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William Bradford Fails Upward — and Is Still Lying About His Credentials

by Kevin Jon Heller

When last we met William Bradford, he had just published an article in the National Security Law Journal (NSLJ) accusing centrist national-security-law professors of treason and advocating prosecuting them for providing material support to terrorists. After many scholars, including me, pointed out that the article was both absurd and deeply offensive, the NSLJ repudiated the article. (Alas, the journal has since scrubbed the repudiation from its website.)

Bradford’s article was not his first brush with controversy He was forced to resign from Indiana University at Indianapolis after Inside Higher Education revealed that he had lied about his military service, falsely claiming, inter alia, that he had fought in Desert Storm and Bosnia and had won a Silver Star. Bradford then later resigned from West Point — whose decision to hire him still boggles the mind — after it came to light that he had falsely claimed that he had been an assistant professor at the National Defense University (NDU), run by the Department of Defense. According to the NDU, to quote the Guardian, “he was not a professor there, nor even a staff employee…. He is said to have worked for a Waynesboro, Virginia-based translations and business consultant, Translang, which had a contract with the university.”

You would be forgiven for thinking that someone who has accused respected law professors of committing treason and who was forced to resign from two academic institutions for lying about his credentials might have a difficult time finding a new — and more important — position. But if you do think that, you have never met Donald J. Trump, for whom no one is too dishonest or too incompetent to hire. Because Trump has recently appointed Bradford to the be the Director of the Office of Indian Energy at the Department of Energy (DoE).

That’s appalling in and of itself. But the awfulness doesn’t end there, because Bradford is still lying about his credentials. Here is a screenshot of Bradford’s bio on the DoE website (in case the DoE reads this and decides to scrub it):

Notice the text inside the red rectangle: Bradford is still claiming to have been a faculty member at the NDU — the same claim that led to his resignation from West Point.

In any sane administration, Bradford would be fired in the next 48 hours. But this is the Trump administration, so I’m not holding my breath.

The Downing of the Syrian Fighter Jet and Collective Self-Defence

by Kinga Tibori-Szabó

[Kinga Tibori-Szabó is the author of the monograph Anticipatory Action in Self-Defence, which won the 2012 Francis Lieber Prize. She currently works at the Kosovo Specialist Chambers. The views expressed herein are those of the author and do not necessarily reflect the views of the employing organization.]

On 18 June 2017, a US Navy Super Hornet shot down an SU-22 fighter jet of the Syrian government south of Tabqah, in Syria. The US-led anti-ISIS Coalition’s statement indicated that the Syrian fighter jet was shot down after it dropped bombs near Syrian Democratic Forces (SDF) positions in the area. The Coalition statement averred that the action was taken

“in accordance with rules of engagement and in collective self-defense of Coalition partnered forces”.

Let’s analyse that statement. The action seems to have been a standard exercise of unit self-defence, a tactical level application of national or collective self-defence. It allows commanders to defend their unit, other units of their armed forces as well as other specified units (friendly forces) against hostile acts or hostile intent (see annex D of the San Remo Rules of Engagement (ROE) Handbook). But as aptly discussed in a post on Opinio Juris, unit self-defence should be viewed as a ROE concept that has underlying legal consequences but is not a legal term in and of itself. So the fact that the downing of the Syrian aircraft was in accordance with ROE does not answer the question of its legal basis in jus ad bellum. That brings us to the second part of the statement, the reference to collective self-defence.

According to the statement, the Coalition acted in collective self-defence to protect the SDF against an attack by the Syrian regime without itself seeking to fight that regime.

First, a few points need to be made regarding the reference to collective self-defence to underline that the Coalition does not seek to fight the Syrian regime.

  • The jus ad bellum basis of Coalition actions on Syrian territory has attracted criticism because of reliance on a controversial interpretation of collective self-defence. In a nutshell, the request of Iraq for the assistance of the international community to fight ISIS was interpreted as a legal basis for the exercise of collective self-defence not only on the territory of Iraq, but also on the territory of Syria (see opinions on this here, here and here)
  • Be that as it may, the Coalition has repeatedly emphasized and the quoted statement expressly states that “[t]he Coalition does not seek to fight [the] Syrian regime”. This cautious approach was somewhat overshadowed by the evident US support for ‘vetted Syrian opposition forces’, but until recently, the US and its Coalition partners had avoided direct confrontations with the Syrian regime. However, the US strikes against the Syrian airbase in early April amounted to use of force against the Syrian regime and have initiated an international armed conflict between the two states in the sense of Common Article 2. The downing of an Iranian UAV in early June and of a second one two days after the shooting of the Syrian aircraft made it clear that these confrontations are no longer isolated incidents, but clashes in the context of an international armed conflict between Syria and the leader of the Coalition (US).
  • Nonetheless, the existence of an armed conflict between the US and Syria is a separate issue from the question whether (collective) self-defence can be invoked by the Coalition as a justification for some of the clashes within the context of that armed conflict. Simply put, the invocation of collective self-defence in the Coalition statement does not protect the US from the obvious: that it is now in armed conflict with the Syrian regime and potentially with its allies.

Second, the exercise of collective self-defence requires, in addition to the core conditions of self-defence, at least a request for assistance from a state. This is unsurprising, as the right of self-defence enshrined in Article 51 of the UN Charter pertains to states rather than armed groups. While it is widely accepted that an armed attack may be carried out by an armed group and self-defence may be exercised against such a group, the possibility of armed groups having the right to invoke self-defence is not contemplated. Nonetheless, it seems that the Coalition invoked collective self-defence to protect a ‘friendly’ armed group notwithstanding the fact that such a group does not have the right to invoke self-defence in the first place and request assistance on that basis. The question thus arises whether there is room for an expansive view on the right of self-defence permitting a state to invoke ‘collective’ self-defence on behalf of an armed group and assist the group on that basis. The wording of Article 51 of the UN Charter leads to a prima facie negative answer. Nonetheless, the proliferation of conflicts involving armed groups and the current reality of states defending such groups without themselves being the target of the same attack may bring this question to the fore and further complicate the interpretation and application of self-defence in relation to non-state actors.

