Eugene Kontorovich argues today at Volokh Conspiracy that Israel could minimize the likelihood of an ICC investigation into its transfer of Israeli civilians into the West Bank by emphasizing Turkey’s similar transfer of Turkish civilians into Northern Cyprus, which it has been illegally occupying for more than four decades.  Here are the key paragraphs:

Cyprus was a state with clear borders when Turkey invaded in 1974, and is a charter member of the ICC. If anyone should be loosing sleep over settlements suits in the ICC, it would be Turkey. Interestingly, no one has suggested in the past decade that Cyprus’s ICC membership would scare the Turks out of N. Cyprus, or get the Turks to agree to a peace deal). But a referral by Cyprus would not face the various thorny temporality and territoriality issues of a Palestinian complaint. Moreover, Cyprus is a particularly gross case of changing the demographics of occupied territory through settlement, with settlers now outnumbering protected persons n the territory.

Apart from the manifest hypocrisy, what should be disappointing for believers in international humanitarian law is the failure of anyone to call Abbas (or Erdogan) on it. I am not aware of any news, NGO, or governmental response pointing out the unseemliness of Abbas invoking the ICC from Ankara.

[snip]

Discussions of a potential ICC referral often focus on potential liability by Palestinians as a factor that would dissuade them (or the Court) from proceeding. But Israel’s best bet for heading off such a suit would be to make clear the implications for other non-member states that would clearly be on the settlement hook: Turkey and Russia.

For the record, I think it quite unlikely that the ICC will indict Israeli leaders over settlements, but I’d bet the farm it wouldn’t indict Israel and Turkish leaders in this decade. Indeed, if I were the Israeli government, I’d spend less time preparing an ICC defense that working up a Cypriot case against Turkey, as a favor to its new bestie.

With respect to Eugene, this is a terrible suggestion for Israel.  I have no sympathy for Turkey’s occupation of Cyprus, and Eugene correctly points out that an ICC prosecution of Turkish officials would face no territorial-jurisdiction problem.  But he seriously underestimates the issue of the Court’s temporal jurisdiction.  Indeed, when we take into account the fact that the ICC can only prosecute acts committed after 1 July 2002 — the day the Rome Statute entered into force — it seems clear that the case against Israel is vastly stronger than the case against Turkey.

Two points of comparison are relevant.  The first concerns the sheer number of immigrants. Although statistics are not easy to come by for Cyprus, a comprehensive 2006 study suggests that the overwhelming majority of the Turks in Cyprus arrived there between 1974 and 1979 — and that the number of immigrants in the past decade has been relatively small, likely in the thousands.  Contrast that with Israeli immigration: the number of Jewish settlers living in the West Bank in 2002 was around 214,000; there are more than 350,000 living there today — an increase of approximately 136,000 civilians.

Numbers, however, do not tell the whole story.  The mere fact of settlement in occupied territory is not a war crime; the actus reus of the crime is “[t]he transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies.”  Article 8(2)(b)(viii) thus targets state officials whose actions facilitate the transfer of civilians into occupied territory; it does not target the settlers themselves.  That is a critical distinction when we try to compare Turkey and Israel, because the Israeli government has much more actively facilitated the transfer of civilians since 2002 than the Turkish government.  Here is what the 2006 report says about immigration to Cyprus:

The significance of demography in Cyprus changed after 1974 not only because of this ethnic homogenization of the two states, but also because of an influx of immigrants from Turkey. In addition to the displacement of Cypriots, Turkey and the Turkish Cypriot administration initially facilitated and encouraged an immigration of Turkish nationals from Turkey following the war. This policy was designed to bolster the Turkish population and to create a viable economy independent of Greek Cypriots.  Immigrants who were part of this policy received empty Greek Cypriot properties and citizenship in the Turkish Cypriot state almost upon arrival. This facilitated migration ended by the late 1970’s, and international pressure and internal opposition to the policy led to the amendment of the law that eliminated property privileges for the other immigrants who arrived after 1982. Immigration had by this time declined, and the number of immigrants acquiring citizenship significantly dropped. A further amendment of the citizenship law in 1993 restricted citizenship rights to persons who had been resident on the island for at least five years. Although immigration from Turkey continued on a smaller scale, these later immigrants who arrived in the island did so of their own initiative as they sought a better future there. In contrast to the first wave of migrants who were brought to the island as part of state policy, the factors determining the later wave fit other global patterns of economic migration, and those later immigrants received no special treatment or privileges from the state.

I don’t want to push this argument too strongly; there may well be other Turkish policies that would qualify as indirect transfer both pre- and post-2006, when the report was written.  But there is no question that the Israeli government has much more actively facilitated the transfer of its civilians into the West Bank since 2002 — and that Israel intends to continue to facilitate that transfer for the indefinite future.

Statehood issues aside, in short, a rational prosecutor would find Israel’s violation of Article 8(2)(b)(viii) to be far more serious — and far easier to prove — than Turkey’s.  The number of Israeli civilians transferred since 2002 is much greater, and Israel’s facilitation of that transfer since 2002 is much more significant.

