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Iran Responds to US Senators’ Letter, Shows Why Congress Should Be Involved in the First Place

by Julian Ku

I am totally swamped with various overlapping projects right now, so let me procrastinate anyway by noting that Iran took my suggestion and sent a response to the “open letter” sent them from 47 US Senators yesterday.  The letter actually shows why the President, and not the senators, is the one who is operating on the edge of constitutionality.

In the letter, Iran’s foreign minister suggested the senators were violating the US Constitution’s allocation of foreign policy conduct to the President.

[Foreign Minister] Zarif “expressed astonishment that some members of Congress find it appropriate to write leaders of another country against their own president,” a press release explained. “It seems that the authors not only do not understand international law, but are not fully cognizant of the nuances of their own Constitution when it comes to presidential powers in the conduct of foreign policy.”

As I explained yesterday, I don’t think the letter is a  violation of the Constitution, although there is a closer question under the much-cited, never used Logan Act.

What I found more interesting is the Iranian FM’s suggestion that a future president who withdrew from or amended the agreement would violate international law. This statement illustrates why I think Congress should be included in this process in the first place.

[Zarif] warned that a change of administrations would not relieve the U.S. of its obligations under an international agreement reached under the previous administration. Any attempt to change the terms of that agreement, he added, would be a “blatant violation of international law.”

“The world is not the United States, and the conduct of inter-state relations is governed by international law, and not by U.S. domestic law,” Zarif explained. “The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfil the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.”

Zarif is no doubt right as a matter of international law (assuming there will be a binding agreement as opposed to a mere political commitment).  But think about it.  Why should a president be allowed to commit the US to binding obligations under international law that neither Congress nor a future President can withdraw from without violating international law?  Shouldn’t such a president be required to first get approval from Congress before committing the United States to this path? Isn’t that why there is a Treaty Clause in the first place? At the very least, doesn’t it make constitutional sense for Congress to have a right to weigh in?

So while lefty blogs and lefty senators are having a field day accusing the Republican senators of violating the law or exaggerating Jack Goldsmith’s pretty minor quibble with the letter’s use of the term ratification, they are ignoring the real constitutional question here.  The President seems ready to commit the United States to a pretty serious and important international obligation without seeking prior or subsequent approval from Congress.  And foreign countries are ready to denounce the United States if, say Congress, decides to pull out or refuses to carry out those obligations. Even if the President’s actions are good policy, it seems like a political and constitutional train wreck that could easily be avoided if the Administration simply agreed to send the Iran deal to Congress.

Way back in 2008, leading scholars like Oona Hathaway and Bruce Ackerman repeatedly denounced President Bush for considering executing a security agreement with Iraq without Congress. Where are the academic defenders of Congress’s foreign policy prerogatives now?

GOP Iran Letter Might Be Unconstitutional. Is It Also Criminal?

by Peter Spiro

I’ll one-up Julian’s post below on Tom Cotton’s letter to the leaders of Iran admonishing them that any agreement entered into today could be reversed by Obama’s successor. It appears unprecedented for a group of opposition members of Congress to engage in such a communication.

It may also be criminal. The 1799 Logan Act provides that:

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

Most putative Logan Act violations violate the spirit and structural foundations of the Logan Act (John Boehner’s invitation to Benjamin Netanyahu supplying a recent example). This one seems to squarely satisfy its elements. We have:

  • a correspondence with a foreign government (whether direct or indirect, in the form of an “open letter”, matters not),
  • without the authority of the United States (it enjoys no imprimatur from the executive branch nor, for that matter, from Congress as an institution),
  • with the pretty clear intent “to influence the measures or conduct of” the government of Iran in relation to a controversy with the United States.

Some might debate the last prong, but what other motivation could the letter have than to persuade Iranian leaders to back off a deal for fear that it will hardly be worth the paper it’s written on?

Now I know as well as the next guy that there’s been no Logan Act prosecution in the modern era. I also understand that in the wake of globalization national legislators routinely interact with foreign government officials. Iran is probably sophisticated enough about US constitutional law to the point that the letter’s substance isn’t news to them. But an initiative like the Cotton letter seems to cross a line, and perhaps it should be slapped back. How will contested foreign policy initiatives ever get off the ground if whoever’s out of the White House can meddle so brazenly? We have clearly left the era in which politics stopped at the water’s edge.