ICC Appeals Chamber Says A War Crime Does Not Have to Violate IHL

by Kevin Jon Heller

One of the most basic assumption of ICL is that an act cannot be a war crime unless it violates a rule of international humanitarian law (IHL). Article 6(b) of the London Charter criminalised “War Crimes: namely, violations of the laws or customs of war.” Article 3 of the ICTY Statute provides that “[t]he International Tribunal shall have the power to prosecute persons violating the laws or customs of war,” while Article 4 of the ICTR Statute provides that “[t]he International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977.” And Article 8 of the Rome Statute criminalises “[g]rave breaches of the Geneva Conventions of 12 August 1949”; “[o]ther serious violations of the laws and customs applicable in international armed conflict”; [i]n the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949″; and “[o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character.” In each and every case, war crimes are limited to violations of IHL.

No more. The Appeals Chamber (AC) at the ICC has just unanimously held in Ntaganda that a perpetrator can be convicted of a war crime even if his act does not violate IHL. That decision is not simply “unprecedented,” as the AC openly acknowledges. It is simply incorrect — as this post will demonstrate.

The judgement itself addresses allegations that Ntaganda is criminally responsible for two war crimes — rape and sexual slavery — involving children forcibly recruited into his organised armed group, the UPC/FPLC. Ntaganda challenged that allegation, arguing that “crimes committed by members of armed forces on members of the same armed force do not come within the jurisdiction of international humanitarian law nor within international criminal law.” The Trial Chamber (TC) disagreed, in a judgment ably discussed and critiqued by Yvonne McDermott. Ntaganda appealed, giving rise to this judgment. Here is the AC’s “key finding”:

2. Having regard to the established framework of international law, members of an armed force or group are not categorically excluded from protection against the war crimes of rape and sexual slavery under article 8 (2) (b) (xxii) and (2) (e) (vi) of the Statute when committed by members of the same armed force or group.

Before turning to the logic of the judgment, it is important to be very precise about the terms of my quarrel with the AC. I completely agree with the AC that there are situations in which a member of an armed force can, in fact, commit the war crime of rape or the war crime of sexual slavery against a member of the same armed force. As the AC rightly notes, although the Third and Fourth Geneva Conventions do not apply to acts committed by a combatant against someone from the same side of the conflict — whether by virtue of membership in that same armed force (GC III) or by nationality (GC IV) — the First and Second Geneva Conventions contain no such limitation:

59. In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances […] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.

Nothing in GC I or GC II suggests, however, that IHL protects all members of the armed forces against member-on-member violence. On the contrary, let’s take a look at the AC’s statement again, with the critical language in bold:

59. In contrast, Geneva Conventions I and II, which protect the wounded and sick on land and the wounded, sick and shipwrecked at sea respectively, provide protection “in all circumstances […] without any adverse distinction founded on sex, race, nationality” and prohibit violence against them. Importantly, such protected status is not limited to persons belonging to enemy armed forces, but includes wounded, sick or shipwrecked members of a party’s own armed forces, a rule that corresponds to the understanding of the scope of protection since the first Geneva Convention was adopted in 1864. It follows from the above that the notion of grave breaches under Geneva Conventions I and II includes violations committed against the wounded, sick or shipwrecked committed by members of their own armed force.

Under GC I and GC II, in other words, member-against-member violence violates IHL only if the victim is wounded, sick, or shipwrecked. If the victim is none of those things — if he or she is not hors de combat — that violence may well violate a state’s domestic criminal law, but it does not violate IHL.

If the AC had limited the scope of its judgment to rape and sexual slavery committed against child soldiers who were hors de combatdefined by the ICRC, in relevant part, as “anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness” — it would have been on firm ground. But that is not what it has done. On the contrary, the AC goes to great lengths to make clear that member-against-member rape and sexual slavery are war crimes even if the victim is an active combatant –– ie, one who is not hors de combat. Here is the relevant paragraph (emphasis mine):

64. With regard to the second issue – namely whether Status Requirements exist in international humanitarian law specifically for the war crimes of rape and sexual slavery – the Appeals Chamber observes that the prohibitions of rape and sexual slavery in armed conflict are without a doubt well established under international humanitarian law. As noted by the Trial Chamber, protection under international humanitarian law against such conduct generally “appear[s] in contexts protecting civilians and persons hors de combat in the power of a party to the conflict”. In this regard, the question arising before the Appeals Chamber is whether such explicit protection under international humanitarian law suggests any limits on who may be victims of such conduct. In the view of the Appeals Chamber, there is no conceivable reason for reaching such a conclusion.

Notice the bold language, because it’s critical — and wrong. IHL protection does not “generally” apply only to civilians and combatants hors de combat. On the contrary, each and every IHL convention applies only to those two categories of individuals. As we have seen, the AC itself acknowledges that limitation with regard to all four of the Geneva Conventions. It cites no other source of IHL, instead simply noting that the ICRC states in its new commentary to GC I “that Common Article 3 protects members of armed forces against violations committed by the armed force to which they belong.” But that statement is incomplete and misleading, because the ICRC makes unequivocally clear that CA3’s prohibitions apply only to individuals who are hors de combat:

518  Subparagraph (1) covers all ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’. The article does not expand on these notions and this part of the article did not give rise to much discussion at the 1949 Diplomatic Conference. The protection afforded under this subparagraph requires that the person be in the power of a Party to the conflict (see section E.4).
519  The protection of persons not or no longer participating in hostilities is at the heart of humanitarian law. The persons protected by common Article 3 are accordingly described by way of explicit delimitations: ‘persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause’ (emphasis added). Parties to a non-international armed conflict are under the categorical obligation to treat these persons humanely, in all circumstances and without any adverse distinction.

