The Reprieve Drone Strike Communication I — Jurisdiction

Reprieve, the excellent British human-rights organisation, has submitted a communication to the ICC asking it to investigate NATO personnel involved in CIA drone strikes in Pakistan. Here is Reprieve’s press release:

Drone victims are today lodging a complaint with the International Criminal Court (ICC) accusing NATO member states of war crimes over their role in facilitating the US’s covert drone programme in Pakistan.

It has been revealed in recent months that the UK, Germany, Australia, and other NATO partners support US drone strikes through intelligence-sharing. Because all these countries are signatories to the Rome Statute, they fall under The ICC’s jurisdiction and can therefore be investigated for war crimes. Kareem Khan – whose civilian brother and son were killed in a 2009 drone strike – is at The Hague with his lawyers from the human rights charity Reprieve and the Foundation for Fundamental Rights who have filed the complaint on his behalf.

The CIA has launched more than 300 missiles at North Waziristan since its covert drone programme began and it is estimated that between 2004 and 2013, thousands of people have been killed, many of them civilians including children.

The US has immunised itself from legal accountability over drone strikes and the UK has closed its domestic courts to foreign drone victims. In a recent decision, the Court of Appeal in London ruled that it would not opine on the legality of British agents’ involvement in the US drone war in Pakistan, for fear of causing embarrassment to its closest ally.

The communication is a fascinating document to read, and it is quite damning concerning the effects of the CIA’s drone strikes. My interest in the communication, however, focuses on two critical legal issues: (1) whether the ICC would have jurisdiction over NATO personnel involved in the CIA’s strikes; and (2) whether it can be persuasively argued that those personnel have been complicit in the strikes. I’ll discuss the jurisdictional issue in this post and the substantive complicity issue in my next post.

As the communication acknowledges, neither Pakistan (where the drone strikes took place) nor the US (which launched the drone strikes) has ratified the Rome Statute. Reprieve nevertheless asserts that the ICC would have jurisdiction over NATO personnel involved in the drone strikes — particularly individuals from the UK, Germany, and Australia — on two different grounds (para. 7):

The Court’s jurisdiction over the crimes committed as a result of drone strikes in Pakistan arises in two ways. The first is (subjective) territorial jurisdiction on grounds that the attacks were launched from a State Party (e.g. Afghanistan), while the second is nationality (on grounds that there is a reasonable basis for concluding that the nationals of States Parties to the Rome Statute may have participated in crimes under the Statute.

It may seem odd that the communication spends time trying to establish that Art. 12(2)(a) of the Rome Statute, the territorial jurisdiction provision, includes subjective territoriality. Why not just invoke nationality jurisdiction, given that Reprieve is only asking the ICC to investigate “nationals of States Parties”? In fact, the communication’s move is actually quite clever — and necessary.

To see why, consider what Art. 25(3) says, in relevant part (emphasis mine): “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person…” The italicized language is critical, because the communication does not claim that the NATO personnel committed the war crimes themselves. On the contrary, Reprieve views those individuals as accessories to war crimes allegedly committed by CIA drone operators (para. 13; emphasis mine):

 Article 25 sets out the circumstances in which individuals can incur criminal responsibility under the Statute, expressly recognizing different forms of secondary liability for crimes under international law including aiding and abetting a crime, ordering, soliciting or inducing a crime and joint criminal enterprise. There is, of course, no basis under the Statute to interpret Article 12(2)(a) as requiring that each and every element of the conduct comprising the crime must be committed within the territory of a State Party. Many crimes will involve conduct occurring partly in the territory of a State Party and partly outside it. Were liability to be precluded by reason of this perpetrators of many crimes would readily avoid the jurisdiction of the Court. Such an interpretation would fatally undermine the entire concept of individual criminal responsibility set out in Article 25 of the Statute and is therefore unsustainable.

