as a weapon of war” to “handcuff the United States,” as Charlie Dunlap put it in his seminal paper.  This may well be the motivation of some of USG critics, both inside and outside the government, but the issue, I now realize, is much more complex.  As war has become hyper-legalized, and as legality has become the currency of legitimacy for military action, it is inevitable that government critics will use law as a measure of critique and a tool of sanction.  But the Executive branch uses law strategically as well.  The President’s legitimate military power flows from domestic and international law.  His lawyers are in constant battle—with the media, NGOs, and terrorists in federal court—for their favored understandings of the law, and in these battles they interpret and employ law strategically to further their aims. The United States also employs law strategically when it seizes terrorist assets, buys commercial satellite imagery, hires private security forces, threatens sanctions, and engages in thousands of other war-related acts every day.

An important and nuanced statement, from someone with a lot of credibility on the question.  It will be interesting to see what kind of response it provokes among the take-no-prisoners set.

How Not To Argue Libya Should Prosecute Gaddafi (Updated)

by Kevin Jon Heller

Where Gaddafi should be tried — if and when he is captured — has become quite the hot-button issue recently.  Personally, I’m with David Kaye: he should be tried by the ICC, but the trial should be held in Libya.  I’m also not opposed to Libya asserting its right under the ICC’s complementarity regime to try Gaddafi domestically, although I’m skeptical the new government will be able to hold such a trial in the near future.  There are, of course, many good reasons to prefer a domestic trial to an international one.

This, however, is not one of them:

The first reason why the ICC should not seek the Tripoli Three’s extradition to The Hague is because the ICC is the wrong forum for these trials. It provides the accused with an international stage to pose and grandstand on. This happened in the case of former Yugoslav President Slobodan Milosevic, who postured, denied, and sought every legal means to delay the proceedings of the court during his defense at the ICTY. In a Libyan court, the Tripoli Three might not receive a totally impartial hearing, but they will not be allowed, as Milosevic was, to grandstand and support their crimes by providing vacuous and flattering arguments. In this sense, they will be held directly accountable to Libyans for the actions they perpetrated towards their fellow countrymen.

The idea that preventing grandstanding is more important than providing Gaddafi and the others with an impartial trial is, well, kind of abhorrent.  It’s also rather naive to think that a Libyan trial would prevent Gaddafi from grandstanding, short of heavy-handed methods that would themselves infringe upon his right to a fair trial (keeping him in his cell, gagging him, prohibiting media coverage, etc.)  Indeed, the author of the blog post also insists — seemingly unaware of the contradiction — that “[i]n a Libyan scenario, the trials would have to be very transparent.”

Something tells me that a “transparent” Libyan trial would feature quite a bit of Gaddafi grandstanding.

UPDATE: Stuart Ford has a recent article that explores in great depth how the ICC could try cases outside the Hague.  It’s well worth a read.  You can find it here.

American University Law School National Security Panel

by Kenneth Anderson

My bad for not mentioning this some time ago, but tomorrow, Thursday, 12 noon, we at Washington College of Law, American University, will have Michael Leiter, former director of the National Counterterrorism Center, as keynote speaker.  He will be followed by a panel that will include myself and my colleague Steve Vladeck — but more important than either Steve or I, it also features Lisa Monaco, the new assistant AG for the DOJ national security division, and Ivan Fong, general counsel to the Department of Homeland Security.  Dan Marcus will moderate.  Runs from 12–2:30, and there are maybe a few unfilled slots if you want to try and sign up to attend at the link, here.  It will probably be podcast or video posted at the school’s site as well.

Can Iran Sue Russia in the ICJ?

by Julian Ku

Since neither state has accepted the compulsory jurisdiction of the ICJ, I am curious how this report could possible be accurate:

A senior Iranian diplomat said that Tehran has filed a lawsuit against Russia after the latter backed out of delivering anti-aircraft S-300 missile system to the Islamic Republic, Tehran’s Fars news agency reported on Tuesday.

Iran‘s Ambassador to Russia Seyed Mahmoud Reza Sajjadi said that Tehran has filed a lawsuit against Russia with the International Court of Justice over Moscow’s refusal to ship S-300 air defense systems to Tehran.

Translation problems or confusion? An inaccurate report?  Anyone out there have the answer?

Congress’s Constitutional Power to Establish National War Policy in Violation of International Law – A (Belated) Response to Professors Golove & Kent

by John C. Dehn

Please forgive the recent interruption to my guest blogging tenure.  I currently live in New Jersey.  We sought refuge from Hurricane Irene in a cabin in the Adirondacks – sans internet access.  Interesting times.

Earlier this summer, Opinio Juris hosted an excellent discussion of an important new book, International Law in the U.S. Supreme Court, a well-edited collection of essays about the Supreme Court’s approach to international law. Professor David Golove’s contribution asserting that post-9/11 Supreme Court “War on Terror” decisions are consistent with what he called our “Just War constitutional tradition” drew significant attention.  In Professor Golove’s view, both the President and Congress are constitutionally required to comply with at least some international laws of war. Professor Andrew Kent critiqued the essay here, arguing that Golove’s claims, particularly those involving Congress, are inconsistent with Supreme Court precedent recognizing Congress’s power to set national policy in violation of international law.