UPDATE: Steve Vladeck has this post up at Lawfare arguing against the Logan Act’s viability in this context. I take the point on desuetude. A law that lies around unused for a protracted period at some point becomes not-law (think jaywalking). Steve also argues that as a legislator, Cotton may have been acting with the “authority of the United States.” I can’t agree on that point. If anything, Cotton’s status as a senator makes the offense a greater one, because it’s more likely to be taken seriously and do real damage to national foreign relations.

As for the First Amendment, there are certainly First Amendment implications here. The Cotton letter involves speech that would be fully protected in the ordinary domestic context. But the Constitution in general and the First Amendment in particular are seen through different lens when it comes to foreign relations.  Does that mean that the Logan Act would withstand a First Amendment defense? Not necessarily. But the answer is not so clear cut as it would otherwise seem.

None of this is to say that there will or even should be a Logan Act claims against Cotton and his collaborators, and the factors that Steve highlights plainly contribute to non-prosecution as a prudential matter. But the above-the-fold attention given to the Cotton letter shows that there is something out of the ordinary going on here. If he had said the same things on CNN no one would have paid any attention; it would have been business as usual. Not so as addressed to the Iranian leadership.

47 US Senators Send Iran’s Leader an Unnecessary(?) Primer on How US Constitution Works

by Julian Ku

Most of the US Senate’s Republican membership has signed an open letter to Iran’s leaders “informing” them about the nature of the U.S. constitutional system with respect to international agreements.   It is actually a very accurate statement of US foreign relations law, even if it is a little strange and potentially intrusive into the President’s foreign affairs power. It may also concede more than the Senators may have wanted to on the constitutionality of the proposed Iran deal.

Here are the key paragraphs in the letter;

[U]nder our Constitution, while the president negotiates international agreements, Congress plays a significant role in ratifying them.  In the case of a treaty, the Senate must ratify by a two-thirds vote.  A so-called congressional-executive agreement requires a majority vote in both the House and the Senate….Anything not approved by Congress is a mere executive agreement.

What these two constitutional provisions mean is that we will consider any agreement regarding your nuclear-weapons program that is not approved by Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.  The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.

OK, there is nothing here that is incorrect, as a matter of law, and this is not surprising since the letter was apparently drafted by Sen. Tom Cotton of Arkansas, a very smart and knowledgeable constitutional lawyer. The letter does raise a couple of important constitutional issues.

First, a letter sent directly to a foreign leader on a matter which is currently under negotiations with the U.S. could be criticized as an unconstitutional interference in the President’s inherent  power to conduct foreign affairs.  Certainly, it is very unusual.  Imagine if the U.S. Senate had sent a letter to the Iraqi leaders in 2007-8 that Congress was going to have to approve any US-Iraqi alliance or defense cooperation treaty.

In any event, I actually think this letter skirts, but manages to avoid, any unconstitutional interference.  Phrased merely as a letter “bringing attention” to the U.S. constitutional system, the letter does not state U.S. policy, nor does it make any statement on the question of policy.

The most troubling line of the letter is: “The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.  ” But this is indisputably correct as a matter of law.

Maybe the strongest criticism of the letter is simply that it need not have been sent.  The only possible purpose of sending the letter is to discourage the Iranians from actually concluding an agreement, since presumably the Iranians can read US foreign relations law textbooks (or even blogs) without the help of the US Senate.  But then again, maybe they don’t. If the Iranians are somehow deluded into thinking a sole executive agreement could survive a Republican president in 2016, it is probably best for all concerned that they know the truth now.

Second, and on the other hand, I do wonder if the senators here may have conceded more than they wanted to here.  There is still a plausible constitutional argument out there that President must submit the Iran nuke agreement to either the Senate (as a treaty) or to Congress as a whole.  The letter all but concedes that the President can indeed conclude a sole executive agreement with Iran on this matter.  Doesn’t this undercut the Senators’ argument that they should, indeed, must have their say on this deal?  (also, they only got 47 votes! There are 55 Republican senators, plus some Democrats who also oppose the Iran deal. Do they not agree with this statement of law?).

In any event, I can’t recall a letter of this sort from recent (or even older) U.S. history.  Readers should feel free to add examples in the comments.  I wonder if the Iranians will send a letter back?

Will Japan Embrace the “Illegal But Legitimate” View of the UN Charter’s Limits on Use of Force?

by Julian Ku

Japan has been slowly moving to modify its domestic law, both constitutional and legislative, restricting the use of its military forces outside of Japan.  In its latest political discussions, it is worth noting that Komeito, a partner to the ruling Liberal Democratic Party, has been insisting on the three “Kitagawa” principles as a basis for any new law governing the use of force overseas.  The three principles are: “legitimacy under international law, public understanding and democratic rule, and ensuring the safety of SDF personnel.”