There is actually no joint criminal enterprise in the Rome Statute — just co-perpetration, which is a form of principal liability, and contributing to a group crime, which is a form of accessorial (secondary) liability. The point, though, is this: the modes of participation specified in Art. 25(3)(b)-(d) are not crimes in themselves; they are mechanisms for holding accessories responsible for the crimes of others. Even if nationals of States Parties have been complicit in war crimes committed by CIA drone operators, therefore, that does not mean “a crime within the jurisdiction of the Court” has been committed. Indeed, if the principal perpetrators of the war crimes in question are exclusively American, no crime within the Court’s jurisdiction has been committed — the Court does not have jurisdiction over acts that are committed by nationals of a non-State Party on the territory of a non-State Party, even acts that otherwise qualify as war crimes.

The communication’s emphasis on subjective territoriality, then, is anything but superfluous. On the contrary, the Court must have subjective territorial jurisdiction over the CIA’s alleged war crimes, because otherwise it is impossible to argue that an element of those war crimes was committed on the territory of a State Party. Only the NATO personnel’s acts of complicity would have been. And if no element of the CIA’s alleged war crimes was committed on the territory of a State Party, no crimes within the jurisdiction of the Court have been committed, making it impossible for the Court to prosecute the NATO personnel for being complicit in those crimes. No jurisdiction over primary liabiilty, no jurisdiction over secondary liability. It’s that simple.

So does the subjective territoriality argument work? I’m not so sure, because the argument depends on two interrelated assumptions that are anything but self-evident. The first, of course, is that Art. 12(2)(a) of the Rome Statute adopts both subjective and objective territorial jurisdiction. Here is what the communication says (paras. 12-13):

Further, the terms of the Statute itself support this interpretation of the territorial jurisdiction conferred upon the Court. Under Article 12 (2) (a) of the Rome Statute provides that the Court may exercise jurisdiction where “[t]he State on the territory of which the conduct in question occurred” is a State Party to the Statute. According to Article 31 of the Vienna Convention on the Law of Treaties “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. As regards the text of Article 12 (2) (a), there is no stipulation that all of the conduct must occur within the State Party to the Statute.

The context is also instructive. As part of the “context” of Article 12 (2) (a), the
other provisions of the Statute must be taken into account. Article 25 sets out
the circumstances in which individuals can incur criminal responsibility under the
Statute, expressly recognizing different forms of secondary liability for crimes under international law including aiding and abetting a crime, ordering, soliciting or inducing a crime and joint criminal enterprise. There is, of course, no basis under the Statute to interpret Article 12(2)(a) as requiring that each and every element of the conduct comprising the crime must be committed within the territory of a State Party. Many crimes will involve conduct occurring partly in the territory of a State Party and partly outside it. Were liability to be precluded by reason of this perpetrators of many crimes would readily avoid the jurisdiction of the Court. Such an interpretation would fatally undermine the entire concept of individual criminal responsibility set out in Article 25 of the Statute and is therefore unsustainable.

I’m not impressed by the argument that Art. 12(2)(a) has to include subjective territoriality because many bad guys will get away if it doesn’t. Such victim-centered teleological reasoning — to invoke Darryl Robinson’s expression — has no business in a serious legal argument. I’m also not sure it’s enough to say that the Rome Statute adopts subjective territoriality because it does not specifically rule it out. I doubt the drafters of Art. 12 ever discussed the issue. (Though I welcome corrections on that point.) That said, given how widely accepted subjective territoriality is among states — there might be some that reject it, but I couldn’t find any after a relatively extensive google search — it does make a certain amount of sense to assume that the ordinary meaning of “territorial jurisdiction” includes both objective and subjective territoriality.

So let’s give the communication its first assumption. The second necessary assumption, then, is that at least one element of the CIA’s alleged war crimes — basically, all the various war crimes in the Rome Statute involving attacks on civilians — took place on the territory of a State Party, thereby triggering the Court’s subjective territorial jurisdiction. Here is the communication on that point (paras. 8-9):

Although Pakistan is not a State Party to the Rome Statute, the Court has jurisdiction in respect of the drone strikes in Pakistan under Article 12 (2) (a) of the Statute, where attacks are launched from the territory of a State Party.

