I am delighted to announce that Jens Ohlin, Associate Professor of Law at Cornell — and one of my very favorite international criminal law scholars — will be guest-blogging with us for the next two weeks.  Here is his bio:

Professor Ohlin specializes in international law and all aspects of criminal law, including domestic, comparative, and international criminal law. His latest work concentrates on the legal implications of remotely piloted drone strikes, and he is a co-editor of a collected volume entitled Targeted Killings: Law and Morality in an Asymmetrical World, forthcoming from Oxford University Press in 2012.

He also is the author, with George Fletcher, of Defending Humanity: When Force is Justified and Why (Oxford University Press, 2008), which offers a new account of international self-defense through a comparative analysis of the rules of self-defense in criminal law. His scholarly work has appeared in the Columbia Law Review, the Harvard International Law Journal, the American Journal of International Law, the Journal of Criminal Law & Criminology, the Journal of International Criminal Justice, the Cornell Law Review, the Chicago Journal of International Law, as well as several edited volumes published by Oxford University Press.

Professor Ohlin’s current research also focuses on the normative application of criminal law concepts in international criminal law, especially with regard to genocide, torture, joint criminal enterprise and co-perpetration, as well as the philosophical foundations of collective criminal action. His work has been cited by judges and litigants at several international tribunals, including the ICTY, the ICC, and the ECCC. He is also a member of an international working group, centered in The Hague, that is developing a codification of general rules and principles of international criminal procedure.

Jens also runs his own blog, the excellent LieberCode.

Welcome, Jens!

I am delighted to announce that Oxford University Press has just published my dear friend Mark Drumbl’s new book, “Reimagining Child Soldiers in International Law and Policy.”  Here is the description:

The international community’s efforts to halt child soldiering have yielded some successes. But this pernicious practice persists. It may shift locally, but it endures globally. Preventative measures therefore remain inadequate. Former child soldiers experience challenges readjusting to civilian life. Reintegration is complex and eventful. The homecoming is only the beginning. Reconciliation within communities afflicted by violence committed by and against child soldiers is incomplete. Shortfalls linger on the restorative front.

Still, conversations about child soldiers mostly involve the same story, told over and over, and repeat the same assumptions, over and over. Current humanitarian discourse sees child soldiers as passive victims, tools of war, vulnerable, psychologically devastated, and not responsible for their violent acts. This perception has come to suffuse international law and policy. Although reflecting much of the lives of child soldiers, this portrayal also omits critical aspects. This book pursues an alternate path by reimagining the child soldier. It approaches child soldiers with a more nuanced and less judgmental mind.

It offers a way to think about child soldiers that would invigorate international law, policy, and best practices. Where does this reimagination lead? Not toward retributive criminal trials, but instead toward restorative forms of justice. Toward forgiveness instead of excuse, thereby facilitating reintegration and promoting social repair within afflicted communities. Toward a better understanding of child soldiering, without which the practice cannot be ended. This book also offers fresh thinking on related issues, ranging from juvenile justice, to humanitarian interventions, to the universality of human rights, to the role of law in responding to mass atrocity.

The book is available both in hardback and paperback.  I had the pleasure of reading a couple of chapters while Mark was writing the book, and they were superb.  I predict the book — which will no doubt be controversial — will have a profound impact on the way courts, scholars, and activists think about child soldiers.

Read Drumbl!

It’s rare that I defend the ICTY, but I feel compelled to do so here.  As discussed in this blog post by Laurie Blank, a group of experts in military law have released a report attacking the Trial Chamber’s judgment in Prosecutor v. Gotovina for allegedly misapplying basic IHL rules regarding targeting.  Unfortunately, the report fundamentally misstates what the Trial Chamber actually held.  Here is how the Report summarizes the judgment (pp. 3-4; emphasis mine):

