Omar al-Bashir, the President of Sudan, visited Chad earlier this year. The Chadian government made no attempt to arrest him, despite the fact that — as a member of the ICC — both SC Res. 1593 (the Darfur referral) and the Rome Statute obligated it to cooperate with the Court’s arrest warrant. Human rights groups criticized Chad’s unwillingness to arrest Bashir at the time, and now the Pre-Trial Chamber has formally referred Chad’s non-cooperation to the Security Council. Here are the relevant paragraphs of its judgment:

22. In this context, the Chamber wishes to point out that, unlike domestic courts, the ICC has no direct enforcement mechanism in the sense that it lacks a police force. As such, the ICC relies mainly on the States’ cooperation, without which it cannot fulfil its mandate. When the Security Council, acting under Chapter VII of the UN Charter, refers a situation to the Court as constituting a threat to international peace and security, it is expected that the Council would respond by way of taking such measures which are considered appropriate, if there is an apparent failure on the part of the relevant State Party to the Statute to cooperate in fulfilling the Court’s mandate entrusted to it by the Council. Otherwise, if there is no follow up action on the part of the Security Council, any referral by the Council to the ICC under Chapter VII would never achieve its ultimate goal, namely, to put an end to impunity. Accordingly, any such referral would become futile.

23. Having said the above, the Chamber recalls article 87(7) of the Statute according to which, “[wjhere a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute [...] the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council”. Since the Republic of Chad has failed to cooperate with the Court with regard to the arrest and surrender of Omar Al-Bashir, thus preventing the institution from exercising its functions and powers under the Statute, the Court cannot but refer the matter to the Assembly of States Parties and the Security Council.

Although necessary, this is a risky move by the ICC. As Mark Kersten has repeatedly documented, the Security Council has proven far more willing to refer situations to the Court than to ensure that the Court has the ability to successfully investigate those situations. If the Security Council stays true to form and fails to respond to the PTC’s referral, it will do significant damage to the Court’s legitimacy. Why should any suspect fear arrest while traveling abroad if the Security Council won’t even penalize ICC member-states that fail to comply with its own resolutions?

Stay tuned.

And remarkably enough, it has nothing to do with Assange himself. On the contrary:

The top Swedish prosecutor pursuing sexual assault charges against Julian Assange has abruptly left the case and one of Mr Assange’s accusers has sacked her lawyer.

The turmoil in the Swedish Prosecution Authority’s effort to extradite Mr Assange comes as another leading Swedish judge prepares to deliver an unprecedented public lecture in Australia next week on the WikiLeaks publisher’s case.

The Swedish Prosecution Authority want to extradite Mr Assange to have him questioned in Stockholm in relation to sexual assault allegations by two women.

Fairfax Media has obtained Swedish court documents that reveal high-profile Swedish prosecutor Marianne Nye has unexpectedly left the handling Mr Assange’s case, effective from Wednesday, and has been replaced by a more junior prosecutor, Ingrid Isgren. The reasons for the change have not yet been disclosed.

One of Mr Assange’s two accusers, political activist Anna Ardin, also applied to the Swedish courts on February 28 to replace her controversial lawyer Claes Borgstrom. Ms Ardin complained that she found Mr Borgstrom spent much more time talking to the media than to her, referred her inquiries to his secretary or assistant, and that she had lost faith in him as her legal representative.

As well as pursuing the prosecution of Mr Assange, Mr Borgstrom has been heavily criticised for his handling of another high-profile case involving an alleged mass murderer, with one prominent Swedish commentator describing him as doing “the worst defence counsel job in modern Swedish history”.

Ms Ardin’s engagement of a new lawyer, Elisabeth Massi Fritz, has now been approved.

News of changes in the Swedish prosecution of Mr Assange comes shortly before Swedish Supreme Court judge Stefan Lindskog delivers a keynote lecture on “the Assange affair, and freedom of speech, from the Swedish perspective” at the University of Adelaide next Wednesday.

[snip]

Justice Lindskog is chairman of the Supreme Court of Sweden, the country’s highest court of appeal. In announcing his forthcoming lecture, Adelaide University observed that “as one of Sweden’s most eminent jurists, he is uniquely able to provide an authoritative view of the Assange affair”.

In an article in today’s Australian Financial Review the judge observes that he finds it “amusing how the Assange case offers possibilities of sharp turns when it comes to topics to be discussed. From, on the one hand, whether lies about condoms can result in a sexual crime to, on the other, the question of if telling the truth, by publishing classified information, can amount to a crime permitting extradition to the state that claims being harmed.”