I agree with Golove’s assertion that the executive branch must generally comply with any applicable international laws of war.  Like Professor Kent, I am quite circumspect of the claim that Congress must as well.  Harlan Cohen responded to Professor Kent’s post, suggesting that Professor Golove and Professor William Dodge (one of the book’s editors) may believe that all nations, including ours, are “absolutely bound” by certain rules of international law, those that the well-known (to the Framers and to academics) and influential Eighteenth Century international law commentator Emmerich de Vattel categorized “voluntary law.”  Professor Golove didn’t express his views on Cohen’s comment in his response to Professor Kent.  The only clue he provided to support his conclusion was this.

“It may be that the Court would have been wary about its own authority to strike down legislation as in conflict with the laws of war, but that says nothing about the “Constitution outside the Courts” and the longstanding understandings in Congress and among leading constitutional authorities about the limits on its constitutional powers over war.”

After reading Professor Golove’s contribution to the book, Professor Ramsey’s response, and Professor Dodge’s related essay, I think there may be confusion regarding the obligatory nature of what Vattel denominated “voluntary law” and its relationship to both the contemporary laws of war and the war powers of Congress.

I believe Congress possesses the constitutional power (in conjunction with the executive, when necessary) to establish national war policy contrary to relevant international law so long as it does not violate the text of the Constitution.  To the extent that Professor Golove’s unpublished research may have uncovered “longstanding understandings in Congress” that it must follow certain international laws of war, I suspect those understandings to be based in morality or wise policy, not necessarily constitutional law. Golove has to date given only scant evidence of what seems an elegant argument in favor of granting constitutional status to any such congressional understandings.

I agree that there are (and were) rules of international law that nations were believed “absolutely bound” to observe.  They included what Vattel denominated the “perfect rights” of nations.  Perfect rights were those “accompanied by the right of compelling those who refuse to fulfill the correspondent obligation” through armed force. However, the absolute “bindingness” of these rules existed only in international law.  Particularly in dualist countries, international law said nothing about whether national lawmakers possessed domestic authority to establish national policy in direct conflict with international law. As the Court said in Brown v. U.S.,

Th[e modern] usage [of civilized nations] is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign, and although it cannot be disregarded by him without obloquy, yet it may be disregarded.” (emphasis added)

This basically says what international lawyers already know: a national policy, even one properly established under domestic law, may permit a violation of international law.   But it cannot excuse that violation from the perspective of international law.  In such cases, the policy is lawful in the domestic (municipal) legal system, but remains a violation of international law.

In my view, the key question is not whether the U.S. has ‘the power but not the right’ (to paraphrase Louis Henkin) to violate international law; it does.  The key question is: which branch(es) of the U.S. government may constitutionally establish national policy contrary to international law?  My research leads me to believe that in most contexts, including war, Congress does.  In some very narrow circumstances it has been (and may still be) the executive alone.  Let me add three reasons for my views to Professor Kent’s response.

First, the bulk of the contemporary international law of war (both jus ad bellum and jus in bello or international humanitarian law (IHL)) consists of customary and conventional constraints on conduct the natural law-based law of nations permitted.  Therefore, contemporary IHL is not properly equated with Vattel’s “voluntary” law, which is law evidenced in or derived from natural law principles, generally observed for its utility, and obligatory on civilized states through their presumed (rather than express or implied) consent.

Vattel identifies three other categories of international law, (1) necessary, (2) customary and (3) conventional.  Only necessary law, which consisted of the direct application of natural law to nations, was immutable or absolute.  Vattel classified the other three types, including voluntary law, as composing the “positive law of nations” because “they proceed from the will of nations.”  It defies logic to say that any species positive law cannot be altered at the will of the same nations that establish it.  It isn’t “absolutely” binding in the strictest sense of that term.  (I gave an example of what seems to me a contemporary alteration of one aspect of Vattel’s voluntary law in this earlier comment thread — partly addressed in Julian’s post yesterday. There are others I would be happy to discuss in the comments if there is interest.)

Second, to the extent that any rules in the contemporary law of war might be properly categorized “voluntary” law, the Constitution expressly assigns Congress the power to derogate from or abrogate such law.  Importantly, this includes the power to infringe the “perfect rights” of other nations.  Nothing in the constitutional text expressly requires Congress to exercise its powers to declare war or grant letters of marque (or reprisal, see below) in a manner consistent with relevant international law.  This is why the Court did not, in its early decisions, review a congressionally established general or partial war for compliance with the law of nations.  In Talbot v. Seeman (1801), Chief Justice Marshall, speaking for the Court, said,

“The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry [into whether France was properly deemed an enemy].” (emphasis added)

The Court took the same approach in the seriatim opinions of Bas v. Tingy (1800), and in many other cases.

Finally, and closely related to the last point, the Court has repeatedly stated its opinion that only the elected branches exercise this nation’s reprisal powers.  The authority to engage in these reciprocal actions necessarily includes the power to infringe rights recognized by Vattel’s voluntary law, and the exclusive judgment over whether such actions were necessary and appropriate in the elected branches.  As the Court stated in The Schooner Exchange v. McFaddon (1812),

“the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, that they are for diplomatic, rather than legal discussion, are of great weight, and merit serious attention. But the argument has already been drawn to a length, which forbids a particular [judicial] examination of these points.”

Of course, none of these observations directly addresses Golove’s claim: that Congress believed itself to be limited by the law of nations when exercising its powers, and that this sense of obligation had a constitutional dimension or basis.  There are, quite obviously, many reasons why members of Congress or Congress as a body might have boisterously made such claims.  Chief among them would be to claim the legitimacy of law for proposed or adopted legislation infringing the perfect rights of other nations.  Given the widely accepted origins of the natural law, some might also have felt morally obligated to observe it in spite of having constitutional discretion not to do so.  It will be interesting to see how Golove addresses these possibilities and others in his completed work.  I look forward to reading it.