Like Eugene, I’m skeptical that the ICC will ever prosecute an Israeli official for the war crime of illegal transfer.  But the last thing the Israeli government should do, if it wants to avoid an investigation, is “work up a Cypriot case against Turkey.”  That case would simply foreground how much stronger the case against Israel really is.

The most common reaction to my post on Newtown and the drone program has been to point out that there is a difference between killing in peacetime and killing during war — that we are both legally and morally more willing to accept the loss of innocent life in the latter, even if the loss in both can be considered intentional.  Peter Stockburger and Ian Henderson offered versions of that point in the comments to my post, and the point also featured prominently an eloquent post that Ben Wittes wrote in response.  Here are Ben’s key paragraphs:

I mean merely to highlight here how one’s views of this subject will inflect one’s views of the moral dimensions of the accidental killing of children. If, like me, one is inclined to see drone strikes as an instrument of legitimate warfare—warfare authorized domestically by Congress and lawful under international law—one will tend to see the deaths of children they sometimes cause as accidental deaths in the course of legal and appropriate military action. Such deaths are tragic always. But we have centuries of moral vocabulary for such things. War is a terrible business, and one of the reasons for that it is that civilians who have done nothing wrong get killed; indeed, warfare by its nature turns what would otherwise be murder into a legal and protected act. And while the modern laws of war do require all sorts of efforts to protect civilians from harm, they also accept that these efforts will not always succeed. That rather moots all of Kevin’s fine-grained gradations of intentionality. The relevant question becomes whether one took adequate steps to distinguish civilians and to minimize civilian casualties–not ultimately whether those steps worked.

By contrast, if—with Greenwald and, in a more complicated way, Kevin—one is inclined to reject the legal paradigm of warfare for some or all overseas counterterrorism operations, the entire moral (and legal) calculus shifts dramatically. Then the deaths of children in drone strikes become the collateral consequences of illegal and immoral acts that are themselves extrajudicial killings. In such a framework, the underlying act, a strike on a presumably-terrorist target, is no longer exempt from the normal legal or moral strictures against killing; it is a murder of its own. And it’s hardly a defense (legally or morally) to the accusation of killing a child that his death was an accident in the course of murdering the adult next door.

There is much that I agree with in these paragraphs. I certainly agree with the idea that we cannot simply compare killing in war and killing during peace.  I also obviously invited Ben’s focus on the legality of collateral killing during war by relying on criminal law to make the point that many national criminal-justice systems would consider the death of innocents in drone strikes to be intentional.  Finally, Ben is absolutely correct to point out that how one views such collateral deaths is necessarily affected by one’s assessment of the legality of the drone program.

All that acknowledged, I still want to resist an idea that seems to underly all of the responses to my post: namely, that we cannot (or at least should not) consider collateral deaths caused by drone strikes to be immoral as long as those strikes were legal.  I strongly disagree with that idea; I think it is possible — indeed important — to insist that the drone program is profoundly immoral even if no individual drone strike ever violates the laws of war.  There is a vast philosophic literature on the difference between legality and morality, which I do not have time to discuss here.  (Where is Patrick O’Donnell, aka The Man Who Has Read and Understood Everything, when you need him?) Suffice it to say that very few people are such thoroughgoing positivists that they believe legality and morality are coterminous, even if they disagree dramatically with each other concerning the particulars of the difference. Two obvious examples: “pro-lifers” don’t consider abortion to be moral even though it is legal, while the pro-euthanasia crowd doesn’t consider assisted suicide to be immoral simply because it is almost always illegal.  Both groups simply reject the morality of the laws in question.

In one sense, that is my perspective on the collateral deaths caused by drone strikes. Although I do not believe that all drone strikes comply with the laws of war, for the reasons I discuss in my forthcoming article, I am certainly more legally sympathetic to the drone program than most of my fellow lefties/progressives.  In particular, I am extremely skeptical of the oft-heard claim that drone strikes violate IHL’s principle of proportionality.  As I have explained elsewhere, the principle of proportionality — to say nothing of the war crime that is based on it — is so amorphous and commander-friendly that it is essentially useless. Yet I still think that many, if not most, of the legally-proportionate collateral deaths caused by drone strikes are profoundly immoral.

My position would not change, though, even if I was more comfortable with the legal definition of proportionality.  Accepting the morality of a particular law does not commit one to accepting the morality of any and all actions that comply with that law.  Someone who is pro-choice can still morally condemn the wealthy family who uses abortion as a form of birth control.  Similarly, someone who supports euthanasia can still morally condemn a person who talks an ill elderly relative into it because he wants his inheritance sooner rather than later.

That, essentially, is how I feel about drone strikes.  I do think that the principle of proportionality is too accepting of military force.  But my basic objection to the collateral deaths caused by drone strikes is that those deaths are nearly always unnecessary, because the drone program itself lacks any persuasive strategic justification.  In my view, the military benefits of drone strikes pale in comparison to their long-term costs — ranging from radicalizing the affected populations to encouraging the US to rely on military force instead of other methods for dealing with terrorism.  I thus believe that the drone program should be dramatically narrowed, if not eliminated completely.  As a result, I think it is nearly always morally indefensible for the US to continue to use drone strikes even though it knows that it is virtually certain innocent men, women, and children will die as a result.