The Trial Chamber’s judgment is no better. The TC rests its conclusion that member-against-member rape is a war crime even when the victim is an active combatant solely on two things: the Martens Clause and Art. 75 of the First Additional Protocol (AP I). Here is paragraph 47:

While most of the express prohibitions of rape and sexual slavery under international humanitarian law appear in contexts protecting civilians and persons hors de combat in the power of a party to the conflict, the Chamber does not consider those explicit protections to exhaustively define, or indeed limit, the scope of the protection against such conduct. In this regard, the Chamber recalls the Martens clause, which mandates that in situations not covered by specific agreements, ‘civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience’. The Chamber additionally notes that the fundamental guarantees provisions [in Art. 75] refer to acts that ‘are and shall remain prohibited at any time and in any place whatsoever’ and as such apply to, and protect, all persons in the power of a Party to the conflict.

I don’t have time to get into a detailed discussion of the Martens Clause. Suffice it say here that it is very unlikely that the Clause can ever be relied upon to expand IHL not only beyond conventional law, but even beyond customary IHL — and as the AC itself acknowledges (para. 60), there is literally zero state practice indicating that member-against-member mistreatment is a war crime even when the victim is an active combatant. Even Antonio Cassese, no stranger to judicial activism, dismisses this “norm-creating” reading of the Martens Clause as “radical.” As he says, “[s]urely the Clause does not envisage — nor has it brought about the birth of — two autonomous sources of international law, distinct from the customary process.”

As for Art. 75 of AP I, the Protocol’s “fundamental guarantees” provision, the TC’s position is deeply problematic. Here is n. 111:

Article 75 of Additional Protocol I refers to ‘a Party to the conflict’ (emphasis added) and therefore does not limit the fundamental guarantees to persons in the power of the opposing party.

The TC conveniently fails to note that Art. 75 applies only to international armed conflict — and that Art. 4 of AP II, the “fundamental guarantees” provision in the NIAC Protocol, is specifically limited to “persons who do not take a direct part or who have ceased to take part in hostilities” (ie, civilians and combatants hors de combat).

Given that conventional IHL uniformly requires the victim of member-against-member mistreatment to be hors de combat, on what basis does the AC hold that the status of the victim is irrelevant? The answer comes from this paragraph (emphasis mine):

65. The Appeals Chamber agrees with the Trial Chamber’s finding that “there is never a justification to engage in sexual violence against any person; irrespective of whether or not this person may be liable to be targeted and killed under international humanitarian law”. Accordingly, in the absence of any general rule excluding members of armed forces from protection against violations by members of the same armed force, there is no ground for assuming the existence of such a rule specifically for the crimes of rape or sexual slavery.

This is simply incorrect. To begin with, there is a specific rule excluding active combatants from the war crimes of rape and sexual slavery in member-against-member situations: namely, the rule that says violence in member-against-member situations violates IHL only when the victim is hors de combat. The AC’s judgment suggests that states not only had to specify that rule in the various IHL conventions, they also had to add: “oh, and by the way, this limit means that mistreating active combatants doesn’t violate IHL.” But that’s silly: the former implies the latter. After all, expressio unius est exclusio alterius is a basic rule of treaty interpretation.

But even if that was not the case, there would still be a general rule excluding active combatants from the war crimes of rape and sexual slavery in member-against-member situations: the rule that says a war crime must involve a violation of IHL. As noted at the beginning of this post, that is one of the most basic assumptions of IHL. Not all violations of IHL are war crimes, but all war crimes are violations of IHL. So the burden of proof was not on Ntaganda to show that rape and sexual slavery cannot be war crimes in member-against-member situations if the victim is an active combatant. The burden was on the prosecution to prove that such acts actually violate IHL. Because if they don’t — and they don’t, as we have seen — the Court has no jurisdiction whatsoever over Ntaganda’s acts, at least insofar as they are legally characterised as war crimes.

In the end, the AC’s decision in Ntaganda is little more than the latest iteration of the Court’s willingness to rely on teleological reasoning when the Rome Statute does not protect victims as much as the judges think it should. No one is in favour of raping and sexually enslaving child soldiers. But the solution isn’t to detach the law of war crimes from its moorings in IHL by holding — if only implicitly — that an act can be a war crime even if it does not violate IHL. To do so is not only legally indefensible, it risks delegitimising both the Court and the law of war crimes itself.

Dear Secretary Tillerson (and the World Media): Qatar is NOT Under a “Blockade”

by Julian Ku

Longtime readers of this blog may have noticed that one of my pet peeves is the incorrect usage of international legal terms in public and diplomatic discourse.  Hence, Israel did NOT commit “piracy” during the 2010 Gaza flotilla raid despite lots of governments claiming otherwise.  Cuba is not under a “blockade” despite tons of Cuban government propaganda otherwise. So you can imagine my dismay when U.S. Secretary of State Rex Tillerson issued this statement yesterday calling the situation in Qatar a “blockade.”

We call on the Kingdom of Saudi Arabia, the United Arab Emirates, Bahrain, and Egypt to ease the blockade against Qatar. There are humanitarian consequences to this blockade.

(Emphasis added). Global media is using the term  “blockade” as well.

