I am delighted to announce the publication of a new book that I co-edited with my colleague and dear friend Gerry Simpson, The Hidden Histories of War Crimes Trials. As the title indicates, the book contains a number of essays that discuss little-known trials (such as the Franco-Siamese Mixed Court)  or re-narrate better known but misunderstood trials (such as the trial of Peter von Hagenbach). Here is the table of contents:

1: Gerry Simpson: Introduction

Part 1: Pre-Histories: From Von Hagenbach to The Armenian Genocide
2: Gregory S. Gordon: The trial of Peter von Hagenbach: Reconciling history, historiography, and international criminal law
3: Benjamin Brockman-Hawe: A supranational criminal tribunal for the colonial era: the Franco-Siamese Mixed Court
4: Jennifer Balint: The Ottoman state special military tribunal for the Genocide of the Armenians: ‘Doing government business’

Part 2: European Histories I: Prosecuting Atrocity
5: Rosa Ana Alija-Fernández: Justice for no-land’s men? United States military trials against Spanish Kapos in Mauthausen and universal jurisdiction
6: Dov Jacobs: A narrative of justice and the (re)writing of history: French trials after World War II
7: Frédéric Mégret: The Bordeaux Trial: Prosecuting the Oradour-sur-Glane massacre

Part 3: European Histories II: Americans in Europe
8: Grietje Baars: Capitalism’s victor’s justice? Prosecution of industrialists post WWII
9: Stephen Vladeck: Eisentrager’s (Forgotten) Merits: Military commissions and collateral review

Part 4: European Histories III: Contemporary Trials
10: Benedetta Faedi Duramy: Making peace with the past: Federal Republic of Germany’s accountability for World War II massacres before the Italian Supreme Court
11: Tamás Hoffman: Trying communism through international criminal law? The experiences of the Hungarian historical justice trials
12: Rain Liivoja: Competing histories: Soviet war crimes in the Baltic States
13: Julia Selman-Ayetey: Universal jurisdiction: Conflict and contoversy in Norway

Part 5: African Histories
14: Jackson Maogoto: Reading the shadows of history: The bridges between Turkish and Ethiopian ‘internationalised’ domestic crime trials
15: Firew Kebede Tiba: Mass trials and modes of responsibility for international crimes: Ethiopia

Part 6: Southern Histories
16: Georgina Fitzpatrick: War crimes trials, victor’s justice, and Australian military justice in the aftermath of the second world war
17: Narrelle Morris: Justice for ‘Asian’ victims: Australian war crimes trials of the Japanese 1945-51
18: Peter Rush: Dirty War crimes: Jurisdictions of memory and international criminal law

Part 7: Histories of a Type: Excavating the Crime of Aggression
21: Roger Clark: The crime of aggression: From the trial of Takashi Sakai in August 1946 to the Kampala Review Conference in 2010
22: Mark Drumbl: ‘Germans are the lords and Poles are the servants’: The trial of Arthur Greiser in Poland, 1946
23: Immi Tallgren: The Finnish war-responsibility trial in 1945-56: Flawed justice, anxious peace?

You can purchase a hard copy of the book at the OUP website here. You can also — as part of an experimental OUP initiative — download a complete PDF of the book for free at either www.oup.com/uk or www.oapen.org. If you cannot afford the £70.00, by all means download the PDF.

UPDATE: The free open-access version of the book is now available on the webpage linked to above.

In my previous post, I mocked Scotland Yard’s assertion that David Miranda, Glenn Greenwald’s partner, committed an act of terrorism by transporting documents stolen from the US government by Edward Snowden. Mockery remains the appropriate response, given the vast chasm that separates Miranda’s actions from any defensible conception of terrorism — such as the one I quoted from UN General Assembly Resolution 49/60, “[c]riminal acts intended or calculated to provoke a state of terror in the general public, a group of persons, or particular persons for political purposes.” Yet it is important to avoid focusing solely on Scotland Yard’s abuse of its power, because the real problem lies not with those who apply the law — whose good faith we should never assume — but with the law itself. Simply put, the UK’s Terrorism Act 2000 is so overbroad that, in fact, Miranda’s actions come perilously close to qualifying as terrorism under it. Here is the Act’s definition of terrorism:

1.—(1) In this Act “terrorism” means the use or threat of action
where—
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to
intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political,
religious or ideological cause.