On April 15, 2011, the Trial Chamber issued its judgment, sentencing General Gotovina to 24 years for war crimes and crimes against humanity on a joint criminal enterprise theory of liability. The Trial Chamber’s opinion rests entirely on the finding that Gotovina ordered a direct attack on civilians in Knin during Operation Storm. The Trial Chamber judgment rests the finding of unlawful direct attack on civilians on the artillery attack on Knin. In analyzing the operation, the Trial Chamber found that all of the pre-planned targets of the artillery barrage were lawful military objectives. The judgment also recognizes that the Croatian targeting operations were planned with the fundamental law of war principles of distinction and proportionality as guides for the determination of lawful targets. After setting forth, without explanation, a 200-meter radius of error as the means for determining which effects were attributable to lawful objects of attack, the Trial Chamber found that just under 5% of the artillery shells landed beyond that radius of error. It then inferred the intent to unlawfully attack civilians from this 5% of shells landing outside the radius of error, without further explanation or analysis.

The finding of direct attack on civilians in turn serves as the predicate widespread and systematic attack on civilians for the crime against humanity charge and as the central element for the persecution and other inhumane acts charges, as well as the wanton destruction as war crime charge. Lastly, the finding of attack on civilians is one of two contributions the Trial Chamber identifies to the joint criminal enterprise, the other being the failure to prevent and punish foreseeable crimes committed in conjunction with the joint criminal enterprise.

The first thing to notice is that the summary of the judgment does not cite the judgment itself.  In fact, there is not a single citation to specific paragraphs of the judgment anywhere in the Report — even when it claims that the Trial Chamber made a mistake.  That would be unacceptable scholarly practice even if the judgment was 50 pages long.  But it’s not.  In fact, the judgment is 1372 pages long and contains 2685 paragraphs.  As a result, it is next to impossible to determine whether the Report is accurately characterizing the judgment.

Next to impossible — but not impossible.  In fact, the claim that I’ve bolded above — that “[t]he Trial Chamber’s opinion rests entirely on the finding that Gotovina ordered a direct attack on civilians in Knin during Operation Storm” — is simply incorrect…

I don’t want to step on the Harvard symposium — I’ve moved it back to the top — but it’s worth noting that, on the same day, (1) the Fourth Circuit threw out Jose Padilla’s lawsuit seeking damages for his mistreatment while being detained and (2) the U.S. government arrested John Kiriakou, a former CIA officer, for revealing critical aspects of the systematic torture regime created by the Bush administration and swept under the table by the Obama administration, the latter of the wonderfully selective “look forward, not backward” philosophy. (Though it’s worth noting that Kiriakou isn’t anti-torture himself.)

So, to sum up: torturing people fine, revealing torture criminal.

Welcome to the shining city upon a hill, circa 2012.

The Pre-Trial Chamber II (PTC) has confirmed the charges against 4 of the 6 defendants in the Kenya cases.  The following is from the PTC’s oral summary of their decision:

Summary of Decision in Case 1

I will now turn to the merits of Case 1, the Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang…. As mentioned at the start, the Prosecutor charged Mr. Ruto, Mr. Kosgey and Mr. Sang, for crimes against humanity of murder, deportation or forcible transfer and persecution.

[snip]

As to the criminal responsibility of Mr. Ruto and Mr. Sang, the Chamber found, on the basis of the evidence presented, that they are responsible for the charges levied against them.

[snip]

However, in relation to Mr. Kosgey, the Chamber found that the Prosecutor’s evidence failed to satisfy the evidentiary threshold required. The Chamber was not persuaded by the evidence presented by the Prosecutor of Mr. Kosgey’s alleged role within the organization.

In particular, the Prosecutor relied on one anonymous and insufficiently corroborated witness. Moreover, the Chamber determined that Mr. Kosgey suffered prejudice due to the redaction of certain dates related to a number of meetings that he allegedly attended, which proved to be essential for his defence and for the finding on his criminal responsibility.

In light of these facts and the entire body of evidence relating to Mr. Kosgey’s criminal responsibility, the Chamber declined to confirm the charges against Mr. Kosgey.

Summary of Decision in Case 2

Turning now to Case 2, the Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali.

As mentioned earlier, the Prosecutor charged Mr. Muthaura, Mr. Kenyatta and Mr. Ali with crimes against humanity of murder, deportation or forcible transfer, rape and other forms of sexual violence, other inhumane acts and persecution.

