The CIA Violated the Terrorist Bombing Convention

The CIA Violated the Terrorist Bombing Convention

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.

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Jordan
Jordan

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.

Jordan
Jordan

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.

Xavier
Xavier

@ 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.

Craig Martin
Craig Martin

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… Read more »

el roam
el roam

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

Hang'EmHigh
Hang'EmHigh

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”

Hang'EmHigh
Hang'EmHigh

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?

Jordan
Jordan

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)).

Rogier Bartels
Rogier Bartels

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… Read more »

Tali Kolesov Har-Oz and Ori Pomson

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.”

Ian Henderson
Ian Henderson

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.

Ian Henderson
Ian Henderson

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.

Matt M.
Matt M.

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.

Matt M.
Matt M.

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… Read more »

Matt M.
Matt M.

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.

Jordan
Jordan

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.

Rogier Bartels
Rogier Bartels

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… Read more »

Matt M.
Matt M.

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.”

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[…] 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 […]

Rogier Bartels
Rogier Bartels

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.… Read more »

Matt M.
Matt M.

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?

Matt M.
Matt M.

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)

Rogier Bartels
Rogier Bartels

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.

Matt M.
Matt M.

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.

Ian Henderson
Ian Henderson

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,… Read more »

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[…] of Imad Mughniyah, Hezbollah’s international operations chief, in Syria: by Kevin Jon Heller on OJ , Ryan Goodman and Sarah Knuckey on Just Security and Jack Goldschith on […]

Akiva Cohen
Akiva Cohen

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”.

Jordan
Jordan

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).

Akiva Cohen
Akiva Cohen

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… Read more »

Akiva Cohen
Akiva Cohen

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… Read more »

Akiva Cohen
Akiva Cohen

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… Read more »

Akiva Cohen
Akiva Cohen

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… Read more »

Akiva Cohen
Akiva Cohen

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… Read more »

Akiva Cohen
Akiva Cohen

” 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… Read more »

Akiva Cohen
Akiva Cohen

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?