Greg Barns, a barrister spokesman for the Australian Lawyers Alliance, said it was a fundamental legal principle that judges do not speak publicly on matters that are likely to come before the courts or are yet to be decided.

“That a Swedish supreme court judge thinks this is acceptable tends to confirm the fears people have about the impartiality and robustness of the Swedish judicial system. It gives great currency to the belief that Mr Assange’s case in Sweden has been heavily politicised.

As I said, chaos. It will be interesting to see what the Swedish judge has to say in Adelaide. If I weren’t currently in the US for the ASIL conference, I would have made the trip to see him speak…

It’s always exciting when the media pays attention to expert reports on international law. Unfortunately, the media all too often gets international law wrong — and recent reporting on the Tallinn Manual on International Law Applicable to Cyber Warfare is no exception. There has been a spate of articles in the past couple of days that breathlessly claim the Tallinn Manual permits the use of lethal force against hackers. The Huffington Post’s article is entitled “Report for NATO Justifies Killing of Hackers in a Cyberwar.” According to the Verge, “Killing Hackers is Justified in Cyber Warfare, Says NATO-Commissioned Report.”  And Silicon Angle claims that “Hacktivists Can Be Killed Under Rules of CyberWarfare.”

Does the Tallinn Manual permit a hacker to be killed? Yes, in extraordinary circumstances. But the articles mentioned above each fail to mention that the Manual imposes very significant limits on the use of lethal force against individuals involved in cyber-warfare — and that all of those limits are based on, and reflect, the traditional rules of international humanitarian law (IHL). There is nothing particularly troubling in the Manual, and I say that as someone who is profoundly sympathetic to hacking collectives like Anonymous. Indeed, properly understood, it almost inconceivable that the Manual would permit a state to use lethal force against Anonymous or a similar collective — no matter how dangerous (in the view of a state) their hacking might be.

To begin with, the Tallinn Manual deserves credit for not conflating the jus ad bellum and the jus in bello…

Ben Emmerson, counsel for al-Senussi, has asked the Pre-Trial Chamber to refer Libya to the Security Council for ignoring its February 6 decision ordering Libya to transfer al-Senussi to the Court. Here are the key paragraphs:

3. It has been almost six weeks since the Chamber‟s Order of 6 February, and Libya has failed to comply with every one of these instructions. Libya has failed to make any attempt to transfer Mr. Al-Senussi to the ICC and continues to detain him in Libya in violation of Security Council Resolution 1970 and the orders and requests of the ICC. Libya has ignored a formal request from the Registry to send representatives to The Hague to make arrangements to facilitate Mr. Al-Senussi‟s transfer and has not taken any other action to arrange his surrender.

4. Instead, the Libyan authorities continue to detain Mr. Al-Senussi, and are actively preparing to commence his trial in Libya as soon as possible. In so doing Libya has also violated the injunction contained within the Chamber‟s 6 February Order to the effect that Libya must refrain from any action which could hinder or delay his immediate transfer to the ICC.

5. Libya has also ignored the third order made by the Chamber requiring arrangements to be made for a privileged legal visit by appointed Defence Counsel. Mr. Al-Senussi has now spent six months in detention in Libya (from September 2012 to date) being questioned about criminal allegations without access to counsel. This in itself makes any claims regarding the fairness of proceedings in Libya untenable.

[snip]

8. This case has reached a point at which the impasse between Libya and the ICC can only be broken by a referral to the Security Council. If the authority of the Court is to be respected, its orders and requests must be complied with. Further latitude would simply enable Libya to perpetuate its tactics of delay, obfuscation and prevarication and its consistent attempts to mislead the Chamber and the Registry as to its true intentions. Libya’s intentions and actions are very clear.

None of this is remotely surprising, of course. But it puts the lie to Libya’s constant claims in Saif’s case to be cooperating fully with the Court. Libya only cooperates when it gets what it wants.

Wells Bennett calls my attention to this statement by Marc Ambinder in a recent article in The Week entitled “Five Truths About the Drone War”:

The CIA does not “fly” drones. It “owns” drones, but the Air Force flies them. The Air Force coordinates (and deconflicts) their use through the CIA’s Office of Military Affairs, which is run by an Air Force general. The Air Force performs maintenance on them. The Air Force presses the button that releases the missile. There are no CIA civilians piloting remote controlled air vehicles. The Agency has about 40 unmanned aerial vehicles in its worldwide arsenal, about 30 of which are deployed in the Middle East and Africa. Most of these thingies are equipped with sophisticated surveillance gear. A few of them are modified to launch missiles. The Air Force owns many more “lethal” RPVs, but it uses them in the contiguous battlefield of Afghanistan.

Wells points out at Lawfare that “if Ambinder is correct, then it is military personnel who do the drone-flying and the button-pushing, and military personnel can invoke a public authority justification for strikes implicating 1119, in Kevin’s view.” In other words, Wells suggests that it might be irrelevant whether CIA officers are entitled to a public authority defence, because they may not actually be involved in lethal drone attacks, including the one that killed al-Awlaki.

I completely agree with Wells’ restatement and application of my position on the public authority defence. But I am less sure that Ambinder’s “truth” insulates CIA from potential criminal liability. Ken Dilanian, a leading national-security reporter, had a long article in the Los Angeles Times last month discussing the possibility of the military taking over much of the CIA drone program. Ambinder’s reporting seemed to contradict Dilanian’s article, so I tweeted Dilanian about it. Here was his reply:

@kevinjonheller no it doesn’t. The cia doesn’t fly it’s drones, but it does the targeting and gives the order to fire.

— Ken Dilanian (@KenDilanianLAT) March 17, 2013

Dilanian is right: the articles don’t necessarily contradict each other. Ambinder says that the military flies the drones and pushes the button that launches the weapon; he does not claim that the military chooses the targets and makes the decision to launch the attack. There are some interesting questions about what it means for the CIA to “give the order to fire,” but it seems clear that CIA officers are still involved in lethal drone attacks in a manner that gives rise to a potential violation of the foreign-murder statute — as conspirators or instigators or as aiders-and-abettors. So the fact that a CIA officer is not entitled to a public authority defence remains an important issue.

A couple of weeks ago, I noted that the Pre-Trial Chamber had ordered Libya to return the documents it wrongfully seized from Melinda Taylor during her privileged meeting with Saif Gaddafi. I also predicted that Libya would try to avoid complying with the order by filing various motions challenging the Pre-Trial Chamber’s decision.

Guess what? Libya has filed two motions in response, one asking for leave to appeal and the other asking the Pre-Trial Chamber to reconsider its decision. The arguments are the same in both motions, and the reconsideration motion doesn’t even cite any legal basis — in the Rome Statute, in the Rules of Procedure and Evidence, or in ICC jurisprudence — for being able to request the Pre-Trial Chamber to reconsider its decision. The leave for appeal motion at least points to Art. 82(1)(d) of the Rome Statute — but as the OPCD points out in its response, that provision permits only the Prosecution and Defence (“Either Party”) to seek interlocutory review of a Pre-Trial Chamber decision.

Moreover, even if the Pre-Trial Chamber erroneously allows Libya to invoke Art. 82(1)(d), that provision only permits interlocutory review of “[a] decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.” Whether the documents were wrongly seized has nothing to do with the fairness or expeditiousness of Libya’s admissibility challenge; they are relevant only to Libya’s prosecution of Saif in Zintan for allegedly violating national security and trying to escape custody, charges that — as Libya itself has admitted in the past — do not involve the “same conduct” that is at issue in the ICC proceedings. The OPCD makes the point well in its response:

68. When stripped of its indignation and rhetoric, it is quite clear that the current Request actually bears no relation to the Impugned Decision, but is simply a last ditch stalling tactic by the Govemment in order to obtain more time for its admissibility challenge. However, in light of the fact that the Impugned Decision only concems the discrete question as to the Government’s obligation to retum these documents and destroy any copies, even if the Appeals Chamber were to grant suspensive effect of the Impugned Decision, this would have absolutely no impact on the pending admissibility proceedings. Appellate review would therefore fail to advance admissibility proceedings, which are already at a very advanced stage.

Once again, let me express my hope that the Pre-Trial Chamber will resolve Libya’s admissibility challenge sooner rather than later. Each time it permits Libya to engage in these kind of stall tactics, the ICC loses a bit more credibility.

This according to a bizarre — and bizarrely inaccurate — article in the Jerusalem Post. How many errors can you find?

An Israeli law firm on Thursday formally announced its request to the prosecutor of the International Criminal Court, Fatou Bensada, to open a criminal investigation into violations by Palestinian Authority President Mahmoud Abbas and nine members of Hamas for war crimes, crimes against humanity and crimes of aggression.

[snip]

After years of public threats by the PA to file such a request or case against Israeli soldiers and political leaders, an Israeli lawyer, Mordechai Tzivin, was the first to strike, filing a complaint and request for an investigation.

The request is unprecedented not only because it involves the Israeli-Palestinian conflict and is against “Palestine” as a state and its leaders such as Abbas and nine Hamas members, but also because it is filed by an individual law firm as opposed to by a state.

Generally speaking, the ICC can only hear cases filed by states.

However, as the Tzivin wrote in his request to Bensada, the ICC prosecutor has a little known and almost entirely unused power to essentially self-open an investigation and self-file an indictment against individuals for international law violations.

The power, referred to as the prosecutor’s “propio motu” power, is generally not used by the prosecutor because it requires special approvals from the ICC itself and leaves the prosecutor’s office exposed for using an extraordinary measure not requested by any state.

[snip]

Asked whether he had coordinated his move with Israeli officials, Tzivin said he had spoken with top legal officials in all of the key ministries as well as a top official in the security establishment.

Despite Israel’s official position that there is still no state of Palestine, Tzivin said that he was either told that he had their blessing or that at least no one told him to hold back.

Here’s my count: (1) the ICC does not yet have jurisdiction over the crime of aggression; (2) there is nothing remotely unprecedented about a private individual asking the Court to investigate a situation; (3) it is not true that, “generally speaking,” the Court can hear only cases brought by states; and (4) the Prosecutor’s proprio motu power is not remotely “almost entirely unused” (Kenya, Cote D’Ivoire?).

Did I miss any?

Ken noted last week that Lawfare has been hosting an ongoing debate over Ryan Goodman’s fascinating new article ”The Power to Kill or Capture Enemy Combatants,” which is forthcoming in the European Journal of International Law. I contributed a long post criticizing Goodman’s claim that Art. 35(2) of the First Additional Protocol — which provides that “[i]t is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering” — supports the existence of a duty to capture instead of kill. Goodman has now responded with a long post of his own in which he claims that my post is “riddled with errors.”

I don’t have time to recapitulate the entire debate; interested readers should head to Lawfare. (Bobby Chesney’s introduction to Goodman’s most recent response contains links to all of the contributions.) I also don’t have time to respond to all of my supposed errors. Instead, in this post, I simply want to address three of Goodman’s most problematic claims, all of which are based on selective quotation of the historical sources he uses to build his argument.

Goodman’s first problematic claim is that an article by Henri Meyrowitz supports his reading of Art. 35(2). Here is what he says in his response to my Lawfare post (emphasis mine)…

Like many young, lefty international lawyers, one of my intellectual heroes is Philippe Sands. He is a remarkable scholar and an equally gifted advocate, and he puts both to good use no matter how unpopular the position or client — as his representation of the Libyan government in its challenge to the admissibility of the case against Saif Gaddafi demonstrates. Above all, he has always struck me as a deeply principled person. So I am not surprised in the least that he has decided to quit the Liberal Democrats to protest the party’s unconscionable support for the UK’s new justice and security bill, which creates a system of secret courts in which individuals who allege that they have been tortured and kidnapped will not be able to see the government’s evidence against them. Here is a snippet of his open letter in The Guardian:

After the London attacks of July 2005 the Lib Dems stood firm against the idea that the “rules of the game” had changed, committed to respect of human rights for all. They opposed executive authority, secrecy and the rise of the “security state”. In government, on many issues, that position has been maintained. But to my great regret, last week the parliamentary group was whipped to vote in favour of the introduction of secret court hearings in part 2 of the justice and security bill. If adopted, the bill will put British judges in the invidious position of adjudging certain civil claims under conditions in which one party will not be entitled to see the evidence on which the opposing party relies. Last year Lib Dem members voted overwhelmingly against this. They did so again at their conference on Sunday. Their approach was informed, reasonable, principled and correct. Why was it ignored?

This part of the bill is a messy and unhappy compromise. It is said to have been demanded by the US (which itself has stopped more or less any case that raises ‘national security’ issues from reaching court), on the basis that it won’t share as much sensitive intelligence information if the UK doesn’t rein in its courts. Important decisions on intelligence taken at the instigation of others are inherently unreliable. We remember Iraq, which broke a bond of trust between government and citizen.

[snip]

Secrecy begets secrecy. I have listened to all the arguments, and concluded this is a compromise too far, neither necessary nor fair at this time. The point has been made eloquently in recent days by Dinah Rose QC and Jo Shaw. Their principled arguments have long had my full support and so I have joined them in resigning from the Liberal Democrats.

Kudos to Philippe for standing up for what he believes in — and more importantly, for what is right.