Interestingly, the ruling party has been hesitant to fully embrace the “legitimacy under international law” requirement, which might be read to require UN Security Council authorization for most overseas uses of military force. Noting that China has a veto in that body, ruling party lawmakers would like to make sure “legitimate under international law” is given a broader meaning.

“In terms of international law, legitimacy isn’t necessarily limited to [those situations involving] a U.N. resolution,” said a senior LDP official. “We’d like to discuss what cases would be legitimate.”

The US and Western powers have used this “illegal but legitimate” analysis to justify actions in Kosovo and elsewhere.  It will be interesting to see if Japan eventually adopts some version of this approach.  It would be wise to do so from a practical perspective, since many scenarios where Japanese forces would act “overseas” including the Senkakus, Taiwan, Korea, or Syria may not qualify as “self-defense” under the U.N. Charter.  But such a move would chip away again at the UN Charter’s limits on the use of military force.

Guest Post: The Mirage of Hybrid Justice in Africa?

by Patryk Labuda

[Patryk I. Labuda is a Ph.D. Candidate at the Graduate Institute of International and Development Studies in Geneva. Before joining the Geneva Academy of International Humanitarian Law and Human Rights, he worked in the Democratic Republic of Congo, Sudan and South Sudan.]

Although international criminal law is increasingly assimilated with the International Criminal Court (ICC), hybrid justice remains surprisingly common thirteen years after the establishment of the landmark Special Court for Sierra Leone. Last month a UN-mandated International Commission of Inquiry made headlines when it recommended a hybrid tribunal for the Central African Republic (CAR). Citing the collapse of the country’s judicial system, Philip Alston, one of the Commission’s members, suggested that the international community should ‘act fast’ to ‘fund a tribunal’ if it wanted to break the ‘cycle of impunity’ fueling the conflict. His plea came on the heels of similar calls for a hybrid judicial mechanism in South Sudan, which has received the endorsement of international advocacy groups and the UN in recent months.

It is clear that the establishment of the ICC, the only permanent court with (potentially universal) jurisdiction over international crimes, has not eliminated the need for more tailored, country-specific responses to mass violence. Different kinds of hybrid tribunals have operated, or continue to operate, in the aftermath of violence in Bosnia and Herzegovina, Cambodia, Indonesia (East Timor), Iraq, Lebanon, Chad and Kosovo. What is less known is that blueprints for mixed international-national jurisdictions have also emerged in many other conflict- and post-conflict settings, including Liberia, Burundi, Kenya, the Democratic Republic of Congo (DRC), Sudan and Somalia. Two names can now be added to that long list of African states: South Sudan and CAR.

What these proposals have in common is that not one of these hybrid tribunals has actually been set up, despite – in some cases – years of lobbying by local civil society groups and oft-repeated assurances from African governments that accountability is essential for national reconciliation. This prompts the question: why are hybrid tribunals so frequently debated but so rarely established in the aftermath of African conflicts?

Hybrid and internationalized tribunals emerged in the early 2000s as a corrective to other forms of international criminal justice. There is no single definition of ‘hybridity’, but the notion is used conventionally to refer to institutions that mix national and international elements. Unlike purely international courts, such as the International Criminal Tribunal for Rwanda or the ICC, hybrid tribunals have either mixed jurisdictional bases (domestic and international law) or mixed staffs (domestic and international judges or prosecutors). The hope was that this blending of international and local elements would allow such tribunals to overcome the limitations of both purely domestic courts and fully international bodies.

International justice activists advance three broad claims about hybrid justice. First, by bringing together local and international partners, mixed tribunals have the potential of building domestic capacity and increasing the legitimacy of prosecutions among affected populations. Second, despite the growing number of ratifications of the ICC Statute, hybrid tribunals remain an important alternative where the ICC cannot exercise jurisdiction. Last but not least, the hybrid model should decrease the tension between international demands for accountability and state sovereignty. By giving states a say in the design of hybrid mandates, it was hoped that state concerns about international criminal law could be adequately addressed.

Debates around proposed hybrid tribunals in Africa reveal that, if there is still some consensus on the first two points, reconciling state interests with internationally-driven accountability has proved elusive in practice.