I don’t doubt that Qatar is under severe economic pressure.  It is reported that all of Qatar’s neighbors in the Gulf have cut off air, land and sea trade with Qatar.  Saudi Arabia has blocked the only land border into Qatar, which is a peninsula.  But as powerful as these economic pressures are, they do NOT constitute a blockade as defined by international law.  As this definition from the Max Planck Institute Encyclopedia of Public Law explains:

A blockade is a belligerent operation to prevent vessels and/or aircraft of all nations, enemy and neutral from entering or exiting specified ports, airports, or coastal areas belonging to, occupied by, or under the control of an enemy nation.

There is no evidence, as far as I know, that Saudi Arabia and other Gulf nations are preventing “vessels and/or aircraft of all nations” from entering Qatar ports.  Instead, the Gulf nations are simply preventing anyone in their territories from traveling to or trading with Qatar.  A blockade would mean that the Gulf nations actually used military force to interdict all shipping and flights into Qatar by any nation and through international waters.  Israel has essentially established such a blockade of the Gaza Strip, but that has not happened to Qatar (yet). Until that happens, there is no blockade.

Why is it so shocking that Secretary Tillerson did not recognize this legal distinction? Because the U.S. frequently engages in economic sanctions of the sort currently being imposed against Qatar.  The U.S. has either strict economic sanctions or full-scale embargoes on countries like North Korea, Cuba, and Iran.  Cuba in particular has tried to label the US embargo on it as a “blockade” even though the U.S. does not use military force to prevent other countries from trading with Cuba. The U.S. should not and cannot water down the legal definition of “blockade” without imperiling an crucial tool in its diplomatic toolbox.   Moreover, since “blockades” are traditionally seen as an “act of war,” they would probably constitute a “use of force” under Article 2(4) of the U.N. Charter.  The U.S., more than any country, should want to maintain the legal right to impose embargoes.

So please, Secretary Tillerson, consult your many talented and knowledge State Department lawyers.  Qatar is NOT being blockaded, and the U.S. (of all countries) should avoid saying so.

Emailing Does Not Pass the Kiobel Test: US Court Dismisses ATS Case Against Anti-Gay Pastor

by Julian Ku

Distracted by #ComeyDay and other international crises, I missed this recent U.S. federal court decision in Sexual Minorities of Uganda v. Livelydismissing an Alien Tort Statute lawsuit on Kiobel extra-territoriality grounds.  While using unusually critical language to denounce U.S. pastor-defendant Scott Lively’s involvement in Uganda’s anti-homosexual laws and actions, the U.S. District Court for Massachusetts held:

…Defendant’s status as an American citizen and his physical presence in the United States is clearly not enough under controlling authority to support ATS extraterritorial jurisdiction. The sporadic trail of emails sent by Defendant to Uganda does not add enough to the record to demonstrate that Plaintiff’s claims “touch and concern the territory of the United States . . with sufficient force to displace the presumption against extraterritorial application.” Kiobel, 133 S. Ct. at 1669.

What is notable about this case is that the same court and judge refused to dismiss this case on Kiobel grounds back in 2013 with largely the same allegations. The main difference with the result in 2017 seems to be that discovery revealed that Lively, the U.S. pastor, did not provide any

financial backing to the detestable campaign in Uganda, he directed no physical violence, he hired no employees, and he provided no supplies or other material support. His most significant efforts on behalf of the campaign occurred within Uganda: itself, when he appeared at conferences, meetings, and media events.

On these facts, this seems like the right result.  Kiobel requires something more than communications from the United States to “displace the presumption against extraterritoriality.” But caselaw continues to be a little muddy and I fully expect this to be appealed.

 

Civilian Casualties and the Law-Policy Conundrum

by Charles Kels

[Charles Kels is a major in the U.S. Air Force. His views do not reflect those of the Air Force or Department of Defense.]

While Syrian atrocities and North Korean provocations have garnered headlines of late, it is the threats posed by non-state actors (and their transnational pursuit by powerful militaries) that have most bedeviled scholars and practitioners of international law in the new millennium. This challenge is unlikely to abate anytime soon. Aside from the preliminary matter of resort to armed force, foremost among the dilemmas is how best to minimize civilian casualties in a context where the use of both human shields and surreptitious baiting is prevalent, distinction is difficult to begin with, and collateral damage exacts a strategic toll on top of its moral and legal burden.

In this vein, the uptick in civilian casualties from coalition airstrikes this year has raised the specter of a “more cavalier” approach toward civilian deaths accompanying the transition of US administrations. The US military, for its part, maintains that its standards have not changed. In a May press conference, Defense Secretary James Mattis reiterated that “there has been no change to our rules of engagement and there has been no change to our continued extraordinary efforts to avoid innocent civilian casualties.” What has changed, according to the Pentagon, is a delegation of authority to launch attacks and a shift toward surrounding rather than evicting ISIS fighters from their strongholds.

The concern over a purported “loosening” of counterterrorism rules begs the question of how protective of civilians the Obama-era policy really is or was. An excellent window into that issue is provided by a debate earlier this year over at Just Security between Gabor Rona and Ryan Goodman. To oversimplify, Gabor argued that the presidentially-mandated Director of National Intelligence (DNI) report claiming that only one non-combatant death resulted from US counterterrorism strikes outside areas of active hostilities in 2016 was not credible, due in large part to “an inappropriate application” of international humanitarian law (IHL) or the law of armed conflict (LOAC) outside of armed conflict. Ryan responded that Gabor was making “a category mistake” by confusing a “policy innovation” (i.e., “areas of active hostilities”) with the legal definition of non-international armed conflict (NIAC). Gabor conceded that “areas of active hostilities” and NIAC are not synonymous, but pointed out that it nonetheless remained unclear where the US government considered itself at war. Ryan, together with Stephen Pomper, replied that such lack of clarity shouldn’t be a reason to distrust the DNI report since, in any event, national self-defense targeting in response to imminent armed attacks is more restrictive than IHL targeting.

Simply put, I think that Gabor is more likely to be right for the basic reason that his main point is unassailable: how you define the terms can influence the result you get. The input (definitions) determines the output (numbers). What constitutes a non-combatant death outside an area of active hostilities is dependent, among other considerations, on the applicable legal regime (which under this formulation must be IHL, or else the entire exercise is futile), a shifting policy determination of where active hostilities exist, and an idiosyncratic definition of “non-combatant” that appears to apply the notion of combatancy outside the context of armed conflict in a “national self-defense” strike. The stark reality is that any time combat power is employed innocents are likely to be harmed, no matter how cutting-edge the technology, prescriptive the policy framework, or conscientious the warfighters. This is why the talk of “zero” civilian casualties was always disconcerting, and why, in Gabor’s words, claiming one civilian casualty in a year strains credulity.

Recently, Bobby Chesney provided another useful reminder that the phrase “areas of active hostilities” is not a legal term and is not meant to denote the applicable legal regime. He also offered an astute analysis of what the policy framework was intended to do: namely, “to eschew the full range of authority that LOAC would permit, in favor of a more constrained approach,” so as to enable the Obama administration to downplay the practical gap between the US position of “a borderless armed conflict and the position of those who reject that view.” In so doing, however, the administration continued to offer assurances of compliance with IHL, whether or not it was the relevant legal framework, while claiming that its policy overlay was a heightened standard rather than a failure to comply with international human rights law (IHRL).

The result is what Naz Modirzadeh aptly called “folk international law,” the mixing and matching of IHRL, IHL, and jus ad bellum standards into a hodgepodge of norms that provided a shiny veneer of legal and policy frameworks for US counterterrorism operations. The problem is not that these standards weren’t well-intentioned or crafted by some of the best legal minds the US has to offer—indeed, they almost certainly were—but that they sowed legitimate confusion among supporters and critics alike by using policy to bend rather than supplement the law.

For example, the location of active hostilities per US policy “does not turn exclusively on” the existence of armed conflict, yet the “scope and intensity of US counterterrorism operations” are a key factor in making that determination. If this sounds a lot like the first Tadić factor for determining the existence of a NIAC, that’s because it does. So Gabor can perhaps be forgiven for his alleged “category mistake” of assuming that active hostilities have something to do with armed conflict, and the American Civil Liberties Union (ACLU) and other human rights organizations cannot be totally off base for highlighting the cognitive dissonance of a policy framework that specifically applies outside areas of active hostilities yet “contains some standards that are contrary to what is legally required outside of armed conflict situations.”

Where does that leave us today, now that the rhetoric of US political leadership has shifted from interagency “coordination and review” to “total authorization” and “annihilation”? Perhaps the best, even if not wholly satisfying, answer is a return to first principles and an acknowledgement that the law has not changed. It is axiomatic that IHL is triggered by armed conflict and does not apply outside it. No policy framework, no matter how much legal-sounding terminology it incorporates, can alter this. Nor is any policy that risks blurring this crucial distinction, and is thereby dependent upon the supposedly “unique moral nobility” of a particular leader or cabinet for its responsible application, one that is ultimately sustainable.

IHL “sets the outer limits” of what is permissible in war. Within that construct, how much authority to delegate, or what level to call in strikes, is a matter of discretion. Exceeding IHL’s outer limits, or transposing those limits outside armed conflict, is not. Policy innovations like “areas of active hostilities,” even if conceived to exceed humanitarian safeguards, risk couching over-application in the language of constraint. The best way to avoid policy being misconstrued as law is to clearly differentiate law from policy. And the best way to address the myriad international legal challenges posed by non-state actors is to avoid further muddling an already complicated terrain.

Actually, President Trump CAN Unilaterally Withdraw the U.S. From NATO

by Julian Ku

The estimable professor-pundit Daniel Drezner has a typically smart blogpost on President Trump’s refusal to affirm the U.S. commitment to Article 5’s collective defense provision of the North Atlantic Treaty.  I don’t have a problem with his views here, but I can’t help jumping in to correct this paragraph from his post:

So why is this such a big deal of a story? The United States is a member of NATO, which means that Article 5 is legally binding whether Trump says so out loud or not. Unlike NAFTA or the Paris climate treaty, I’ve been assured by smart lawyer types that Trump cannot unilaterally withdraw.

[Emphasis added].

Actually, as a matter of U.S. constitutional law, Drezner and his smart lawyer friends have things kind of backwards here, at least with respect to NAFTA and NATO. The broad consensus view is that the President has the unilateral authority to terminate a treaty pursuant to that treaty’s termination provisions or consistent with international law.  This means that as long as the President follows Article 13 of the North Atlantic Treaty — which requires the U.S. provide one year’s notice before termination — President Trump can terminate US membership in NATO without first getting consent from the Senate or the Congress as a whole.

The U.S. Supreme Court has never ruled on this question definitively, but it strongly hinted that the President has this power in its seminal 1979 Goldwater v. Carter decision refusing to require senatorial consent before President Carter’s termination of the U.S.-Republic of China (Taiwan) Mutual Defense Treaty.  The American Law Institute’s newly approved section on Treaties in the forthcoming Restatement (Fourth) on U.S. Foreign Relations Law explicitly endorses the President’s unilateral treaty termination power, and this was not even a change from the earlier Third Restatement.

Terminating NAFTA is the more complex problem, as John Yoo and I have argued here.  Although the President also has the power to terminate NAFTA’s international agreement status, he has to separately nullify the domestic legal effect of NAFTA. Some of that might be done via executive action, but it is our view that he will need another statute to completely eliminate all domestic legal effects of NAFTA.

It is also worth noting that the President’s unilateral termination power calls into question those who criticized President Obama for failing to submit the Paris Agreement to the Senate on the theory that this would have somehow insulated Paris from a unilateral President Trump termination.  In fact, President Trump could have terminated the Paris Agreement unilaterally, whether or not it was approved by the Senate.

