Author Archive for
Kevin Jon Heller

Let’s Call Killing al-Awlaki What It Still Is — Murder

by Kevin Jon Heller

As everyone on Twitter knows by now, the US government has released the notorious memorandum in which the OLC provides the supposed legal justification for killing Anwar al-Awlaki. I’m a bit disappointed not to get a mention in the memo; people in the know have suggested that a post I wrote in April 2010 led the OLC to substantially rewrite it. Vanity aside, though, I’m more disappointed by the memo’s failure to adequately address the most important issue regarding the “public authority justification,” which is at the heart of the memo’s conclusion that it would be lawful to kill al-Awlaki: how can the CIA be entitled to the public-authority justification when the CIA had no authority to use force against Al Qaeda in the Arabian Peninsula (AQAP)?

To understand why that’s a problem, let’s step back and consider what the memo says about whether the Department of Defense (DoD) had the legal authority to kill al-Awlaki. Remember, the memo was written before al-Awlaki was killed, at a time when it wasn’t clear which organisation — the DoD or the CIA — would actually kill him. (It was also written long after al-Awlaki was put on the kill list, as Hina Shamsi reminds us.)

The memo begins by emphasizing (p. 14) that its analysis — for both the DoD and the CIA — turns on whether 18 USC 1119, the foreign-murder statute, incorporates the “public authority justification” (PAJ). Indeed, it notes in n. 24 that the PAJ is the only defence it will consider. The memo then concludes (p. 20), after five pages of analysis, that in fact s 1119 does incorporate the PAJ. It’s an impressive analysis, and I find it convincing. So let’s grant that the PAJ potentially applies to the killing of al-Awlaki.

The question then becomes: who can invoke the public authority justification? The memo has little problem concluding that the DoD would be entitled to it, because (p. 20) “the operation would constitute the ‘lawful conduct of war’ — a well-established variant of the public authority justification.” In reaching that conclusion, the memo argues (1) that the AUMF covers AQAP, (2) that al-Awlaki qualifies as a targetable member of AQAP; (3) that the US is involved in a NIAC with AQ, making the laws of war applicable; and (4) that the DoD had pledged to obey the laws of war in any lethal operation.

I would quibble with much of the analysis, particularly the memo’s discussion of the scope of the non-international armed conflict between the US and “al-Qaeda.” But I’m prepared to accept that, in the abstract, the DoD would be entitled to invoke the PAJ. My problem is with the memo’s casual assertion that the PAJ applies equally to the CIA, which actually killed al-Awlaki. Here is its conclusion (p. 32)…

Quote of the Day: Tony Abbott on the Rule of Law

by Kevin Jon Heller

Here he is, defending General Sisi, the new President of Egypt:

This is a general, but a general who has studied in both the United States and the United Kingdom, so he is certainly someone who is familiar with the rule of law.

Because everyone knows that you can’t learn about the rule of law outside the West. Duh.

PS. Abbott made his silly comment as a way of explaining why he was confident Egypt would not be unfair to Peter Greste, the Australian Al-Jazeera journalist accused — with no evidence whatsoever — of “spreading false news” and supporting the Muslim Brotherhood.

Greste was just sentenced to seven years in prison. I guess Sisi didn’t pay enough attention in his US and UK classes.

Analysing the US Invocation of Self-Defence Re: Abu Khattallah

by Kevin Jon Heller

Most of the discussion about Abu Khattallah’s capture in Libya has focused on the operation’s basis — or lack thereof — in domestic US law. Less attention has been paid to whether international law permitted the US to use force on Libyan soil. As Marty Lederman recently noted at Just Security, Abu Khattallah’s capture can potentially be justified on two different grounds: (1) Libya consented to the capture operation; or (2) the capture operation represented a legitimate act of self-defence under the UN Charter. The first justification does not appear open to the US; the available evidence indicates that the operation was conducted without Libya’s consent. So it’s not surprising that the US has claimed — in a letter submitted to the UN by Samantha Power on June 17 — that Article 51 permitted the operation:

The investigation also determined that [Abu Khattallah] continued to plan further armed attacks against U.S. persons. The measures we have taken to capture Abu Khattallah in Libya were therefore necessary to prevent such armed attacks, and were taken in accordance with the United States’ inherent right of self-defense. We are therefore reporting these measures to the Security Council in accordance with Article 51 of the United Nations Charter.

Power’s letter obscures far more than it reveals. In fact, the US’s invocation of self-defence raises four very difficult questions:

  • Can a non-state actor launch an “armed attack” that triggers the right of self-defence?
  • If so, must that armed attack be attributable in some fashion to the state whose territory is the object of “self-defensive” force?
  • Do all uses of armed force qualify as an “armed attack” for purposes of Article 51?
  • Does the right of self-defence permit force to be used anticipatorily?

In this post, I want to put aside the first two questions. I have no doubt that a non-state actor can launch an armed attack within the meaning of Article 51, and my views on the “unwilling or unable” test are well-known. It’s worth spending some time, though, on the third and fourth questions.

The third question is interesting because it’s not clear that all uses of force qualify as “armed attacks” for purposes of Article 51. The UN Charter itself distinguishes between the “use of force” (Art. 2(4)) and “armed attack” (Art. 51), and the ICJ has suggested in both Nicaragua and Oil Platforms that at least some uses of force may be so de minimis that they do not entitle the victim state to use force in self-defence. (As opposed to taking other countermeasures.) On the other hand, customary international law seems to indicate that the threshold of force for an armed attack is extremely low. Here is Tom Ruys’ conclusion in his magisterial book “Armed Attack” and Article 51 of the UN Charter (p. 155):

In the end, customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.

In sum, the following general conclusions can be made: (1) the travaux of the Definition of Aggression suggest that a minimal gravity is indeed required and seem to rule out the aforementioned Option 3; (2) ‘concrete’ customary evidence nonetheless makes clear that the gravity threshold should not be set too high and that even small-scale attacks involving the use of (possibly) lethal force may trigger Article 51.

If Ruys is right — and he has examined state practice and opinio juris far more carefully than any other scholar writing on the use of force — the attack on the US embassy in Benghazi almost certainly was, in fact, an “armed attack” for purposes of Art. 51.

What, then, about the fourth question? Here is where the US claim of self-defence regarding the Abu Khattallah operation becomes problematic. The US clearly cannot use the original Benghazi armed attack to justify the operation — although a state’s response to an armed attack may not have to be immediate, the prohibition on armed force in Art. 2(4) of the UN Charter would be meaningless if a state could “pocket” an armed attack and respond to it with armed force much later — nearly two years later, in the case of Benghazi. Indeed, Power seems to acknowledge as much when she emphasises that Abu Khattallah was planning further armed attacks. Does that planning mean the capture operation was a legitimate act of self-defence by the US?

Answering that question, of course, requires us to address the temporal limits of self-defence under Art. 51. Three basic positions on that issue are possible:

  • Self-defence permits the use of force only in response to an armed attack; force cannot be used pre-emptively or preventively (“responsive self-defence”)
  • Self-defence permits the use of force to pre-empt an imminent armed attack but not to prevent a temporally more remote armed attack (“pre-emptive self-defence”)
  • Self-defence permits the use of force to prevent even a temporally remote armed attack (“preventive self-defence”)

Unfortunately, because of the US’s typical lack of transparency concerning its use of force, Power’s letter says nothing about the time-frame of the armed attacks Abu Khattallah was supposedly planning. (Nor does it provide any evidence of that planning, but that’s another question.) The time-frame doesn’t matter, however, if responsive self-defence is the correct position — as noted, the capture operation cannot be justified as a response to the original Benghazi attack.

Most readers — at least those in the West — will no doubt be inclined to reject responsive self-defence as too narrow, even though it is the only position consistent with the text of Article 51, which permits self-defence “if an armed attack occurs.” Surely customary international law does not require a state to wait until an armed attack has already taken place to defend itself, no matter what the UN Charter says.

This issue is much more difficult issue than it may appear. Those interested should read the relevant section of Ruys’ book; I’ll just quote his bottom line (pp. 341-42):

In light of the available evidence, it can be concluded that there has indeed been a shift in States’ opinio iuris insofar as support for pre-emptive self-defence, fairly rare and muted prior to 2001, has become more widespread and explicit in recent years. At the same time, it seems a bridge too far to claim that there exists today widespread acceptance of the legality of self-defence against so-called “imminent” threats. Such assertion tends to forego the opposition of a considerable group of mainly Latin-American, north-African and Asian States. In the present author’s view, it would therefore be more appropriate to argue that the crack in opinio iuris among States has widened, without, however, identifying one approach or the other as the majority view. The implication is that, taking account of the Charter “baseline” and the absence of a concrete precedent in State practice which convincingly demonstrates the international community’s support for some form of anticipatory self-defence, it is impossible to identify de lege lata a general right of pre- emptive – and a fortiori preventive – self-defence.

Ruys’ reference to the UN Charter’s “baseline” is important, because Art. 51’s adoption of responsive self-defence indicates that states who support a more relaxed concept of self-defence, such as the US, have the obligation to find sufficient state practice and opinio juris to establish a broader rule. And such state practice and opinio juris is simply lacking — unless, as is too often the case with custom, we simply ignore the views of the Global South.

Even if responsive self-defence is too narrow, however, that does not mean the Abu Khattallah operation was a legitimate act of self-defence. If the US had evidence that Abu Khattallah was about to launch another armed attack, it is reasonable to assume Powers would have said so in her letter. That she failed to do so thus seems to indicate — though is clearly not dispositive — that the US did not believe another armed attack was imminent when it launched the capture operation. Power’s letter may well indicate, therefore, that the US is promoting the broadest understanding of self-defence possible — preventive self-defence instead of pre-emptive self-defence. If so, as Ruys notes (pp. 336-38), the US is on shaky ground indeed:

[T]here can be no doubt that even among States adhering to the “counter-restrictionist” view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation “Iraqi Freedom” avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of “preventive self-defence.” Likewise, the French politique de defense unequivocally “rejects… the notion of preventive self-defence.”

What is more, even the “traditional” adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to “In Larger Freedom” was rather cautious: it simply “[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack.” Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence “in the event of both actual and imminent attacks.” As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: “It is… the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote.”…

[W]e may therefore conclude that the trend in State practice has been broadly similar to that in legal doctrine: support for anticipatory self-defence has increased, but has by and large restricted this concept to imminent threats.

Again, in the absence of additional information, we cannot categorically reject the US’s insistence that the Abu Khattallah operation was a legitimate act of self-defence. But there is considerable reason to be skeptical. Indeed, the US’s lack of transparency concerning its understanding of Art. 51 of the UN Charter may well indicate it has adopted a position that even its closest allies formally disavow.

Bensouda Accuses UNAMID of Covering Up Sudanese Crimes

by Kevin Jon Heller

I’m not sure how I missed this, but these are very strong — and atypically blunt — allegations by Fatou Bensouda:

The International Criminal Court (ICC) prosecutor Fatou Bensouda urged the United Nations Security Council (UNSC) to investigate reports that the UN peacekeeping force in Darfur (UNAMID) deliberately contributed in covering up crimes in the restive region.

In reference to US-based Foreign Policy (FP) magazine reports, Bensouda asked the council to authorize a “thorough, independent and public inquiry” probe into allegations that UNAMID being subject to “manipulation” through acts committed “with the intentional effect of covering up crimes committed against civilians and peacekeepers”.

FP obtained confidential internal UN memos from UNAMID ex-spokesperson Aicha ElBasri that asserts how the UN peacekeeping force suppressed negative information on violations that occurred in Darfur by Sudanese government and other parties.

The ICC prosecutor said that the responsibility for the “cover-up” may lie “with a handful of individuals” but warned that it undermines the credibility of the peacekeeping mission.

Africa Review adds some additional detail to ElBasri’s disturbing allegations:

Last April, former Unamid spokeswoman Aicha Elbasri, revealed that the unit had misinformed the UN by withholding important details about Darfur.

Unamid has observed the government forces indiscriminately bombing entire villages, targeting civilian and military targets alike. However, these observations are never publically reported in the regular updates by the UN Secretary General to the UNSC,” Ms Elbasri claimed.

She reported that the UN peacekeeping mission did not tell the world that the Khartoum government failed to disarm the Janjaweed militias; that it, conversely, reintegrated them into paramilitary forces under new names, and let them continue committing their widespread, systematic attacks directed against the civilian population in Darfur.

The UNAMID situation obviously requires a UN investigation, so it’s encouraging to see that Bensouda request was quickly supported by both Australia and Rwanda. The UK’s statement, however, is disappointingly tentative, suggesting that the Secretariat — and not the Security Council — should investigate. Given the seriousness of the allegations, that’s simply not good enough.

Charles Taylor Requests Transfer to Rwanda

by Kevin Jon Heller

Full disclosure: Taylor is represented by John Jones QC, who is my colleague at Doughty Street Chambers.

Charles Taylor has filed a disturbing motion with the Special Court for Sierra Leone’s Residual Mechanism, requesting that he be transferred from prison in the UK to a prison in Rwanda because of his mistreatment by the British government. Here are the key paragraphs from the motion’s introduction:

Charles Taylor is the first and only person sent by an international court to serve their sentence, against their wish, outside of their continent of origin. This previously invariable practice accords with a basic requirement of humane treatment: that prisoners should be able to receive periodic visits from their families. International human rights standards, including as recently affirmed by the European Court of Human Rights (“ECtHR”) in Khodorkovskiy, prohibit sending a prisoner unnecessarily for away from the habitual residence of family members, or otherwise creating obstacles that prevent periodic visits.

That is precisely the consequence of Mr. Taylor’s detention in the United Kingdom (“UK”). The extraordinary cost and difficulty of travel for Liberian citizens to the UK, given the financial circumstances of Mr. Taylor’s family, means that Mr. Taylor will seldom, if ever, see his wife and three young daughters, let alone the rest of his family, again. That deprivation will continue, given the length of Mr. Taylor’s sentence, for the remainder of his life unless significant measures are taken to facilitate those visits. The UK has, to the contrary, obstructed such visits. Visa requests by Mr. Taylor’s wife and two of his young daughters have been denied even though the UK was well aware of the purpose of the requested visit. Mr. Taylor has not seen his wife and children since being transferred to the UK eight months ago. This already constitutes a human rights violation: the ECtHR has specifically held that even shorter periods of deprivation of family contact constitute a violation of the right to family life.

Even if these legal impediments were to be surmounted, neither the UK nor the RSCSL has demonstrated any willingness to overcome the inherent difficulties and cost of travel to the UK so as to permit family visits of even a minimally acceptable frequency. The United Kingdom and the RSCSL are jointly and severally responsible for the violation of not only Mr. Taylor’s right to family life, but that of his family members. An immediate remedy is required to put an end to this ongoing violation, and a remedy is readily available to the RSCSL: terminate his enforcement in the UK and transfer Mr. Taylor to Rwanda.

Mr. Taylor’s isolation is exacerbated by the conditions in which he is, and must be, held in the UK. Mr. Taylor has been confined to the prison’s hospital wing, effectively in isolation, since his arrival there. The prison authorities believe, correctly, that Mr. Taylor is too much of a target and too vulnerable to be accommodated within the general prison population. The seriousness of the danger is underscored by the interception of an anonymous letter, possibly originating from within the prison itself, threatening Mr. Taylor with bodily harm and death. Radislav Krstić, whose crimes were less notorious than those for which Mr. Taylor has been found responsible, suffered a near-fatal attack by fellow inmates in a UK prison in 2010. The ICTY was apparently sufficiently concerned about the UK’s ability to ensure adequate conditions of detention for Mr. Krstić that he was transferred back to The Hague. The RSCSL should be equally concerned about the real threat faced by Mr. Taylor, and the unsuitability of a UK prison to ensure that he is kept in a situation that meets the minimum standards required by international law.

The RSCSL should accordingly exercise its authority pursuant to Article 9(2) of the Enforcement of Sentences Agreement between the Court and the UK on 10 July 2007 (“SCSL-UK Enforcement Agreement”) and immediately terminate the enforcement of Mr. Taylor’s sentence, and order that he be transferred directly to Rwanda or, in the alternative, to The Hague pending further deliberations. Rwanda is a location that will permit reasonably frequent family visits and provide Mr. Taylor with a safe environment without being segregated from all other prisoners.

The motion’s allegations, which are supported by hundreds of pages of annexes, are profoundly unsettling. I’d like to say I’m surprised that I haven’t heard more about Taylor’s situation, but I’m not: the media generally pay attention only to individuals accused of international crimes, producing article after article about the allegedly cushy conditions in the UN Detention Unit — the so-called “Hague Hilton.” Once defendants are convicted, journalists seem to lose interest in them. I hope this new motion will spur more coverage of post-conviction detention, which is anything but cushy even in places as “advanced” as the UK — as Taylor’s situation demonstrates.

It will be interesting to see if the SCSL takes the motion seriously. It should.

Lethal Drone Strikes — Not Just for American Citizens Any More!

by Kevin Jon Heller

Not surprisingly, drone strikes that kill American citizens have received the most attention in the press. So it’s important to emphasize that the US kills citizens of its allies, as well, such as the two Australians recently vaporized in Yemen:

TWO Australian citizens have been killed in a US airstrike in Yemen in what is the first known example of Australian extremists dying as a result of Washington’s highly controversial use of predator drones.

The Australian has been told the two men, believed to be in their 20s, were killed in a Predator drone strike on five al-Qa’ida militants travelling in a convoy of cars in Hadramout, in eastern Yemen, on November 19.

The men were Christopher Havard of Townsville and a New Zealand dual citizen who went by the name “Muslim bin John’’ and fought under the alias “Abu ­Suhaib al-Australi’’.

The Australian government, which insists it was given no ­advance warning of the strike, has positively identified the remains of the men using DNA analysis, with samples taken from families of the two men.

[snip]

A senior counter-terrorism source told The Australian the men were “foot soldiers’’ for al-Qa’ida in the Arabian Peninsula, al-Qa’ida’s regional franchise based in Yemen.

It is understood US authorities notified Australian officials about the possibility Australian citizens might have been “collateral damage’’ in the strike, part of an ongoing campaign by the US and Yemeni governments to wipe out AQAP militants.

“The Americans advised us that they had intelligence that suggested they may have been in the car and may have been collateral damage,’’ the source said.

Note that although the drone strike did not target the two Australians, the Australian government knows for a fact that the men were “foot soldiers” for AQAP. And how does it know this? What evidence does it have? Who knows — taking a page from the US, the government won’t say. And some journalists are not impressed. Here is The Guardian‘s Antony Loewenstein:

Yet, uncertainty be damned, the Australian government seems to keep on supporting the CIA killings with most of the media following without question.

Fairfax Media headlined one story “Abbott government defends drone strike that killed two Australian Al-Qaeda militants” without challenging that the two men were, indeed, militants or affiliated with Al-Qaida – they may or may not have been, but innocent civilians have been killed by drones before. The sentence “alleged militants, according to the government” never appeared in the article (this is a relatively common habit in journalism – see for example this essential take-down of a New York Times report on drone killings in Yemen).

I’ve reported independently from Pakistan and Afghanistan, and accurate journalism requires finding reliable sources on the ground (or corresponding with individuals through email, phone, encryption or Twitter) who can confirm or challenge the official version. It’s not rocket science, though definitive information can be scarce in a war zone.

In the last days I’ve reached out to various sources in Yemen (some of the best are herehere and here) and asked Sanaa-based Baraa Shiban to comment. His answer is revealing. “The lack of transparency has became a fixed strategy for the US in its drone war. The US announced recently the death of almost 30 militants in a training camp in Abyan, south of Yemen, but can’t release a single name; this tells it all.”

Taking the word of security sources and the state, when this information is so often wrong or deliberately skewed by anonymous officials whostrategically leak to justify their counter-terrorism policies, is sadly all too common. “We don’t know the facts” is not a shameful statement. To be skeptical shouldn’t be a flaw, but an asset.

Skepticism as an asset, not a flaw. What a radical idea…

Hat-Tip: Bianca Dillon.

Breaking the Silence (About the IDF’s Treatment of Palestinians)

by Kevin Jon Heller

I want to call readers’ attention to a remarkable Israeli NGOBreaking the Silence, which collects the testimony of Israeli soldiers about the brutalization of Palestinians during the occupation. Here is the NGO’s self-description:

Breaking the Silence is an organization of veteran combatants who have served in the Israeli military since the start of the Second Intifada and have taken it upon themselves to expose the Israeli public to the reality of everyday life in the Occupied Territories. We endeavor to stimulate public debate about the price paid for a reality in which young soldiers face a civilian population on a daily basis, and are engaged in the control of that population’s everyday life.

Soldiers who serve in the Territories witness and participate in military actions which change them immensely. Cases of abuse towards Palestinians, looting, and destruction of property have been the norm for years, but are still explained as extreme and unique cases. Our testimonies portray a different, and much grimmer picture in which deterioration of moral standards finds expression in the character of orders and the rules of engagement, and are justified in the name of  Israel’s security. While this reality is known to Israeli soldiers and commanders, Israeli society continues to turn a blind eye, and to deny that what is done in its name. Discharged soldiers returning to civilian life discover the gap between the reality they encountered in the Territories, and the silence about this reality they encounter at home. In order to become civilians again, soldiers are forced to ignore what they have seen and done. We strive to make heard the voices of these soldiers, pushing Israeli society to face the reality whose creation it has enabled.

We collect and publish testimonies from soldiers who, like us, have served in the West Bank, Gaza and East Jerusalem since September 2000, and hold lectures, house meetings, and other public events which bring to light the reality in the Territories through the voice of former combatants. We also conduct tours in Hebron and the South Hebron Hills region, with the aim of giving the Israeli public access to the reality which exists minutes from their own homes, yet is rarely portrayed in the media.

Founded in March 2004 by a group of soldiers who served in Hebron, Breaking the Silence has since acquired a special standing in the eyes of the Israeli public and in the media, as it is unique in giving voice to the experience of soldiers. To date, the organization has collected more than 700 testimonies from soldiers who represent all strata of Israeli society and cover nearly all units that operate in the Territories. All the testimonies we publish are meticulously researched, and all facts are cross-checked with additional eye-witnesses and/or the archives of other human rights organizations also active in the field. Every soldier who gives a testimony to Breaking the Silence knows the aims of the organization and the interview. Most soldiers choose to remain anonymous, due to various pressures from official military persons and society at large. Our first priority is to the soldiers who choose to testify to the public about their service.

What makes this kind of work so effective, of course, is that it is impossible to disregard the soldiers who provide the testimonials — or at least all of them — as “anti-Israel.” On the contrary, these soldiers are true patriots, doing their part in a repressive political environment to save Israel from its Netanyahus and Liebermans.

The Guardian has an excellent story today about Breaking the Silence. You can read it here. And make sure to check out the NGO’s superb website, where all of the testimonials can be found.

Hat-tip: my colleague Anicee Van Engeland.

Libya’s Chutzpah

by Kevin Jon Heller

I had a good chuckle this morning when I read Libya’s latest attempt to avoid complying with its obligation to surrender Saif Gaddafi to the ICC. (Which, of course, it may be genuinely unable to do, given that he’s still being held in Zintan. But that’s another story.)

The source of my amusement is Libya’s new excuse for not being able to file submissions on time:

[D]uring May 2014, there has been a surge in attacks against the Government, particularly in Tripoli and Benghazi, such that the UN Support Mission in Libya has recently expressed its concern over these “various acts of violence, including the assaults on official institutions”. These ongoing exigencies have prevented the Libyan authorities from providing up-to-date instructions on the salient issues. In view of these circumstances, the Government is, understandably, currently focusing its resources on restoring stability and order.

If you followed Libya’s failed admissibility challenge closely, you know that Saif’s defence team at Doughty Street Chambers (full disclosure: I’m now an academic member there) consistently argued that the violence in Libya prevented it from effectively trying Saif. Libya just as consistently rejected that argument, insisting that the violence had no effect whatsoever on its ability to conduct judicial proceedings.

To recap Libya’s position, then: the violence in the country doesn’t prevent the government from prosecuting Saif. But it does prevent it from filing a legal brief withe the ICC.

As I said, I had a nice chuckle.

A Problematic Study of Drone Strikes in Pakistan (Updated)

by Kevin Jon Heller

Lawfare reports today on a study published in Political Science Quarterly about how ordinary Pakistanis view US drone strikes in their country. According to the post, the study “[c]hallenge[s] the conventional wisdom” that there is “deep opposition” among Pakistanis to drone strikes and that “the associated anger [i]s a major source of the country’s rampant anti-Americanism.”

I don’t have access to the study itself, but the polling questions quoted in the Lawfare post seem seriously flawed. Here are the three primary questions about drone strikes:

How much, if anything, have you heard about the drone attacks that target leaders of extremist groups – a lot, little, or nothing at all?

Please tell me whether you support or oppose the United States conducting drone attacks in conjunction with the Pakistani government against the leaders of extremist groups.

Now I’m going to ask you a list of things that the United States might do to combat extremist groups in Pakistan. For each one, please tell me whether you would support or oppose it. [The respondent is then offered]: Conducting drone attacks in conjunction with the Pakistani government against leaders of extremist groups. 

There are two significant problems with these questions. First, it seems like a major stretch to describe the US drone program in Pakistan as being carried out “in conjunction with the Pakistani government” — a formulation that implies that Pakistan and the US are working together. I accept reports that say Pakistan has tacitly or secretly endorsed the US drone program. But the Pakistani government’s public position has always been that the drone program is being conducted without its consent. The “in conjunction with” language is thus seriously misleading — especially given that the ordinary Pakistani will likely be far more familiar with the government’s public position than with the private one revealed in secret cables. Indeed, the second and third questions could easily be interpreted to be asking a hypothetical question (“would you like drone strikes more if they were conducted in conjunction with your government?”), instead of as an assertion of a past and present state of affairs.

The second problem, however, is even more serious. All three questions assert — and assume — that drone strikes in Pakistan target “leaders of extremist groups.” But that is almost certainly not the case. Here, for example, is what the Stanford/NYU “Living Under Drones” report says:

National security analysts—and the White House itself— have found that the vast majority of those killed in drone strikes in Pakistan have been low-level alleged militants. Based on conversations with unnamed US officials, a Reuters journalist reported in 2010 that of the 500 “militants” the CIA believed it had killed since 2008, only 14 were “top-tier militant targets,” and 25 were “mid-to-high- level organizers” of Al Qaeda, the Taliban, or other hostile groups. His analysis found that “the C.I.A. [had] killed around 12 times more low-level fighters than mid-to-high- level” during that same period. More recently, Peter Bergen and Megan Braun of the New America Foundation reported that fewer than 13% of drone strikes carried out under Obama have killed a “militant leader.” Bergen and Braun also reported that since 2004, some 49 “militant leaders” have been killed in drone strikes, constituting “2% of all drone-related fatalities.”

Unless all of these reports are incorrect, the US drone program in Pakistan has never focused on “leaders of extremist groups.” It is thus extremely misleading for the study to ask ordinary Pakistanis whether they support drones strikes that target such leaders. Would the results be the same if the study had asked participants whether they “supported or opposed the United States conducting drone attacks against low-level fighters believed to be members of extremist groups”? I doubt it.

It is a truism of the polling business that poll results are only as good as the questions participants are asked. In the case of the drone study reported in Lawfare, there is reason to be skeptical of both the questions and the answers.

UPDATE: After an email exchange with one of the authors, I think it’s only fair to acknowledge that the questions were formulated and asked by Pew, not by the research team. That said, I still question how useful the answers are, given the problems discussed above.

ICRC President’s Lecture for the Foreign and Commonwealth Office

by Kevin Jon Heller

On May 19, the Legal Directorate of the Foreign and Commonwealth Office held their 2nd Annual International Law Lecture. The lecture was delivered by Peter Maurer, the President of the ICRC, who spoke on “War, Protection and the Law: The ICRC’s approach to International Humanitarian Law.” More information about the speech is available at EJIL: Talk!, but I thought it would be worth posting links at OJ:

  • Video of the talk here.
  • Video of the subsequent Q&A here.
  • Transcript of the talk here.