[snip]

[T]he evidence established substantial grounds to believe that the crimes of murder, deportation or forcible transfer, rape, other inhumane acts and persecution were committed.

With respect to the criminal responsibility of Mr. Muthaura and Mr. Kenyatta, the Chamber was satisfied that the evidence also established substantial grounds to believe that they are criminally responsible for the alleged crimes, as indirect co-perpetrators, pursuant to article 25(3)(a) of the Rome Statute, having gained control over the Mungiki and directed them to commit the crimes.

However, in relation to Mr. Ali, the Chamber found that the evidence presented does not provide substantial grounds to believe that the Kenya Police participated in the attack in or around Nakuru and Naivasha. Since Mr. Ali was charged with contributing to the crimes through the Kenya Police, the Chamber declined to confirm the charges against him.

I’m guessing that the decision comes as a significant relief to the OTP.  Many observers — some inside the Court — were afraid that the PTC would refuse to confirm the charges against any of the defendants.  I was not so skeptical, but I’m also not surprised that Kosgey and Ali have gone free.  I was never quite sure why they were included in the two cases in the first place; they seemed like minor players against whom the evidence was very thin — particularly Kosgey.

The decision, it is worth noting, was 2-1; Judge Kaul dissented, reiterating his belief that the prosecution had failed to establish, as required by Article 7(2)(a) of the Rome Statute, that the attack on the civilian population was committed “pursuant to or in furtherance of a State or organizational policy to commit such attack.”  We’ll see if the OTP can prove the existence of such a policy at trial.

I imagine I’ll have more to say when the decision is released.

It’s difficult to accuse these guys of being soft on Tehran, so it’s hard to quibble with their conclusion:

The intelligence assessment Israeli officials will present later this week to Dempsey indicates that Iran has not yet decided whether to make a nuclear bomb.

The Israeli view is that while Iran continues to improve its nuclear capabilities, it has not yet decided whether to translate these capabilities into a nuclear weapon – or, more specifically, a nuclear warhead mounted atop a missile. Nor is it clear when Iran might make such a decision.

This statement simply reinforces my argument that killing the Iranian nuclear scientists was an act of terrorism under the Terrorist Bombing Convention.  Although I think killing the scientists would have been illegal under IHRL even if they had been helping to build a nuclear weapon, given that by all accounts it still would have taken Iran years to complete it, the counterargument wouldn’t be completely unreasonable. But If Iran is not even trying to build a weapon at this point, as Israel has apparently concluded, it is simply impossible to argue that killing the scientists was lawful targeted killing under IHRL.

Samuel Morison, Appellate Defense Counsel with the Office of the Chief Defense Counsel, Department of Defense, has posted a superb new esssay on SSRN entitled “Accepting Sosa‘s Invitation: Did Congress Expand the Subject Matter Jurisdiction of the ATS in the Military Commissions Act?”  Here is the abstract:

The Alien Tort Statute (ATS) provides a federal forum for aliens to seek tort damages for certain violations of customary international law, including war crimes. In Sosa, the Supreme Court admonished the lower courts to exercise caution when creating new causes of action under the ATS, but this is entirely a matter of respecting the separation of powers. If Congress enacts a statute that “occupies the field,” the Court observed, then a judge’s task is to faithfully enforce the norms delineated in the statute. To date, the Military Commissions Act (MCA) has been almost completely ignored in human rights litigation under the ATS, perhaps because it does not, in terms, provide for civil remedies. But this overlooks the fact that the MCA is not an ordinary domestic criminal statute with a long-arm provision. Instead, it purports to “occupy the field” of war crimes, at least for U.S. domestic purposes. Perhaps most importantly, the MCA penalizes terrorism, broadly construed, providing material support for terrorism and conspiracy as war crimes, when committed by private, non-state actors in the context of and associated with an armed conflict. If this is a valid exercise of Congress’s prescriptive authority to define and punish violations against the law of nations, it follows that such norms should be actionable in ATS litigation. Accordingly, if the constitutionality of the MCA is ultimately affirmed by the Supreme Court, the decision will come with a previously unacknowledged systemic cost, namely a sharp increase in the scope of ATS liability.

The essay contains, to my mind, the most sophisticated historical analysis to date of Congress’s ability to “define and punish” violations of the law of nations.  I predict it will have a substantial impact on the field.

I don’t think Sam has sent the essay out to law reviews yet.  An enterprising editor at one of our partner journals may want to drop him a line…

Gabor Rona posted a response to Jens Ohlin yesterday.  Jens responded at LieberCode — and now Gabor has responded to Jens’s response (and John Dehn’s comment on his OJ post).  Here is what Jens wrote (reposted with permission):

Many thanks to Gabor Rona for taking the time to continue this conversation.  There’s a lot in Rona’s post, but I want to cut to the heart of the conceptual issue here regarding the inter-operation of these bodies of law.

In terms of the relationship between IHL and IHRL, and the notion that IHL is a lex specialis, Rona ascribes to me a view that he describes as framework exclusion, as opposed to the more reasonable rule exclusion.  Actually, though, I think I would be willing to subscribe to rule exclusion myself, so we should be on the same page.

Rule exclusion, I take it, means that if there is an applicable rule of IHL on a given point, then IHL applies and IHRL does not apply.  Again, I’m happy with that point of view, but I’m not sure that everyone else is.

For example, in the Israeli Targeted Killings decision, the court applied the IHL rule that allows the targeting of civilians who are directly participating in hostilities (DPH).  As everyone knows, IHL permits the intentional targeting of civilians who DPH because they perform the function of combatancy.  However, the Israeli TK decision went further.  It concluded, in para. 40, that “a civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed.”  The court then went on to discuss proportionality and the need to attempt capture (if feasible), rather than kill, based on the notion of proportionality.

This is a curious result.  The DPH standard is clearly an IHL rule.  However, the need to attempt capture (if feasible) of an individual engaged in combatancy is not a core IHL concept.  Rather, it allegedly stems from IHRL.  That’s why many people have interpreted the TK decision as reading IHRL norms into the applicable IHL norm in that case.

So what’s at issue here is the co-applicability of IHRL and IHL with regard to the same rule.  It’s precisely that kind of co-applicability that I find curious.  Even under the “rule exclusion” notion of lex specialis, it is hard to countenance. How do both bodies of law apply at the same time with regard to the same norm?  That’s one of the reasons why the development of the ICRC Interpretative Guidance on Directly Participating in Hostilities became so contentious.  The Interpretative Guidance document followed the methodology of the Israeli TK decision, to the apparent dismay of some of the participants in the project.

I don’t have a strong view about detention, although one can see the current debate about detention through this lens.  I understand Kevin’s point to be that IHRL applies to detention in NIAC because there is no IHL rule regarding detention (until the end of hostilities) in NIAC.  I am inclined to disagree (though my mind remains open), but only because I think there is, in fact, an IHL rule regarding detention in NIAC.  First, there’s CA3 and APII, both of which demand certain treatment regarding detainees.  Second, I suspect that customary international law both permits detention until the end of hostilities in an NIAC and demands humane treatment of those detainees (though again my mind is open).  Marty and Steve’s post suggests that the detention rules of IAC apply by virtue of analogy in NIAC, but I think the better formulation is to suggest that some of those detention rules apply by virtue of custom.  That being said, I don’t have a particular view on the specifics of which detention rules apply by custom, and I wouldn’t want to be put in the position of defending the current Administration’s view or practice on this.  Rather, I want to emphasize the underlying structure of this debate, which is the existence or non-existence of an IHL norm regarding detention that applies in any given factual circumstance.

At a certain point, the applicable rules of IHL, (including the customary ones applicable in NIAC), become so comprehensive that one might describe them as a framework, though I don’t think much hinges on this language.  The framework of IHL is essentially the core concepts of combatants/civilians/DPH-CCF, and much of it is now jus cogens.