Kevin Costner, 11th Circuit Judge (Mamani v. Berzain)

by Kevin Jon Heller

Against my better judgment, I read the 11th Circuit’s opinion in Mamani v. Berzain, the Bolivian ATS case.  I say against my better judgment because reading American judges on international law is kind of like listening to Kevin Costner play Robin Hood — you vaguely recognize the referent, but it is still painful to the ear.  It’s bad enough that American judges consistently get international law wrong, as evidenced by the woeful Talisman Energy decision about the mens rea of aiding and abetting.  But at least the Second Circuit tried to get the law right — it didn’t understand the international materials it cited, but at least it identified and addressed them.  The 11th Circuit, by contrast, makes the Second Circuit seem like Ian Brownlie.  It made no attempt at all to grapple with the international materials on crimes against humanity.  Indeed, reading the opinion, you would have no idea that any such materials exist: although the court says that “[t]o determine whether the applicable international law is sufficiently definite, we look to the context of the case before us and ask whether established international law had already defined defendants’ conduct as wrongful in that specific context (pp. 16-17), there is not a single citation in the entire decision to any international source.  No case.  No convention.  No UN report.  No international-law scholar.  Nothing.

Let me repeat that: in a decision that turns on whether international law is adequately definite for ATS purposes, the 11th Circuit did not feel it necessary to address even one source of that law.

Almost needless to say, having ignored international law completely, the 11th Circuit proceeds to conclude that international law is not sufficiently definite for the ATS.  Here is my favorite — in the sense of “most appalling” — example (pp. 16-17; emphasis added):

Nor have plaintiffs pleaded facts sufficient to state a claim for a crime against humanity pursuant to established international law. “[T]o the extent that crimes against humanity are recognized as violations of international law, they occur as a result of ‘widespread or systematic attack’ against civilian populations.” Aldana, 416 F.3d at 1247 (quoting Cabello, 402 F.3d at 1161).

The scope of what is, for example, widespread enough to be a crime against humanity is hard to know given the current state of the law.

Yeah, who knows what widespread means?  It’s not like there are dozens of decisions by international tribunals interpreting the contextual element of crimes against humanity or anything.  And, of course, no international-law scholar has ever written about the idea of a widespread attack.

I hate to say it, but perhaps it’s time for Congress to eliminate the ATS once and for all.  It would be a terrible thing for the U.S. to not have the statute.  But it is even worse to offer hope to those who have been wronged and then dash that hope — again and again — on the rocks of judicial ignorance.

Is There a Regime China Won’t Support?

by Kevin Jon Heller

The Globe & Mail has a blockbuster report today concerning China’s willingness to supply weapons to Gaddafi’s regime during the rebellion:

China offered huge stockpiles of weapons to Colonel Moammar Gadhafi during the final months of his regime, according to papers that describe secret talks about shipments via Algeria and South Africa.

Documents obtained by The Globe and Mail show that state-controlled Chinese arms manufacturers were prepared to sell weapons and ammunition worth at least $200-million to the embattled Col. Gadhafi in late July, a violation of United Nations sanctions.

The documents suggest that Beijing and other governments may have played a double game in the Libyan war, claiming neutrality but covertly helping the dictator. The papers do not confirm whether any military assistance was delivered, but senior leaders of the new transitional government in Tripoli say the documents reinforce their suspicions about the recent actions of China, Algeria and South Africa. Those countries may now suffer a disadvantage as Libya’s new rulers divide the spoils from their vast energy resources, and select foreign firms for the country’s reconstruction.

Omar Hariri, chief of the transitional council’s military committee, reviewed the documents and concluded that they explain the presence of brand-new weapons his men encountered on the battlefield. He expressed outrage that the Chinese were negotiating an arms deal even while his forces suffered heavy casualties in the slow grind toward Tripoli.

“I’m almost certain that these guns arrived and were used against our people,” Mr. Hariri said.

Senior rebel officials confirmed the authenticity of the four-page memo, written in formal style on the green eagle letterhead used by a government department known as the Supply Authority, which deals with procurement. The Globe and Mail found identical letterhead in the Tripoli offices of that department. The memo was discovered in a pile of trash sitting at the curb in a neighbourhood known as Bab Akkarah, where several of Col. Gadhafi’s most loyal supporters had lavish homes.

The document reports in detail about a trip by Col. Gadhafi’s security officials from Tripoli to Beijing. They arrived on July 16, and in the following days they met with officials from three state-controlled weapons manufacturers: China North Industries Corp. (Norinco); the China National Precision Machinery Import & Export Corp. (CPMIC); and China XinXing Import & Export Corp. The Chinese companies offered the entire contents of their stockpiles for sale, and promised to manufacture more supplies if necessary.

The hosts thanked the Libyans for their discretion, emphasized the need for confidentiality, and recommended delivery via third parties.

“The companies suggest that they make the contracts with either Algeria or South Africa, because those countries previously worked with China,” the memo says.

The Chinese companies also noted that many of the items the Libyan delegation requested were already held in the arsenals of the Algerian military, and could be transported immediately across the border; the Chinese said they could replenish the Algerian stocks afterward. The memo also indicated that Algeria had not yet consented to such an arrangement, and proposed further talks at the branch offices of the Chinese companies in Algiers.

