The CIA Violated the Terrorist Bombing Convention

by Kevin Jon Heller

The Washington Post has a long article today about how Mossad and the CIA collaborated to blow up Hezbollah’s chief of international operations in 2008. Here are the key paragraphs:

On Feb. 12, 2008, Imad Mughniyah, Hezbollah’s international operations chief, walked on a quiet nighttime street in Damascus after dinner at a nearby restaurant. Not far away, a team of CIA spotters in the Syrian capital was tracking his movements.

As Mughniyah approached a parked SUV, a bomb planted in a spare tire on the back of the vehicle exploded, sending a burst of shrapnel across a tight radius. He was killed instantly.

The device was triggered remotely from Tel Aviv by agents with Mossad, the Israeli foreign intelligence service, who were in communication with the operatives on the ground in Damascus. “The way it was set up, the U.S. could object and call it off, but it could not execute,” said a former U.S. intelligence official.

The United States helped build the bomb, the former official said, and tested it repeatedly at a CIA facility in North Carolina to ensure the potential blast area was contained and would not result in collateral damage.

“We probably blew up 25 bombs to make sure we got it right,” the former official said.

The extraordinarily close cooperation between the U.S. and Israeli intelligence services suggested the importance of the target — a man who over the years had been implicated in some of Hezbollah’s most spectacular terrorist attacks, including those against the U.S. Embassy in Beirut and the Israeli Embassy in Argentina.

The United States has never acknowledged participation in the killing of Mughniyah, which Hezbollah blamed on Israel. Until now, there has been little detail about the joint operation by the CIA and Mossad to kill him, how the car bombing was planned or the exact U.S. role. With the exception of the 2011 killing of Osama bin Laden, the mission marked one of the most high-risk covert actions by the United States in recent years.

The article touches on the legality of Mughniyah’s killing, with the US arguing that it was a lawful act of self-defense under Art. 51 of the UN Charter and Mary Ellen O’Connell claiming that it was perfidy. Regular readers will anticipate my skepticism toward the former claim, and there is simply no support in IHL for the latter claim. Perfidy is an act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Mossad and the CIA did nothing of the kind.

Mossad and the CIA did, however, violate the International Convention for the Suppression of Terrorist Bombings, which Israel ratified on 10 February 2003 and the US ratified on 26 June 2002. I don’t want to dwell on Mossad in this post; the analysis is the same as the one I provided here with regard to its assassination of Iranian nuclear scientists. Instead, I want to focus on the US’s complicity in Mughniyah’s death.

To begin with, there is no question that the bombing itself qualifies as a prohibited act of terrorism under the Terrorist Bombing Convention. Here is the relevant definition, Art. 2(1):

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

Mughniyah’s killing satisfies this definition. The attack involved an “explosive device” and it was clearly intended to “cause death.” It also took place on a public street, which qualifies as a “place of public use” under Article 1(5) of the Terrorist Bombing Convention. Article 1(5) defines a place of public use as “those parts of any building, land, street, waterway or other location that are accessible or open to members of the public, whether continuously, periodically or occasionally.”

The CIA was also complicit in that prohibited act of terrorism, pursuant to Art. 2(3):

3. Any person also commits an offence if that person:

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 2; or

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 2; or

(c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.

The language of Art. 2(3) easily encompasses the CIA’s involvement in Mughniyah’s death, given that the US admits the CIA built the bomb, helped track Mughniyah’s movements, and had the power to call off the attack.

The US will no doubt object to this analysis by arguing that the Terrorist Bombing Convention is intended to apply to bombings by terrorists, not bombings of terrorists. That objection would be valid had the US military been involved in the operation instead of the CIA. Justifiably or not, Article 19(2) of the Convention specifically permits acts that would otherwise qualify as terrorist bombing when they are committed by the military forces of a state:

2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.

The CIA, however, does not qualify as the US’s “military forces” under the Terrorist Bombing Convention. Art. 1(4) specifically defines “military forces of a State” as “the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility.” The second provision does not apply, because there is no evidence the CIA was acting under the “formal command, control and responsibility” of the military when it participated in Mughniyah’s killing. And neither does the first provision: although there is no question that the CIA contributes to the US’s “national defence or security,” it is not an “armed force” under US “internal law.” According to 10 USC § 101, “[t]he term ‘armed forces’ means the Army, Navy, Air Force, Marine Corps, and Coast Guard.”

The bottom line: the CIA committed an act of terrorism — actual terrorism, not figurative terrorism — when it participated in blowing up Mughniyah. The US military has the right to kill terrorists with bombs; the CIA does not. There is no doctrine of “close enough” in the Terrorist Bombing Convention.

http://opiniojuris.org/2015/01/31/cia-violates-terrorist-bombing-convention/

84 Responses

  1. Quite obviously, there was no violation of the treaty if the targeting was not “unlawful.” From known facts, it appears that the targeting was not “unlawful” but, as the U.S. claims, was a lawful act of self-defense against a very high level target. Moreover, the inherent right of self-defense under UN Article 51 should have primacy over the terrorist bombing convention, although UN Article 103 technically applies to obligations under the Charter.
    Yes, it was not perfidy.

  2. And unavoidably, “[n]othing in this Convention shall affect other rights, obligations and responsibilities of States and individuals under international law, in particular the purposes and principles of the Charter of the United Naitons” (Art. 19(1)).
    Clearly, Article 51 of the UN Charter allows the targeting of a non-state actor who directly participates in ongoing armed attacks (who is DPAA) and there is no need for a special ad hoc consent from the territorial state (in this case Syria) and all members of the UN have consented in advance to lawful self-defense targetings ( http://ssrn.com/abstract=2459649 and http://ssrn.com/abstract=1520717 ) Further, lawful measures of self-defense against the non-state actor who is DPAA are not measures against the territorial state.

  3. The next time Syria uses a chemical weapon to defend itself against an armed attack, I look forward to your argument that Syria’s “inherent right of self-defence” has “primacy” over its obligations under the Chemical Weapons Convention.

  4. @ Jordan: Would you apply the standard that you are invoking in your comment universally? For example, it is well known that CIA backed terrorists have organized attacks against Cuba from South Florida.

    One of the most popular terrorists in this regard is Luis Posada Carilles. Since he lives in Florida do you think the Cuban government is entitled to set off car bombs in Miami? By your standard this should be a just response.

    The UN Charter is pretty clear that you need authorization from Security Council before attacking another country. And if it’s response to imminent attack you get authorization afterwards.

    The US didn’t seek authorization before or after the assassination.

  5. Excellent and helpful analysis. I do think some more could be said about the work being done by the word “unlawfully” in Art. 2(1), and how you would respond to the anticipated objections that this was an otherwise lawful act

    Jordan, the position that you espouse on Art. 51 is not, of course, widely accepted as an established understanding in international law. Art. 51 provides an exception to the prohibition on the use of force. The assassination of one person with a small bomb would not likely be considered a use of force under Art. 2(4) of the Charter, and so Art. 51 has no relevance. Even if the bombing was a use of force, one would have to establish that the conditions triggering a right of self-defense had been satisfied to begin with, in particular that there had been or was imminent an armed attack against Israel or the U.S. – and of course “imminent” here is not the hollowed out non-temporal concept defined in the OLC memo on the killing of Anwar al-Alaqui. As an aside, the argument that there is no need for consent from a state in which a non-state actor is targeted in what would otherwise be a use of force is, as you know, a contentious and highly debated proposition.

    Absent a true jus ad bellum justification, the Art. 51 right to self-defense is not a license to engage in killings that would otherwise be unlawful under other treaties. Arguing that the victim was a person taking direct part in hostilities does not advance the analysis or provide for any justification under Art. 51 at all. First, and most important, this conflates a jus ad bellum with a jus in bello argument. If there was an armed conflict and the victim was DPA, then Art. 51 is irrelevant. If there was not yet an armed conflict in existence to which the U.S. was a party, then the IHL analysis is irrelevant. Second, in the context of IHL itself, the argument assumes without establishing that there was in fact an armed conflict in existence to which the US was a party, and it ignores the fact that the CIA are themselves non-combatants with no authority to participate in such armed conflict – and as Kevin points out, the CIA are not exempt from the operation of the Terrorist Bombing Convention in an armed conflict.