Contrary to expectations, hybrid justice now looks like the most invasive form of international intervention. Many African governments – Kenya being the prime example – understand that the prospect of a hybrid tribunal is far less appealing than the much-demonized ICC. Notwithstanding the high-profile standoff between the AU and the ICC, individual African states have learned to skillfully manipulate the ICC to their advantage. By outsourcing sensitive cases to The Hague while trying minor perpetrators before domestic courts, the governments of the DRC, Uganda, Kenya and Cote d’Ivoire have all, to different degrees, used the ICC’s interventions to bolster their domestic standing. Due to the ICC’s limited enforcement powers, it is relatively easy for states to project an image of compliance where cooperation is convenient, and obstruct the ICC’s investigations where national or regional interests are at stake.

It is doubtful that hosting a hybrid tribunal on one’s own territory offers the same flexibility. Established for more or less defined periods of time (mandates vary), hybrid tribunals operate under the watchful eye of international staff, which prevents national authorities from controlling investigations and prosecutions. A key stumbling block in negotiations over the establishment of hybrid tribunals in Africa, notably in the DRC, has been the composition of their staff. Echoing political disputes from the Extraordinary Chambers in the Courts of Cambodia, where a preponderance of national staff allowed Cambodian magistrates to outvote their international peers, the Congolese government has rejected UN attempts to secure a majority of international judges and prosecutors. Loath to finance projects it cannot control, the international community has sought to craft mandates that give them an outright majority, for instance in Kenya and Liberia. Early reports from CAR suggest this may emerge as a sticking point in negotiations between the government and international donors. While the Central African authorities have emphasized hybridity and the need to bolster domestic capacity, Alston’s remarks imply that a more robust international presence will be required due to a lack of independent national judges.

The obstacles to establishing hybrid tribunals in Africa vary from country to country, so it is important to not overstate the dismal success rate of such proposals. As with the ICC, complex political dynamics at the domestic, regional and international levels explain these setbacks. However, it is precisely the AU’s repeated condemnations of the ICC, coupled with its advocacy of ‘African solutions to African problems’, that prompts a critical look at its efforts to pursue hybrid justice.

Though last week’s decision to commit Hissène Habré to trial has rightly been praised by human rights advocates, it is important to remember the convoluted process by which the Extraordinary African Chambers in Senegal were established. Similar problems have arisen in relation to Darfur, Kenya and South Sudan. Despite years of mediation led by Thabo Mbeki, the Sudanese government’s refusal to act on the AU’s calls for a hybrid tribunal has elicited practically no follow-up from the AU. In Kenya, the AU’s support for President Kenyatta has been a one-way street, with no sustained pressure to resurrect the Waki Commission’s idea of a Special Tribunal (or a purely domestic accountability mechanism). This also explains why last month’s decision to ‘indefinitely shelve’ the report of the AU’s South Sudanese Commission of Inquiry has caused so much consternation. The AU appears, yet again, to be prioritizing peace over justice.

The Central African Republic is the next test case for the viability of hybrid justice in Africa. At first blush, the prospects of the proposed ‘Special Criminal Court’ in CAR – where the interests of the national government, the AU and international actors coincide – seem good. The transitional government signed a memorandum of understanding with the UN several months ago, and investigations would focus on non-state actors: rebels from the Seleka and anti-balaka movements. Yet the track record of African hybrid tribunals suggests a good dose of caution. Progress on legislation needed to bring the Special Court into existence has been slow, and it remains unclear who will fund a tribunal operating alongside the ICC. One thing is certain, the money will not come from the AU which is busy laying the groundwork for its institutional alternative to the ICC: the revamped African Court of Justice and Human Rights with criminal jurisdiction and immunities for heads of state and senior officials.

In the end, there is a distinct possibility that the Central African court will join the ranks of most other African hybrid ventures, which remain in the realm of promising but unfulfilled ideas. If this happens, it might well be time to ask whether hybrid justice on the continent resembles something of an African mirage… as one approaches and strains for a closer look, the prospect of justice recedes on the horizon.