(2) Action falls within this subsection if it—
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person
committing the action,
(d) creates a serious risk to the health or safety of the public or a
section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an
electronic system.

Let’s examine each of these elements. First, is transporting Snowden documents “to influence the government or to intimidate the public or a section of the public”? Not to intimidate, surely. But transporting the documents is designed to facilitate their release, and the release of the documents is indeed “designed to influence the government” — namely, to convince Britain to abandon its mass surveillance of its citizens and the citizens of other European countries. That is a noble design, but it is a design nonetheless. And the Terrorism Act 2000 does not limit terrorism to acts that seek to influence the government to adopt bad policies. That’s one of its problems.

Second, is transporting Snowden documents done “for the purpose of advancing a political,
religious or ideological cause”? Yes, of course it is — releasing the documents is designed to promote greater transparency in government and to minimize unwarranted interference with people’s privacy. That is a noble political or ideological cause, but it is still a political or ideological cause. And once again, nothing in the Act says that actions in the service of a noble political or ideological cause cannot qualify as terrorism. That’s another problem.

Third, and finally, does transporting Snowden documents “fall within subsection (2)”? It clearly does not involve “serious violence against a person” or “serious damage to property.” But the other three categories of harm are a much closer call. I do not believe that releasing the Snowden documents endangers a person’s life, creates a serious risk to the safety of the public, or is designed to seriously disrupt an electronic system. But it is very easy to imagine an overzealous prosecutor arguing that their release would do any or all of those things — particularly the final one, because the surveillance abuses revealed by the documents are all the product of electronic systems. And given that UK courts have not exactly covered themselves with glory in the terrorism context, it is also all too easy to imagine a court buying that overzealous prosecutor’s argument.

That’s it. That’s all the Terrorism Act 2000 requires. It does not require a violent act. It does not require the intent to cause terror. It does not exclude peaceful acts designed to promote progressive policy change. It does not exclude pacifist or humanist causes. It simply requires the accused commit an act that is designed to influence the government for political or ideological reasons and that directly or indirectly endangers a person, the public, or a computer system.

To be clear: I do not think that David Miranda’s actions qualify as terrorism — even under the woefully overbroad Terrorism Act 2000. In particular, I think the mere act of transporting documents is too causally removed from endangering a person, the public, or a computer system to satisfy subsection (2) of the Act. But Miranda’s actions are far too close for comfort, given the Act’s definition of terrorism — and the actions of a person who actually releases Snowden documents, such as my friend Glenn Greenwald himself, are closer still. Indeed, I find it all too easy to imagine Glenn or one of his former colleagues at the Guardian being successfully prosecuted for terrorism under the Act.

And that, ultimately, is my point. It is a serious problem that Scotland Yard believes Miranda is a terrorist. But the more significant problem is that, viewed solely in terms of the law, its position is anything but absurd. Under the indefensible Terrorism Act 2000, many actions qualify as terrorism that are not, in fact, even remotely terrorist. Perhaps even Miranda’s.

No, not actual terrorism, “[c]riminal acts intended or calculated to provoke a state of terror in the general public, a group of persons, or particular persons for political purposes.” That’s still going strong. I’m talking about the concept of terrorism, which has officially lost all meaning whatsoever:

British authorities claimed the domestic partner of reporter Glenn Greenwald was involved in “terrorism” when he tried to carry documents from former U.S. intelligence contractor Edward Snowden through a London airport in August, according to police and intelligence documents.

Greenwald’s partner, David Miranda, was detained and questioned for nine hours by British authorities at Heathrow on August 18, when he landed there from Berlin to change planes for a flight to Rio De Janeiro, Brazil.

After his release and return to Rio, Miranda filed a legal action against the British government, seeking the return of materials seized from him by British authorities and a judicial review of the legality of his detention.

At a London court hearing this week for Miranda’s lawsuit, a document called a “Ports Circulation Sheet” was read into the record. It was prepared by Scotland Yard – in consultation with the MI5 counterintelligence agency – and circulated to British border posts before Miranda’s arrival. The precise date of the document is unclear.

“Intelligence indicates that Miranda is likely to be involved in espionage activity which has the potential to act against the interests of UK national security,” according to the document.

