Author Archive for
Kevin Jon Heller

So Much for Academic Freedom at the University of Sydney

by Kevin Jon Heller

There’s been much discussion in the blogosphere about the University of Illinois’ decision to “un-hire” (read: fire) a Palestinian-American scholar who resigned a tenured position at Virginia Tech to join its faculty, a decision motivated by a series of anti-Zionist (but not anti-Semitic) tweets that made the University’s wealthy donors uncomfortable. But the rightful revulsion at Illinois’ decision (more than 5,000 academics, including me, have agreed to boycott the University until Steven Salaita’s offer of a tenured position is honoured) shouldn’t obscure the fact that Illinois is far from the only university that does not take academic freedom seriously.

Case in point:  the University of Sydney’s distressing decision — abetted by one of its faculty members — to “un-invite” Sri Lankan NGOs from an international conference on the enforcement of human rights in the Asia-Pacific because of pressure from the Sri Lankan military. Here’s a snippet of the Guardian‘s story, which deserves to be read in full:

The University of Sydney has withdrawn invitations for two Sri Lankan human rights organisations to an international conference at the request of the Sri Lankan military, angering campaigners.

The university is due to host a two-day event in Bangkok from Monday along with the University of Colombo, which will see delegates from around the world discuss the enhancement of human rights in the Asia Pacific region.

Delegations from the Sri Lankan military and the Sri Lankan police are expected to attend the conference. Leaked correspondence, seen by Guardian Australia, shows that these delegations had originally requested that all non-government organisations (NGOs) from Sri Lanka be uninvited, and organisers subsequently rescinded two invitations.

The civil war in Sri Lanka, in which up to 100,000 people were killed, ended in 2009. The Rajapaksa regime stands accused of war crimes for its brutal suppression of civilians in the north of the country, with both sides subject to a UN human rights council inquiry into alleged war crimes.

Australia was one of 12 countries to abstain in a UN vote for the investigation.

Guardian Australia has also seen a letter discussing the reasons for rescinding the invitations to the two NGOs sent by the conference’s director, University of Sydney associate professor Danielle Celermajer.

“With about 130 people from across the region confirmed from the conference, it would be a disaster for all members of the Sri Lankan forces, who have been at the heart of the project, to withdraw,” it states.

As the article’s reference to the UN vote indicates, Tony “Difficult Things Happen” Abbott’s administration has proven to be one of the murderous Sri Lankan government’s staunchest allies. But that’s a right-wing government for you; no surprise there. It’s absolutely appalling, though, that a major Australian university cares so little about academic freedom that it would allow the Sri Lankan military to dictate who can attend a conference it sponsors — a conference about the enforcement of human rights in the region.

Dr. Celermajer says it would be a “disaster” for the academic conference if the Sri Lankan military didn’t attend. You know what an actual disaster is? The Sri Lankan military’s systematic violation of the human rights of hundreds of thousands of Sri Lankans — the very acts that make the conference in question so necessary.

I guess it’s more important to discuss human-rights violations among the perpetrators than among those who work to end the violations. Shameful.

NOTE: You can find the powerful open letter the Sri Lanka Campaign for Peace and Justice sent to participants in the conference — ironically entitled “Enhancing Human Rights and Security in the Asia Pacific” — here. Key line: “By allowing the Sri Lankan Army to dictate who can or cannot attend, the organisers of this conference are, in effect… potentially making themselves complicit in the Sri Lankan government’s systematic attempts to suppress dissent and intimidate critical voices within civil society, and to legitimize that policy internationally. “

Mike Lewis Is Wrong About the Nature of Self-Defence

by Kevin Jon Heller

Mike Lewis has a guest post at Just Security today responding to Ryan Goodman’s recent post exploring what the US’s claimed “unwilling or unable” test for self-defence against non-state actors means in the context of Syria and ISIS. Ryan, careful scholar as always, rightly points out that the test “remains controversial under international law.” Mike doesn’t seem to have any such qualms, but that’s not what I want to respond to here. Instead, it’s important to note that Mike makes a basic error concerning how the “unwilling or unable” test functions — assuming for sake of argument it is a valid approach to self-defence under Art. 51 of the UN Charter (emphasis mine):

It is important to note that this interpretation does not give the US unlimited license to act in violation of the sovereignty of other states as some opponents of the standard claim. There are limits and dangers associated with taking such a course of action. First of all, an intervening state can only take such actions after giving the host/target state a meaningful opportunity to prevent its territory from being used by the non-state actor to launch attacks. In the case of Syria, there is no question that it is unable to control the territory under ISIS control so further delays are unnecessary. Secondly, the intervening state does so at its own peril. Syria can rightfully interpret any strikes as aggression by the US and it is justified in taking steps to prevent such attacks and to destroy the drones/aircraft conducting such attacks.