Appendices stapled to the memo, and scattered nearby, show the deadly items under discussion: truck-mounted rocket launchers; fuel-air explosive missiles; and anti-tank missiles, among others. Perhaps most controversially, the Chinese apparently offered Col. Gadhafi’s men the QW-18, a surface-to-air missile small enough for a soldier to carry on his shoulder – roughly similar to a U.S. Stinger, capable of bringing down some military aircraft.

Government spokespeople in Beijing, Algiers and Pretoria either declined to comment or could not be reached on Friday. E-mails sent to two Chinese arms manufacturers were not answered.

I’m not surprised that China was willing to sell arms to Gaddafi; from all indications, no regime is too dictatorial for China’s tastes.  But I have to admit, I find it shocking that China would be willing to violate the Security Council’s arms embargo for a measly $200 million — pocket change for the government.  These revelations not only reinforce China’s image as being completely unconcerned with human rights when it comes to trade, they also make it look completely hypocritical.  As the Globe & Mail article notes, although China abstained from the resolution authorizing the use of force against Gaddafi’s regime, it voted in favor of Resolution 1970, which imposed an arms embargo on the regime.

And surface-to-air missiles?  Really?  Can you imagine what would have happened if a Chinese SAM had shot down an American or British airplane?

Anne-Marie Slaughter Defines Sovereignty Down (But She’s Sort of Right To Do So)

by Julian Ku

In her typically graceful and accessible style, Prof. Anne-Marie Slaughter has a series of posts at The Atlantic defending a redefinition of state sovereignty under international law (especially in the wake of Libya).  A taste of her thoughts can be seen in this graph.

So it is international law itself — or rather the governments that bring it into being — that is in the process of redefining the international definition of sovereignty (e.g. the conditions on which you can be a player in the international system) to include a responsibility to protect (R2P) their citizens. Trombly argues that this conception of sovereignty “essentially strips its value,” because the whole point of a sovereign is to protect individuals from each other, in return for which it can and must demand absolute obedience. In the R2P world, by contrast, the sovereign “protects and serves.” Strips its value? Really? I may be an international lawyer, but I’m also a daughter of Charlottesville, Virginia, home to Monticello and Mr. Jefferson’s university. Last I checked, “protects and serves” was his definition of domestic sovereignty. The Declaration of Independence, after all, argues that all men have inalienable rights and that governments exist “to secure these rights … deriving their just powers from the consent of the governed.” “Protects and serves” is how all liberal democratic governments define their relations with their citizens; and I would wager the majority of the world’s autocracies at this point as well. Certainly the Chinese government, for instance, thinks that it exists to serve its citizens, even if we might often disagree about how it does so.

In short, having the definition of sovereignty under international law finally take a step toward the responsibility of all governments under universal human rights law and their own constitutions to refrain from committing gross and systematic crimes against their own citizens is hardly a revolutionary step. The crucial point here is that to understand the R2P conception of sovereignty, you have to walk and chew gum at the same time. I’m not being flip, really. It’s just that you have to understand sovereignty as at once a government’s control of a defined territory and population and as a particular relationship between a government and its citizens. International law still upholds and safeguards a a government’s power and control over its citizens, including its right to invoke states of emergency and use force to maintain domestic order. But it also now protects the citizens of a particular state when their government fails grossly in its obligations toward them.

I think this is a pretty fair description of the trend in thinking among international law scholars in Western liberal democracies.  But Slaughter knows that some rather major countries, like China and Russia and maybe India, are far from signing on to the definition of sovereignty she offers here. So it is far from a description of where international law “is” at the moment. But it is fair to say that it is where many influential folks (like herself) think international law is headed.  And she might be right.

Turkey’s Blustery ICJ Threat

by Julian Ku

Turkey-Israel relations have hit a new low after the release of the U.N. Report on the Flotilla. Actually, Turkey seems to be the one most angry with the report, and it is taking it out on Israel, by demanding an apology and expelling Israel’s ambassador.  Turkish bluster also seems to have manifested itself in an empty, meaningless threat to take the whole matter to the International Court of Justice.

Turkey is preparing to challenge Israel’s blockade on Gaza at the International Court of Justice, the foreign minister said Saturday, ratcheting up tensions between the once close allies.

Ahmet Davutoglu’s comments came a day after Turkey expelled the Israel’s ambassador and severed military ties with the country, angered over its refusal to apologize for last year’s deadly raid on a Gaza-bound aid flotilla that killed nine pro-Palestinian activists.

In an interview with Turkey’s state-run TRT television, Davutoglu dismissed a U.N. report into the raid that said Israel’s naval blockade of Gaza was a legal security measure. Davutoglu said the report — prepared by former New Zealand Prime Minister Geoffrey Palmer and former Colombian President Alvaro Uribe, and presented to U.N. Secretary-General Ban Ki-moon — was not endorsed by the United Nations and was therefore not binding.

“What is binding is the International Court of Justice,” Davutoglu said. “This is what we are saying: let the International Court of Justice decide.”

Unless there is some bilateral treaty out there I am not aware of, Israel cannot be subject to an ICJ proceeding because it has not consented to jurisdiction.  So the only likely role for the ICJ here would be in an advisory opinion.  Which would not be binding… Get the Turkish foreign minister a legal advisor!