  6. Craig,

    The “unlawful” language provoked some debate during the drafting, with most states arguing that it was redundant given the type of acts governed by the Convention. States that wanted to include “unlawful,” such as France, argued that the language was necessary to make clear that the use of explosives during domestic law-enforcement actions would not violate the Convention. No state, not even the US, argued during the “unlawful” debates that any act of self-defence by a state would be permitted by the Convention. Indeed, the US appears to be the only state that focused on self-defence at all during the drafting — it cited self-defence as one of the reasons why the armed forces had to be excluded from the Convention. So at no point in time did the US ever suggest the use of bombs in public places by non-military government agencies should be excluded from the Convention.

  7. Thanks for interesting post . the whole issue is very very complicated , but , what I couldn’t quite understand from your concrete analysis , is the following :

    You have excluded the footer of the provision of article 4, in the ” International Convention for the Suppression of Terrorist Bombings ” which dictates as follows :

    ” ……. and persons acting in support of those armed forces who are under their formal command, control and responsibility” .

    Everything while arguing, that those persons (C.I.A agents) were not under: command, control, and responsibility of any armed forces .

    Yet, one must admit, that the U.S president, and as such , surly has given the final go ahead for such execution, and given by him, as the superior commander of the armed forces of the U.S, acting on behalf or for the purpose of national security.

    May I ask , how do you settle it ??

    Thanks

  8. KJH –
    How you can equate – as you seem to do – a terrorist organization like Lezbollah and the CIA is beyond me and reeks of fanatical beliefs. Your claim to Jordan about “how will you feel if Syria launches a chemical…” is absurd. The Syrian regime is a serial human rights abuser against their own people.
    I have a return question for you KJH – how would you feel if you were the subject of a terror attack masterminded by that thug who was taken out. Would you be claiming that the removal of the terrorist was a “violation”. Its a theatre of the absurd when the CIA and Mossad do the world a service and you claim that the CIA and Mossad are somehow bad actors. When it comes to terrorists – the enemies of mankind – there is no moral equivalence. As Judge Kaufman ruled in the Filartiga case enemies of mankind are universally condemned. Terrorists must be liquidated as Clint says – “hang ’em high”

  9. And I’m the one with “fanatical beliefs”…

  10. Objection, your response is unresponsive.
    How would you feel if you were the victim of one of the thug’s attacks you know a Marine or a relative blown up while sleeping, or the CIA head in Beirut who was tortured to death, or one of the jews blown up in Argentina at the jewish club. Would you still be accusing the CIA/Mossad of bad conduct?
    Really, KJH, you feel bad for this savage who enjoyed slaughtering people?

  11. Anwar aA was targeted partially in self-defense. Craig: I doubt that a majority of the int’l community expected that the US had no right to target a non-state actor, esp. after 9/11. I doubt that a majority of the int’l community view the Caroline incident as one that required an unlawful use of armed force by the United States before the Canadian-Brits had a right to engage a non-state actor vessel in lawful self-defense, thought that the Brits had attacked the United States, or thought that the Brits and the US were at war.
    I doubt that it is anything more than a minority viewpoint that there must be a violation of 2(4) before a state can engage in its inherent right of self-defense against a non-state actor in another state. Check the long list of textwriters in the 1520717 click-on recognizing that non-state armed attacks can trigger a right of self-defense against the non-state actors (and certainly non-state actor aremed attacks do not, by themselves, violate 2(4)).

  12. Kevin,

    Interesting news raising interesting legal questions. You are right, of course, that based on the text of the convention the CIA’s actions would be terrorist bombings, although many States seem to agree with the US that the convention relates only to bombings by terrorists and not to acts countering terrorism. In case of Lockerbie, the US did not consider it a problem to link (perceived) acts by Libyan state agents to another terrorism convention though.

    As to the mention of perfidy, I agree that it would not qualify as perfidy in this situation. Not because it doesn’t meet the definition of perfidy (in times of armed conflict, I think it does), but rather because there can be no perfidy if there is no armed conflict. I would assume that the first sentence of the relevant paragraph does not come from Mary Ellen, but the text of the Washington Post article clearly shows the odd contradiction and why (despite the improper use of “moreover”) it was not perfidy: “Mughniyah was targeted in a country where the United States was not at war. Moreover, he was killed in a car bombing, a technique that some legal scholars see as a violation of international laws that proscribe “killing by perfidy” — using treacherous means to kill or wound an enemy.”
    If there was no armed conflict, IHL did not apply and the rules related to perfidy could not be violated – period.

    (Interesting separate IHL question is whether in case of a first strike starting an AC, it is possible for such a first strike to be perfidy, i.e. does the duty to distinguish already exist then?)

    If, however, it was during an (N)IAC (the reference to collateral damage seems to indicate the CIA thought it was), I would say that it probably was a perfidious way to kill Mughniyah. Feigning civilian status (i.e. inviting protection) with a view of wounding/killing the opposition is prohibited. The news article doesn’t say so, but presumably the SUV (parked on a car park next to a restaurant) was a civilian vehicle (and in case our “intelligence” in inconclusive, we can apply IHL’s civilian presumption principle :-)). Perfidy may be more obvious when a person pretends to be a civilian or otherwise protected person (like in the Colombian hostage rescue: an ICRC delegate; although there was no intend to harm there, so no actual perfidy) and suddenly attacks the enemy. But I see no difference when a civilian object is used, even if operated remotely. If the US would disguise a drone (you have to bear with me and for the sake of the example except that the drone would be used and flown by US military rather than the CIA) as – let’s say – a Cesna, approach some fighters and suddenly (using the regular remote operating) that “Cesna” fires a missile at them, I am sure you agree it would surely be perfidy. “Shooting” explosives from a parked civilian car is not that different…

    (Maybe it was Mughniyah’s own SUV or it was in fact a military vehicle, on which the CIA had (re)placed the modified spare tire, which would change the picture, but both seem unlikely).

  13. Although relating only to Israel, I think Israel’s declaration to the Convention questions whether the conclusion concerning the CIA is relevant to Israel:
    “The Government of the State of Israel understands Article 1, paragraph 4, of the Convention for the Suppression of Terrorist Bombings, in the sense that the term “military forces of a State” includes police and security forces operating pursuant to the internal law of the State of Israel.”

  14. Rogier,

    I’m afraid I will respectfully disagree with you on the perfidy issue. While both the Law of Naval Warfare and the Law of Aerial Warfare have rules concerning the marking of warships and military aircraft (treaty law and CIL respectively), I am unaware of any such law concerning land vehicles. So why I do agree with you re the Cesna (being aerial warfare), I submit that the law of land warfare only requires belligerents to distinguish themselves and not their offensive equipment.

  15. For completeness, I note Protocol II to the Certain Conventional Weapons Convention on Protocol on Mines, Booby-Traps and Other Devices. As this was not a booby trap but was an ‘other device’, and given the steps taken to limit potential injury to civilians, the act in this case does not appear to fall foul of that Protocol.

  16. Fun things happen when we delete key words from a treaty:

    Any person commits an offence within the meaning of this Convention if that person …intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

    If we wish the ignore the term “unlawful” then we might as well also send a good number of bomber pilots to the Hague along with the CIA and Mossad men. After all, they discharge weapons in public places….

    Treaties are meant to be comprehensible, which is why the Vienna Convention emphasizes the ordinary meaning of terms and renders the Travaux to a supplementary position.

    It’s clear that class of actions being proscribed is characterized by being unlawful and does not preclude the possibility of a lawful class.

  17. Fun things happen when we ignore the drafting history of key words in a treaty and give them the definition that we find politically desirable. Such as when we decide “unlawful” excludes any act of self-defence, an interpretation that was not even promoted by the US, the only state that dwelled on self-defence during the drafting.

    Fun things happen, too, when we ignore key provisions in treaties. Such as the one that clearly exempts members of the military — ie, bomber pilots — from the Convention during armed conflict.

  18. Yes, the analogy does not hold. I must admit I skimmed this piece. However, your analogy does not hold either:

    “The next time Syria uses a chemical weapon to defend itself against an armed attack, I look forward to your argument that Syria’s “inherent right of self-defence” has “primacy” over its obligations under the Chemical Weapons Convention.”