It is in that spirit that I offered my previous post.  Collateral deaths in drone strikes are not accidents, even if they are not specifically desired.  They are simply accepted as the necessary if regrettable cost of fighting the war on terror.  That is intentional action as many countries understand the concept of intent.  And it is immoral action in my view, regardless of the legality of strikes under the laws of war, because the drone program itself is immoral.

There’s been an interesting debate in the blogosphere recently about why people find the murder of 20 young children at Newtown so much more horrible than the routine killing of children in Yemen and Pakistan by U.S. drones.  Glenn Greenwald and Falguni Sheth, a philosophy professor at Hampshire College, find the selective outrage indefensible.  Ben Wittes and the Telegraph‘s Brendan O’Neill, by contrast, insist that the two situations are not comparable, because Lanza intended to kill the children at Newtown while – as Wittes puts it — “[c]ivilian deaths in drone strikes are not intentional.”

Wittes and O’Neill obviously have a point.  No one can seriously believe that the U.S. wants to kill children with drones; the most that can be said is that the U.S. is willing to accept the possibility, if not inevitability, of such collateral damage, because it believes drones strikes are militarily necessary in the conflict with al-Qaeda.  That is a distinction with a difference: it is indeed morally worse to kill someone because you want them to die than to kill someone without desiring their death but knowing it will result from your (ostensibly well-intentioned) actions.

That said, I think Wittes and O’Neill’s “intentional”/”unintentional” distinction misleads more than it explains.  To see why, it is useful to turn to comparative criminal law.  Although neither Wittes nor O’Neill focus on the legal aspects of Newtown and the drone program, both implicitly adopt a definition of “intent” that parallels American criminal law — as the subjective desire to bring about a particular consequence.  That definition is what justifies their insistence that Newtown involves intentional killing while the drone program involves unintentional killing.

But the American understanding of intent is not the only one.  Many civil-law systems have a much broader understanding of “intent,” one that considers even non-volitional action to be intentional.  German criminal law, for example, considers acting in the knowledge that a consequence is virtually certain to occur to be intentional, even if the actor does not subjectively desire to bring about that consequence.  (Indeed, that action is intentional even if the actor fervently hopes that the consequence will not occur.)  This is what is known as dolus directus in the second degree.  Moreover, although not without controversy, German criminal law, like a number of civil-law systems, even extends “intentional action” to include acting in the knowledge that it is possible a particular consequence will result, as long as the actor subjectively reconciles himself to that possibility.  This is what is known as dolus eventualis.

Nor is a broader understanding of “intent” limited to the civil law.  O’Neill’s own British criminal law embraces what is known as “oblique intent” — acting without the subjective desire to bring about a particular consequence, but with the knowledge that the consequence is virtually certain to result.  (The same formulation as dolus directus in the second degree.)  A defendant can be convicted of intentional murder in Britain, therefore, even if he in no way wanted the victim to die.

Again, I am not claiming that there is no difference between Newtown and the drone program.  All criminal law systems consider acting with the subjective desire to kill to be more serious than acting in the knowledge that death is virtually certain.  But it is important to recognize that many countries, including our British allies, would consider the children killed in U.S. drone strikes to have been intentionally killed, either because the U.S. knew that the drone program was virtually certain to result in their collateral death or because the U.S. was aware that their deaths were possible but, because of its commitment to the drone program, reconciled itself to that possibility.  (The latter would be manslaughter in Britain, which does not — unlike my home country of Australia — criminalize reckless killing as murder.)

There is, in short, a difference between Newtown and the drone program — but the difference is much smaller than Wittes and O’Neill’s “intentional”/”unintentional” distinction implies.  From a comparative perspective, both can be considered intentional killing; the difference is one of degree, not kind.

This is not a minor point.  Consider the final paragraph of Wittes’ response to Greenwald:

It is, rather, a basic difference our moral reaction to the tragic accident versus the intentional crime. A terrible car crash, even when one side is negligent or drunk, might inspire great moral opprobrium, but it doesn’t inspire the same moral horror as, say, intentionally driving one’s car into a crowd in order to kill people. Even if, like Greenwald, one does not accept that the United States is fighting a legitimate war and that civilian deaths are a tragic but inevitable feature of warfare—that is, even if one rejects the United States’s “perceived justification” utterly—there remains a significant difference between accidentally killing innocents and deliberate targeting them.

Wittes’ analogy to an accidental death is inapposite.  Killing children with drones is not the same as negligently or drunkenly driving into a crowd and killing people.  A better analogy would be to the person who drives his car even though he knows that it is very likely, perhaps even a virtual certainty, that someone will die as a result.  We would not judge that person as harshly as we would the person who gets in his car and deliberately plows it into the nearest crowd.  But we would hardly take it easy on him simply because he acted “unintentionally.”