I’m grateful to Ken, Wells Bennett, and Marcy Wheeler for speculating that my April 2010 blog post on 18 USC 1119, the foreign-murder statute, is the post referred to in today’s New York Times article on the behind-the-scenes machinations that culminated in the CIA using a drone to kill Anwar al-Awlaki. I imagine they are correct; the post fits the timeline and Marcy notes that no other post around that time on a legal blog specifically addressed the foreign-murder statute. If so, it’s a testament to the growing importance of academic blogging.

In this post, I want to discuss the part of the White Paper that seems to be motivated by the questions I raised in my 2010 post — Part III, which argues that killing a US citizen abroad who qualifies as a senior operational leader in al-Qaeda or its associated forces would not be murder because the individual responsible for the killing would be entitled to a public-authority defense. Here, for example, is one statement to that effect (p. 14):

A lethal operation against an enemy leader undertaken in national self-defense or during an armed conflict that is authorized by an informed, high-level official and carried out in a manner that accords with applicable law of war principles would fall within an established variant of the public authority justification and therefore would not be murder.

As everyone likely knows by now, Rand Paul has ended his remarkable talking filibuster because Attorney General Holder officially responded “no” to the question “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” Is it just me, or does Holder’s answer actually raise more questions than it answers?

(1) “Engaged in combat” seems like a much broader standard than “senior operational leader,” which the recently disclosed White Paper described as a necessary condition of killing an American citizen overseas. Does that mean the President can kill an American citizen inside the US who is a lower-ranking member of al-Qaeda or an associated force?

(2) Why (to second Marcy Wheeler) did Holder delete one word from Paul’s question, changing “not actively engaged in combat” to “not engaged in combat”? Does that indicate that the President can kill an American inside the US whose activities qualify as “engaging in combat” even if they would not qualify as “actively engaging in combat”? What is the difference? What does the US understand by “actively”?

(3) What does “engaged in combat” mean? That is a particularly important question, given that Holder did not restrict killing an American inside the US to senior operational leaders and deleted “actively” from Paul’s question. Does “engaging” require participation in planning or executing a terrorist attack? Does any kind of direct participation in hostilities qualify? Do acts short of direct participation in hostilities — such as financing terrorism or propagandizing — qualify? Is mere membership, however loosely defined by the US, enough?

Come on, Rand. Stand up again and get us some real answers.

Libya has filed yet another brief concerning the admissibility of the case against Saif Gaddafi. The new brief is more than 50 pages long, so it’s going to take some time to digest. But we really don’t have to go beyond pages 22-24, because Libya’s admissions in those paragraphs doom — or at least should doom, if the Pre-Trial Chamber would ever actually rule — its admissibility challenge:

48. The Libyan Government does not deny that Saif Al-Islam Gaddafi remains in Zintan (one of the largest cities in north-western Libya) and that efforts to arrange his transfer to a detention facility in Tripoli are ongoing.[57] During his incarceration in Zintan Saif Al-Islam Gaddafi has been visited by representatives of the International Committee of the Red Cross and Human Rights Watch on several occasions.[58] Permission was granted by the Minister of Justice, Salah Marghani, for a further visit by Human Rights Watch on 4 March 2013.[59] It is now a matter for Human Rights Watch to arrange this visit at their earliest convenience.

49. Since 30 October 2012 each of the extensions of Saif Al-Islam Gaddafi’s periods of detention have been judicially approved by Tripoli based judges[60] who have travelled to Zintan to conduct a private hearing (ie. a closed session) on the extension of his remand period. These hearings have been facilitated by the local authorities in Zintan without any difficulties. The Libyan Government
understands that the reference on the remand extension documents to these hearings bearing held in public is an error as the hearings were held in closed session and were not open to members of the public.

50. The Libyan Government will shortly begin implementation of its recently devised proposal for the members of the Zintan brigade responsible for guarding Saif Al-Islam Gaddafi in Zintan to be trained and regularised so as to form part of the judicial police which would then guard him upon his transfer to a central government controlled prison in Tripoli. It is not possible to say with any certainty the exact date of Mr Gaddafi’s transfer to Tripoli but it is understood that this will occur before the earliest possible estimated commencement date of the trial in May 2013.

51.It is anticipated that if the national security proceedings, which are presently in the pre-trial phase and for which there was a public court hearing[61] in the Zintan court on 17 January 2013, are to proceed to trial that once Saif Al-Islam Gaddafi is transferred to Tripoli these proceedings will also be transferred to the Tripoli court.

The first thing to note is that, even if these claims are true, Libya is still currently “unable” to prosecute Saif within the meaning of Art. 17(3) of the Rome Statute…