    The CWC does not proscribe the UNLAWFUL use of chemical weapons. The weapons themselves are proscribed. Big difference.

    We only need to look at article 1:

    Each State Party to this Convention undertakes NEVER UNDER ANY CIRCUMSTANCES…To use chemical weapons.”

    Your assumption seems to be that if a relevant action was not explicitly excluded from the convention, then it must be included:

    “So at no point in time did the US ever suggest the use of bombs in public places by non-military government agencies should be excluded from the Convention.”

    That may well be true, but the treaty itself cannot render such actions unlawful.

    You would seem to have us believe that unless something was mentioned as an exception in the drafting history, then it can be considered unlawful. If that’s the case, a myriad of other things would be rendered unlawful as well:

    1. Any person commits an offence within the meaning of this Convention if that person [unlawful omitted] intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

    (a) [omitted] or

    (b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

    Using your line of reasoning, otherwise lawfully demolitions(with relevant devices) relevant structures for whatever reason (such as hazards expected from continued presence would violate the treaty if major economic losses were expected.

    That’s clearly absurd and really not worthy of discussion.

    In short, “unlawful” means what it ordinarily means and not “everything that was not mentioned in the drafting history or given an explicit exemption.”

  19. First, with regard to the CWC example, I was responding to Jordan’s claim that self-defence would trump the TBC even if (as I argue) intelligence agencies act unlawfully when using bombs to kill in public places. I simply pointed out that, if that’s true, the same argument would apply to Syria’s use of chemical weapons in self-defense. Do you contest that logic?

    Second, using explosives to destroy buildings for various legitimate domestic reasons was precisely the kind of use most states — including the US — wanted to exclude through the “unlawfully” requirement in the TBC.

  20. You mentioned France’s use for domestic police action, not civil use. Would be interested in seeing that.

    I don’t contest your logic vis-a-vis Jordan.

  21. As a (relevant) aside, the idea that no act of self-defense could be “unlawful” for purposes of the TBC is very difficult to reconcile with what was perhaps the key tension during the drafting: namely, the insistence by states in the Global South that the Convention not prohibit the use of bombs in the service of self-determination. Those states would have hardly agreed to the TBC if it was intended to exclude no acts of self-determination and all acts of self-defence.

  22. Matt,

    You can find an impressively detailed account of the drafting here:

    http://books.google.com.au/books?id=q2qHd6a-slIC&pg=PA334&dq=%22activities+undertaken+by+the+military+forces+of+a+State+in+the+exercise+of+their+official+duties%22&hl=en&sa=X&ei=h-8TT9qUD4rzmAXO1rWBCg&ved=0CEIQ6AEwAw#v=onepage&q&f=false

    It’s a bit cumbersome, but all of the account is included in the Google preview. The “unlawfully” discussion begins on p. 258.

    I will be curious to know what you think!

  23. I addressed “lawful” acts of self-defense, not “any” act of self-defense. Article 19(1) (addressing rights, etc. under the U.N. charter) is clearly relevant with respect to proper interpretation of the word “unlawful,” even if the drafting history was silent about the right to engage in lawful measures of self-defense under the U.N. Charter and customary international law reflected therein. Further, the ordinary meaning of the word “unlawful” would not exclude a meaning attentive to what is and is not lawful under the U.N. Charter or under customary international law. Additionally, customary international law is a relevant background for interpretation of a treaty.

  24. Reply to Ian:

    Ian, very sharp as to the aerial warfare! The Cesna example was not a very good one indeed. I used it more because of the firing remotely, rather than meaning to invoke the rules of air warfare. (Although AP I , of course, includes air-to-surface attacks, so AP I’s perfidy rules (if my reading is correct) would apply to the Cesna example in addition to air warfare rules).
    I agree that you could argue the measures the CIA took to limit collateral damage qualify as “measures […] taken to protect civilians from their effects”, pursuant to Art. 4(1)(b) of the Mines Booby-traps and other Devices Protocol. However, to me that is a too liberal reading of that clause. The main rule states: “It is prohibited to use [other devices] in any city, town, village or other area containing a similar concentration of civilians in which combat between ground forces is not taking place or does not appear to be imminent”. (That was surely the case in Damascus at the time). The limitation of this general rule should be read rather restrictively and all the examples given in sub b clearly relate to forms of (visual) warning about the presence of the device. Trying to hide the device then is the opposite of what the Protocol allows for when it comes to civilian areas/cities (in which no active hostilities are taking place).

    As to distinguishing offensive equipement, I think that there is a big difference between, let’s say, hiding a tank or launch installation under a net or tree branches to make it look like a hill or a bush, or to disguise it as or use an actual civilian object. Surely you agree that you cannot disguise your offensive equipement as an ambulance or other object entitled to special protection, why then would it be OK to disuse it as a standard civilian object?
    Although perfidy may have had its origins in the notion (or principle) of chivalry (i.e. not to kill treacherously), the modern understanding of the prohibition is to preserve distinction and protection of civilians/hors de combat etc. Using a civilian vehicle “invites the believe” that this was indeed a civilian SUV (Mughniyah surely wouldn’t have walked up to the SUV if it was green and had IDF or US Army written on it) is problematic, as we don’t want Hezbollah to start shooting as every civilian(-looking) SUV, thinking that it may be used by the US/Israel to target them. The modern version of the prohibition of perfidy seems to be there to limit precisely this reaction (and thus civilian SUV’s shouldn’t be used for targeting someone). Sean Watts in his article on perfidy in the Mil.Law Review gives a real life example (note also his use of “objects”): “Repeated incidents of perfidy greatly compromised U.S. forces’ trust that civilian persons and objects posed no threat. A U.S. aviation commander describes routinely attacking planters, garbage piles, and vehicles outside Iraqi homes in response to enemy use of civilian cars and objects to house improvised explosive devises.” (p. 110).
    The US armed forces anyway seem to consider car bombs as perfidy, since they included it in the charges Al Hadi al-Iraqi is facing before the military commission (although we all know there are serious IHL problems with the mil.com. charges): “al Hadi al-Iraqi invite[d] the confidence and belief of at least one person that a vehicle appearing to be a civilian vehicle was entitled to protection under the law of war, and, intending to use and betray that confidence and belief, did, thereafter, make use of that confidence and belief to detonate explosives in said vehicle thereby attacking a bus carrying members of the German military […]”.
    That said, someone like Nils Melzer, in his Targeted Killing book has the same view and lists the car bomb used to kill Chechen rebel Zelimkhan as an example of perfidy (p. 414).

    Anyway, interesting stuff and lots of room for different views. In note also that I used “(N)IAC” in my above comment, but whether all this applies the same in NIAC is certainly open to discussion (as is being done at the moment at Lawfare).

  25. Rogier,

    How does planting a bomb in a civilian vehicle “invite the confidence of an adversary” that he is protected from attack when passing by that vehicle, given that the adversary is not even aware that the bomb is there? Planting a car bomb seems like a lawful ruse, not perfidy. After all, our prototypic perfidious acts involve positive acts by the attacker — waving the white flag, wearing a protected emblem, etc.

    Indeed, if planting a car bomb is perfidy, why are ambushes lawful? They are often launched from areas that would otherwise be protected against attack — such as a civilian house. Do you think such an ambush would be unlawful because, by setting up the ambush in a civilian house, the attacker is inviting the confidence of the adversary that he cannot be attacked from that location?

    I understand that soldiers must find it frustrating to have to deal with bombs planted in planters and garbage and the like. But unless it is per se unlawful to use bombs, I don’t see how such uses can be perfidious. Can bombs only be lawfully planted in objects that would already be legitimate military objectives? That doesn’t seem to make much sense — yet that is the implication of the position that soldiers are entitled to assume that they cannot be attacked from objects that are normally civilian.

  26. I have now had the time to properly read through the entire article and thread. Thank you for the link.

    If it were the intent to redefine the term “unlawful” to mean “everything not specifically suggested by a party in the drafting meetings as being excluded from the convention,” then that
    would have appeared in Article 1 with the rest of the definitions. This is certainly the direction you appear to be heading in with your mentioning things like: “So at no point in time did the US ever suggest the use of bombs in public places by non-military government agencies should be excluded from the Convention.”

    It’s incomprehensible that perhaps the most fundamental term in legal language – unlawful – could be given such an ad hoc and strange redefinition without explicitly redefining it in the treaty.

    Of course, this is a silly conversation.

    We all know what unlawful commonly means. The framers of the convention understood what unlawful meant. And they understood that we would understand what unlawful means.

    Jordan hit the nail on his head in his first post: “Quite obviously, there was no violation of the treaty if the targeting was not “unlawful.”

  27. Kevin,

    I understand that views on this may differ (and clearly do), but to me ‘disguising’ a bomb as a civilian object (because that is what you do, when planting a bomb in a civilian car) is a positive act. Just putting the bomb on the street wouldn’t be, but making that some bomb look like a civilian car (and placing that on the street) is. Indeed, a combatant should be confident that he is not going to be attacked from a civilian car (or that this civilian car is not ‘going to attack’ him by exploding). That’s the whole point about distinction and combatant privilege. Similarly, why would you lie in ambush in a civilian house: because you presume the enemy won’t expect you there (and rightfully so, because you shouldn’t be there), and thus believes (is confident0 that he won’t be attacked from that house. Even if the ambush example may not fulfil the narrow definition of perfidy, I do not think that an ambush can lawfully be laid in a civilian house, because combatants should not conduct operations from civilian buildings. Mike Schmitt appears to agree and does in fact refer to it as perfidy (forgot where. Think an article in the YIHL on Iraq). Of course it is a different situation when there is full-scale urban warfare. The sentence in Article 4(2) of the Protocol on Mines, Booby-Traps and Other Devices “in which combat between ground forces is not taking place or does not appear to be imminent” seems appropriate here. Or, the circumstances at the time may not allow for another option than to jeopardise the protection of a civilian house, but if planned and other options not affecting the protection of civilian objects (in line with the requirement to take precautions).

    An “ambush” (which is not really defined well) may be a lawful ruse, but that doesn’t mean that every form of attacking the enemy from a hidden position is legitimate. The “classic” ambushes that all the military manual refer to are those laid somewhere in the field, making use of the natural surroundings to hide behind and set up a “kill zone” where the enemy is lured towards. The Israeli LOAC Manual, also quoted in the CIHL Study’s practice on ruses, talks about the difference between making something appear as objects in the “natural surroundings (as opposed to the human surroundings)”. Dressing a bomb up as a tree and placing it somewhere along a road to be set of when the enemy passes by, does not have a negative effect on the protection for civilians. Using civilian cars and houses does. Generally, I think the rules are pretty clear: Don’t make a military object (especially one that you are going to use to actively engage the enemy) look like an object that is protected from attack. That would include hiding a bomb in a civilian object.

    Anyway, I happy to acknowledge that there is much room for debate here and I may be preaching (my idea of) de lege ferenda. You could host a symposium on this at OJ and get Mary Ellen to write the first post for it. 

  28. Rogier – please forgive me if I completely misunderstood your post.

    Are you suggesting that states are restricted in how they trick, deceive and ambush their enemies?

    If so, you would seem to have us believe that while all the world’s powers and framers of international law maintained clandestine operations, including carrying out hits both before, during and after the solidifation of such customary law or ratification of such relevant treaty, they in fact intended to enjoin themselves from engaging in this practice?

    If so, can you please provide me some clear state practice and opinio juris?

  29. With respect to Protocol I, our interest is here:

    Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.

    Article (37)

  30. Dear Mark,
    Of course States are limited “in how they trick, deceive and ambush their enemies”. IHL allows for ruses of war, but such ruses are only permitted to the extend they comply with IHL. Article 37 of AP I, which you quote above, says precisely that: “… but which infringe no rule of international law applicable in armed conflict”.
    Permitted ruses are to comply with IHL and therefore cannot, inter alia, constitute perfidy. This is often a fine line, but the fact that ruses are not unlimited and are restricted by IHL is recognised in virtually all military manuals of the world. You will find the practice listed in the Customary IHL Study for Rule 57 (Ruses of War) quite helpful in this regard: https://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule57

    As a side note: customary international law is not framed solely by “the world’s powers”, nor do violations of a rule of law make that rule inapplicable.

  31. The world powers are the ones largely with intelligence agencies with the resources to engage in clandestine assassination operations. We could care less about what Kiribati thinks about the issue.

    Moreover, Israel has engaged in such activities since its inception. Unless you’re showing me a customary rule prohibiting a good number of tactics used by Israel since its inception, then clearly Israel is bound to no customary rule preventing it from placing bombs in civilian cars.

    We are all too familar with Cold War CIA tactics.

    Protocol I is a reflection of then custom. There is no custom without state practice.

    Perhaps before an assassination occurs a belligerent should send the targeted a singing telegram announcing his pending doom.

  32. Rogier,

    Please forgive my short reply. It is not because your points do not warrant full consideration, but rather:

    a. my house is being packed around me and it is somewhat distracting

    b. I need to save something for the OJ Symposium on the issue.

    Re CCWC Protocol II, the final words of the stem of para 4(2) are ‘unless either’. My interpretation is that clause 4(2) is complied with as long as one of sub-paras (a) or (b) are complied with.

    Re marking of civilian objects, I am very slow to find that a general prohibition extends to cover areas not addressed by specific prohibitions. Along with my previous point about there being specific rules concerning marking of warships and belligerent aircraft but none for land vehicles, I also note that the examples given in the API definition of perfidy all relate to feigning by a person, not an object. as for ambulances etc, I think that supports my point, as once again the specific rules concern misusing emblems of protection and not civilian objects as such.

    Finally, there is no general prohibition on converting civilian objects for military use. Indeed, the military does it all the time (bridges, telecommunication infrastructure, hiding behind civilian walls). There are, however, specific rules about converting certain objects (eg, cultural property).

    Finally, I am a little concerned that you seem to have Kevin and I agreeing. If that keeps happening, I will have to withdraw my comment asking him for an authority or citation to support the bald assertion that he is a nice guy.

  33. It strikes me that there is a separate issue with Kevin’s argument that nobody has raised yet.

    Kevin argues that the CIA violated Art. 2(3) which (broadly speaking) governs aiding and abetting a violation of the treaty.

    That, of course, requires that there be a predicate violation to aid and abet. But was there?

    The device was planted and triggered by the Mossad. Assuming that the Mossad qualify as “armed forces during an armed conflict” or ” persons acting in support of those armed forces who are under their formal command, control and responsibility” – and Israel’s accession to the treaty makes clear that it believes they do – then there simply was no underlying offense, because Israel’s actions did not violate the treaty. And if Israel’s actions did not violate the treaty, nothing the CIA did could be aiding the “commission of an offense”.

  34. Akiva,

    A very interesting argument, one that raises two issues, neither of which I can address adequately here. First, is Israel’s declaration effective? It certainly seems like a disguised reservation — and one that is incompatible with the object and purpose of the treaty, given how adamant other states were during the drafting that only the armed forces of a state were exempted from the TBC (and the Global South was not happy with even that exclusion).

    Second, if Israel did not violate the TBC, does that mean the US did not? Art. 3 also prohibits attempting to commit an offence, and many jurisdictions (common law and at least some civil law) permit a defendant to be convicted of attempting to aid and abet an offence. It’s at least arguable that the US attempted to commit an offence under Art. 2, given its actions and evident intent to complete the offence. But again, it’s a difficult question that needs more discussion.

  35. A few “adamant” states during a drafting process do not a full meaning make. VCLT arts. 31(1), (3)(b)-(c), and 32 (a)(-(b).

  36. Kevin,

    Thanks for the reply. I’ll leave your first question aside, for the moment, and focus only on the second, because it’s pretty easy to answer, IMHO: if Israel did not violate the TBC, then by definition the US did not.

    If Israel’s conduct was not a violation of the TBC, then there was no “offence” under the TBC for the U.S. to “participte in as an accomplice”, “organize and direct”, or “contribute to”. Nor was there an “offence” for the U.S. to “attempt” (an attempt count presumes that the conduct in question, were it completed, would violate the statute; here, if the CIA did nothing but aid Israel, and aiding Israel did not violate the statute, then there was no attempt to commit conduct that would violate the TBC). These are basic principles of criminal law, and I see no reason to suppose the TBC deviated from them.