In the comments to my first post on the ICC and retroactive jurisdiction, Johnboy4546 suggested that the Palestinians might self-refer only the situation in the West Bank to the Court.  Such a referral would have two clear advantages for the Palestinians: (1) it would prevent the OTP from investigating Hamas’s rocket attacks, which are almost always launched from Gaza, as well as crimes committed by Fatah-related groups in Gaza (such as the murder of civilians); and (2) Israel would be extremely unlikely to prosecute the crime the Palestinians would want the OTP to investigate in the West Bank, the direct or indirect transfer of the civilian population into occupied territory, thereby ensuring that Israel could not take advantage of the Rome Statute’s principle of complementarity.

It’s a creative suggestion — and one that I’ve been hearing with increasing regularity from people sympathetic to the Palestinian cause.  (I’ve just returned from a wonderful conference in Tel Aviv, a trip that included giving three different presentations in one day — a new record for me.)  But would such a geographically-limited self-referral be possible?

On balance, I don’t think so.  There is no question that a state can self-refer crimes committed on a portion of its territory; that is how the ICC treated Uganda’s referral of the situation in Northern Uganda.  (Uganda only referred crimes committed by the LRA, but the Court recharacterized that self-referral on the ground that Article 14(1) of the Rome Statute limits states to referring “situations.”)  The Security Council also limited its Sudan referral to crimes committed in Darfur.  Those referrals would seem to suggest that Palestine could refer only the situation in the West Bank to the Court.  (I am assuming for sake of argument that the Palestinian state includes both West Bank and Gaza.)

The problem is that such a geographically-limited referral would frustrate the spirit, if not the letter, of Article 14(1).  As is widely acknowledged, the drafters limited Article 14(1) to situations precisely to prevent states from using referrals to target their political opponents.  (A legitimate fear, as Uganda’s original self-referral indicates.)  By requiring states to refer situations instead of cases, Article 14(1) ensures that the OTP will always be able to investigate crimes committed by both parties to a conflict.

And therein lies the problem with a hypothetical West Bank referral. Such a referral would obviously be designed to enable the Court to investigate crimes committed by Israel while preventing it from investigating crimes committed by Hamas.  Functionally, then, a West Bank referral would be no different than Uganda’s self-referral of the LRA’s crimes.  The Court would be very unlikely to accept such a referral simply because it was framed in geographic terms.  After all, Uganda could have referred only those parts of Uganda in which the LRA operated instead of specifically — and clumsily — targeting the LRA. I doubt that the Court would have permitted Uganda to accomplish indirectly what it could not accomplish directly.

Nor is that all: even if the Court would be willing to accept a West Bank referral, Palestine might find it difficult to prevent the OTP from investigating its own crimes.  To begin with, the OTP could simply decline to investigate a referral that was limited to the West Bank — on the basis of either insufficient gravity or the “interests of justice” —  and then use its proprio motu powers to initiate a broader investigation.  I’m skeptical that the current OTP would be foolish enough to conduct any investigation into one of the most politicized conflicts in history.  But if it did, it would certainly not be foolish enough to investigate only one side of that conflict.

Moreover, it is not clear that an investigation into the West Bank would preclude the OTP from investigating crimes committed in Gaza.  In Mbarushimana, the defendant argued that because the DRC’s self-referral was limited to crimes committed in the Ituri region, the Court did not have jurisdiction over the crimes he allegedly committed in North and South Kivu.  The Pre-Trial Chamber rejected that argument on the ground that, in fact, the DRC had not limited its self-referral to Ituri.  But it also suggested — obliquely — that, had the referral been so geographically limited, the Court might still have had jurisdiction over at least some acts committed outside of Ituri.  Consider the following paragraphs (emphasis added):

16. The issue at stake is to determine whether the facts underlying the charges brought by the Prosecutor against Mr Mbarushimana can be said not to exceed the territorial, temporal and possibly personal parameters defining the situation under investigation. More specifically, according to the test developed by the Chamber in the present case, it is required that the crimes referred to in the Prosecutor’s application for a warrant of arrest for Mr Mbarushimana occurred in the context of the ongoing situation of crisis that triggered the jurisdiction of the Court through the Referral by the DRC. As already clarified by the Chamber, such a situation can include not only crimes that had already been or were being committed at the time of the referral, but also crimes committed after that time, in so far as they are sufficiently linked to the situation of crisis which was ongoing at the time of the referral.

21. The Chamber takes note of the DRC Observations, clarifying that; in submitting the Referral, the competent authorities did not intend to limit the Court’s jurisdiction to one or more particular provinces within its territory. As already determined by the Chamber, the territorial and temporal scope of a situation is to be inferred from the analysis of the situation of crisis that triggered the jurisdiction of the Court through the referral. Crimes committed after the referral can fall within the jurisdiction of the Court when sufficiently linked to that particular situation of crisis.

Although far from the picture of clarity, these paragraphs seem to imply that the Court’s understanding of the situation underlying a state’s self-referral is more important than the specific parameters of the referral itself.  As long as there is a sufficient nexus between a particular crime and the facts that motivated the state to refer the situation in question, the Court has jurisdiction over that crime.