“We assess that Miranda is knowingly carrying material the release of which would endanger people’s lives,” the document continued. “Additionally the disclosure, or threat of disclosure, is designed to influence a government and is made for the purpose of promoting a political or ideological cause. This therefore falls within the definition of terrorism…”

Terrorism: now defined as any act that a government finds inconvenient. Actually, check that: now defined as any act that a good government finds inconvenient. Similar acts committed against a bad government like Iran — and even real acts of terror, like assassinating scientists – are called ”promoting freedom.”

RIP, terrorism. I thought the Americans would kill you, but it turns out the British beat them to it. Regardless, we mourn your untimely passing.

The ICC’s Public Affairs Unit has brought to my attention that the Sudan Tribune erroneously reported what Judge Chile Eboe-Osuji said to Ruto concerning his public statements about his case. The unofficial transcript makes clear that although the Judge warned Ruto not to make additional statements, he did not suggest that Ruto would be arrested if he did so:

7 It has been brought to our attention that the defendant, Mr Ruto,
8 had granted an interview to a news outlet, in of course of which he made
9 comments on the matters pending before the court. This is a matter that
10 had arisen in the past and the Chamber cautioned that Mr Ruto is to
11 refrain from making comments to the press on the case pending before this
12 Chamber. It has happened again, and counsel for Mr Ruto explained that
13 it was a mistake, and he, on behalf of Mr Ruto, apologised without any
14 reservation and he has undertaken, that is Mr Khan, to work out an
15 arrangement by which there would be no further comments on the case
16 pending before this Court, comments by Mr Ruto. For now, the Chamber
17 will accept the apology as well as the undertaking of counsel. The
18 Chamber will not issue any sanction on this occasion, but the Chamber
19 will repeat its earlier warning that Mr Ruto is not to comment on this
20 case pending before the Court.
21 We expect that this warning will be respected, and we expect that
22 the counsel will live up to his undertaking to do all that he can to
23 ensure that this doesn’t happen again.
24 That is the ruling of the Chamber.

My apologies to the Court and to Judge Eboe-Osuji for republishing the Sudan Tribune‘s erroneous reporting regarding Ruto’s possible arrest.

That said, I stand behind my claim that the Court has no authority under the Rome Statute to silence Ruto, much less impose some kind of sanction against him if he continues to criticize the prosecution’s case. The Public Affairs Unit notes that the Trial Chamber warned both the prosecution and the defence not to comment publicly, but that does not change the analysis: unlike the prosecution and defence counsel, the accused is not bound by the Code of Professional Conduct. Moreover, although the prosecution has to respect the presumption of innocence, no correlative obligation binds the accused. Ruto thus remains free to say whatever he wants.

NOTE: The threat of arrest was also erroneously reported by the Kenyan Daily Post.

The most significant problem with the Order, of course, is the one I identified in my previous post: namely, that Rule 15bis applies only to “part heard” cases — not cases that have been over for nearly two years. But it’s worth noting that the Acting President has also disregarded a number of procedural requirements of Rule 15bis. Recall the text of the relevant provisions:

(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for a period which is likely to be longer than of a short duration, the remaining  Judges of the Chamber shall report to the President who may assign another Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided  for in Rule 84, or the beginning of the presentation of evidence pursuant to Rule 85, the continuation of the proceedings can only be ordered with the consent of all the accused, except as provided for in paragraphs (D) and (G).

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an accused withholds his consent, the remaining Judges may nonetheless decide whether or not to continue the proceedings before a Trial Chamber with a substitute Judge if, taking all the circumstances into account, they determine unanimously that doing so would serve the interests of justice. This decision is subject to appeal directly to a full bench of the Appeals Chamber by either party. If no appeal is taken from the decision to continue proceedings with a substitute Judge or the Appeals Chamber affirms that decision, the President shall assign to the existing bench a Judge, who, however, can join the bench only after he or she has certified that he or she has familiarised himself or herself with the record of the proceedings. Only one substitution under this paragraph may be made.

Rule 15bis(D) makes clear that the President cannot assign a new judge to an existing bench unless four requirements are satisfied: (1) the accused has been asked to consent to the proceedings continuing; (2) the remaining judges have unanimously decided, over the accused’s objection, that continuing the proceedings is in the interests of justice; (3) the accused and the prosecution have been given the opportunity to appeal; and (4) the replacement judge has certified that he or she is familiar with the record in the case.