A Global Cyber Federation? Envisioning a Red Cross Movement in Cyberspace

by Duncan Hollis

Lately, I’ve spent a lot of time thinking about the future of cyberspace and how to deal with the coordination and collective action problems that are leading to the normalization of cyber insecurity. As I’ve written previously, I’m skeptical that the standard legal regulatory move — proscription — will work at either the individual or the State level.  Thus, I’ve tried to examine ways law can help regulate and promote resilience in cyberspace independent of identifying and punishing bad actors, including an idea for some sort of e-SOS system.  Much of the feedback I received on that idea involved questions on operationalizing any duty to assist.  Certainly, it could be something States (or other actors) adopt unilaterally; or it could be something States might coordinate in some form of international agreement such as a treaty (or more likely these days) some form of political commitment.  There is, however, another option based on one of the most successful humanitarian organizations in history — the Red Cross.  Simply put, why not have a Red Cross-like movement in cyberspace where interested entities (including CERTs) combine to coordinate and offer assistance to victims of severe cyberthreats impartially, neutrally, and independent of governments and their particular interests (e.g., surveillance)?

Together with Tim Mauer of New America, I’ve got a populist call for such a movement in Time today.  To be clear, the idea is not to hand over cyberspace to the Red Cross (even if it may have a clear role to play in future cyber conflicts).  Rather, it’s to see the potential of using the movement’s evolution, its structure and its norms (e.g., neutrality, independence, and impartiality) to improve resilience and cyber security at a global level.  Here’s the opening salvo:

Here’s an understatement: 2014 was a bad year for cybersecurity. The Sony hack was the highest profile hack of the year, a cyber-attack against a German iron plant caused massive physical damage, and the Heartbleed vulnerability was considered “catastrophic” even among experts not known to be alarmist. In the meantime, large-scale data breaches hit household names such as Target, Home Depot and JP Morgan Chase, with new reports emerging almost weekly. In the history of cybersecurity, 2014 marks a new low. As 2015 gets underway, news of the insurance company Anthem being hacked suggests cybersecurity is unlikely to improve anytime soon. That’s why conversations in national capitals, boardrooms, international conferences and on-line discourse feature a growing call to action.

The time is ripe for a bolder approach to cybersecurity, one not beholden to the existing politics of Internet governance nor linked to particular governments or intergovernmental organizations. We believe cyberspace could use a global cyber federation, a federation of non-governmental institutions similar to the role that the Red Cross and Red Crescent movement and humanitarian assistance organizations more broadly have with respect to armed conflicts and natural disasters.

Obviously, there are lots of questions (and details) that require elaboration. For now, however, I’m going to push this idea and see whether it might get traction among those who would be in a position to actually participate in such a movement.  After all, if a few committed individuals like Henry Dunant could create the Red Cross, what’s to stop a similar idea from taking hold in cyberspace?

The Absence of Practice Supporting the “Unwilling or Unable” Test

by Kevin Jon Heller

Regular readers of the blog know that one of my hobbyhorses is the “unwilling or unable” test for self-defense against non-state actors. As I have often pointed out, scholars seem much more enamored with the test than states. The newest (regrettable) case in point: my friend Claus Kress, who is one of the world’s best international-law scholars. Here is what he writes in an otherwise-excellent contribution to Just Security about the use of force against ISIL in Syria (emphasis mine):

It therefore follows not only from the right of self-defense’s general requirement of necessity, but primarily from the respect for the sovereignty of the territorial State that the right of self-defense in case of a non-State armed attack is of a subsidiary nature. It presupposes that the territorial State is either unwilling or unable to end the non-State armed attack – or, as it should be added for the sake of completeness, fails to exercise due diligence to that effect. State practice is remarkably consistent with these principles. As Professor Ashley Deeks has demonstrated in a formidable article, the legal claims to a right of collective self-defense in cases of non-State armed attacks have generally included the statement that the territorial State is unwilling or unable to deal with the non-State threat.

In terms of what the “unable or unwilling” test might look like if it represented customary international law, Deeks’s article is indeed excellent. But the article is anything but “formidable” in terms of state practice that supports the test. Indeed, the non-state actor section of the article spans all of two pages (pp. 501-03) — and cites precisely two states that officially endorse “unwilling or unable”: the United Kingdom and the United States. That’s it. And those are the same two states that Claus discusses in his post.

Simply put, there is simply no “consistent practice” that supports the “unwilling or unable” test, and scholars need to be careful not to put states in the “unwilling or unable” camp simply because they are willing to use armed force against a non-state actor. Deeks has been particularly prone to this kind of overinclusiveness, most recently arguing that Jordan, Bahrain, Qatar, the UAE, and Iraq support the “unwilling or unable” test because they have attacked ISIL in Syria — this despite the fact that all five states are members of the Arab League, which has specifically rejected the test in the context of Israel’s attacks on Hezbollah in Lebanon. (Actual opinio juris.)