“We Don’t Do Gandhi Very Well”

by Kevin Jon Heller

That’s the most disturbing line from another invaluable WikiLeaks cable about Israel and the Palestinians.  As the cable makes clear, Israel is willing to use force — of the non-lethal variety, fortunately — to disrupt even completely peaceful protest against its policies:

US government officials have been well aware of Israel’s harsh methods of dealing with peaceful protests in the occupied Palestinian territory of West Bank for quite some time, according to a recently leaked WikiLeaks diplomatic cable.

A cable from the embassy in Tel Aviv from February 16, 2010, titled “IDF plans harsher methods with West Bank demonstrations”, reveals a premeditated effort by the Israeli army to use force against peaceful demonstrators in the West Bank.

In the cable, the US ambassador to Israel noted that government officials considered any rally as grounds for use of military force.

In a meeting held between US officials and Avi Mizrachi, head of Israel’s central command, the latter warned  the Israeli army will be more assertive in how it deals with West Bank demonstrations and will start sending trucks “with ‘dirty water’ to break up protests, even if they are not violent”.

As the US cable pointed out, “dirty water is a reference to the IDF’s chemically treated water that duplicates the effects of skunk spray”.

Months before this cable was written, Al Jazeera’s Jacky Rowland was in the cross hairs of such an attack when covering a weekly protest in the West Bank.

In the document Amos Gilad, Israel’s director of policy and political-military affairs, is quoted as saying: “We don’t do Gandhi very well.”

I guess peaceful protest is lawfare, too.

Israel Would View ICC Investigation as “War” by the PA

by Kevin Jon Heller

A February 2010 cable from the US embassy in Tel Aviv to the State Department concerning a discussion with the IDF’s Military Advocate General about the Palestinian Authority’s request for the ICC to investigate Operation Cast Lead contains the following remarkable paragraph (emphasis added):

Summary: IDF Military Advocate General Mandelblit updated the Ambassador on February 17 on the progress of investigations into allegations of misconduct during Operation Cast Lead, including providing a preview of additional findings to be published before the March 24 Human Rights Council meeting. Mandelblit noted concern with the Palestinian Authority’s effort to undermine Israel through the International Criminal Court and hoped the U.S. would weigh in with both the PA and the ICC, and publicly state our view of the ICC’s lack of jurisdiction. He warned that PA pursuit of Israel through the ICC would be viewed as war by the GOI. No decision had been made regarding an independent commission to review the IDF investigations. Mandelblit noted what he viewed as the lack of political and popular will to initiate such an inquiry at this time, and suggested that given differences of opinion within the government, the question would be held in abeyance as his investigation progressed. End Summary.

I’m on record as being categorically opposed to the ICC investigating the situation in Gaza, because Palestine is not (yet) a state and is thus not entitled to accept the Court’s declaration under Article 12(3) of the Rome Statute.  But the cable is still disturbing and indefensible.  What will Israel’s response be to this “war” declared on it by the PA?  Will it use military force against the Palestinians (again)?  Will it attack Moreno-Ocampo and the rest of the staff in the OTP to prevent them from “undermining” Israel by investigating its potential war crimes?  (Along with Hamas’s potential war crimes, of course; the ICC investigates situations, not parties to a conflict.)

Describing the use of international institutions to vindicate basic human rights as “lawfare” is bad enough.  Describing it as actual “war” is appalling.

Bernstein on The Palmer Report and My Claim About Blockade

by Kevin Jon Heller

David Bernstein has a pointless “gotcha” post at Volokh Conspiracy today in which he argues that the Palmer Report somehow contradicts my claim that blockade is only permissible in international armed conflict (IAC), whether between states or between a state and an insurgent group recognized as a belligerent.  Here it is in full:

Kevin Jon Heller of University of Melbourne and Opinio Juris: “Insofar as Israel insists that it is not currently occupying Gaza, it cannot plausibly claim that it is involved in an IAC [International Armed Conflict] with Hamas” (and thus the blockade of Gaza is unlawful).

U.N.‘s Palmer Committee Report on the Mavi Marmara incident (and note that the U.N. is not exactly the most sympathetic forum for Israel): “The Panel considers the [Hamas-Israel] conflict should be treated as an international one for the purposes of the law of blockade” (and thus the blockade is lawful).

Heller: “I have questioned the legality of the blockade before, leading two readers to claim that the Palmer Committee’s report contradicts my analysis of the situation. In fact, the opposite is true.”

Well, no. Because the Report concluded that the Hamas-Israel conflict was an IAC, it didn’t contradict Heller’s argument that if it’s not an IAC, the blockade is illegal under international law. But Heller also, as he acknowledges, “questioned the legality of the blockade” and said that it was not just wrong but that Israel’s claim to be in an IAC with Hamas is wholly implausible. While one Report cannot establish in everyone’s mind the lawfulness of the blockade, surely if an unsympathetic (or at the very least, non-sympathetic) forum like a U.N. commission adopts the Israeli position on IAC, that position cannot be deemed beyond the realm of even plausible argument, and Heller’s analysis is indeed “contradicted.”

So Bernstein admits that my central claim about blockade was completely accurate.  But he thinks that my analysis was nevertheless “contradicted” because I once claimed that, other than recognition of belligerency, occupation is the only plausible legal basis for considering Israel to be an IAC with Hamas.  I guess if we are willing to accept that a legal position cannot be “implausible” if any legal or political body anywhere has ever accepted it, my analysis was indeed contradicted.  By contrast, if a legal argument must be at least minimally reasoned in order to qualify as “plausible,” then my analysis was not.  If you look at paragraph 73, you will notice something remarkable: there is not a single citation to any legal source in defense of the idea that Israel’s conflict with Hamas is an IAC.  Not one.  The Palmer Committee did not even bother to cite to the Targeted Killing case, which would be insufficient — the Israeli Supreme Court’s view there that any transnational conflict with a terrorist group qualifies as an IAC is idiosyncratic, to say the least — but at least it would indicate that the Committee did some legal research before reaching its legal conclusions.  In fact, there is not a single citation to a legal source in the entire report.