The Acting President has ignored all four requirements…

Dov Jacobs calls attention today to an ICTY press release announcing that the Acting President of the ICTY has assigned a new judge to the Seselj case, Mandiaye Niang, pursuant to Rule 15bis of the Rules of Procedure and Evidence. Here is the text of the rule, in relevant part (emphasis mine):

(C) If a Judge is, for any reason, unable to continue sitting in a part-heard case for  a period which is likely to be longer than of a short duration, the remaining  Judges of the Chamber shall report to the President who may assign another  Judge to the case and order either a rehearing or continuation of the proceedings from that point. However, after the opening statements provided  for in Rule 84, or the beginning of the presentation of evidence pursuant to  Rule 85, the continuation of the proceedings can only be ordered with the  consent of all the accused, except as provided for in paragraphs (D) and (G).

(D) If, in the circumstances mentioned in the last sentence of paragraph (C), an  accused withholds his consent, the remaining Judges may nonetheless decide  whether or not to continue the proceedings before a Trial Chamber with a  substitute Judge if, taking all the circumstances into account, they determine  unanimously that doing so would serve the interests of justice. This decision  is subject to appeal directly to a full bench of the Appeals Chamber by either  party. If no appeal is taken from the decision to continue proceedings with a  substitute Judge or the Appeals Chamber affirms that decision, the President shall assign to the existing bench a Judge, who, however, can join the bench  only after he or she has certified that he or she has familiarised himself or  herself with the record of the proceedings. Only one substitution under this paragraph may be made.

Dov has already covered this well, but it is worth repeating: Rule 15bis does not apply to the Harhoff situation, and the Acting President’s willingness to apply the rule is deeply problematic. The Seselj case is not “part heard” — it is completely heard, with closing arguments having been given nearly two years ago. So there are no “proceedings to continue”; all that is left is to finish the judgment, which is presumably well underway given that Judge Harhoff was only disqualified last month. How, then, can rule apply? The Acting President claims (without explanation) that it applies “mutatis mutandis.” Apparently, that’s Latin for “because we want it to.”

The implications of the Acting President’s decision are no less troubling. It means one of two things: either Judge Niang will participate in deciding and writing the judgment in a case in which he did not hear a single witness or item of evidence, or the case will start all over again, ten years after Seselj voluntarily surrendered to the ICTY and seven years after his trial began. The first possibility is such an affront to the concept of a fair trial that I cannot believe that even the ICTY would consider it. So that leaves the second possibility — which would mean that, unless the Tribunal releases him for the duration of his retrial, Seselj would remain in custody for at least another few years. (And probably longer than that, given that the retrial would almost certainly have to be conducted by the ICTY’s residual mechanism, which is barely four months old.) Such endless detention would make a mockery of Seselj’s right to a speedy trial and his right to not be arbitrarily detained — something we would expect from a government like Rwanda’s, not from an international tribunal.

I refer, of course, to the British Navy’s use of the music of Britney Spears to scare off Somali pirates:

In an excellent case of “here’s a sentence you won’t read every day”, Britney Spears has emerged as an unlikely figurehead in the fight against Somali pirates.

According to reports, Britney’s hits, including Oops! I Did It Again and Baby One More Time, are being employed by British naval officers in an attempt to scare off pirates along the east coast of Africa. Perhaps nothing else – not guns, not harpoons – is quite as intimidating as the sound of Ms Spears singing “Ooh baby baby!”

Merchant naval officer Rachel Owens explained the tactics to Metro: “Her songs were chosen by the security team because they thought the pirates would hate them most. These guys can’t stand western culture or music, making Britney’s hits perfect. As soon as the pirates get a blast of Britney, they move on as quickly as they can.”

This is an unconscionable tactic, one that does not befit a country that considers itself civilized. Need I remind the British Navy that torture is illegal under both international and UK law?

The British Navy should also be aware that international law does not completely forbid belligerent reprisals. If the Somali pirates begin to fight back by blaring One Direction at oncoming British ships, the Navy will have no one but themselves to blame.

Hat-Tip: the BBC’s Kate Vandy.

The Sudan Tribune is reporting that the presiding judge in William Ruto’s trial has threatened to have Ruto arrested if he continues to comment publicly on his case:

October 2013 (THE HAGUE) – Kenya’s Vice President William Ruto was on Friday warned by the presiding judge in his trial at the International Criminal Court (ICC) to desist from making statements about the case in the media or risk being arrested and detained.