Um, no. The entire point of arguing self-defence — in any form, including pursuant to the controversial “unwilling or unable” test — is that it cures any violation of state sovereignty under Art. 2(4) of the UN Charter. So if the US attacked ISIS in Syria because Syria was unwilling or unable to prevent ISIS from using its territory as a base for attacks, the US would not violate Art. 2(4) and Syria would have no right whatsoever to act in self-defence against that armed attack. Indeed, any attempt to “prevent such attacks and to destroy the drones/aircraft conducting such attacks” would represent an act of aggression by Syria against the US, thereby opening the door to legitimate acts of self-defence against Syria itself.

Again, I don’t accept that the “unwilling or unable” test reflects current customary international law. But it’s important not to let that debate obscure how self-defence functions under Art. 51 of the UN Charter.

Matrix Chambers Application Deadline Extended

by Kevin Jon Heller

Matrix Chambers has extended the deadline for applying to September 26 — two weeks from today. I hope readers with the appropriate credential will consider applying.

You can find the original post, with details of the Matrix vacancy, here.

Is the AUMF Limited to the United States Armed Forces?

by Kevin Jon Heller

Bobby Chesney has responded at Lawfare to my most recent post on the CIA and the public-authority justification. It’s an excellent response from an exceedingly smart scholar. I still disagree, but Bobby’s post really hones in on the differences between us. I’ll leave it to readers to decide who has the better of the argument.

I do, however, want to discuss Bobby’s reading of the AUMF. In his view — echoing John Dehn’s comments — it is possible to read the AUMF to authorise the use of force by both the military and the CIA:

I’m not actually agreeing with [Kevin's] AUMF reading. Yes, Section 2′s title refers to the armed forces, but the actual text of section 2 is not so limited (in contrast to the similar section of the 2002 Iraq AUMF, for example, which did refer explicitly and only to armed forces). 

I confess that I find this argument baffling. It’s true that Section 2(a) of the AUMF does not mention the Armed Forces, providing only that “the President is authorized to use all necessary and appropriate force against those  nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11,  2001.” Read in context, however, I don’t see how it is possible to plausibly maintain that the word “force” in Section 2(a) does not specifically refer to force by the United States Armed Forces.

First, the AUMF is a Joint Resolution whose purpose, according to its very first line, is “[t]o authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.”

Second, Section 1 of the AUMF (“Short Title”) says the joint resolution “may be cited as the “Authorization for Use of  Military Force.” We do not traditionally associate with the CIA, even if the CIA occasionally engages in paramilitary activity. (And the “para” in paramilitary is important in this context.)

Third, Section 2 of the AUMF, which contains the “force” language upon which Bobby (and John) rely, is entitled “Authorization For Use of United States Armed Forces.” I know no theory of statutory interpretation nor any canon of statutory construction that would suggest “force” in the first paragraph of a section entitled “Authorization For Use of United States Armed Forces” should be read in context to refer to something other than the use of force by the Armed Forces.

Fourth, Section 2(b)(1) provides that “[c]onsistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.” Section 8(a)(1) of the WPR provides as follows (emphasis mine)…

A Response to Bobby Chesney — Part II (Article II)

by Kevin Jon Heller

In the first part of my response to Bobby, I argued (after meandering around a bit) that Title 50′s “fifth function” provision cannot be used to authorise the CIA to kill Americans overseas – a necessary condition of any argument that the CIA is entitled to a public-authority justification with regard to 18 USC 1119, the foreign-murder statute. (Bobby kindly responds here.) I thus ended that post by asking where else that authority might be found.

Which brings me to the second argument Bobby makes: namely, that the President’s authority to permit the CIA to kill Americans overseas derives from Article II, Section 2 of the Constitution, which deems him the Commander-in-Chief of the armed forces. Here is what Bobby writes:

OK, fine, but aren’t covert action programs bound to comply with federal statutes, including 1119?