    So – unless Israel violated the TBC, then the US did not.

    And, by the same token, if Israel violated the TBC, then the US did (even if the CIA was operating under military direction, since it would still be aiding in an offence under the statute).

    In other words, the only conduct that’s relevant to the analysis of whether a TBC offence occured is Israel’s. If Israel’s conduct violated the TBC, then both Israel and the U.S. breached. If Israel’s conduct did not, then neither did.

  37. Akiva,

    Putting aside the difficult comparative criminal law issues, your dismissal of attempted aiding and abetting is much too facile. In terms of US law, for example, the US Attorneys’ Criminal Resource Manual disagrees with you. From s. 2480:

    Generally, in order to convict an accomplice of a completed substantive crime (rather than a mere attempt), there must be a guilty principal. United States v. Staten, 581 F.2d 878, 887 (D.C. Cir. 1978). The accomplice and the principal must have a shared intent. United States v. Walker, 99 F.3d 439, 442 (D.C. Cir. 1996).

    This rule of law seems to be inapplicable, however, for “attempts” rather than completed substantive crimes. If, for example, a principal pretends to commit a crime, and the accomplice attempts to aid the principal by engaging in conduct that would have established his complicity had the crime been committed, the accomplice may also be charged with an attempt to commit the crime. See United States v. Washington, 106 F.3d 983, 1005 (D.C. Cir.), petition for cert. filed, (July 29, 1997) (No. 97-5423). In this scenario, the prosecution need not show that an offense was actually committed, nor that the principal and accomplice had a shared intent. Id. As with other attempt crimes, the focus of the court’s analysis shifts away from external circumstances to an examination of the defendant’s intent and actions in furtherance of that intent. Id.

    Thus, the prosecution must show that the defendant acted with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting, and that he or she engaged in conduct which constitutes a substantial step toward the commission of the crime. United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974), cert. denied, 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975). The court looks to the question of whether, if the facts had been as the accomplice believed then, the principal would have been guilty. Washington, 106 F.3d at 1005. As with other attempt crimes, permitting convictions on the basis of the “attempt to aid and abet” theory is justified because, even if an offense was not actually committed, the defendant manifests the same dangerousness of character as the actor who himself attempts to commit the offense. Id.

    A similar approach had previously been taken in United States v. Cartlidge, 808 F.2d 1064 (5th Cir. 1987). There, the Fifth Circuit upheld a conviction for attempted aiding and abetting a drug offense. Since neither the statute nor its legislative history provides an explanation of what constitutes “attempt,” the court followed the principle of attempt liability developed at common law. Id. at 1066. Under the common law model, the defendant could be convicted of attempted aiding and abetting possession with intent to distribute, despite the fact that no drug offense was actually committed by the principal, if he (1) had exhibited a criminal intent consistent with the crime of aiding and abetting a drug operation; and (2) had moved beyond preparation and completed the requisite substantial step toward committing that crime. Id. at 1068-69.

  38. As for the question of whether the Mossad constitutes an “armed force” for purposes of the TBC, such that Israel’s expressed interpretation of the treaty is sensible, here is the ICRC on the definition of “armed forces” in LOAC:

    “In essence, this definition of armed forces covers all persons who fight on behalf of a party to a conflict and who subordinate themselves to its command. As a result, a combatant is any person who, under responsible command, engages in hostile acts in an armed conflict on behalf of a party to the conflict.”

    https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule4

    That would appear to cover Mossad agents tasked with killing Mugniyeh – they are persons who fight on behalf of a party to an armed conflict (Israel), who subordinate themselves to its command, and engage in hostile acts on its behalf.

    Indeed, the language of the section excluding conduct by the “armed forces” from the purview of the convention appears to point in that direction, since it uses the terms “armed forces” and “military forces” separately, implying that “armed forces” is different (and necessarily broader than) “military forces.”

    If that reasoning is correct, then Israel’s conduct did not violate the TBC, because it was an “activity of [Israeli] armed forces during [Israel’s ongoing] armed conflict” with Hezbollah, and therefore not a violation of the convention.

    Hence, there was no “offence” for the CIA to aid and abet (or attempt), and the CIA emphatically did not violate the TBC.

    At least, that’s how I read the relevant pieces of IHL and LOAC together. Happy to hear any counterargument, though.

  39. Why would we look to the ICRC’s definition of “armed forces” when the Convention defines the term for us? Art. 1(4): “military forces of a State” are “the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security.” You may know Israeli law better than I do, but I have not seen anything that would indicate Mossad is part of Israel’s armed forces.

  40. Kevin,

    With all due respect, I think you are dramatically misreading that. The issue there is whether a person who attempts to aid and abet a crime may escape liability by virtue of the fact that no completed crime was actually committed (such as when the principal is in fact an undercover officer who never intended to commit the crime). Thus, the relevant question is “whether, if the facts had been as the accomplice believed them, the principal would have been guilty”.

    Here, if Israel’s conduct did not breach the TBC, then there would be no crime to “aid” them and no crime to “attempt” to aid them.

    Again, with all due respect, this seems trivially obvious; if the act itself is legal under the TBC, what crime was the CIA attempting to commit? Is your argument that the CIA believed that Israel’s conduct was illegal and therefore intended to help Israel commit a crime? That seems like an odd (and unevidenced) position to stake out, given that the facts were clearly known to everyone involved: the target was Mugniyeh, the instrument was a car bomb, and the actors would be the Mossad.

    In other words, applying that to the key question articulated in your source, “if the facts had been as the accomplice [here, the CIA] believed them, the principal [here, Mossad] would [not] have been guilty” – and hence the accomplice (the CIA) could not be liable for an “attempt” on these facts.

  41. I’m not dramatically misreading anything. Even if the acts were legal for Israel, attempting to commit an offence was not legal for the US. Cartlidge is directly on point, making clear that the actions of the principal perpetrator do not have to be criminal for the accomplice to be convicted of attempting to aid and abet an offence. Hence your second paragraph is in error — Israel did not have to be guilty of an offence under the TBC for the US to attempt to aid and abet a TBC offence, just as the undercover officer did not have to be guilty of a drug offence for the accomplice to attempt to aid and abet a drug offence.

  42. By the way, good luck arguing that knowledge of illegality is an element of an offence under the TBC.

  43. Kevin,

    Unfortunately, the TBC does not define “armed forces”. It defines “military forces” as the “armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security”

    As an aside, that in and of itself would seem to include the Mossad, which is certainly “organized, trained and equipped” under Israeli internal law for the purpose of Israeli “national defense or security”

    But in any event, while the term “military forces” is defined by reference to “armed forces,” the term “armed forces” itself has no internal definition.

    And again, a substantive distinction between “military forces” and “armed forces” is made in Article 19, which indicates that those terms are not coextensive (and that military forces are, for purposes of the TBC, a subset of “armed forces”):

    Conduct by armed forces is not a violation only if it occurs “during an armed conflict”.

    Conduct by “military forces, in contrast, is not a violation if it occurs “in the exercise of their official duties” regardless of whether there exists an armed conflict as defined by international law.

    Finally, Article 19 of the TBC directly answers your question of why we would look to IHL for a definition of “armed forces”:

    “The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law

    That provision expressly provides that the terms “armed forces” and “armed conflict” are to be read “as understood under international humanitarian law”

    QED

  44. I see. So your position is that there is a difference between “military forces” and “armed forces” for purposes of Art. 19(2), even though “military forces” are defined as the “armed forces of a State organized… under its internal law.” Or, more precisely, you believe that “armed forces” means one thing with regard to the second clause of Art. 19(2) (the internal definition provided by Art. 1(4) concerning military forces) and something completely different with regard to the first clause (the external IHL definition).

    QED indeed.

  45. Kevin,

    First, you continue to beg the question: what offence did the U.S. attempt to commit? If Israel’s conduct was legal, then aiding it was not an offence at all, and the U.S. could not have been “attempting” to commit an offence by doing so. (Perhaps if the CIA had actually conducted the bombing it would be an offence – but in that case, an “attempt” violation would arise only if the CIA had actually attempted to conduct the bombing, which we all agree it did not). In the absence of any actual conduct that violated the TBC, or any attempt to commit conduct which would violate the TBC, there can be no “attempt” violation.

    Or, to put it another way, what conduct by the U.S. would have violated the statute, had it been carried out as planned?

    Frankly, the whole notion of an “attempt” violation as related to this seems absurd, since we all agree that the actual conduct that was intended was in fact carried out as planned, with the intended result. If the completed conduct is no crime, then there can be no crime of an “attempt” to do that which, if done, is legal.

    Second, I’m not sure what you mean by “good luck arguing” … knowledge of illegality may not be an element of a crime, but actual illegality self evidently is.

    Knowledge only comes into play when you bring in the “undercover officer” doctrine of attempts, because (as your very source pointed out) the question becomes “if the facts had been as the defendant believed, would it have been illegal?” You’ve made no attempt to apply that very straightforward question to this issue.

    I understand that you’ve got an urge to defend a hot headline, but “well, even if the bombing didn’t violate the TBC, the U.S. attempted to violate the TBC” is just not a defensible position.

  46. ” Or, more precisely, you believe that “armed forces” means one thing with regard to the second clause of Art. 19(2) (the internal definition provided by Art. 1(4) concerning military forces) and something completely different with regard to the first clause (the external IHL definition).”

    Kevin, I’m not sure what text of the TBC you are reading. Here’s the language of Article 19(2):

    “2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.”

    You’ll note that, contrary to your claim, the second clause of that section does not use the words “armed forces” at all.

    So no, I’m not arguing that “armed forces” has one meaning in clause 1 and a different meaning in clause 2. I’m arguing that “armed forces” in clause 1 has a different meaning than “military forces” in clause 2. That different words have different meaning (particularly where used within a single section!) is a basic principal of construction, so I’m fairly confident in that assertion.

    But if you are looking at a different version of the text, or are arguing that the change in language from one clause to another should be ignored, I’m happy to hear the justification.

  47. And again, Kevin, Clause 1 of 19(2) expressly provides that it uses the term “armed forces” as “understood by international humanitarian law”.

    How do you justify writing that phrase out of Clause 1?

  48. I’m reading the version that contains Art. 1(4), which specifically defines “military forces of a State” as “the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security.”

    So no, I’m not arguing that “armed forces” has one meaning in clause 1 and a different meaning in clause 2. I’m arguing that “armed forces” in clause 1 has a different meaning than “military forces” in clause 2.

    Except that, pursuant to Art. 1(4), “military forces” in clause 2 means “the armed forces of a state which are organized… under its internal law.” Under your argument, therefore, “armed forces” for clause 1 takes its definition from IHL (a questionable reading of clause 1, but whatever) while “armed forces” for clause 2 takes its definition from domestic law (because clause 2 depends on Art. 1(4)). So yes, you are arguing that Art. 19 relies on two different definitions of “armed forces.”

    I think we’ve taken this discussion as far as it can go. This will be my last comment.

  49. Well, thanks for the exchange. I’ll leave my last comments:

    1) I don’t see any other plausible way to read Clause 1’s express reference to “as those terms are understood in international humanitarian law” other than as referring to “armed forces” as well as “armed conflict” The language references terms, plural, and the only terms appearing in the referenced preceding clause are “activities”, “armed forces,” and “armed conflict.” Only two of those (“armed forces” and “armed conflict”) are terms with a particular understanding in IHL.

    (Unless I’m missing something, “activities” is not a term of art in IHL).

    Therefore, either you write that clause out of existence entirely, you write out the plural “terms” and replace it with “term” to then argue it meant only “armed conflict”, or you conclude that both “armed forces” and “armed conflict” are being used “as understood in IHL”.

    That last option is the only one that doesn’t require rewriting the actual language of the treaty – and hence the most defensible position to take.

    2) “Military forces” in clause 2 means “armed forces of a state which are organized [for particular purposes] under its internal law”. Again, this is narrower than the definition of “armed forces” in IHL (a point I assume you agree with, as otherwise you wouldn’t be arguing the IHL definition is inapplicable).

    So the language of 19(2) is not “armed forces for Clause 1 takes its definition from IHL and armed forces for clause 2 from domestic law”, but “armed forces” for clause 1, as defined in IHL, and a subset of armed forces for clause two, as limited by the conditions articulated in the TBC’s definition of “military forces” [those armed forces of a state that are “organized, trained and equipped under its internal law for the primary purpose of national defence or security”], which makes sense given that the actual words used in clause 2 are “military forces”.

    But I agree we’ve taken this as far as it can usefully go.

  50. to add to all of this, as written previously, it seems that general patterns of state practice and opinio juris tolerate self-defense targetings by non-military personnel.

  51. Kevin –

    Still interested in how you define the common meaning of unlawful given that its the first place we look for the meaning of a term.

  52. Unlawful: “Not conforming to, permitted by, or recognized by law or rules.” And what uses of bombs do not conform to the law or rules of the TBC? Those that otherwise satisfy the definition of the offence and that are either (1) not the kind of domestic use of explosives the drafters wanted to ensure would be seen as lawful or (2) not conducted by the military, which Art. 19 exempts.

  53. Kevin –

    Still interested in your common definition of the term unlawful. As the term was not redefined in Article 1, the common meaning prevails.

    Also,just to be clear: you would have us believe that two countries with perhaps the most active foreign intelligence agencies knowingly and willfully joined a treaty rendering a critical aspect of foreign operations illegal?

    The purpose ofsuch a treaty is to clearly convey what behavior is prohibited. Are we to assume that the astute legal analysts are in fact so stupid that they failed to understand that they were signing away a key aspect of the Mossad?

    And with respect to object and purpose – the treaty was clearly not aimed at foreign intelligence agencies.

  54. And to you the “common meaning” of unlawful refers to a completely different body of law, the jus ad bellum, despite the fact that not even the US discussed self-defense during debates over the unlawful criterion?

    Also, just to be clear: you would have us believe all of the states in the Global South that resisted giving carte blanche to the US and other Western states concerning the use of explosives, and that insisted again and again on a military exclusion that was as narrow as possible, would have ratified the TBC if it permitted the much-hated intelligence services of the US to use explosives basically at will? And are we to assume the legal analysts of the states in the Global South were, in fact, so stupid that they did not realize their limitation of Art. 19 to the military meant nothing, because any supposedly legitimate act of self-defence could involve the use of explosives in public places?

    As for the object and purpose: the TBC was clearly and unequivocally aimed at limiting the use of explosives to the military.

  55. Discussions in the drafting stages do not trump the meaning of a fundamental – perhaps the most fundamental – term in all of law. Unlawful is unlawful. The body of law is irrelevant. Given any body of law, unlawful = not lawful in reference to which every body of law is being referenced. It’s a very simple term. For something to be unlawful, one needs to provide the specific law.

    You’re more than welcome to provide me with one example in which the term unlawful was held and commonly held as meaning “everything not specifically excluded in the drafting stages.”

    I hope that we do not need to invoke the Lotus Principle and go through this mess again.

    The states of the global south ratify treaties to which they do not even adhere, and make no effort in this regard. Whatever song and dance they gave in the drafting stages, their history shows that they certainly view treaties as less than sacred.

    Beyond that, there is clearly compromise involved in any drafting process, and if it were the case that they wished to exclude the activities of intelligence agencies, they most certainly would have explicitly redefined the term unlawful. Or did their representatives lack the intellectual wherewithal to understand that the common meaning of a term is the one that prevails?

    With respect to the object and purpose, the treaty is called “The Terrorist Bombing Convention.” It’s not called the “Limiting Explosives to Military Convention.”

    I have yet to see any prevailing view in international law analysis (or legal analysis for that matter) that holds that anything not specifically mentioned as being lawful in the formulative stages of a treaty is therefore rendered unlawful.

    Even leaving aside the supervening role of the common meaning of illegal, the burden is on you to show a POSITIVE acknowledgement on the part of relevant states that ONLY militaries were exempt. Again, keep in mind that this in no way substantially challenges the uncontroversial meaning of the term “unlawful.”