‘‘The first time this happened [making statement in the media] his counsel [Ruto’s] apologised and said it was a mistake said Judge Chile Eboe-Osuji.

Judge Chile Eboe-Osuji, a Nigerian, cautioned Ruto that if he does not heed to the warning, he could be arrested and detained by the court in The Hague.

The warning comes two weeks after Ruto addressed a press conference in The Hague in which he attacked the court and the prosecutor.

‘‘It’s abundantly clear to us and that’s why we have filed several applications that this case as it runs should be terminated. The prosecution has failed miserably in its responsibility to discharge the mandate assigned to them under the Rome Statute,” he said.

This a shocking threat — and a completely unacceptable one. Nothing in the Rome Statute or the Rules of Procedure and Evidence prohibits Ruto from commenting on his case — much less authorizes the Trial Chamber to have him arrested for doing so. There are only two even vaguely relevant provision of the Rome Statute, Articles 70 and 71, and neither prohibits comments like the one above…

I had the privilege last week of speaking in London at a superb Chatham House/Doughty St. Chambers symposium on the ICTY’s recent high-profile acquittals in Perisic, Gotovina, and others. My co-panelists were John Jones, QC, Saif Gaddafi’s ICC-appointed lawyer, and Elies van Sliedregt, the Dean of Vrije Universiteit Amsterdam. Chatham House’s Elizabeth Wilmshurst was the moderator. I don’t believe the symposium was recorded, so I thought I would post the detailed outline of my remarks. My talk was, not surprisingly, a defence of Perisic‘s specific-direction requirement; it developed and systematized the thoughts I’ve articulated in a series of posts here on Opinio Juris. I was particularly keen to explain why criticizing the requirement for lacking a foundation in customary international law – as the SCSL did in Taylor – fundamentally misunderstands the difference between criminal-law doctrines that expand criminal responsibility (which must have a customary foundation, because of the nullum crimen principle) and those that narrow it (which do not have to have a customary foundation, because they do not implicate nullem crimen).

The outline of my remarks can be found here. As always, reader comments most welcome!

In a unanimous decision, the Appeals Chamber has reversed Trial Chamber V(a) and held that Ruto is required to continuously attend his trial, with exceptions to be granted only in exceptional circumstances. The decision is limited to Ruto, but it clearly applies to Kenyatta, as well, whom Trial Chamber V(b) has also excused from continuous presence.

It’s decisions like these that make me despair for the long-term viability of the Court. From a policy perspective, the decision is a disaster — it basically ensures that Ruto and Kenyatta will stop cooperating with the Court. Even worse, the decision will almost certainly engender considerable sympathy for the two men; after all, whether the ICC likes it or not, Ruto and Kenyatta were democratically elected to run a state critically important to African security. They are not Omar al-Bashir, who came to power in a coup and maintains power through fraudulent elections. Nor are their crimes as grave or their guilt as obvious.

Unlike the Trial Chambers — especially in the Kenyatta case — the Appeals Chamber seems completely oblivious to the obvious implications of its uncompromising position. Here is its list of rationales for requiring continuous participation (para. 49):

The accused person is not merely a passive observer of the trial, but the subject of the criminal proceedings and, as such, an active participant therein. It is important for the accused person to have the opportunity to follow the testimony of witnesses testifying against him or her so that he or she is in a position to react to any contradictions between his or her recollection of events and the account of the witness. It is also through the process of confronting the accused with the evidence against him or her that the fullest and most comprehensive record of the relevant events may be formed. Furthermore, the continuous absence of an accused from his or her own trial would have a detrimental impact on the morale and participation of victims and witnesses. More broadly, the presence of the accused during the trial plays an important role in promoting public confidence in the administration of justice.

The most obvious response is this: Ruto and Kenyatta will play no role at all in “promoting public confidence in the administration of justice” if they do not show up for trial. But beyond that, the Appeals Chamber’s rationales are either irrelevant or equally compatible with a more flexible approach to presence. Presence at trial is indeed important for an accused’s ability to understand the evidence against him — but it’s not the Court’s role to make sure the accused make smart strategic choices. There is no relationship at all between confronting an accused with the evidence against him and creating a comprehensive record, especially given that he cannot be forced to testify against his will (Art. 67(g) of the Rome Statute). And although it’s certainly possible that an accused’s absence may have a detrimental impact on the morale of victims and witnesses, I imagine most are more concerned with a conviction (and at least some would probably prefer not to have to give evidence in front of their victimizer).