I don’t want to push that interpretation too strongly.  The PTC’s comment regarding territorial jurisdiction was dicta, given how it construed the DRC’s self-referral.  But the rationale is the same for both temporal and territorial jurisdiction: states should not be able to craft self-referrals that prevent the Court from exercising jurisdiction over crimes that, in an objective analysis, really do fall within the parameters of the situation in question.  That principle explains why Uganda could not self-refer only the LRA’s crimes to the Court — and it explains why Palestine should not be able to impose geographic restrictions on a situation that would effectively limit the OTP to investigating crimes committed by Israel.

A number of commentators have challenged my claim that Articles 11(2) and 12(3) of the Rome Statute would permit Palestine to accept the ICC’s jurisdiction retroactively, whether as a member-state or on an ad hoc basis. Here, for example, is what my friend Jennifer Trahan wrote yesterday at IntLawGrrls:

Even if an entity becomes a “state,” should there be jurisdiction that it can invoke back to a time when (a) there were no clear “nationals” of that state, and (b) there was no clear “territory” of that state, and in fact, even according to the General Assembly there was only an “observer” and not a “state”? (The ICC Office of the Prosecutor has already declined to exercise jurisdiction over this time-period once before.)

Let’s not get carried away here.

I realize that I should have been more precise in my previous post. I was trying to make a more modest point: namely, that the Rome Statute does, in fact, permit retroactive acceptance of the Court’s jurisdiction. I did not mean to imply that Palestine itself could necessarily accept jurisdiction over acts committed on its territory before it became a state. Mea culpa.

That said, I think Jennifer makes an equally problematic assumption: that Palestine only became a state on Thursday, as a result of the UNGA vote. As Bill Schabas reminds us, membership in the UN may be relevant to whether an entity qualifies as a state, but it is not dispositive…

In the wake of today’s long-overdue vote to upgrade Palestine to observer-state status, there seems to be persistent confusion concerning what would happen if Palestine ratified the Rome Statute. In particular, a number of commentators seem to think that it is unclear whether the ICC would have jurisdiction over crimes committed prior to Palestine’s ratification. (See Colum Lynch at FP, for example.) In fact, the Rome Statute leaves no doubt whatsoever that Palestine could (but would not be required to) accept the Court’s jurisdiction retroactive to 1 July 2002, the date the Rome Statute entered into force. The relevant provisions are Articles 11(2) and 12(3) (emphasis added):

11(2): If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.

12(3): If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.

Though not the picture of drafting clarity, the two provisions make clear (1) the default position is that the ICC will have jurisdiction only over crimes committed after a state ratifies the Rome Statute, but (2) the state in question may file a declaration with the Registrar accepting the Court’s jurisdiction retroactively.

It is worth noting that Palestine would not have to ratify the Rome Statute to refer the situation in Gaza to the ICC. It could also accept the Court’s jurisdiction on an ad hoc basis, pursuant to Article 12(3). And it could do so retroactively, as the Cote d’Ivoire precedent indicates. (Cote d’Ivore, a non-member state, accepted the Court’s jurisdiction on 18 April 2003 retroactive to 19 September 2002.)

Finally, I’ll say it once again: Palestine should be careful what it wishes for. I think it is highly likely that, if the OTP investigated the situation in Gaza, Palestinians would end up in the dock long before Israelis. From a legal perspective, Fatou Bensouda would find it much easier to prosecute Hamas’s deliberate attacks on Israeli civilians than Israel’s disproportionate attacks, collective punishment of Palestinians, and transfer of its civilians into occupied territory. The latter crimes are fraught with ambiguity and difficult to prove. I know I wouldn’t start with them, were I the Prosecutor.

I’m extraordinarily pleased to be able to announce that today marks the start of the Opinio Juris symposium on my recently-edited volume, The Oxford Guide to Treaties (you can buy your copy here and there’s even a discount for Opinio Juris readers!).

The Oxford Guide provides a current and comprehensive guide to treaty law and practice. It does this in two parts.  First, it presents 25 chapters written by the world’s leading treaty-experts, exploring the world of treaties in five areas: (i) what a treaty is and who can make them; (ii) how a treaty is made (including the treaty-making process, signature, provisional application, deposit, registration, and reservations); (iii) how treaties are applied (including their territorial reach, third party rights and obligations, amendments, domestic application, succession, treaty bodies and conflicts); (iv) the rules on treaty interpretation generally and with respect to treaties on human rights and international organizations; and (v) how to avoid or exit a treaty commitment (including questions of validity, remedies for breach, exceptional circumstances, and termination). Second, the book pairs these explanations of existing rules and practice with examples of how modern treaties are drafted. Thus, the last section of the book includes 350 treaty excerpts on 23 treaty topics ranging from how to deal with multiple language treaty texts to the use of simplified amendment procedures (for those looking for a longer introduction to the project, see here).