  56. Wow, who knew that those clever American lawyers had managed to make Art. 31(4) of the VCLT disappear? You know, the one that provides “[a] special meaning shall be given to a term if it is established that the parties so intended.” Lawyers of less skill and insight might think that when states agree to a treaty on the basis of careful negotiations over a term like “unlawful,” their intended meaning of that term might prevail over the dictionary meaning.

    And really, shame on those dumb non-Western lawyers for thinking that the exclusion of the military from the Convention after months of contentious debate meant that other state agencies were not excluded. The Americans must have disappeared the canon expressio unius est exclusio alterius from statutory interpretation along with Art. 31(4) of the VCLT.

  57. “special meaning” “established” in contradistinction to Article 19(1) (“Nothing in this Convention shall affect other rights … of States and individuals under international law, in particular the purposes and principles of the Charter of the United Nations [e.g., the inherent right of self and collective self-defense under Article 51] and international humanitarian law”)? nice try

  58. Yes – kindly provide me with the intent on the part of the United States to redefine unlawful as meaning “everything not specifically discussed as being excluded during the treaty’s drafting stages.”

    If the parties so intended “unlawful” to mean as such, perhaps you can provide me with the names of three countries along with evidence demonstrating that they modified the rules of clandestine foreign activities on the part of intelligence agencies in light of these rules. Heck, I will even take some from the South – assuming some of the drafting parties in fact had sufficiently expansive agencies.

    Why was not unlawful redefined in the relevant article of the treaty?

    They defined “Explosive Device” and “Infrastructure Facility” – and I can only imagine there was agreement on what these terms meant. And yet, somehow the special definition of “unlawful” magically and mysteriously did not make it to the Article 1 definition?

  59. You got me. In the absence of an Annex A identifying every agency of the US government and specifying whether they are included or excluded from the treaty, every agency not specifically included in the treaty is automatically excluded. That whole “let’s specifically exclude the military after months of debate” was just states — particularly the dumb ones in the Global South, who don’t take treaties as seriously as civilized Western states — not understanding the basic principles of treaty interpretation.

  60. That is how law works. If you wish to place a restriction, you explicitly place the restriction. This could have quite simply be accomplished.

    No need to list all agencies. Indicating in the relevant article that ONLY armed forces are exempt would suffice. Four simple letters.

    I am quite certain the Global South understands what the term “only” means.

    If this were clearly the intent, then we should have seen at least some agencies in any one of the drafting parties find themselves correspondingly restricted. There is no evidence of such. To the best of our knowledge, despite something being so obvious and within the intent of the treaty, we cannot identify a single country that made the proper adaptations…

  61. Kevin, from the book you linked:

    “For their part, Slovakia, Malawi, and India argued that requiring that the wrongful act be ‘unlawful’ was redundant. France, Canada, and Iran underlined, on the contrary, that such precondition was indispensible to exclude from the scope of the convention lawful actions, such as the use of explosives during legitimate police operations. …” (p.260)

    And:

    “After the first reading, the G-7 made no changes on the question of the legality of the wrongful act. … on March 3, 1997, Slovakia, India, and Pakistan, requested again deleting the precondition of the unlawfulness of the wrongful conduct. For them, domestic law and not the convention, should determine whether an act is lawful or not. Argentina, the United States, and Ireland, on the contrary, advocated for the language proposed by the G-7, since, in their view, it would exclude from the convention the legitimate use of explosives …” (p. 261).

    The discussion of the potential removal of the requirement that the conduct be unlawful continues on pages 262, 263.

    In other words, any argument that the parties had a special intent that unlawful mean something other than “otherwise unlawful in international law” is contradicted by the fact that several of the states parties insisted that the word “unlawful” remain in the text precisely to preclude that reading – and they in fact “won” as the language remained

  62. As for “armed forces” – the definition of what was covered was the subject of discussion among the states parties. Here is what the book you cited says about the precise language of the savings clause:

    “This proposal [the language eventually used] was a turning point because, by leaving the definition of armed forces during an armed conflict to international humanitarian law, it contained a major concession to those who sought to exclude self-determination movements from the scope of the convention …” (p. 317). http://books.google.com.au/books?id=q2qHd6a-slIC&pg=PA334&dq=%22activities+undertaken+by+the+military+forces+of+a+State+in+the+exercise+of+their+official+duties%22&hl=en&sa=X&ei=h-8TT9qUD4rzmAXO1rWBCg&ved=0CEIQ6AEwAw#v=onepage&q=unlawful&f=false

    In other words, yes, the drafting parties very explicitly and intentionally intended that the scope of “armed forces” in the first clause of 19(2) be determined by IHL.

    You’re simply wrong on this point, and I’d humbly suggest that the better part of valor (and credibility and intellectual honesty) here would be to concede that “armed forces” for purposes of that clause are defined by IHL, and move on to assessing afresh the impact that has on your argument.

    The other alternative, of course, is to continue to assert that the language does not mean what it plainly says and what your own authority on the negotiations asserts was the intent of the drafting parties

  63. Just to flesh out the linguistic implications from Akiva’s quote:

    “France, Canada, and Iran underlined, on the contrary, that such precondition was indispensible to exclude from the scope of the convention lawful actions, ****SUCH AS**** the use of explosives during legitimate police operations. …”

    Such as is an indicator of example that does not preclude other examples.

    Kevin – you sarcastically said the following: “In the absence of an Annex A identifying every agency of the US government and specifying whether they are included or excluded from the treaty, every agency not specifically included in the treaty is automatically excluded”

    In other words, you believe it would be unreasonable to list each and every agency restricted from engaging in bombings.

    Your point, however, was moot. No need to list each and ever restriction. All that needed to be said was that ONLY militaries can engage in such bombings.

    It is, of course, equally unreasonable to list each and every type of action/action from specified groups that are allowed. Your logic is: no specific mention of intelligence agencies NOT restricted, therefore intelligence agencies restricted. You demand that for an agency to not be restricted by the treaty, then it must have been mentioned.

    This is the same line of reasoning that you sarcastically condemn, just the opposite side of the coin. You are against having to list all restrictions (which is not necessary), but demand that all exemptions be explicitly listed.

    How long will this continue? This is getting silly.

  64. Akiva,

    Alas, you win the battle but lose the war. You may well be right that “armed forces” for purposes of Art. 19 is defined by IHL. But, of course, IHL defines membership in the armed forces by reference to… domestic law. As Melzer says:

    Treaty law clearly indicates that membership in the regu- lar armed forces of States depends not on functional criteria, but primarily on formal integration into uniformed armed units in accordance with domestic law. For example, the Hague Regulations clarify that “[i]n countries where militias or volunteer corps constitute the army, or form part of it, they are included under the denomination ‘army.’”37 Thus, whether or not such forces are part of a State’s “army” depends on the rules and regulations applicable in the respective State.

    There is no question that Art. 19 of the TBC would exclude the CIA if US domestic law incorporated the CIA into the “armed forces.” But, as I pointed out in the post, it does not. According to 10 USC § 101, “[t]he term ‘armed forces’ means the Army, Navy, Air Force, Marine Corps, and Coast Guard.”

    The bottom line: clause 1 of Art. 19 looks to IHL for the definition of “armed forces,” while clause 2 defines “military forces” by reference to Art. 1(4). Both, however, look to domestic law for the definition of “armed forces.” So the CIA is excluded from Art. 19 in its entirety.

  65. As for Matt, his argument has become so far removed from any known theory of treaty interpretation that there is lo longer any reason to respond. Readers can judge for themselves who’s right.

  66. Thanks, Kevin.

    But my point was never about the CIA – it was about the Mossad. And once you concede that states may define for themselves which entities are part of their “armed forces” for purposes of IHL (so long as they meet the broad definition; the forestry service, for example, wouldn’t fit for IHL even if defined as an “armed force” for domestic law), then Israel’s articulation that it includes Mossad is determinative.

    Hence, there was no breach by the Israelis, and the question of whether the U.S. breached the TBC rises and falls on your “attempt” theory. Since you didn’t really discuss that in detail in the body of the post, and a fuller articulation of the argument may be more convincing (and I’d certainly find it worth reading), do you think a follow up post on the subject makes sense?