These are policy concerns, of course, and the Appeals Chamber was faced with a legal issue — whether the Rome Statute requires an accused to be continuously present at trial. Indeed, I would have respected the Appeals Chamber if it had adopted the OTP’s argument and simply held that Art. 63(1) means what it says: “The accused shall be present during the trial.” An absolute presence requirement is obviously consistent with Art. 63(1) — and is generally if not unequivocally supported by the drafting history of the provision.

But that is not what the Appeals Chamber did. Instead, it tried to have it both ways — rejecting an absolute presence requirement and denying Trial Chambers the discretion they need to fashion a presence requirement that will ensure Ruto and Kenyatta show up for trial. Here is the key paragraph:

62. From the foregoing, the following limitations on the discretion of the Trial Chamber to excuse an accused person from presence during trial may be derived: (i) the absence of the accused can only take place in exceptional circumstances and must not become the rule; (ii) the possibility of alternative measures must have been considered, including, but not limited to, changes to the trial schedule or a short adjournment of the trial; (iii) any absence must be limited to that which is strictly necessary; (iv) the accused must have explicitly waived his or her right to be present at trial; (v) the rights of the accused must be fully ensured in his or her absence, in particular through representation by counsel; and (vi) the decision as to whether the accused may be excused from attending part of his or her trial must be taken on a case-by-case basis, with due regard to the subject matter of the specific hearings that the accused would not attend during the period for which excusal has been requested.

This is the worst of both worlds — the kind of mushy, divorced-from-the-text-of-the-Rome-Statute approach to Art. 63(1) that makes the Court seem callow and capricious. Indeed, the Appeals Chamber’s decision sends precisely the wrong message to Kenyatta and Ruto: “hey guys, it’s true that the Rome Statute doesn’t require your continuous presence. But it requires it more often than the Trial Chamber thinks it does. So you’ll just have to hope that the Trial Chamber will apply the test we pulled out of thin air in a manner that doesn’t make it impossible for you to both run Kenya and cooperate with the Court.” I think we know how that will turn out.

Once again, the ICC has shot itself in its foot. Deferral by the Security Council is looking like a better option by the day.

Just Security has been kind enough to post my reply to an excellent post by Ryan Goodman. Here is the introduction:

In a recent post here at Just Security, Ryan Goodman offered a novel – and characteristically intelligent – defense of the US position that it is involved in a non-international armed conflict (NIAC) not only with al-Qaeda, but also with al-Qaeda’s “associated forces.” According to Ryan, the US is involved in a NIAC with al-Qaeda’s associated forces because they “belong to” al-Qaeda for purposes of the rules of IHL governing targeting and detention. Here is what he said, nominally in response to Christof Heyns’ assertion in his recent UN report on extrajudicial killings that an associated force must “form part” of al-Qaeda for its members to be targetable and detainable:

Nevertheless, the law of armed conflict stipulates that members of armed groups (e.g., AQAP) with a particular relationship to a party to a conflict (e.g., al-Qaeda) are legitimate targets. Specifically, Article 50(1) of Additional Protocol I states that a person cannot be considered a civilian (e.g., for the purpose of lethal targeting) if he is a member of an organized armed group with such an association. That association is defined in Article 4(a)(2) of the POW Convention: “members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict.”

In short, “belonging to” a party to the conflict is a form of an associated group, which renders its members subject to lethal force and detention.

I disagree with Ryan that the concept of “belonging to” can be applied in non-international armed conflict (NIAC). In this post I explain why.

Because Just Security does not have a comment system, interested readers should feel free to leave comments here.

One of the most distressing aspects of the admissibility decision in al-Senussi is PTC I’s remarkable unwillingness to question Libya’s strategic invocation of its precarious “security situation.” As described by Libya, that situation really is magic — somehow managing to prevent the Libyan government from doing anything to protect al-Senussi’s rights without preventing the government from prosecuting al-Senussi.

Consider the issue I discussed in my previous post – Libya’s failure to provide al-Senussi with an attorney. Here are the PTC’s two relevant statements, from paras. 292 and 307: