The OTP has weighed in on Libya’s ongoing challenge to the admissibility of the case against Saif Gaddafi. In its view, although there are serious questions concerning whether Libya is investigating the same conduct as the OTP, Libya is currently willing and able to conduct a genuine prosecution. Unfortunately, its conclusion regarding ability rests on a very serious legal error. Here are the relevant paragraphs (emphasis mine):

42. However, the Prosecution also notes that not all detention centers, including apparently the one holding the suspect in this case, are under the control of the Minister of Justice and Libya has no access to certain detainees held in these centers. Further, abuses and deaths have occurred in detention centers in 2012,

43. Most notably, Libya does not clarify whether it has gained custody over Saif Al-Islam and when his transfer to Tripoli will be effected…

44. Nonetheless, the investigation of the case against Saif Al-Islam has progressed and the Libyan legislation does permit a trial in absentia. Hence, and in light of the evidence submitted and notwithstanding the challenges faced by Libya as a post-conflict country, the Prosecution concludes that Libya appears, at this time and in light of the materials considered, able to conduct the proceedings.

Libyan criminal law may permit a trial to be held in absentia, but the Rome Statute does not. Article 17(3) of the Rome Statute is explicit on this point — a state cannot be considered “able” to prosecute a defendant if it does not have that defendant in custody (emphasis mine):

In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

This is not a question of whether Libya will give Saif a fair trial; it is a question whether Libya’s can hold a trial at all, as “trial” is defined by the Rome Statute. And according to the plain language of Article 17(3), Libya is not currently able to try Saif. Unless it actually effectuates Saif’s transfer, therefore, its admissibility challenge must fail.

I know we normally announce call for papers in a group, but I want to highlight a particularly exciting new journal from Oxford University Press, the London Review of International Law.  As you’ll see, the editors are both distinguished and innovative; I’m sure the journal will prove to be both, as well.  I hope readers will consider submitting to it.

Call for Papers: The London Review of International Law

Dear friends and colleagues:

We are writing to encourage submissions to the London Review of International Law, a new journal to be published by Oxford University Press in 2013. In addition to scholarly articles, we are seeking review essays and writings in non-traditional formats of broader interest to international legal scholarship.

The London Review of International Law is a peer-reviewed journal for critical, innovative and cutting-edge scholarship on international law. The journal’s mission is to publish high-quality research and to support and foster the emergent body of work being undertaken in the areas of international legal theory, international legal history and international socio-legal studies. This work is reshaping the contours of international legal scholarship with profound implications for received enquiries and ideas, and the London Review gives it pride of place. 

The London Review encourages transdisciplinary enquiry. Disciplinary boundaries are there to be transgressed, or at any rate problematised, and the editors are keen to publish research that expands the range of concepts, insights and manoeuvres deployed to analyse international law. Equally, however, the editors aspire to publish work that explores and excavates the untold stories and lost traditions of international law itself. The disciplinary affiliation of authors is not important.

Insisting on the notion that international legal scholarship can and should read well, the London Review prioritises excellence in writing. While the careful crafting of texts is all too often subordinated to the dictates of technical proficiency, the ascent of English as a global language has generated an array of registers and modes of expression. The London Review welcomes that diversity, and encourages an experimental attitude to the communication and development of international legal ideas. 

The London Review is divided into three sections. The first section publishes scholarly articles. The second section is devoted to review essays. These may be critical explorations of one or more new publications or of older texts reconsidered in the light of new publications, but may also be structured, for example, around particular scholars, concepts or events. The London Review does not publish short-length book reviews. The third section supplements this writing with material designed to broaden and enrich the international legal conversation in a different way. Varying from issue to issue, this may include annotated reprints of classic texts, translations of foreign language scholarship, and reports of archival sources, along with photography, poetry and other non-traditional forms of engagement with international legal themes.

For further information, including the full editorial board, guidelines on submitting, instructions to authors and a list of suggested books for review please visit the London Review website here.

We look forward very much to hearing from you,

Matthew Craven
Catriona Drew
Stephen Humphreys
Andrew Lang
Susan Marks

Noam Lubell and Nathan Derejko, both at the University of Essex, have posted “A Global Battlefield? Drones and the Geographical Scope of Armed Conflict” on SSRN. The essay will appear in the same Journal of International Criminal Justice symposium as my essay on signature strikes. Their abstract is all of one sentence, so here are the first couple of paragraphs:

Defining the geographical scope of an armed conflict is a matter that carries weight in more ways than one. Outside the legal sphere the question might seem like one that requires nothing more than common sense – if two (or more) parties are engaged in battle, then the area of conflict is wherever they are fighting. The reality – or at least the legal reality – is unfortunately one that does not conform to simple formulations. Being ‘at war’ or ‘going to war’ does not necessarily mean that the whole of a state is in fact embroiled in an armed conflict. For example, while most of Iraq became a zone of armed conflict in 2003, life for most people in the United States continued uninterrupted while its troops invaded a country on the other side of the globe. This can even be the case for both states involved, as was seen in the 1982 Falklands/Malvinas conflict between the UK and Argentina. The same is true for armed conflicts between a state and an organised armed group, which may be raging in one part of the country with little manifestation in other areas as is evident from the armed conflict between the armed forces of the Philippines and the Moro Islamic Liberation Front (MILF), which, for more than 20 years, was largely confined to the southern island of Mindanao. Clearly then, the actual hostilities do not necessarily correspond with the borders of the states(s) concerned. Another possibility is to base the determination of geographical scope on the existence of actual fighting. In other words, wherever there are hostilities, there is an armed conflict. But this too has its obstacles, including the question of how to determine what should count as hostilities, and whether there must be a temporal consistency within a specific geographical area that would eliminate occasional flare-ups from the scope. These issues will be returned to in greater detail in later sections.

Our focus is on the particular challenges raised to the geographical scope of armed conflict by the use of unmanned aerial vehicles, commonly referred to as drones. Much has been written about drones from a variety of perspectives,4 and we do not intend to repeat all the debates. Instead, the aim of this work is to asses not the drones themselves, but rather to examine one of the perceived ways in which the use of drones is affecting, if not leading, to the metamorphosis of armed conflict. The very notion of armed conflict appears to be going through a process of shape-shifting whereby the use of new technologies such as drones or cyber-operations are slowly erasing the crucial significance of geographical boundaries, truncating vast distances, and diminishing the need for boots on the ground.

The essay is absolutely superb — I wish I had written it myself. If I have one criticism, it’s that the authors could have spent more time discussing what actions suffice to establish that an individual located away from an active combat zone has assumed the kind of continuous combat function in a terrorist group that makes him targetable at any time, not simply when he directly participates in hostilities.

In any case, it’s a must-read. Check it out.

According to the White Paper (p. 6), a US citizen “who is located outside the United States and is an operational leader continually planning attacks against US persons or interests” cannot lawfully be killed unless, inter alia, “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of attack against the United States.” Early criticism of the White Paper has focused on how it defines imminence. The ACLU’s Jameel Jaffer, for example, says that it “redefines the word imminence in a way that deprives the word of its ordinary meaning.” That’s actually something of an understatement; as I’ll discuss in this post, the White Paper’s entire approach to the concept of imminence is deeply confused — and deeply problematic from the standpoint of international law.

The first thing to note is that it’s not clear why the White Paper even discusses imminence. As I noted in my previous post, the White Paper’s central premise is that all targeted killings of “senior operational leaders” in “al-Qa’ida or its associated forces” take place in the context of a global non-international armed conflict (NIAC) and are thus all subject to the laws of war (IHL). The White Paper also takes the position that the laws of war apply to a U.S. citizen in the same way that they apply to a non-citizen; it specifically argues (p. 3) that because ”the military may constitutionally use force against a US citizen who is part of enemy forces,” the DoJ “does not believe that US citizenship would immunize a senior operational leader of al-Qa’ida or its associated forces from a use of force abroad.”

Although I reject the White Paper’s claim that the US is engaged in a global NIAC with “al-Qa’ida and its associated forces,” I have no problem with the idea that US citizenship does not affect the targetability of an individual who is otherwise a legitimate target under IHL. But why, then, discuss imminence at all? It is black-letter IHL that a legitimate target can be targeted at any time; it is not necessary to show that the target is an imminent threat, regardless of how imminence is defined. Given that the White Paper assumes both that all targeted killings of US citizens take place in armed conflict and that US citizenship does not affect targetability under IHL, it should consider whether a US citizen poses “an imminent threat of attack against the United States” — or against anything else — to be completely irrelevant.

So why does the White Paper graft an imminence requirement onto IHL?  There are two possible explanations…

There is much to say about the DoJ White Paper on the targeted killing of US citizens, which reflects the US’s idiosyncratic interpretation of international law. In this post I want to focus on the White Paper’s primary — and in my view fatal — flaw: its complete failure to address the relationship between the organized armed groups that it considers to be engaged in a single non-international armed conflict (NIAC) with the US.

The White Paper begins with the standard premise that “[t]he United States is in an armed conflict with al-Qa’ida and its associated forces” (p. 2). It then claims that the armed conflict in question is a global NIAC that extends to any member of “al-Qai’da and its associated forces” anywhere in the world (p. 3; citations omitted; emphasis mine):

[T]he United States retains its authority to use force against al-Qa’ida and associated forces outside the area of hostilities that targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill Americans. The United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces. Any U.S. operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities.

After making that claim, the White Paper does something interesting: it explicitly addresses the argument that the existence of a NIAC between the US and al-Qaida must be determined according to the test established by the ICTY in Tadic – the test adopted by the ICRC, by the ICC, and by nearly all international law scholars. Here is what it says (pp. 3-4; some citations omitted)…

Michael Isikoff has obtained the 16-page memo.  It is available here.

Analysis later!

H/T — Lawfare.

Here’s a gem from Libya’s latest submission in its challenge to the admissibility of the case against al-Senussi (emphasis mine):

The Libyan Government observes that there has been a recent increase in filings in this case, no doubt due to the retention of new counsel for Mr Al-Senussi. Libya of course understands that counsel for Mr Al-Senussi will rightly want to explore all avenues of recourse for his client. However, it is hoped that in the future the Defence for Mr Al-Senussi will not file unfounded and repetitive applications before the Court containing serious allegations against the Libyan Government which are premised solely on inaccurate media reports. It is an unfortunate fact that inaccurate media reporting is frequent and inevitable and it is for this reason counsel are encouraged to properly substantiate all future allegations made to the Court, the Security Council, the UN Assistant SecretaryGeneral for Human Rights and the UN High Commissioner for Human Rights.

Yes, you read that right: the Libyan government, which has spent the past year baselessly impugning the integrity of the OPCD, now has the temerity to accuse al-Senussi’s lawyer, Ben Emmerson QC, of filing “unfounded and repetitive” applications with the Court based on unsubstantiated allegations. Ben Emmerson QC, who currently serves as the UN’s Special Rapporteur on Counter-Terrorism and Human Rights and as the British judge on the ICTY’s Residual Mechanism; who has been a special advisor to the ICC Prosecutor and to the judges at the ECCC; and who has literally decades of experience litigating cases at international courts and tribunals.

And what are the unsubstantiated allegations Emmerson has supposedly made on the basis of “inaccurate media reports”? There are only two such allegations mentioned in the motion that so aroused Libya’s ire: (1) that Libya intended to put al-Senussi on trial in a month (para. 2); and (2) that Libya paid Mauritania $200,000,000 to extradite al-Senussi (para. 29). The first allegation did indeed prove to be inaccurate, but Emmerson can hardly be blamed for making it — the news article in question simply quoted Taha Bara, the official spokesperson for Libya’s Prosecutor General, to that effect. If the spokesperson was somehow misquoted, Libya made no attempt to correct the record. As for the second allegation — well, I’ve dealt with the persuasiveness of Libya’s response to that one before. I’ll simply note here that Libya’s response (para. 18) to Emmerson’s “unsubstantiated allegation” relied solely on the unsubstantiated allegation of the former Libyan Deputy Prime Minister, as quoted in a news article.

Pot, meet Kettle.  I’m sure you’ll be fine friends.

We know what is stake at in Libya’s admissibility challenge regarding Saif Gaddafi: either a fair trial at the ICC that will likely result in a lengthy prison sentence or an unfair trial in Libya that will almost certainly result in execution. Libya has done nothing to disguise the unfairness of its national proceedings, but it has generally pretended to be concerned with Saif’s right to a fair trial in its many filings at the ICC. So I was very surprised to find Libya argue in its most recent motion that Saif’s lawyers, the Office of Public Counsel for the Defence (OPCD), should not even be allowed to see the evidence it provides the Pre-Trial Chamber in support of its admissibility challenge:

29. In its 7 December 2012 Decision concerning Mr. Gaddafi the Pre-Trial Chamber requested Libya to make available sample investigative materials. Libya has made such samples available (as set out in Annexes 4 to 7 and 15 to 17), prior to the accusatory phase of proceedings on an exceptional basis as a demonstration of its genuine commitment to fully cooperate with the Court in these admissibility proceedings. Libya requests however that this material be treated as being submitted to the Chamber on an ex parte basis. This is necessitated by the strict non-disclosure requirements of investigative material prior to the accusatory phase of proceedings under Article 59 of the Libyan Code of Criminal Procedure (as set forth in the Application of Libya), and for
obvious reasons of confidentiality.

30. Article 59 requires non-disclosure of investigative material under threat of criminal punishment. It provides that:

Investigation procedures and their results shall be considered confidential.
Investigators, prosecution members and their assistants of clerks and experts who are related to the investigation or attend to their profession or post shall undertake not to disclose same. Anyone who breaches this provision shall be punished in accordance with Article 236 of the Penal Code.

The unfairness of Libya’s ex parte request is obvious — the OPCD can hardly challenge Libya’s claim that the national proceedings against Saif satisfy the principle of complementarity if they don’t have access to the supporting evidence. Which is, of course, precisely the point of the request.

To be sure, Libya doesn’t acknowledge the real reason it doesn’t want the OPCD to see its evidence. Instead, it chooses to once again attack the integrity of the OPCD’s lawyers…

Libya has filed a lengthy response to a series of Pre-Trial Chamber questions about the domestic proceedings against Saif. There is much of interest in the motion, but what particularly caught my eye is Libya’s open admission that it has repeatedly interrogated Saif and confronted him with witnesses in the absence of defence counsel. Here are the relevant paragraphs (emphasis mine):

49. In the period since 1 May 2012, testimonies regarding the actions of Saif Al-­Islam Gaddafi have been obtained from individuals who previously operated at the highest civilian and military levels of the Gaddafi regime. These individuals include [Redacted]. Mr. Gaddafi himself has also been interviewed on a number of occasions since 1 May 2012 (the last occasion being on 13 November 2012), and has been confronted with witnesses who have given testimonies in his case during such interviews.

51. The procedure for prosecution team interviews is that a private meeting is scheduled, to be attended by the witness and prosecution lawyers (other people are not permitted to be present at such meetings). The witness is then asked to swear an oath that he or she will tell the truth in answering the questions posed by members of the prosecution team. The questions asked of the witness and the witness’ answers to these questions are then written down, and each page of the witness testimony is sealed by the witness with their signature and/or fingerprint, as well as the signature of the attending representative/s of the prosecution team. The accuracy of witness testimonies which might be contested by the suspect are verified through a process under Libyan law known as confrontation (Article 106 of the Criminal Procedure Code). During this process the accused person in the investigation (i.e. Mr. Gaddafi) is presented with each witness whose account differs from that given by him, and is given the opportunity to refute the testimony of that witness in front of one or more member of the prosecution investigative team.

These uncounseled interrogations and confrontations categorically violate Libyan criminal procedure. (As readers know, I don’t think it’s relevant whether they violate international standards of due process.). Here is what Libya said in its original admissibility challenge…

I’ve been catching up on the lastest filings regarding Libya’s complementarity challenges, and I’ll have a post tomorrow about some shocking admissions by Libya concerning its planned domestic prosecution of Saif Gaddafi.  But I would be remiss if I didn’t point out now that Libya is denying — in writing, but apparently with a straight face — that it paid Mauritania $200,000,000 to extradite al-Senussi:

Serious evidential issues apply to Mr. Al-Senussi’s manifestly unsubstantiated allegations that Libya incited or provided “aid and assistance” to a violation of Resolution 1970 by Mauritania through the offer and payment of a sum of money in return for receipt of Mr. Al-Senussi. As outlined in Mr Al-Senussi’s Application, Libyan Government records establish that the payment of 250 million dinars to Mauritania which was approved by the Libyan General National Congress and recorded in a GNC Decision of 14 November 2012 (ie. more than 70 days following the extradition of Mr Al-Senussi to Libya from Mauritania), was made by way of bilateral aid “as a donation to the Mauritanian people”. Indeed, the former Libyan Deputy Prime Minister, Mostafa Abu Shagur, who was in office at the time of Mr Al-Senussi’s extradition, has confirmed that the payment made was consistent with Libya’s many other investments in Mauritania and was made specifically in order to assist the Mauritanian economy.

See?  The $200,000,000 wasn’t a bribe.  It was merely a good-hearted “donation to the Mauritanian people” from the generous and compassionate Libyan government.

If the ICC judges buy that, I have a nice bridge they might be interested in…

Rob has an excellent post today at Prawfsblawg extolling the potential of American legal education. It is nice to see someone dissenting from the conventional doom and gloom, and Rob makes a number of valuable points. But I feel compelled to take issue with (1) his description of non-American legal education, and (2) his assessment of the potential for American law schools to attract large numbers of foreign students. Here, in relevant part, is what he argues:

The potential of America’s law schools is only starting to be realized.

The global market for US legal education was traditionally regarded as composed of a relatively small group of foreign-educated lawyers seek advanced degrees. But this changing. Increasingly, a US JD degree is an attractive option for foreign students. And you have probably noticed more non-US JDs in your classes. In most countries law is the subject of a first degree after high school. The market could be expanded of US law schools were to offer a combination undergraduate degree in another discipline and a law degree-what about a 5 or 6 year program that leads to a BA in economics or political science or philosophy and a JD?

The fact is that American law schools have a competitive advantage. To be sure there is excellent legal education in some other countries. But my considerable global experience suggests to me that those countries are few. In most places, legal education is dominated by old-fashioned rote learning and by professors who spend much if not most of their time in private practice. Innovation is rare and slow. Class sizes are often huge.

If we are not distracted by US News rankings, we will observe that in all kinds of law schools all across the US there are world class intellectuals and leading specialists on the faculty. Of course national law schools abroad have a captive audience of students who can’t study in English and/or whose first and immediate priority is to qualify for the local bar or who can’t afford foreign study (though we can reach out to the last group through distance education and foreign campuses).   But overall the number of students with global ambitions, and the prevalence of English as a global language of law, are growing, from what I can tell.

It would have been nice if Rob had named names, because his rather dismissive description of legal education outside of the US strikes me as significantly overbroad. Does legal education in most non-American law schools involve little more than rote learning at the hands of non-academics? Rob is certainly not describing New Zealand or Australia, where I’ve held permanent positions. He isn’t describing Canada — especially not his own alma mater, the University of Toronto! — or most good UK law schools. Is he describing schools in countries with civil-law systems? I hope readers will weigh in, because my evidence is merely anecdotal. That said, I don’t think Rob’s description applies to the Netherlands or most Scandinavian countries. It may be somewhat more true of German legal education, though it certainly doesn’t describe all German law schools. I also doubt it is true of elite Asian law schools, such as National University of Singapore or the University of Hong Kong.

Frankly, I’m not even sure how well Rob is describing American legal education — at least in general.  His rosy picture of innovative teaching orchestrated by full-time academics dedicated to legal scholarship clearly applies to elite American law schools, but does it really describe the situation at lower-ranked law schools — even quite prestigious ones?  As Rob points out, there are excellent scholars in many, perhaps most, American law schools.  But that does not mean American legal education is excellent no matter where a student goes to law school.  Nor does it mean that legal education is generally better in the US than in other countries.

I am also skeptical of Rob’s belief that foreign law students represent a vast and largely untapped market for American law schools.  His point about the greater value of a JD on the international market is well taken; my law school, Melbourne, recently shifted to a JD-only model precisely in order to maximize the international marketability of our law graduates. I also agree that a graduate law degree can be a significant draw for students in countries where law is an undergraduate subject; approximately 15% of our JD students come from outside Australia.

That said, I question whether American law schools are particularly well-situated to attracting foreign students who don’t intend to practice in the US. Most obviously, American legal education is absurdly insular — far more so than legal education anywhere else in the world. Outside of the elite American law schools, students receive almost no education in international law. Comparative law is almost non-existent. All, or nearly all, of the professors are American. Exchange options are limited — and many foreign law schools are off the table, no matter how elite, because they don’t offer graduate-level classes. How much do most non-elite American law students know about how law functions in the rest of the world when they graduate? I’d venture it is vastly less than law students who graduate from law schools almost anywhere else.

And then, of course, there is the expense of American legal education — something that Rob doesn’t even mention. Why would a large number of foreign students want to spend $200,000 on an American JD when they can get law degrees in their home countries for next to nothing (even at the most prestigious law schools) or can attend elite non-American law schools for half the price? (Melbourne falls into the latter category.) Rob suggests that universities create five or six year joint BA/JD programs to attract foreign students. Barring a radical transformation in financial-aid practices, however, attending such a program would simply mean more debt for a foreign student — perhaps more than $300,000. How many non-wealthy foreign students would want, or could handle, that expense?

To be sure, for students able to afford Yale, Stanford, or NYU, the additional expense of a JD may well be worth it — even taking into account that starting legal salaries tend to be much lower outside of the US. But lower-ranked schools? I don’t see it. Given the insular nature and ridiculous expense of American legal education, the primary draw for foreign students will always be the prestige of the degree-granting institution.  So, far from providing salvation, I think that whatever pull the US has on foreign law students will likely do little more than exacerbate the vicious elite/non-elite division that currently characterizes American legal education.

Readers — especially non-American ones? Your thoughts?

Nothing in the Human Right’s Council’s report is particularly novel; it’s long been obvious that both the settlements and the transfer of Israeli civilians into the Occupied Palestinian Territories are illegal. Nevertheless, it’s worth noting the report’s most important conclusions:

100. The facts brought to the attention of the Mission indicate that the State of Israel has had full control of the settlements in the OPT since 1967 and continues to promote and sustain them through infrastructure and security measures. The Mission notes that despite all the pertinent United Nations resolutions declaring that the existence of the settlements is illegal and calling for their cessation, the planning and growth of the settlements continues both of existing as well as new structures.

101. The establishment of the settlements in the West Bank including East Jerusalem is a mesh of construction and infrastructure leading to a creeping annexation that prevents the establishment of a contiguous and viable Palestinian State and undermines the right of the Palestinian people to self-determination.

102. The settlements have been established and developed at the expense of violating international human rights laws and international humanitarian law, as applicable in the OPT as notably recognised by the 2004 ICJ Advisory Opinion.

103. The settlements are established for the exclusive benefit of Israeli Jews; settlements are being maintained and developed through a system of total segregation between the settlers and the rest of the population living in the OPT. This system of segregation is supported and facilitated by a strict military and law enforcement control to the detriment of the rights of the Palestinian population.

104. The Mission considers that in relation to the settlements Israel is committing serious breaches of its obligations under the right to self-determination and “certain obligations under international humanitarian law”, including the obligation not to transfer its population into the OPT. The Rome Statute establishes the International Criminal Court’s jurisdiction over the deportation or transfer, directly or indirectly, by the occupying Power of parts of its own population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. Ratification of the Statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims.

105. The existence of the settlements has had a heavy toll on the rights of the Palestinians. Their rights to freedom of self-determination, non-discrimination, freedom of movement, equality, due process, fair trial, not to be arbitrarily detained, liberty and security of person, freedom of expression, freedom to access places of worship, education, water, housing, adequate standard of living, property, access to natural resources and effective remedy are being violated consistently and on a daily basis.

Based on those conclusions, the HRC report demands that Israel “cease all settlement activities without preconditions” and “immediately initiate a process of withdrawal of all settlers from the OPT.” Interestingly, the report also encourages both states and corporations to ensure that their business dealings with Israel do not support the settlements — even if that means terminating those dealings…