Publicly available and uncontested information demonstrates that drone strikes in Pakistan are now launched exclusively from either Jalalabad Air Base and/or Kandahar Airbase in Afghanistan, which has been a State Party to the Rome Statute since 10 February 2003 . Until 2011, the drones carrying out the strikes in Pakistan were launched from both Jalalabad Air Base in Afghanistan and Shamsi Air Base in Pakistan. US Air Force and Central Intelligence Agency (CIA) personnel on the ground in both of these locations would handle the launch and recovery phase of the drone’s flight path, while pilots based at Creech Air Force Base in Nevada would take over control of the weapon once it was airborne.

This is far too facile. There is no question that conduct relevant to the attacks in question took place in Afghanistan. But did an element of a crime take place there? That is much less clear. Here, for example, are the key elements of the actus reus of the war crime of attacking civilians, Art. 8(2)(e)(i) of the Rome Statute:

1. The perpetrator directed an attack.

2. The object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities.

The actus reus of this war crime consists of a conduct element (directing an attack) and a circumstance element (the object of attack qualifying as civilian). With a drone strike, the circumstance element obviously takes place in Pakistan, a non-State Party. So the question is whether the physical act of launching a drone, which took place in Afghanistan, a State Party, is part of the “directing an attack” conduct element.

There is no clear answer to that question. It is tempting to compare the drone situation to the classic subjective territoriality example, in which D fires a shot from Italy, hits V in France, and V dies in Switzerland. If that’s the correct comparison, the communication’s argument is in trouble, because in the drone situation the fatal shots are being fired from Pakistan, not from Afghanistan. It would be difficult to argue that Italy would have subjective territorial jurisdiction if D picked up the gun in Italy but did not shoot V until after he had walked into France — seemingly the more precise analogy.

The difficulty, of course, is that a drone is different from a gun in a critical respect — unlike a gun, a drone can (and must) be fired remotely. Or, put another way, a drone is a gun whose trigger is located in a different state. That’s important, because I think it means that firing a drone does, in fact, qualify as part of the conduct element of an attack on civilians. Which means, in turn, that the ICC would have jurisdiction over a drone strike in Pakistan that was directed by an operator physically located in Afghanistan.

But that argument alone does not save the communication. By its own admission, the drone strikes are being directed by operators in the US, not in Afghanistan. The drones are simply being launched from Afghanistan. Is launching also part of the conduct element of directing an attack? I’m dubious, because of the second gun analogy above. I think flying the drone into Pakistan is not materially different than carrying the gun into France. It is conduct relevant to the drone attack, but it is not part of the attack itself.

That said, I would not be surprised if the Court disagreed with me. After all, most common-law courts — and I’d be interested to know what civil-law courts do in these situations — take a flexible attitude toward the actus reus of a crime, refusing to chop a defendant’s conduct into discrete and unrelated temporal slices. In other words, I could easily see the ICC viewing the conduct involved in “directing an attack” as including everything from the launch of the drone to the firing of the rockets at civilian targets. If so, the communication’s argument would work: at least one element of the CIA’s alleged war crimes would have taken place in Afghanistan, a State Party, thereby permitting the Court to exercise subjective territorial jurisdiction over those war crimes.

The bottom line is this: the jurisdiction argument is far more complicated than Reprieve’s communication acknowledges. To have jurisdiction over the CIA’s alleged war crimes, the Court must be willing to hold (1) that Art. 12(2)(a) embraces both objective and subjective territoriality, and (2) that the act of launching a drone qualifies as part of the conduct element of “directing an attack.” There are plausible arguments for both (1) and (2) — but they are anything but a slam dunk.