Since the book is consciously treatise-like in its coverage, this symposium has opted for a slightly different format than the norm.  In lieu of comments on the book’s thesis, over the next few days we will use The Oxford Guide’s coverage as a launching pad for a discussion of some of the most pressing treaty questions confronting international lawyers.  The current schedule is (roughly) as follows:

(1) Today will focus on a discussion of reservations and other unilateral statements, with particular attention to the International Law Commission’s Guide to Practice on Reservations to Treaties

(2) Tomorrow, we will turn to treaty interpretation, particularly the phenomenon of evolutionary or “dynamic” interpretation; and, after a weekend respite,

(3) Monday, we will discuss the variety of functions treaties perform, such as their increasing “publicness”, the role of non-state actors in modern-treaty making, as well as any final comments that participants care to make.

In terms of participants, I’m pleased to have a truly distinguished group of experts participating in this on-line symposium.  Several of them are returning to the fold in the sense that they already contributed their time and expertise to The Oxford Guide itself, including Ed Swaine (who wrote the chapter on Reservations); Geir Ulfstein (who wrote on treaty bodies and regimes); Richard Gardiner (who wrote on the Vienna Rules on treaty interpretation); Catherine Brölmann (who wrote on interpreting constitutive treaties of International Organizations); Başak Çalı (who wrote on human rights treaty interpretation); and Christian Tams (who co-authored with Bruno Simma the chapter on remedies for treaty breaches)

In addition, I’m honored to have a group of very distinguished outside experts lend their voices to the conversation. I’m particularly pleased (and grateful) to have Harold Koh, the Legal Adviser to the U.S. Department of State, offer some thoughts on treaty reservations.  I’d also like to welcome three other commentators – Jean Galbraith, Marko Milanovic and David Stewart – and thank them for making the time to participate in these discussions.  I’m hopeful that one or more of my fellow Opinio Juris contributors may weigh in from time to time as well.

Altogether, we’ve got a set of really interesting topics and a great bench of experts to discuss them. I, for one, am really looking forward to the conversation.

I blogged late last year about the UK Court of Appeal’s judgment in Secretary of State for Foreign and Commonwealth Affairs v. Rahmatullah, which implicitly repudiated a little-known OLC memo written by Jack Goldsmith that concluded “operatives of international terrorist organizations” are not “protected persons” for purposes of Article 49 of the Fourth Geneva Convention — a provision that prohibits “[i]ndividual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not… regardless of motive.”  The UK Supreme Court issued its judgment in the case yesterday.  Unlike the Court of Appeal, the Supreme Court explicitly rejected Goldsmith’s argument:

33.    Mr Eadie pointed out, however, that the same opinion from Mr Goldsmith expressed the unequivocal view that Al-Qaeda operatives found in occupied Iraq are excluded from “protected person” status. That opinion seems to have been based on a narrow interpretation of the qualifying phrase “find themselves” as applied to those who come to be in Iraq at the material time. The presence of such as Mr Rahmatullah in Iraq could not, Mr Goldsmith suggests, be attributed to happenstance or coincidence. He was therefore not a protected person under the convention.

34.    It is not necessary to deal with this argument, although, if it were, I would have little hesitation in dismissing it. To make happenstance or coincidence a prerequisite of protection seems to me to introduce a wholly artificial and unwarranted restriction on its availability under the convention. But, in any event, the position of the UK government, as evidenced by the Joint Service Manual, is plainly at odds with the stance taken by the US as to the application of GC4 to members of Al-Qaeda. This is confirmed by a statement in a report by Intelligence and Security Committee on The Handling of Detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq: (2005) Cm 6469. At para 8 of that report it is stated that, “the UK regards all personnel captured in Afghanistan as protected by the Geneva Conventions”. Against this background it is simply not open to the Secretaries of State to suggest that the convention does not apply on the basis that Mr Goldsmith has advanced.

35.    Given that GC4 does apply to Mr Rahmatullah, how does that bear on the legality of his detention? Article 49 forbids the forcible transfer of protected persons from the occupied territory, in this case Iraq. It provides: “Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”

36.    The, presumably forcible, transfer of Mr Rahmatullah from Iraq to Afghanistan is, at least prima facie, a breach of article 49. On that account alone, his continued detention post-transfer is unlawful.

Rahmatullah continues to be detained by the U.S. — illegally, as the U.K.’s highest court has now made clear.

The article, which is available in draft form on SSRN, is entitled “‘One Hell of a Killing Machine’: Signature Strikes and International Law.”  It is forthcoming in the Journal of International Criminal Justice as part of a mini-symposium on targeted killing edited by Cornell’s Jens Ohlin.  Here is the abstract:

The vast majority of drone attacks conducted by the U.S. have been signature strikes – those that target “groups of men who bear certain signatures, or defining characteristics associated with terrorist activity, but whose identities aren’t known.” In 2010, for example, Reuters reported that of the 500 “militants” killed by drones between 2008 and 2010, only 8% were the kind “top-tier militant targets” or “mid-to-high-level organizers” whose identities could have been known prior to being killed. Similarly, in 2011, a U.S. official revealed that the U.S. had killed “twice as many ‘wanted terrorists’ in signature strikes than in personality strikes.”

Despite the U.S.’s intense reliance on signature strikes, scholars have paid almost no attention to their legality under international law. This article attempts to fill that lacuna. Section I explains why a signature strike must be justified under either international humanitarian law (IHL) or international human rights law (IHRL) even if the strike was a legitimate act of self-defence under Article 51 of the UN Charter. Section II explores the legality of signature strikes under IHL. It concludes that although some signature strikes clearly comply with the principle of distinction, others either violate that principle as a matter of law or require evidence concerning the target that the U.S. is unlikely to have prior to the attack. Section III then provides a similar analysis for IHRL, concluding that most of the signature strikes permitted by IHL – though certainly not all – would violate IHRL’s insistence that individuals cannot be arbitrarily deprived of their right to life.

I thoroughly enjoyed writing the article, which allowed me to put into academic form a number of ideas I’ve blogged about over the years — the relationship between the jus ad bellum and IHL/IHRL; the definition of armed conflict; what it means to be a member of an organized armed group; the scope of direct participation in hostilities; whether targeting in non-international armed conflict is geographically limited; and the best understanding of imminence under IHRL.  My guess is that both progressives and conservatives will find much to dislike.  Progressive won’t like my conclusion that a number of signature strikes are legal under either IHL or IHLR.  And conservatives won’t like my conclusion that many signature strikes violate both IHL and IHRL, with strikes in the latter category possibly amounting to crimes against humanity.

The deadline to go to press is quite soon, so I’m not sure if I can incorporate reader comments.  But, as always, I would deeply appreciate them.

I’ve long wondered whether and when the American Law Institute (ALI) might try to update its 3rd Restatement on the Foreign Relations Law of the United States.  Since its 1987 publication, the two-volume set, culled together under the leadership of Professor Lou Henkin, has had a tremendous impact.  It has been a frequent resource for U.S. courts and American international lawyers alike.  I recall vividly how often I used it in my first few years in private practice and its prominent place on my bookshelf once I decamped to the U.S. Department of State.  At the same time, part of the Restatement 3rd‘s visibility lies in the critiques it later generated at the hands of what Peter Spiro dubbed the “New Sovereigntist” movement.  Beginning with the work of Curt Bradley and Jack Goldsmith, the 3rd Restatement has been viewed as the conventional doctrine against which all other constitutional positions in foreign relations law may be measured.

So, it’s with great interest that I learned today that this past weekend the ALI announced plans to begin work on a new 4th Restatement on U.S. Foreign Relations Law.  My first question was who could shepherd such a project?  After all, on many of the current Restatement‘s positions there exists a stalemate between staunch defenders of Henkin’s original pronouncements and revisionists who insist he and his cohorts got it wrong (or, alternatively, that some newer developments require revisiting the original doctrine).  What the ALI did, however, was to appoint not one, but two “coordinating reporters” — Sarah Cleveland and Paul Stephan.  Both are influential and well-respected scholars. And although I would hazard to say that some of Paul’s work exhibits revisionist tendencies while some of Sarah’s writing may be closer to the spirit of Henkin’s earlier work, I think both are independent thinkers who should be expected to work seriously and thoughtfully on the ALI’s core mission — which is to say primarily what the law is, rather than what they would each like it to be.

The ALI Council also approved three topics for immediate work and assigned eight reporters to it:

Jurisdiction and Enforcement: William Dodge, Anthea Roberts, Paul Stephan

Treaties: Curtis Bradley, Sarah Cleveland, Edward Swaine

Sovereign Immunity:  David Stewart, Ingrid Wuerth

My understanding is that ALI hopes to have drafts of each of these portions ready for review in fall 2013 by Advisers and ALI Members.  Decisions on who those advisers will be is expected in early 2013.  Moreover, based on ALI precedent, the ALI Council also approved a group of “Counselors” for the entire project.  And, that too, is a pretty impressive group: John Bellinger III, Daniel Bethlehem, David Caron, Joan Donoghue, Conrad Harper, Harold Koh, Carolyn Lamm, and David Rivkin.

One can only imagine the machinations that went into selecting these Counselors, not to mention the reporters themselves.  But I will say on first glance there is some balance attempted in terms of scholars from all sides of the foreign relations and international law arenas.  Moreover, there is a heavy dose of practical experience in both groups, and a clear tendency to favor those with experience working for the U.S. State Department (among the reporters and Counselors, I count at least 10 who spent time in “L” — the State Department Legal Adviser’s Office — or led it).

I was elected to ALI last year, and as such, I guess I will have the privilege of being able to look at and comment on drafts of the new Restatement as they come forward.  I have no doubt, moreover, that this is a bit of a daunting task given the academic dissension on various points, not to mention the prospect for politically-charged disagreements.  Still, I was pleased to hear from Paul Stephan when I asked him about the prospects for success that he feels quite positive that a 4th Restatement is achievable.  As he put it:  ”There will be controversy and disagreement, but that is a lawyer’s life blood. My hope is that, at the end of the day, there will be somewhat more clarity, and a bit less confusion, in this area of law than currently exists.”

All in all, an interesting development and one that will bear close watching.