It strikes me as curious that human rights activists are so quick to cabin CIL application of the IHL rules of IAC to NIAC.  To my ear, it is one of the great advancements of the last few decades: that the rules of warfare must be respected and that no nation can ignore them simply because the armed conflict is internal. (Incidentally, this was also the great fault of the early Bush Administration: to audaciously proclaim that the armed conflict with al-Qaeda was unconstrained by IHL and LOW principles.)  It also strikes me that it is one of the great advancements that ICL case law has given us. Why do some human rights activists resist this laudable move? I suppose they want to fight the expansion of IHL norms because, in their absence, IHRL norms can swoop in to fill the gap, and in the process better protect the rights of the vulnerable. I’m not sure I share this strategic vision, though my skepticism does not make their view wrong.  (Ultimately, I have more faith that IHL, as a body of law, will make the situation on the ground better.)  The legal fight, though, is about the existence of the underlying IHL norm.

One final quick point.  Rona says a few things about the relationship between IHL and domestic criminal law that I obviously agree with, but also a couple of points that I disagree with.  First, the agreement: of course there is room for domestic criminal law during armed conflict.  The privilege of combatancy changes the underlying norm regarding killing (which is what I was talking about in my original post), but if an unprivileged combatant kills someone then he has absolutely violated domestic criminal law — absent self-defense of course.  This then raises the further question of whether the killing also violates the LOW (killing in violation of the laws of war) and could be prosecutable by a military commission.  Kevin and a number of others have written extensively about this theory and I share their concerns about it.  Undeniably, though, this hypothetical killing represents a violation of domestic criminal law.

Now the disagreement.  Rona goes on to say, regarding privileged combatants, “should they engage in rape, the use of biological weapons, torture of detainees or dozens of other violations of the laws of war, domestic criminal law – namely war crimes law – is the place to go for accountability.”  That doesn’t really make sense to me.  The place to go for accountability in such a situation is ICL because war crimes are one of the three core crimes of ICL.  Now, it is true that the conduct might also violate domestic criminal law if there is an applicable criminal law norm in question.  So a rape could potentially be prosecuted as a war crime under ICL or it could be prosecuted under the criminal law of one of the interested states (either based on territorial jurisdiction or active personality).  Both bodies of law prohibit the conduct because their respective norms are basically co-extensive.

But that’s not really an example of co-application in the sense that interests me.  In the war crime case, two or more bodies of criminal law (one international, the others domestic) prohibit the same conduct.  Co-application of IHRL and IHL involves the importation of principles of IHRL to inform one’s understanding of rules that are governed by IHL.  In the Israeli TK decision, this took the form of severely restricting the principle as it existed under IHL, which is what generated so much controversy at the ICRC.

Here’s a better, and more extreme, example.  Suppose the domestic penal law of country A prohibited the possession and use, not of biological weapons, but of automatic weapons (machine guns). Could an entire army be prosecuted for violating this domestic criminal law?  In that case, the domestic law would severely restrict – in fact eviscerate — the IHL norm (privileged combatancy), and there would be something specious about permitting co-application of the norms in this context.

The Obama administration announced the demise today of the Keystone XL pipeline, which would have done nothing to promote America’s energy independence but everything to promote climate change:

President Barack Obama on Wednesday rejected a Canadian company’s plan to build a U.S.-spanning, 1,700-mile (2,700 kilometer) pipeline to carry oil across six U.S. states to Texas refineries, raising the stakes on a bitter election year fight with Republicans.

[snip]

Obama laid the responsibility for the rejection of the pipeline on political gamesmanship by Republicans.

“As the State Department made clear last month, the rushed and arbitrary deadline insisted on by Congressional Republicans prevented a full assessment of the pipeline’s impact, especially the health and safety of the American people, as well as our environment.” Obama said. “As a result, the Secretary of State has recommended that the application be denied.  And after reviewing the State Department’s report, I agree.”

TransCanada Corp. shares slid more than 3 percent after reports early Wednesday that rejection was imminent.

Rejection of the pipeline had been expected in Washington after Obama tried to delay the decision until 2013 but Congress forced his hand as part of a popular tax cut measure.

No pipeline and a payroll tax cut — the best of both worlds!  Who needs friends when you have enemies like today’s GOP?

Here’s an actual headline from Fox Nation, part of that fair and balanced news organization we all know and love:

Sovereignty’s a bitch, isn’t it?

Jens Ohlin has continued the conversation about IHL and IHRL at LieberCode.  Here is a snippet, self-servingly chosen because I want to comment on it:

It strikes me as curious that human rights activists are so quick to cabin CIL application of the IHL rules of IAC to NIAC.  To my ear, it is one of the great advancements of the last few decades: that the rules of warfare must be respected and that no nation can ignore them simply because the armed conflict is internal. (Incidentally, this was also the great fault of the early Bush Administration: to audaciously proclaim that the armed conflict with al-Qaeda was unconstrained by IHL and LOW principles.)  It also strikes me that it is one of the great advancements that ICL case law has given us. Why do some human rights activists resist this laudable move? I suppose they want to fight the expansion of IHL norms because, in their absence, IHRL norms can swoop in to fill the gap, and in the process better protect the rights of the vulnerable. I’m not sure I share this strategic vision, though my skepticism does not make their view wrong.  (Ultimately, I have more faith that IHL, as a body of law, will make the situation on the ground better.)  The legal fight, though, is about the existence of the underlying IHL norm.

I don’t want to “cabin” the customary application of IHL rules of IAC to NIAC, although I am less convinced than Jens that there is sufficient state practice to justify doing so.  What I am opposed to is the U.S. practice: applying only those rules of IAC that provide it with authority to detain, while ignoring all of the rules that limit its authority to treat the detained however it likes.  It wants to analogize non-state actors to the regular armed forces in IAC (such as through the notion of co-belligerency) — but it has no intention of treating anyone thereby detained in a NIAC as a POW.  It wants to detain civilians who are security risks by analogy to the Fourth Geneva Convention — but it has no intention of treating those civilians in accordance with GC IV.  For the U.S., IHL is always heads it wins, tails the detainee loses.  I don’t accept that.

My thanks to Gabor and Jens for the stimulating discussion!

There has been much debate the past couple of days about whether the bomb attacks that have killed at least three Iranian nuclear scientists since 2010 qualify as terrorism.  Glenn Greenwald and Kevin Drum on the left and Andrew Sullivan on the right say “yes”; many of their readers (see Greenwald here) and the editor of Technology Review say “no.”  Those in the “no” camp insist that the attacks were legitimate targeted killings and thus cannot qualify as terrorism.

I have no definitive position on who is responsible for the killings, although the available evidence seems to point to Israel and not, as widely suspected, to the United States.  This Der Spiegel article, for example, says that Israeli intelligence sources have confirmed that the Mossad were responsible for the killing of Darioush Rezaei.  Moreover, Mark Perry published a blockbuster article in Foreign Policy yesterday that claims, based on a series of classified CIA memos, that Mossad agents posed as CIA officers in order to recruit members of the Iranian terrorist group Jundallah, whom Israel believed would be useful in its covert war against the Iranian government.

Let’s assume for sake of argument — and only for the sake of argument — that the killings were carried out solely by the Mossad.  Do those killings qualify as terrorism?

The first thing that needs to be said is that it is impossible to answer that question in the abstract.  Despite decades of efforts — and contrary to the rightly-maligned recent decision by the Appeals Chamber of the Special Tribunal for Lebanon — the international community has yet to agree on a general definition of terrorism.  The best we can do, then, is determine whether the killings qualify as terrorism under one or more of the specific anti-terrorism conventions that states have negotiated.  The most relevant one is obvious: the International Convention for the Suppression of Terrorist Bombings (“Terrorist Bombing Convention”), which currently has 164 States Parties, including both Israel and the United States.  Here is how Article 2 of the Terrorist Bombing Convention defines an act of terrorism:

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.

There is little question that the killing of the Iranian nuclear scientists satisfies this definition of terrorism…