  67. Akiva,

    I’ll write it if I can find time. In the interim, can you point me to where Israeli law defines the armed forces to include Mossad? You probably know more about Israeli law in that context than I.

  68. Thanks, Kevin – hope you get around to it.

    Not sure why you’d expect me to have any expertise on Israeli law, but I don’t (I’m not Israeli and I’m far more proficient with biblical and liturgical hebrew than modern hebrew).

    That said, in the absence of contrary evidence and given the fact that the Mossad otherwise fits into the definition of “armed forces” articulated by the ICRC as the default, I would assume that the Israeli articulation that its external intelligence services were covered by 19(2) was not contradictory to its domestic law.

  69. I assumed from your confident claim that you were familiar with Israeli law. I will ask around. But it is not enough for Mossad to look like an armed force; it has to be deemed an armed force by domestic Israeli law — particularly given that Mossad cannot be considered an irregular armed force under GCIII art. 4(a)(2), because its members do not carry arms openly or wear a fixed and identifiable sign.

  70. Yes Kevin – I am the one with a wacky theory of treaty interpretation. This is my method:

    1. Demanding that every exception be specifically raised in the drafting stages in order to not be declared unlawful: “….So at no point in time did the US ever suggest the use of bombs in public places by non-military government agencies should be excluded from the Convention.”

    WHILE scoffing at the possibility that every exception be listed: “In the absence of an Annex A identifying every agency of the US government and specifying whether they are included or excluded from the treaty, every agency not specifically included in the treaty is automatically excluded” *(Said sarcastically)*

    2. Insisting that the object and purpose of a treaty called “The Terrorist Bombing Convention” was to limit the lawful use of explosives in international affairs to militaries. Yet, despite the abundant number of countries that have ratified the treaty, failing to identify a SINGLE country that has acted in turn, by, for example, placing restrictions on their foreign intelligence agencies.

    3. Insisting that unlawful really means “anything not specifically excluded in the drafting history” despite the fact the place for definitions is in Article 1.

    4. Refusing to utilize the first layer of treaty interpretation because the word in question is rather complex – unlawful.

  71. Kevin and Akiva ,

    Formally , the Mossad , is definitely not included within that terminology of ” armed forces ” or army , according to the Israeli law . I can’t get into it in hectic details and complications, let alone that it is in Hebrew, but:

    In the Israeli law, there are constitutional law codes (this is a sort of compensation for lacking constitution) and let’s say: basic or regular laws. The firsts have upper hand on latters .

    Now, there a ” constitutional law ” which defines the army establishment. According to it, only the army as an organization is defined as an army and anyway ” armed forces ” you may argue .

    More deeper , regular laws , defines disciplinary laws for the army itself , and absolutely , don’t touch the Mossad itself . I mean, a Mossad agent, is absolutely not governed by the law, regulation, and disciplinary law of the army. He would be punished and sanctioned by the internal regulation of the Mossad , and not that one of the army . He would face a civil tribunal , not marshal court .

    In this regard, it’s enough. but , what counts for the purpose of that post , is that :

    Once a person, or an agent, is doing what is doing, as an agent of the state, governed by internal law, and anyway international law:

    Then, prima fascia, can’t be considered as a terrorist act. Armed forced terminology, has got nothing to do here, but:

    Was he ( the agent ) acting in a lawlessness zone , or , given orders , strict and formal orders . It doesn’t mean automatically that it would be lawful, but first of all: you need prima fascia burden of proof, in order to prove illegality.

    I would suggest briefly, to consider that assassination, the subject of that post, from both broader perspectives:

    Was Imad Mughniyah, a ticking bomb , in the eyes of the Americans and Israelis ( and he was according to them ) and :

    Especially in light of the broader context , geopolitical context . Marines soldiers in Irak, dying and being wounded daily, because of terrorist attacks on them, terrorists, infiltrating from Syria, and master minded by Imad Mughniyah, according to the Americans.

    This is a hell of game changer one must admit …..

    Thanks

  72. El Roam – thanks. The army is defined as Tzahal, but what about the air force and navy? “armed forces” is a broader term than “army” (hence the discussion)

  73. Akiva ,

    I don’t understand your question or reservation . The Israeli air force, and the navy, are integral part of the IDF. what makes you think that they are excluded ? do you believe , that only troops on the ground , terrestrial , infantry units and so forth …..are part of the IDF ?? Well, in such case, it is absolutely incorrect!!

    Concerning the discussion, what I have presented is the simple argument, that it doesn’t matter at all, whether you would define para military troops as an integral part or not. why ? again :

    a state , can’t engage in terror !! It doesn’t matter whether paramilitary or not or whatever.

    A terror, according to the convention, is an action, not reigned by any law: internal or international, but simply acting in an unlawlessnesse zone.

    The presumption, prima fascia has been always so:

    A state always acts in accordance with law (internal or international). So, you need to prove, prima fascia, that an act, was totally out of law and regulation, in order to start to deal with it as a terror act (not withstanding its legality or its level of morality).

    Concerning our post, the fact, that the president of the U.S, as the supreme commander of the army, and in charge for the C.I.A, has given surly the order, is:

    Sufficient, for excluding it, as a terror act. why ? again , reigned by law , not lawlessness , Prima facie so . let me demonstrate it to you as follows :

    The ICC is exercising its jurisdiction, only if the state subject to, defaults of its duty, to exercise its power and jurisdiction in implying its national law, and punishing perpetrators.

    Yet, the Rome statute, doesn’t make any “equation” between its definitions of: war crimes, crimes against humanity etc….and the definitions of such crimes in the state subject to , or any state . and why ??

    It is a presumption, no state can legislate or bear, laws, permitting acts of:

    Genocide, rapes, mass murder and so forth…. During wars or whenever.

    The same implies for enganig in terror. One should never forget , when you face junction in interpretation of the law , the subjective intent of the legislator , prevails , over the literal meaning of the provision . But I am falling short of resources .

    Thanks

  74. Akiva –

    Correct me if I am wrong but Kevin did not respond to your post about the drafting history and the meaning of the term “unlawful.”

    Kevin seems to believe there is something bizarre about my insistence that 1) in the absence of a redefinition, the common meaning of unlawful prevails; 2)law demands unrestricted unless explicitly restricted rather than assumed restricted unless explicitly unrestricted; 3) if an interpretation if a treaty is correct, we would expect to find at least one of the drafting parties acting in accordance with that interpretation.

    Do you see anything wacky about my approach?

  75. A more fundamental question: what exactly is it that the CIA/the US has violated? Last time I checked, the Terrorist Bombing Convention and other so-called ‘suppression conventions’ (on drug trafficking, organized crime, corruption, etc.) are not generally regarded as creating individual criminal responsibility of themselves. Rather, they define certain conduct and oblige States to criminalize and prosecute such conduct domestically.

    If this is true for the Terrorist Bombing Convention, then one could argue that article 2 is nothing more than a vessel containing definitions of the offences that each State party to the convention has to establish as criminal offences under their domestic law. Accordingly, there would be no independent offence of terrorist bombing under international law (to hold CIA member individually responsible), nor a corresponding obligation not to engage in terrorist bombing (to hold the US accountable under the rules of State responsibility). The only thing to be violated would be the legislation in relevant States implementing the convention obligations.

    Kevin’s post is built on the assumption that the opposite is true and that the Terrorist Bombing Convention is more like the Genocide Convention than like the UN Convention against Corruption or similar treaties. Does everybody agree with that? What do the traveaux tell us?

  76. Sven P . : good points …….

  77. Sven: it is an international crime that is at least treaty-based. The preamble addresses the condemnation of terrorism as “criminal.” Article 2 starts” “Any person commits an offense….” — etc.
    The Genocide Convention is similar and reqs. parties to enact necessary legislation.

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  1. […] was Mughniyah lulled into a false sense that he was lawfully protected? As Kevin Jon Heller observes as well, the use of the car bomb simply did not do this. (See also this exchange on Twitter that […]

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  3. […] was Mughniyah lulled into a false sense that he was lawfully protected? As Kevin Jon Heller observes as well over at Opinio Juris, the use of the car bomb simply did not do this. (See also this exchange on Twitter that the two of […]

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