Well worth checking out!

Joining Doughty Street Chambers as an Academic Member

by Kevin Jon Heller

One of the great advantages of being a legal academic is the ability to get involved in actual litigation. I have consulted on a number of cases at the ICTY, ICTR, and ICC over the years, most obviously serving as one of Radovan Karadzic’s legal associates, but it’s been a while, and I’ve been itching to get back in the game. So I am delighted to announce that I have been invited to join Doughty Street Chambers in London as an Academic Member.

Doughty Street, I think it’s safe to say, has one of the world’s best international-law practices. (And excels in many other areas, such as criminal law.) Its roster of barristers includes such luminaries as:

Geoffrey Robertson QC — one of the founders of the set, who needs no introduction to OJ readers.

Sir Keir Starmer, KCB, QC — the former Director of Public Prosecutions and Head of the Crown Prosecution Service, currently serving as Croatia’s counsel at the ICJ in Croatia v Serbia.

John R.W.D. Jones QC — counsel for Saif Gaddafi at the ICC and Mustafa Badreddine at the STL; former counsel for Naser Oric and Ante Gotovina at the ICTY, both of whom were acquitted.

Tim Moloney QC — one of the leading terrorism experts in the UK, having defended numerous IRA members and Muslims accused of terrorist acts (such as the men accused of the attack on the BBC and the plot to blow up the London Stock Exchange).

Wayne Jordash QC — counsel for Baglishema and Bagaragaza at the ICTR and Sesay at the SCSL; currently acting for Libya at the ICC and Jovica Stanišić at the ICTY.

Amal Alamuddin — counsel for al-Senussi at the ICC and for Julian Assange in his extradition case, as well as advisor to Ben Emmerson, UN special rapporteur on counter-terrorism and human rights, in his inquiry into the use of drones.

I could go on, but that list is enough to explain why I’m so excited — and so honoured — to be joining Doughty Street as an Academic Member. It’s a remarkable opportunity, one for which I’m deeply grateful.

I don’t yet know what cases I’ll be working on, but I’ll let readers know as soon as I do!

How Does a Hybrid Tribunal for Iraq and Afghanistan Sound?

by Kevin Jon Heller

Colum Lynch reports today at FP.com that the United States is pushing for the creation of a hybrid international criminal tribunal for Syria by… the UN General Assembly:

[P]eople familiar with the matter say that the United States is already engaged in informal discussions with foreign governments over a plan to seek a mandate from the U.N. General Assembly to establish such a court, which would be comprised of Syrian, regional, and international judges, lawyers, and prosecutors. The two likeliest homes for the tribunal are Jordan and Turkey, these people said.

The plan currently under consideration is for the U.N. General Assembly to adopt a resolution inviting one of Syria’s neighbors, probably Jordan or Turkey, to work with the U.N. Secretary General to establish a so-called hybrid court, comprised of local, international, and Syrian prosecutors and judges. The court would be funded by voluntary contributions from governments that support the effort.

Lynch notes that a hybrid tribunal for Syria would be a first for the UNGA, because — unlike the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia — it would need to be created without the consent of the territorial state. (Syria would obviously never consent to such a court.)

In a recent post, Derek Jinks questions whether the UNGA has the authority to create a hybrid tribunal without Syria’s consent. I find his analysis compelling. But here is what I want to know: does the US really want to lead the charge for such a nonconsensual hybrid tribunal? After all, what’s sauce for the goose is sauce for the gander: if the US endorses the UNGA creating a nonconsensual hybrid tribunal for Syria, it will hardly be able to complain if the UNGA later creates, say — just spitballing here — a nonconsensual hybrid tribunal to deal with crimes committed in Iraq and Afghanistan. Either states need to consent to international criminal tribunals or they don’t. So does the US really want to give its blessing to what is an obvious attempt to circumvent P-5’s stranglehold over the Security Council?

Inquiring minds want to know…