None of this is meant to encourage or endorse any of President Trump’s actual or threatened treaty terminations.  But as a matter of U.S. constitutional law, there is no reason to doubt he can take the U.S. out of NATO, Paris, and many other international agreements.

Beyond the Globalism/Nationalism Divide: The Rise of Cities and Corporations Seeking International Obligations

by Anthea Roberts

[Anthea Roberts is an Associate Professor at the School of Regulation and Global Governance, Australian National University.]

In withdrawing from the Paris Accord, President Donald Trump emphatically rejected globalism in favor of nationalism. “As president, I can put no other consideration before the well-being of American citizens,” he explained. “I am fighting every day for the great people of this country. Therefore, in order to fulfill my solemn duty to protect America and its citizens, the United States will withdraw from the Paris Climate Accord.” But might this strong endorsement of nationalism exacerbate divisions within the state, leading sub-state actors (like cities) and non-state actors (like corporations) to seek to undertake international obligations beyond the state?

The old domestic political divide between left and right, liberal and conservative, is giving way to a new division between globalists and nationalists. As White House advisers H.R. McMaster and Gary Cohn recently explained of Trump and his America First policy:

 The president embarked on his first foreign trip with a clear-eyed outlook that the world is not a “global community” but an arena where nations, nongovernmental actors, and businesses engage and compete for advantage. We bring to this forum unmatched military, political, economic, cultural, and moral strength. Rather than deny this elemental nature of international affairs, we embrace it.

Similar rhetoric has emerged in other domestic confrontations, such as in Marine Le Pen’s description of the battle in the French election as being one between “globalists” and “patriots.”

But focusing on the nationalist/globalist divide may encourage one to overlook how divided the “national” has become. In particular, cities are frequently more open, plural and cosmopolitan than their surrounding rural areas, and this is often particularly true of “global” cities like New York and London. Think of London’s vote to remain in the European Union as an example, or how votes are divided between the east and west coasts of America and much of the rest of America.

If many cities are more globalist than the nation states in which they are located, we may expect them to buck a return to nationalism. For instance, in withdrawing from the Paris Accord, Trump explained that: “I was elected to represent the citizens of Pittsburgh, not Paris.” Pittsburgh’s Mayor Bill Peduto quickly took to Twitter to reject his city’s name being taken in vain: “Pittsburgh stands with the world & will follow Paris Agreement. As the Mayor of Pittsburgh, I can assure you that we will follow the guidelines of the Paris Agreement for our people, our economy and future.”

Pittsburgh is not alone. A group of 30 mayors, three governors, more than 80 university presidents and more than 100 businesses are now trying negotiate with the United Nations to sign up to the Paris Accord. This effort is being led by Michael Bloomberg, the former New York City mayor. Such an attempt is extraordinary given that international law is generally premised on obligations being accepted by states, not sub-state units or non-state actors. But it is also echoes McMaster and Cohn’s statement that the international system is one “where nations, nongovernmental actors, and businesses engage and compete for advantage.”

The possibility of non-state actors or sub-state actors taking on international obligations is controversial, but not unheard of. Sandesh Sivakumaran and I have argued that certain non-state actors should be permitted to issue binding unilateral declarations through which they commit to international law obligations. There is some practice in support of such an approach. For example, Geneva Call, a Geneva-based organization, created a Deed of Commitment on anti-personnel mines that can be signed by “armed non-state actors.” The Deed largely parallels the commitments incumbent upon states parties to the Ottawa Convention on the Prohibition of Anti-Personnel Mines.

Such an approach might cross-apply to other non-state actors, like corporations. We did not consider whether a similar approach could apply to sub-state actors, like cities and states within a federal system. This approach may well be prohibited by the domestic laws of particular states that prevent sub-state entities from engaging in foreign relations. But perhaps, as a matter of international public policy, this approach should be permitted when non-state and sub-state actors seek to take on obligations in excess of those accepted by their state.  This would surely be controversial, however, as states jealously guard their law-making powers as a key attribute of statehood.

Yet in a world in which many cities and some companies are more globalist and environmentally concerned than their states, perhaps pressure for this sort of action will begin to mount. Indeed, we are starting to see collaborations emerging among cities and mayors both within and across nation states to deal with global issues like climate change. Consider, for example, the climate alliance established by California, New York and Washington and the Global Parliament of Mayors. If this trend continues, we will not have a nationalist world or a globalist one but a far more complicated reality where states, sub-state actors and non-state actors collaborate and compete both within and across state borders.

Far from a strong assertion of nationalism resulting in the primacy of the state, a strong America First approach in these circumstances may actually undermine the pre-eminence of the state, leading to greater domestic divisions between globalist, cosmopolitan cities and more nationalist, parochial rural areas. If global cities find that they have more in common with each other than with their states, what will this mean for the stability of a neo-nationalist approach? It may well be that in reasserting the primacy of nationalism, Trump will end up kicking another own goal.

Sound and Fury on the Paris Agreement – But Does It Signify Anything?

by Daniel Bodansky

[Daniel Bodansky is Foundation Professor of Law at the Sandra Day O’Connor College of Law, Arizona State University.]

As usual, in his announcement yesterday about the Paris Agreement, President Trump spoke loudly but carried a small stick.  Duncan laid out the options for withdrawal in his post earlier this week.  Rather than choosing the “nuclear option” of withdrawing from the UN Framework Convention on Climate Change, which President Trump could have initiated immediately and would have resulted in US withdrawal from the Paris Agreement a year from now, he opted to withdraw from the Paris Agreement pursuant to the Paris Agreement itself – a much slower process that requires him to wait until November 2019 to provide notice of withdrawal, and another year before the withdrawal takes effect.  Needless to say, a lot can happen between now and then.   Whether Trump feels the same way in 2019 as he does today is by no means certain, particularly since, judging from both his words and deeds, Trump views consistency as the hobgoblin of little minds.  As a result, his announcement throws red meat to his supporters and gives the finger to the rest of the world  (much the same thing) – but it doesn’t do anything concrete to withdraw the United States from the Paris Agreement.