They sure are, and it is important to the continuing legitimacy of the covert-action instrument that it be subject to American law in this way. But the question remains: Does the covert drone strike program violate 1119 as applied to al-Aulaqi? Kevin argues that it does because the AUMF should be read to exclude CIA, and thus that section 1119 is violated, and thus that the requirement that covert action programs comply with statutes is violated too. I don’t agree, however, for I don’t think the AUMF is the only possible domestic law explanation for the CIA’s role; Article II likely applies here as well, and performs the same function as the AUMF in this respect.

There are two ways to read Bobby’s argument. The first is that the President’s Article II authority simply empowers him to ignore duly-enacted federal statutes like the foreign-murder statute. That is John Yoo’s position, encapsulated so memorably when he said, with regard to the federal torture statute, that the President could authorise an interrogator to crush the testicles of a detained terrorist’s child if he felt it was necessary to protect the United States. I doubt Bobby shares Yoo’s sentiments.

The second way to read Bobby’s argument is as follows: (1) the President cannot rely on Article II to violate duly-enacted federal statutes; but (2) he can rely on his Article II authority to authorise the CIA to kill Americans overseas, which means (3) the CIA has the same public authority to kill that the military has under the AUMF; therefore, (4) the CIA is no less entitled than the military to the public-authority justification with regard to the foreign-murder statute.

That is a much more sophisticated argument, and no doubt the one that Bobby endorses. Unfortunately, once we understand the nature of the public-authority justification, it’s simply a more sophisticated way of arguing that Article II permits the President to violate a duly-enacted statute…

A Response to Bobby Chesney — Part I

by Kevin Jon Heller

My friend Bobby Chesney has responded at Lawfare to my previous post arguing that Title 50 does not provide the CIA with a public-authority justification to kill Americans overseas. He disagrees with both of the limits on presidential authority to authorise covert action I discussed. I will address the Article II question in a separate post; in this post I want to discuss the “traditional military activity” (TMA) exception to Title 50′s definition of “covert action.” Here is what Bobby writes:

CIA Drone Strikes Don’t Qualify as TMA: As an initial matter, I think one part of his argument depends on a mistaken assumption regarding the meaning of TMA, and that drone strikes do indeed constitute covert action within the meaning of Title 50. The TMA exception to covert action has a complicated and often-misunderstood history, which I recount in detail in this paper (pp. 592-601 especially). The concept was the subject of extensive negotiations between the White House and Congress, ultimately resulting in the following agreement. An activity that otherwise would qualify as covert action would instead count as TMA, thus avoiding the requirement of a written presidential finding and reporting to SSCI and HPSCI, if the following conditions were met.

The operation:

1) was commanded and executed by military personnel, and

2) took place in a context in which overt hostilities either were

(a) ongoing, or

(b) “anticipated (meaning approval has been given by the National Command Authorities for [i] the activities and for [ii] operational planning for hostilities).”

The CIA drone strike program as a general matter almost certainly does not satisfy this test, especially the first prong. This is why it has been long considered by both the Bush and Obama administrations to be covert action, not TMA. If the covert-action statute is capable of conferring the benefits of the public-authority justification, then, it does so here.

I think this response elides the difference between two different situations: (1) where the military wants to use force covertly against al-Qaeda; and (2) where the CIA wants to use force covertly against al-Qaeda. As Bobby’s article brilliantly explains, the TMA language was included in Title 50 because neither President Bush nor the military wanted a presidential finding — with its attendant reporting requirements — to be required every time the military engaged in a covert action. They wanted, in other words, the military to have the right to covertly engage in its traditional warfighting activities without having to acknowledge it was doing so. After much negotiation, Congress ultimately agreed to carve out a category of military actions that would not qualify as “covert actions” for purposes of Title 50, even when not acknowledged: namely, actions that satisfied the two requirements Bobby quotes. The TMA exception thus permits the military to use force covertly against al-Qaeda without a presidential finding as long as the action in question is commanded and executed by the military (check) and takes place in the context of ongoing hostilities (check).

The TMA functions very differently in the context of covert action by the CIA. There is no question that the military is authorised to engage in the kind of activities against al-Qaeda that, when done covertly, may fall under 50 USC 3093.  The military is always authorised to use force against enemy combatants in an armed conflict. The AUMF is simply the latest example of such authorisation. The CIA, however, is in a completely different situation. For all the reasons I discussed in an earlier post, the AUMF does not authorise the CIA to use force against al-Qaeda at all. So the primary question is not whether the CIA can use force against al-Qaeda covertly, but where the CIA gets its authority to use force against al-Qaeda in the first place.

The most obvious answer is, of course, 50 USC 3093

Why Title 50 Does Not Provide the CIA with a Public Authority Justification

by Kevin Jon Heller

As I noted in my previous post, my co-blogger Deborah Pearlstein has suggested that a covert operation authorised by the President under Title 50 of the US Code could function as the CIA’s equivalent to the AUMF in terms of its authority to kill an American citizen overseas. Here is what she has argued:

Here, even if the AUMF was not meant to authorize the CIA to do anything, the CIA has broad authority under Title 50 of the U.S. Code to engage in operations overseas, provided it has relevant Presidential approval and complies with requirements of congressional notification. In other words, I can imagine a straightforward explanation for why such an exception would apply to the CIA as well. That it is not evident from the memo is, I suspect, far more a function of redaction than absence of legal authority.

With respect to Deborah, I don’t think the Title 50 argument works. There is no question that 50 USC 3093 provides the President with considerable authority to authorise “a covert action by departments, agencies, or entities of the United States Government” that he determines “is necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States.” But the President’s authority is not unlimited; indeed, Title 50 contains two important restrictions that very strongly suggest the President could not legally have authorised the CIA to kill an American citizen overseas, and particularly not Anwar al-Awlaki.

The first limit is provided by 50 USC 3093(e), which defines “covert action” for purposes of Title 50 generally (emphasis mine):

As used in this subchapter, the term “covert action” means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include 

(1) activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;

(2) traditional diplomatic or military activities or routine support to such activities;

(3) traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities; or

(4) activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad.

The US government has consistently argued that its drone program, both in Yemen and elsewhere, only targets combatants who are involved in a non-international armed conflict between the US and al-Qaeda. While serving as the State Department’s Legal Advisor, for example, Harold Koh claimed that “as a matter of international law, the United States is in an armed conflict with al-Qaeda and its associate forces,” and that “in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks.” Indeed, the new White Paper, like the previous memorandum, emphasizes (p. 12) that “the frame of reference” for whether the CIA is entitled to the public-authority justification regarding Anwar al-Awlaki “is that the United States is currently in the midst of an armed conflict, and the public-authority justification would encompass an operation such as this one were it conduct by the military consistent with the laws of war.”

There is no question, then, that the US government views the use of lethal force against an American citizen who is “a senior leader of al-Qaida or its associated forces” — such as al-Awlaki — as a “traditional military activity.” But if that’s the case, 50 USC 3093(e)(2) specifically prohibits the President from relying on Title 50 to authorise the CIA to engage in such targeting.

Moreover, even if it could somehow be argued that targeting “a senior leader of al-Qaida or its associated forces” in the “armed conflict” between those forces and the US is not a “traditional military activity,” 50 USC 3093(a)(5) would still prohibit the President from authorising the CIA to kill any such leaders who is an American citizen. Section 3093(a)(5) provides that a Presidential finding “may not authorize any action that would violate the Constitution or any statute of the United States.” The foreign-murder statute, 18 USC 1119, is undeniably a “statute of the United States.” The President thus has no authority whatsoever to authorise the CIA to violate section 1119.

That conclusion, it is important to note, is not affected by whether 18 USC 1119 incorporates the public-authority justification — which I believe it does. In order to claim the justification as a defence to a violation of section 1119, the defendant must obviously have the requisite public authority to kill an American overseas. And 50 USC 3093(e)(2) and 50 USC 3093(a)(5) each independently deny the President the right to bestow that authority on the CIA via a covert-action finding under Title 50.

In short, and contrary to the new White Paper, neither the AUMF nor Title 50 provide the CIA with a get-out-of-jail-free card with regard to 18 USC 1119. So unless there is some other source of the CIA’s supposed public authority to kill Americans overseas — and I can’t imagine what it could be — Anwar al-Awlaki’s killing by the CIA is indeed properly described as murder.

NOTE: Marcy Wheeler offers some similar thoughts here.

We Still Don’t Know Where the CIA’s Public Authority Comes From

by Kevin Jon Heller

In late June, I wrote a long post responding to the notorious memorandum in which the OLC attempted to provide a legal justification for killing Anwar al-Awlaki. I argued that although the AUMF likely provides the US military with a public-authority justification for violating 18 USC 1119, the foreign-murder statute, it does not and cannot provide the CIA with that justification. In defence of that conclusion, I cited the title of the AUMF and the text of the statute, both of which make inordinately clear that the AUMF applies only to the military (emphasis mine):

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

[snip]

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the “Authorization for Use of Military Force.”

SECTION 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL. — That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

In response to a FOIA request by Vice News‘ inestimable Jason Leopold, who has led the fight for transparency regarding the use of lethal force, the US government has now released a 25 May 2011 White Paper that specifically argues the CIA is also entitled to a public-authority justification. Unfortunately, the White Paper fails to justify its conclusion — at least in its unredacted portions. Like the earlier memorandum, the White Paper is largely devoted to establishing that the public-authority justification applies to the foreign-murder statute and that members of the US military would be entitled to the justification. (Two conclusions I agree with.) It then simply says this (pp. 14-15):

Given the assessment that an analogous operation carried out pursuant to the AUMF would fall within the scope of the public-authority justification, there is no reason to reach a different conclusion for a CIA operation.

That’s it. That’s the sum total of the unredacted argument. But there is a reason to reach a different conclusion “for a CIA operation” — as pointed out above, the AUMF does not apply to the CIA. Which means that the source of the public-authority justification must lie elsewhere.

Now let me be clear: I am not saying the CIA cannot be entitled to the public-authority justification. I am simply pointing out that the AUMF does not provide the CIA with the necessary authority. Perhaps there is another source, such as Title 50 of the US Code, as my co-blogger Deb Pearlstein has suggested. Indeed, the redaction on page 16 of the new White Paper may well refer to that other source of authority, given that five or six lines of redacted text follow this statement:

Thus, just as Congress would not have intended section 1119 to bar a military attack on the sort of individual described above, neither would it have intended the provision to prohibit an attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, carried out by the CIA in accord with _____.

I don’t understand why the OLC would need to redact a reference to Title 50 (or to some other source of authority). The legal source of the CIA’s authorization to kill Americans overseas — if one exists — hardly seems like a state secret. Until the government reveals that source, however, we remain entitled to conclude that the CIA drone-strike that killed Anwar al-Awlaki violated 18 USC 1119.

Matrix Chambers Is Hiring!

by Kevin Jon Heller

My friends at Matrix Chambers have asked me to post the following job announcement, for established practitioners in international law:

Founded in 2000 to meet the complex challenges of law in the 21st century, Matrix Chambers has 70 members and 7 associate members supported by a dynamic and modern staff team. We have offices in London and Geneva.

Individual members of Matrix Chambers have experience and expertise in a wide range of international law areas including maritime, humanitarian, environmental, boundary disputes, oil and gas disputes, investment treaty disputes, and disputes between States. Members of Chambers attract an increasing amount of private international law work in addition to the public international law cases for which they are renowned for, along with a commitment to developing non-litigation work, including advisory work on Corporate Social Responsibility, investigatory work, and international mediation.

Members act for a full range of clients including individuals, companies, NGO’s, and States. They appear before the major international courts and tribunals, including the International Court of Justice, the International Tribunal for the Law of the Sea, the WTO dispute settlement bodies, and international criminal courts and tribunals, as well as before domestic courts where issues of international law arise. Members also act in ICSID, PCA and other arbitrations. Members are ranked highly in international law in all the major legal directories.

In accordance with its policy of controlled growth, and given the heavy workload of the team, Matrix wishes to recruit additional members to complement the core International Law team. Matrix invites applications from experienced barristers, lawyers, and academics who have an established and exceptional international law practice, either here in England and Wales, or in other jurisdictions.

The successful candidates will need to demonstrate that they are outstanding International Law practitioners with a strong reputation in the international arena, who support the Core Values of Matrix. You can request an application pack by e-mailing recruitment [at] matrixlaw [dot] co [dot] uk or call +44 (0)20 7404 3447.  The deadline for receipt of applications is Friday 12th September 2014.

Any potential applicants who wish to discuss their application may contact Practice Manager Paul Venables (paulvenables [at] matrixlaw [dot] co [dot] uk) or the International Law group coordinator Professor Zachary Douglas (zacharydouglas [at] matrixlaw [dot] co [dot] uk). All applications will be treated in the strictest confidence.

This is an amazing opportunity for the right candidate. Matrix is obviously one of the UK’s best barrister sets, with a particularly strong international-law group — Prof. James Crawford, Philippe Sands QC, Raza Husain QC, Cherie Booth QC, Ben Emmerson QC, Michelle Butler, and many others.

Note that the deadline for applying is coming up soon — a week from today, September 12. You can download the application pack here.

Who Knew Al-Qassam Was the Most Moral Army in the World?

by Kevin Jon Heller

Today’s Jerusalem Post features an article discussing testimony by a former commander of British forces in Afghanistan that purports to demonstrate the IDF takes more care in avoiding civilian casualties than any other army in the world. Here is a snippet:

Israel’s ratio of civilian to military casualties in Operation Protective Edge was only one-fourth of the average in warfare around the world, former commander of British forces in Afghanistan Col. (res.) Richard Kemp told the Knesset Foreign Affairs and Defense Committee Wednesday.

Kemp pointed out that, during the operation, there was approximately one civilian casualty for ever terrorist killed by the IDF, whereas the average in the world is four civilians for every combatant, and that, when taking into consideration Hamas’s use of human shields, this shows how careful the IDF is.

“No army in the world acts with as much discretion and great care as the IDF in order to minimize damage. The US and the UK are careful, but not as much as Israel,” he told the committee.

Kemp, who has long openly admired the IDF’s military tactics and testified in Israel’s favor to the Goldstone Commission following Operation Cast Lead in 2009, visited Israel during Operation Protective Edge.

If this is the metric we should use to determine how much “care” a military takes in its operations, it’s worth noting that the IDF actually runs a distant second in the care department to Hamas’s al-Qassam Brigades. According to the UN’s Office for the Coordination of Humanitarian Affairs (OCHA), the Brigades have killed 65 IDF soldiers and four Israeli civilians during Operation Protective Edge – a staggering 16-1 combatant:civilian kill ratio. According to Col. Kemp’s logic, therefore, the al-Qassam Brigades are at least 4X more careful than the IDF regarding collateral damage to civilians — and 16X more careful than the world army average. Amazing!

NOTE: I do not actually believe that al-Qassam is the most moral army in the world. I provide the analysis to illustrate that absolutely nothing can be learned about how much care a military takes by comparing — in an utterly decontextualised way —  the combatant:civilian kill ratio in one of its operations to the combatant:civilian kill ratios in different conflicts fought by different militaries. To begin with, the jus in bello concept of proportionality is operation-specific: we determine whether an attack is proportionate by comparing anticipated military advantage to expected civilian damage. Inter-conflict comparisons are irrelevant. Moreover, the proportionality of an attack tells us very little about whether that attack was indiscriminate: an indiscriminate attack can involve low civilian casualties, or even none at all, because the concept of discrimination focuses on methods, not on outcomes. Indeed, were it otherwise, it would be difficult to condemn Palestinian rocket attacks on Israeli civilians as indiscriminate, given that more than 12,000 rockets have killed fewer than 30 Israelis in the past 13 years. Those rocket attacks are indiscriminate because they cannot distinguish between legitimate military objectives and civilians, not because they have led to high civilian casualties.

Rolling Stone on Chevron’s Dirty Tricks in the Lago Agrio Case

by Kevin Jon Heller

It’s been a while since I’ve blogged about Chevron’s “Rainforest Chernobyl” — the company’s deliberate dumping of more than 18 billion gallons of toxic waste-water into Ecuador’s Lago Agrio region. But I want to call readers’ attention to a blockbuster new article in Rolling Stone that details the wide variety of dirty tricks Chevron has used to avoid paying the multi-billion-dollar judgment against it in Ecuador. (The plaintiffs filed the suit in the US. Chevron demanded that it be moved to Ecuador, where it expected a friendly government to ensure it would win.) Here is my favorite snippet, discussing the $2 million Chevron paid one of its contractors to create fake laboratories the company could use to “test” Lago Agrio field samples:

We don’t know everything about the soil-and-water testing phase of the trial. But we do have hours of recorded conversations between Santiago Escobar, an Ecuadorean living in Toronto, and a Chevron contractor named Diego Borja.

Borja was already part of the Chevron extended family when the company hired him to transport coolers containing the company’s field samples to supposedly independent labs. His uncle, a 30-year Chevron employee, owned the building housing Chevron’s Ecuadorean legal staff. As he carried out his work, Borja collected more than one kind of dirt. In recorded calls to Escobar in 2009, Borja explained how Chevron’s Miami office helped him set up front companies posing as independent laboratories. (Among his Miami bosses was Reis Veiga, one of the lawyers indicted for corruption in the 1997 Texaco remediation settlement with the Ecuadorean government.)