The first definition of “plausible” in the Merriam-Webster dictionary is “superficially fair, reasonable, or valuable but often specious.”  In light of that definition, I am happy to stipulate that it is plausible Israel’s conflict with Hamas is an IAC.

PS. I’m glad Bernstein believes that any legal conclusion reached by the UN regarding Israel’s actions is by definition plausible.  Given various UN organs’ long-standing insistence that Israel continues to occupy Gaza and that Israel’s settlements in the West Bank are illegal, I’m sure we can expect Bernstein to acknowledge the plausibility of those positions in any future posts.

Washington Post Stories on the CIA and JSOC – and My Prediction of Harold Koh’s Legacy as Legal Adviser

by Kenneth Anderson

I wanted to flag for reader attention two articles in the Washington Post on the CIA and JSOC (Joint Special Operations Command), and their evolving roles as central counterterrorism fighters.  The first is by Greg Miller and Julie Tate, “Since Sept. 11, CIA’s focus has taken lethal turn,” September 2, 2011.  The second is by Dana Priest and William Arkin, “Top Secret America: A look at the military’s Joint Special Operations Command,” September 2, 2011, and adapted from Priest and Arkin’s new book, Top Secret America, which I look forward to reading.

Over at Lawfare, Bobby Chesney talks about the first article, and some of the legal aspects raised or implied in the gradual integration of CIA operations with JSOC operations — what, referring to US law, is the interplay of “Title 10″ operations (military) with “Title 50″ operations (CIA).  As to the second article, on JSOC, speaking in my exceedingly august capacity as Lawfare’s book review editor, I plan to find someone knowledgeable in the relevant law and policy to review the full book, and I’ll let people know when that happens.

My own interest in these topics — aside from drones and targeted killing — is somewhat related to Bobby’s detailed legal analysis of the separate domestic legal authorities under these different statutory provisions.  But it runs to a more broadly conceptual question, viz., whether there is, by implication, an emerging “law,” or at least “norms,” of the use of force in something that we can loosely call “covert action” but which is, in many circumstances, not truly covert, but instead at most “deniable.”  The distinction matters because countries traditionally have hid behind the covert nature of covert action as a way of not having to discuss whether there are any rules or standards, not necessarily and unlikely to be “international” in a formal legal sense, but still norms for the conduct of such operations — either because they were genuinely unknown to the public, or else because even if hinted at, they were sufficiently under wraps that deniability could be plausible.  At least plausible enough not to have to talk about its conduct.

The emergence of targeted killing and drone warfare by the United States, and partly by Israel, has altered that.  These operations are at most thinly-deniable, not covert nor plausibly deniable.  They are denied (more exactly, “neither confirm nor deny”) with respect to Pakistan for purely political reasons, not because they could plausibly be denied.  In that case, however, the legitimacy of the operations, particularly with regards to how they are conducted, becomes an issue, as a political and legal issue.  I am all in favor of targeted killing and drone strikes against “covert” targets — places where conventional hostilities are not at that moment underway — and depending upon circumstances either as part of an armed conflict or else as “naked” self-defense.  Legitimacy requires — at least for Americans — some sense that there are rules and norms; not necessarily black and white, and certainly not a set of rules that might satisfy Human Rights Watch or the ACLU — but norms of some kind for the conduct of these operations.  I’d add as well that one way of approaching this in domestic law would be to amend Title 50 to distinguish “covert” from “deniable” in terms of oversight and other accountability, apart from standards for conduct. I’m also interested to see whether Bobby concludes that we need some kind of formal statutory reform to take account of integrated military and CIA operations.

For these kinds of reasons, however, I am coming to think that the most important contribution that Harold Koh, as Legal Adviser to the State Department, and hence the legal voice of the United States on this matter, will turn out to have made to international jurisprudence, is his repeated assertion that the conduct of targeted killing  – whether with drones or human teams, whether by the CIA or by JSOC, and whether as part of an armed conflict or as “naked” self-defense — must still conform, as with any use of force, to norms in its conduct of necessity, distinction, and proportionality.  That, for the first time I am aware, constitutes an official assertion by a senior legal official of a leading state that even covert, unacknowledged force used by a state has conditions attached to its conduct.  Covert, or outside of an armed conflict, does not mean standardless in its conduct.  Because this kind of “covert” activity is widely known and merely deniable, and because it being widely known creates demands for legitimacy, and since legal legitimacy requires the acknowledgment of legal norms, even necessarily very general ones, the result is the gradual extension of conduct norms into covert activities.   Continue Reading…

Former Media Partners Condemn Wikileaks

by Roger Alford

“We deplore the decision of WikiLeaks to publish the unredacted state department cables, which may put sources at risk. Our previous dealings with WikiLeaks were on the clear basis that we would only publish cables which had been subjected to a thorough joint editing and clearance process. We will continue to defend our previous collaborative publishing endeavour. We cannot defend the needless publication of the complete data – indeed, we are united in condemning it. The decision to publish by Julian Assange was his, and his alone.”