But if the Trump announcement was weak on substance it was strong on rhetoric.  David Roberts has an excellent post over at Vox on “The 5 Biggest Deceptions in Trump’s Paris Climate Speech.” So I’ll be brief.  Suffice it to say that, in justifying his decision to withdraw from the Paris Agreement, President Trump trotted out the same warmed-over arguments that the Bush Administration made about the Kyoto Protocol:  it’s unfair to the US because it lets China and India off the hook; it’s a threat to US sovereignty, by putting the United States under the thumb of UN bureaucrats; and it would wreck the US economy.  These agreements may have had a kernel of truth with respect to the Kyoto Protocol, but they are completely wrong about the Paris Agreement.  The Paris Agreement was, in fact, designed to be the un-Kyoto. In contrast to Kyoto, it calls on all countries to make commitments to control emissions.  Rather than imposing internationally negotiated targets on countries, it gives parties complete flexibility to nationally-determine their emission reduction plans.  And rather than putting countries in a legal straightjacket that threatens their sovereignty, countries’ national emission commitments under the Paris Agreement are not legally binding.

Although the US will remain in the Paris Agreement through at least 2020, President Trump said that the US would stop implementing it in the meantime.  This appears directly at odds with general rule of treaty law, reflected in the Vienna Convention on the Law of Treaties, requiring states to perform in good faith treaties to which they are a party.  So long as the United States is a party to the Paris Agreement, it is obligated to comply with its commitments under the agreement.

For Trump, announcing his intention to withdraw from the Paris Agreement was a win-win-win: it shored up support among his base, diverted attention away from the Russia investigation, and allowed him to look decisive (after weeks of dithering about what to do).  For the rest of the world (including non-Trump America), the announcement was a significant setback in the international effort to address climate change.  But how serious a setback will depend, in part, on the reaction by other countries and by sub-national actors within the United States.   So far, the response has been encouraging.  Other countries, including China, Russia, India and European countries, have reaffirmed their commitment to the Paris Agreement and states and cities within the United States have created the United States Climate Alliance, dedicated to achieving the US goal of reducing emissions by 26-28% below 2005 levels by 2025.  If the United States reengages with the Paris Agreement after the 2020 elections, the Trump announcement may turn out to be a pothole for the United States, rather than a plunge off the cliff for the world.

What to Look for in any U.S. Withdrawal from the Paris Agreement

by Duncan Hollis

President Trump has indicated that he will announce a decision on future U.S. participation in the Paris Agreement later today at 3 pm. Reports suggest that he has already made up his mind to withdraw. That decision is likely to receive extensive attention (not to mention criticism) on the merits. And certainly that attention is warranted. But I believe an equally important issue will be how the Trump Administration pursues its withdrawal.

Contrary to popular opinion (and this erroneous NY Times Q&A), the Paris Agreement was never intended to be non-binding. It is, on its face, pretty clearly a treaty in the international law sense of that term (see the standard definition in Art. 2(1)(a) of the 1969 Vienna Convention on the Law Treaties (VCLT)). True, one key provision of the Paris Agreement (Article 4) contains language that does not evidence an intention to create legal rights or obligations (and the negotiation of which almost blew up the original deal). But the rest of the agreement was clearly intended to create a treaty and the language used manifests such intentions. For confirmation, one only has to look to the U.N. Treaty Office (which is home to some of the world’s leading experts on treaties) and note how it has always regarded the Paris Agreement as a treaty.

The United States formally joined the Paris Agreement on November 4, 2016, following its acceptance of that treaty on September 3, 2016. It is true that the United States did so without seeking the U.S. Senate’s advice and consent under Art. 2, cl. 2, section 2, nor did Congress specifically authorize U.S. participation as it did for treaties like NAFTA or the WTO Agreement. But U.S. treaty law and practice has long accommodated other means for the United States to enter into treaties in the international law sense, including through the President’s sole executive powers or where prior Congressional authorization supports U.S. participation. In the case of Paris, the precise grounds for U.S. acceptance are contested (see Dan Bodansky and Peter Spiro’s impressive take on these issues here).

As far as international law is concerned, however, there is little question that the United States is currently bound by its acceptance. The law of treaties is most famous for the foundational principle pacta sunt servanda, or as VCLT Art. 26 puts it, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” And for those less familiar with the VCLT, it is important to note that although the United States never joined the “treaty on treaties” every Administration since Richard Nixon’s has regarded almost all of its provisions as customary international law (the exceptions being provisions on signature and consultations in the event of breach). Thus, to withdraw or otherwise end its obligations under the Paris Agreement, the United States will have to look to the law of treaties. Indeed, VCLT Article 42 provides that a treaty’s validity or a State’s consent can only be impeached through the VCLT’s application and, more pertinently, “[t]he termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention.”

So, how can the United States get out from the Paris Agreement? I predict the Trump Administration will invoke one of four possible avenues for its exit later today.

An Alternative Justification for Israel’s Attacks on Hezbollah in Syria

by Ernesto Sanchez

[Ernesto J. Sanchez is an attorney in Miami, Florida who concentrates his practice on appellate and international dispute resolution matters. He is also a senior analyst for Wikistrat, a geostrategic analysis consultancy, as well as the author of The Foreign Sovereign Immunities Act Deskbook, published by the American Bar Association.]

Asaf Lubin’s excellent post on Just Security questioning why Israel’s repeated strikes against Hezbollah in Syria have not been the subject of the same degree of legal analysis as the recent U.S. attack on a Syrian airfield has received two notable responses. The first is from the eminent U.S. Air Force General Charles J. Dunlap (retired), who utilizes an anticipatory self-defense framework to defend the strikes and explain the consequent lack of jus ad bellum scrutiny the Israeli strikes have received. The second is from Opinio Juris’s very own Kevin Jon Heller, who has criticized General Dunlap’s analysis by calling the strikes “precisely the kind of anticipatory self-defense that international law prohibits.” A purely anticipatory self-defense framework, however, may not provide the best, or at least not the only, approach for examining the strikes’ legality because it entails looking at the strikes in isolation and not from the perspective of the state of war that has existed between Syria and Israel since 1967. It is this state of war that guarantees Israel’s basic right to launch strikes against Hezbollah in Syria at times of Israel’s choosing.

The fighting in the 1967 Six-Day War ended after Israel, Jordan, and Egypt agreed to abide by U.N. Security Council Resolution 234, a demand for a cease-fire on the parts of all belligerents, and a Syrian-Israeli cease-fire noted by U.N. Security Council 235. The October 1973 hostilities between Israel and an Arab state coalition including Syria popularly known as the Yom Kippur War was the subject of three U.N. Security Council cease-fire demands – U.N. Security Council Resolutions 338, 339, and 340. Resolution 340, enacted on October 25, 1973, was successful in regard to all the fighting save solely for that between Syria and Israel. Indeed, Israeli forces had driven deep into Syrian territory and continued to engage in skirmishes and artillery exchanges with their Syrian opponents. Only shuttle diplomacy by U.S. Secretary of State Henry Kissinger was able to produce a disengagement agreement between Syria and Israel based on U.N. Security Council Resolution 338 that mandated the exchange of prisoners of war, Israeli forces’ withdrawal to the Golan Heights territory captured in 1967, and the establishment of a U.N. buffer zone. That agreement took effect on May 31, 1974.

So how can a state of war between Syria and Israel have continued to the present day? After all, Mr. Lubin, in pointing out that Israel last engaged in protracted armed violence in Syria in 1974, asserts that “to suggest that an armed conflict [has been] ongoing ever since seems improbable, even under the most liberal interpretation of the way wars end and the termination of the application of international humanitarian law . . .” Tel Aviv University Professor Yoram Dinstein, a former Charles H. Stockton Professor of International Law at the U.S. Naval War College, notes in his book War, Aggression and Self-Defence that a war can end in one of five ways, none of which consist of a cease-fire alone.

  • A peace treaty, the ideal way of ending an interstate war, normally entails provisions that resolve the issues (e.g., agreement on the delimitation of borders) that drove belligerents to war in the first place and often includes guidelines for future amicable relations (e.g., the establishment or renewal of diplomatic, economic, and cultural ties).
  • Once referred to in Hague Regulations 36 to 41, which are annexed to Hague Convention II of 1899 and Hague Convention IV of 1907, as a mere suspension of hostilities akin to what is now known as a cease-fire, an armistice is today understood to terminate hostilities and divest belligerents of the right to renew military operations without addressing the issues underlying a conflict, consequently leaving room for a subsequent peace treaty.
  • A state of war may also terminate through implied mutual consent – an actual termination of hostilities on both sides that is not memorialized. This type of situation occurs when some additional event indicating all belligerents’ intent to cease hostilities, such as the establishment or restoration of diplomatic relations, occurs during a lull in fighting.
  • A state of debellatio entails one belligerent party’s complete and utter defeat, whereby (a) the party’s entire territory has been occupied; (b) the party’s armed forces are no longer in the field due to unconditional surrender or the like and no allied forces carry on fighting by proxy; and (c) the party’s government has ceased to exist and no government in exile offers opposition.
  • War can also end with a unilateral declaration by a belligerent party if the other belligerent party or parties are willing to cease hostilities or unable to do otherwise.

The cease-fires between Syria and Israel do not comport with any of the above scenarios, especially given how the issues driving the state of war between the two countries – Syria’s refusal to recognize Israel and Israel’s Golan Heights occupation – have not been resolved.

Moreover, (more…)

Syria War Crimes Accountability Act — Now Revised!

by Kevin Jon Heller

Last month, I blogged about the Syria War Crimes Accountability Act of 2017, a bipartisan Senate bill “[t]o require a report on, and to authorize technical assistance for, accountability for war crimes, crimes against humanity, and genocide in Syria.” I praised the bill, but pointed out that Section 7(a) was drafted in such a way that it permitted the US to provide technical assistance to entities investigating international crimes committed by pro-Assad forces and “violent extremist groups,” but did not permit the US to support entities investigating international crimes committed by rebels.

I am delighted to report that Sen. Ben Cardin (D-MD), the Ranking Member of the U.S. Senate Foreign Relations Committee (SFRC), successfully introduced an amendment to the bill at last Thursday’s SFRC’s business meeting that corrects the asymmetry in Section 7(a). The new version reads as follows (emphasis in original):

The Secretary of State (acting through appropriate officials and offices, which may include the Office of Global Criminal Justice), after consultation with the Department of Justice and other appropriate Federal agencies, is authorized to provide appropriate assistance to support entities that, with respect to war crimes, crimes against humanity, and genocide perpetrated by the regime of President Bashar al-Assad, all forces fighting on its behalf, and all non-state armed groups fighting in the country, including violent extremist groups in Syria beginning in March 2011…

This is a welcome change, because — as I pointed out in my original post — there is no reason to treat crimes committed by rebels any differently than crimes committed by Assad’s forces or by ISIS.

Kudos to Sen. Cardin! Let’s hope the revised version of the bill passes the full Senate soon.