Borja contacted Escobar because he thought his information might be valuable to the other side. “Crime does pay,” he told Escobar. In the calls, Borja suggests Chevron feared exposure and prosecution under the Foreign Corrupt Practices Act. “If [a U.S.] judge finds out that the company did cooked things, he’ll say, ‘Tomorrow we better close them down,’ you get it?” He boasted of possessing correspondence “that talks about things you can’t even imagine … things that can make the Amazons [plaintiffs] win this just like that.” In awe of Chevron’s power, Borja said the company has “all the tools in the world to go after everyone. Because these guys, once the trial is over, they’ll go after everyone who was saying things about it.” Still, the benefits of working with them were great. “Once you’re a partner of the guys,” he told Escobar, “you’ve got it made. It’s a brass ring this big, brother.”

Borja’s brass ring was ultimately worth over $2 million. Sometime around 2010, he was naturalized at Chevron’s expense and moved into a $6,000-a-month gated community near Chevron’s headquarters in San Ramon, California. Why the company finds his loyalty worth so much is hard to say, because Judge Kaplan blocked further discovery. When asked if Borja is still being paid by the company, Chevron spokesman Morgan Crinklaw said, “Not as far as I know.”

“Kaplan gave Chevron unlimited access to our files,” says Donziger, “but allowed them to maintain a complete iron curtain of privilege over everything related to the misconduct of non-attorneys like Borja and its network of espionage operatives.”

I’m skeptical the Lago Agrio plaintiffs will ever receive the justice they deserve — particularly in a US courtroom. But at least articles like this one help illuminate the lengths to which multinationals like Chevron will go to avoid being held responsible for their actions.

It’s Time to Reconsider the Al-Senussi Case. (But How?)

by Kevin Jon Heller

As readers are no doubt aware, Libya has descended into absolute chaos. As of now, there is quite literally no functioning central government:

Libya’s newly elected parliament has reappointed Abdullah al-Thinni as prime minister, asking him to form a “crisis government” within two weeks even as the authorities acknowledged they had lost control of “most” government buildings in Tripoli.

Senior officials and the parliament, known as the Council of Representatives, were forced last month to relocate from the capital to Tubruq in eastern Libya after fighting broke out between the Dawn of Libya coalition, led by brigades from the city of Misurata, and rival militias based at the city’s international airport.

Since then the airport has fallen to the Islamist-affiliated coalition and Tripoli appears to have slipped almost completely out of the government’s grip.

Mr Thinni’s administration said in a statement posted on its Facebook page late on Sunday night that it had lost control of Tripoli and that its officials had been unable to access their offices, which had been occupied by opposition militias.

“We announce that most ministries, state agencies and institutions in Tripoli are out of our control,” said the government. Some state buildings had been occupied by armed groups and staff, including ministers and undersecretaries, had been threatened and prevented from entering, it said.

“It has become difficult for them to go to their offices without facing either arrest or assassination, especially after several armed formations announced threats against them, attacked their homes and terrorised their families,” the statement added.

The collapse of the Libyan government comes less than five weeks after the ICC Appeals Chamber unanimously decided that the case against Abdullah al-Senussi was inadmissible. In its view at the time — to quote the summary of the admissibility decision — “the case against Mr Al-Senussi is being investigated by Libya and… Libya is not unwilling or unable genuinely to carry out the investigation.”

Whatever the merits of the Appeals Chamber’s decision at the time — and they’re limited — the situation on the ground in Libya has obviously rendered it obsolete. It is now impossible to argue that the Libyan government is “able” to effectively prosecute al-Senussi, no matter how willing it might be. The Court thus needs to reconsider the admissibility of his case sooner rather than later.

Fortunately, the drafters of the Rome Statute anticipated just such a situation. Art. 19(10) specifically provides that  “[i]f the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision when he or she is fully satisfied that new facts have arisen which negate the basis on which the case had previously been found inadmissible under article 17.” The OTP should submit such a request as soon as possible; whatever hesitation it once had about forcefully asserting the admissibility of the case, there is now no possible justification for not trying to take control of it.

But what about al-Senussi? Can he challenge the inadmissibility decision? It’s a very complicated issue — but I think the best answer, regrettably, is that he cannot…