We are happy to announce that this Monday Professor Kristen Boon of Seton Hall Law School will join Opinio Juris as our newest member.

Kristen’s articles range across a variety of topics in international law and, in particular, she has become a respected scholar regarding questions of the responsibility of international organizations and of states. She also writes on issues related to international law and post-conflict zones, and, among other things, is planning to track developments in the law of international organizations for the blog.

Kristen is a tenured faculty member at Seton Hall and is the Director of the Law School’s International Programs. Her previous experience includes clerking for Justice Ian Binnie of the Supreme Court of Canada and working as a litigation associate at Debevoise & Plimpton in New York.

And, by the way, you can also credit/blame Kristen for having introduced Julian and me to each other about thirteen years ago, which later played a part in this blog even being founded.

So it is with great pleasure that we welcome Kristen Boon, a long-time colleague, as our newest member.

Jack Goldsmith offers five thoughts today at Lawfare about the D.C. Circuit’s Hamdan II decision.  I agree with two of his thoughts — that the government is free to rely in future prosecutions on alternatives to material support (MST) such as aiding and abetting terrorism, and that (sadly)  al-Bahlul could be detained indefinitely if he is ultimately acquitted by his military commission.  But I take issue with his claim that Hamdan II does not necessarily mean that the D.C. Circuit will reach a similar conclusion in al-Bahlul regarding conspiracy:

I am less confident than Steve and Ben that this opinion forecloses conspiracy claims in military commissions.  The historical arguments for a conspiracy charge in military commissions under the laws of war, while not slam dunks, are (as Steve and Ben acknowledge) more powerful than similar arguments for material support.

Goldsmith doesn’t tell us why “the historical arguments” for conspiracy are better than for MST.  Instead, he simply flags stray language in the D.C. Circuit’s Hamdan II opinion that international law includes “other similar war crimes” to terrorism, which provides no support for the idea that conspiracy is a war crime, and notes that Justice Kennedy refused to join the Supreme Court’s plurality opinion in Hamdan rejecting the idea that conspiracy is a war crime.  It is certainly possible that the Supreme Court would reject the D.C. Circuit’s methodology for determining whether something is a war crime under international law; it’s also possible that the D.C. Circuit will not apply its Hamdan II methodology in al-Bahlul. But that is very different than saying the historical case for conspiracy is stronger than the historical case for MST.  In fact, I think the opposite is likely true.

To see why, let’s examine the D.C. Circuit’s analysis of MST (pp. 22-25).  Here are the eight reasons why the court concluded — rightly — that “[t]here is no international-law proscription of material support for terrorism.”

• No relevant treaty makes MST a war crime.
• The Hague Convention IV does not mention MST.
• The Geneva Conventions do not mention MST.
• The Rome Statute does not deem MST a war crime.
• The ICTY, ICTR, and SCSL statutes do not deem MST a war crime.
• No international tribunal has ever held that MST is a war crime.
• International-law scholars agree that MST is not a war crime.
• The JAG Law of War Handbook does not identify MST as a war crime.

As any international criminal law scholar knows, points 1-7 apply equally to conspiracy.  No treaty has ever deemed conspiracy a war crime*, no statute of an international criminal tribunal has ever deemed conspiracy a war crime, no defendant has ever been convicted of conspiracy by an international criminal tribunal, and no ICL scholar I know considers conspiracy a war crime (under international law).  Moreover, not only does the JAG handbook not identify conspiracy as a war crime, it specifically notes (p. 197) that “[n]o separate crime of command responsibility or theory of liability exists, such as conspiracy, for command responsibility in the UCMJ.”

In fact, as I said, the historical case against conspiracy is even stronger than the historical case against MST.  First, although Article 6 of the Nuremberg Charter criminalized “conspiracy to commit” crimes against peace, crimes against humanity, and war crimes, the IMT specifically — and famously — rejected the idea that conspiracy was a “new and separate crime” and limited conspiracy to crimes against peace. Second, and most importantly, as I have discussed before, the Nuremberg Military Tribunals uniformly concluded, after extensive briefing and oral argument, that — to quote the common language from the Medical, Justice, and Pohl judgments — they had “no jurisdiction to try any defendant upon a charge of conspiracy considered as a separate substantive offense.”  As a result, although a number of defendants were charged with conspiring to commit war crimes, none were ever convicted of the crime.

Finally, I disagree strongly with Goldsmith’s fourth point: “along one dimension yesterday’s court of appeals decision strengthens the legitimacy of military commissions by demonstrating that any military commission decision will be subject to vigorous judicial review.”  What it actually demonstrates is that Congress made a serious error when it created the Court of Military Commission Review, which lacks even basic competence in international law — as its terrible “close enough” decisions in both Hamdan II (MST) and al-Bahlul (conspiracy) indicate.  Goldsmith’s claim would be more persuasive if the existence of the CMCR hadn’t prevented “vigorous judicial review” of Hamdan’s MST conviction and al-Bahlul’s conspiracy conviction for nearly two years.

* The Nuremberg Charter did not consider conspiracy a war crime; it considered it a distinct kind of offense.