~Joint statement of The Guardian, New York Times, El Pais, Der Spiegel, and Le Monde, the former media partners of Wikileaks.

Diplomats, government, human rights charities, and media organizations all urged Wikileaks not to publish the full cache of cables, but he did it anyway. According to CNN, “A brief search through the cables shows that documents have not been redacted in any way. The names and other details of confidential diplomatic sources are on full display, despite being labelled with the instruction ‘strictly protect’, including cables classified as ‘secret’ or ‘confidential.'”

Unedited, unredacted disclosure to the world of confidential, classified government documents. Every name, every word of 251,287 leaked United States diplomatic cables now available for anyone to read.

Any defenders of Julian Assange now?

So What Did You Do On Your Summer Vacation (Besides Overthrowing Gaddafi)?

by Julian Ku

Well, at least one student at UCLA will have story to beat all others.

AN NAWFALIYAH, LIBYA // At the centre of a circle of cheering rebel soldiers near Colonel Muammar Qaddafi’s hometown this week stood an improbable figure who gives new meaning to the term “road trip”.

Chris Jeon, a 21-year-old university student from Los Angeles, California,shrugging cooly, declared: “It is the end of my summer vacation, so I thought it would be cool to join the rebels. This is one of the only real revolutions” in the world.

“How do you fire this thing?” he asked on Wednesday as a bearded rebel handed him an AK-47. Locating the trigger of the assault rifle and switching off the safety, Mr Jeon fired it in the air in two short bursts.

“I want to fight in Sirte!” he proclaimed, using hand gestures and pointing west towards Sirte. Whether the rebels understood him was far from clear. “It’s hard to communicate. I don’t really speak any Arabic,” he said

As he recalled that deliberately vague version of his itinerary, it dawned on Mr Jeon that he might be blowing his cover by speaking with a reporter on a far-flung stretch of desert more than 11,200 kms (7,000 miles) from home.

“Whatever you do, don’t tell my parents,” he pleaded. “They don’t know I’m here.”


11th Circuit Dismisses ATS Claims in Bolivia Case

by Kenneth Anderson

John Bellinger writes at Lawfare on the 11th Circuit’s dismissal of Alien Tort Statute claims against former senior Bolivian government officials.  (Jack Goldsmith served as defense co-counsel.)  This case (opinion) involves former government officials, and so does not raise perhaps the most hotly-contested issue in ATS litigation today, corporate liability, on which there is now a signficant circuit split.  However, I agree with John that the tone of the 11th Circuit opinion reflects something that Roger has mentioned here at OJ, a note of caution entering appellate decisions in ATS cases.

First, the Court shows considerable sensitivity (if not irritation) about being asked to judge security actions taken by foreign leaders, especially in this case where the leaders were “faced with thousands of people taking to the streets in opposition.”  Repeatedly invoking the Supreme Court’s call for caution in Sosa, the Court emphasizes that the ATS is “no license for judicial innovation” and that “judicial restraint is demanded.” Moreover, the Court observes that “We know and worry about the foreign policy implications of civil actions in federal courts against the leaders (even the former ones) of nations. And we accept that we must exercise particular caution when considering a claim that a former head of state acted unlawfully in governing his country’s own citizens.”

Second, the Court also emphasizes that Iqbal requires not only specific factual allegations of misconduct but allegations of misconduct by the particular defendants.  “We do not accept that, even if some soldiers or policemen committed wrongful acts, present international law embraces strict liability akin to respondeat superior for national leaders at the top of the long chain of command in a case like this one.”

Continue Reading…

Blockade, International Armed Conflict, and the Palmer Report

by Kevin Jon Heller

As Julian noted earlier today, the UN’s Palmer Committee has released its report on the Mavi Marmara incident, concluding that Israel’s actions regarding the ship were were excessive and unreasonable, but that the blockade of Gaza itself is legal. I have questioned the legality of the blockade before, leading two readers to claim that the Palmer Committee’s report contradicts my analysis of the situation.  In fact, the opposite is true.  Here is the operative paragraph of the report (para. 73; emphasis added):

The Panel now turns to consider whether the other components of a lawful blockade under international law are met. Traditionally, naval blockades have most commonly been imposed in situations where there is an international armed conflict. While it is uncontested that there has been protracted violence taking the form of an armed conflict between Israel and armed groups in Hamas-controlled Gaza, the characterization of this conflict as international is disputed. The conclusion of the Panel in this regard rests upon the facts as they exist on the ground. The specific circumstances of Gaza are unique and are not replicated anywhere in the world. Nor are they likely to be. Gaza and Israel are both distinct territorial and political areas. Hamas is is the de facto political and administrative authority in Gaza and to a large extent has control over events on the ground there. It is Hamas that is firing the projectiles into Israel or is permitting others to do so. The Panel considers the conflict should be treated as an international one for the purposes of the law of blockade. This takes foremost into account Israel’s right to self-defence against armed attacks from outside its territory. In this context, the debate on Gaza’s status, in particular its relationship to Israel, should not obscure the realities. The law does not operate in a political vacuum, and it is implausible to deny that the nature of the armed violence between Israel and Hamas goes beyond purely domestic matters. In fact, it has all the trappings of an international armed conflict. This conclusion goes no further than is necessary for the Panel to carry out its mandate. What other implications may or may not flow from it are not before us, even though the Panel is mindful that under the law of armed conflict a State can hardly rely on some of its provisions but not pay heed to others.

My previous posts on the subject (see here and here) criticized the claim, made most notably by Eric Posner in the Wall Street Journal, that it is permissible for a state to impose a blockade in non-international armed conflict (NIAC).  As I pointed out, because imposing a blockade on the high seas is an act of war, the traditional rule — accepted by the Supreme Court in The Prize Cases — has always been that imposing a blockade against insurgents requires states that want to remain neutral to recognize the insurgents as a legitimate belligerent, thus “upgrading” the NIAC to an international armed conflict (IAC).  The Palmer Committee’s report in no way contradicts my analysis; indeed, by emphasizing that it considers the conflict between Israel and Hamas to be an IAC, it agrees with me and rejects the position taken by Posner and others.

Unfortunately, as Marko notes today in an insightful post at EJIL: Talk!, the report raises as many questions as it answers.  Most importantly, the report seems to deliberately avoid explaining why it considers the conflict between Israel and Hamas an IAC instead of a NIAC.  Marko reads paragraph 73 to mean that the Palmer Committee has “implicitly taken the recognition of belligerency route,” but that is certainly not the only interpretation.  Israel itself argued that the conflict was an IAC based on, inter alia, “decisions of the Israeli Supreme Court” (para. 47).  The most important decision, of course, is Public Committee v. Government of Israel (the Targeted Killing case), in which the Israeli Supreme Court held that “the international law regarding international armed conflict… applies in any case of an armed conflict of international character – in other words, one that crosses the borders of the state – whether or not the place in which the armed conflict occurs is subject to belligerent occupation.”  It is thus possible that the Palmer Committee agrees with the Israeli Supreme Court on that point.

That said, I think Marko’s interpretation is the better one.  But as he points out, the idea that the IAC between Israel and Hamas is based on recognition of belligerency would have consequences that Israel cannot like:

From the Israeli perspective, the problem here would be that the principle of equal application of IHL would grant Hamas the equal right to blockade Israel, if it had the factual ability to do so, not to mention that from a political standpoint its legitimacy may be perceived as having been accepted by Israel, which is at least one of the reasons why Israel argues that it is engaged in an ‘armed conflict’ with Hamas while studiously avoiding to qualify this conflict

If anything, Marko understates the point.  If Hamas is a legitimate belligerent, as it must be for the conflict between it and Israel to qualify as an IAC, soldiers in Hamas’s military wing, the Izz ad-Din al-Qassam Brigades, are no less entitled to the combatant’s privilege and POW status upon capture than soldiers in the IDF.  It would also mean that Hamas is entitled to hold Gilad Shalit as a POW until the end of its conflict with Israel.  (Although the conditions of Shalit’s confinement are in blatant violation of the Third Geneva Convention and clearly a war crime.)  Indeed, I think the Palmer Report acknowledges the implications of its holding when it says, rather cryptically, that “[w]hat other implications may or may not flow from it are not before us, even though the Panel is mindful that under the law of armed conflict a State can hardly rely on some of its provisions but not pay heed to others.”

Readers interested in the law of blockade should check out Douglas Guilfoyle’s excellent essay “The Mavi Marmara Incident and Blockade in Armed Conflict,” recently published in the British Yearbook of International Law.

Chevron Wins Another Round Against Ecuador

by Julian Ku

I’ve lost track of the enormously complex series of disputes between Chevron and Ecuador. It stems from lawsuits brought against Chevron in Ecuadorian courts, and then attempts to enforce them in the U.S. (and attempts to block the enforcement).  And there are Chevron’s various claims in arbitration tribunals against Ecuador. For a little background, see Roger’s post here. . On this front, Chevron has won yet another round.

An arbitration tribunal at The International Court of Justice at The Hague ordered the government of Ecuador to pay Chevron and its current subsidiary Texaco $96 million for “undue delays” of 15 years in ruling on seven commercial disputes in the early 1990s.     The ruling does not affect – or directly involve – the $18.2 billion judgment that a provincial Ecuadorean court ruled against Chevron in early 2011 in connection with a massive oil spill in the Amazonian region of Lago Agrio.

This award comes from the Permanent Court of Arbitration. For Chevron’s press release, see here. The spin (but probably true) is that this award is further evidence of the serious problems in the Ecuador judicial system. Given that Chevron recently lost a judgment for $18 billion there, it is not surprising they have declared war on the entire Ecuadorian judicial system.

UN Report Finds Israeli Blockade Legal (But Raid on Flotilla Excessive)

by Julian Ku

From the NYT:

UNITED NATIONS — A United Nations review has found that Israel’s naval blockade of Gaza is legal and appropriate but that the way its forces boarded a Turkish-based flotilla trying to break that blockade 15 months ago, killing nine passengers, was excessive and unreasonable.

Take it away, Kevin!

David Kaye on What to Do With Qaddafi

by Julian Ku

David Kaye has an interesting compromise proposal on what to do with Qaddafi.

Some argue that the new Libyan government would be legally bound to transfer Colonel Qaddafi and his associates to The Hague. Others argue that the I.C.C. must defer to Libyan authorities if they are willing and able to try Colonel Qaddafi fairly in their own courts. A better option should satisfy both I.C.C. partisans and the new leaders of Libya: allow the I.C.C. to try those indicted, but to do it in Libya.

I guess that in principle, there is nothing in the Rome Statute that prevents this from happening.  Logistically, it seems a nightmare (uh, an expensive nightmare).  Still, it might be time for ICC folks to start packing for Tripoli.