I have the utmost respect for Claus, and I have no desire to pick on Deeks. But methodological rigor is particularly critical when it comes to doctrines like “unwilling or unable,” because its actual adoption by states would open the floodgates to the extraterritorial (ie, sovereignty-infringing) use of force against non-state actors. There may well come a time when the “unwilling or unable” test reflects customary international law, but that time is not now. Two states do not a customary rule make, however powerful those states may be. And we cannot simply ignore the states in the Global South, however inconvenient powerful states in the Global North may find their views.

U.S. Federal Aviation Agency Issues Letter Authorizing(?) Creation of Private Moon Base

by Julian Ku

Glenn Reynolds of Instapundit (and of the University of Tennessee Law School) has a short op-ed in USA Today celebrating the first official US government statement of support for the private exploitation of resources on the moon.  As Reynolds describes it:

Bigelow [a private US company] has decided that it wants to go to the moon, and — here’s the real news — has gotten the Federal Aviation Administration’s space office (Office of the Associate Administrator for Commercial Space Transportation) to give it the go-ahead, and to state that the U.S. government will recognize and protect Bigelow’s right to create a base and to operate exclusively in that base’s vicinity.

The linked report from Reuters elaborates that the FAA is simply using its existing authority to regulate payloads on space launches to authorize activities private companies might use those payloads for on the moon.  In this case, Bigelow is preparing to build an inflatable space habitat, a “moon base”, and would like some statement of US government backing for its project.

According to Reynolds (and many space lawyers), the Outer Space Treaty does not in fact prohibit private exploitation of natural resources on the moon. I am a bit surprised because Article II of that treaty states that:

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

But while national appropriation is prohibited, it appears to Reynolds and others that private appropriation is not prohibited.  This argument takes some interpretive legwork, but it certainly has some historical pedigree, dating back to at least this 1969 essay.

This aggressive reading of Article II is enough to encourage other private space development companies to plan their business models on extracting and then bringing back minerals from the moon. As Moon Express, another company stated:

“The company does not see anything, including the Outer Space Treaty, as being a barrier to our initial operations on the moon,” said Moon Express co-founder and president Bob Richards. That includes “the right to bring stuff off the moon and call it ours.”

I am still not sure about their reading of the treaty’s language.  Did the drafters of the Outer Space Treaty really want to prohibit states from exploiting celestial bodies, but allow any non-state to do so (and without any obvious set of rules to govern those non-states)?  I definitely need to study this question more, but it certainly seems like there will be a dispute on this question someday soon. Any experts out there who wish to comment, please share!

Guest Post: IHL Doesn’t Regulate NIAC Internment–A Drafting History Perspective

by Jonathan Horowitz

[Jonathan Horowitz is writing in his personal capacity. He is a Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program.]

Ryan Goodman argues in a thoughtful new post at Just Security that IHL regulations pertaining to internment in international armed conflict (IAC) should apply to internment in non-international armed conflict (NIAC).

This is a hotly debated issue.

In this post, I look back on the drafting history of Additional Protocol II which, in my view, reveals that 1) IHL was not crafted to provide regulations (neither the grounds nor procedures) for NIAC internment and 2) IHL does not have a structure that permits its IAC internment regulations to apply to NIAC.

That’s not to say States can’t intern; it’s to say that when they do, the sources of internment regulations are found not in IHL but primarily in domestic law and international human rights law.

Lack of internment regulations in the IHL of NIAC is supported by the fact that Common Article 3 and Additional Protocol II, the two main sources of treaty law regulating NIAC, provide no such rules. This absence is both indisputable and in contrast to the Third and Fourth Geneva Conventions, which are replete with regulations on IAC internment. Protocol I also contains internment regulations.

The absence of internment procedures in Additional Protocol II is also in contrast to numerous penal prosecution procedures found in Article 6 of Additional Protocol II and, to a lesser degree, Common Article 3. For these reasons, it’s clear that while the drafters of Protocol II explicitly recognized that parties to a NIAC are permitted to intern, the drafters also chose not to put in place internment regulations.

But why was this the case, and what does it tell us about IHL?

IHL’s relatively sparse rules for NIAC reflect States not wanting to provide legitimacy and legal status to non-state armed groups. This history heavily influenced U.K. High Court Justice Leggatt’s conclusion in ongoing litigation that IHL does not provide an implied power to detain in NIAC. He concluded, in part, that States did not wish to provide detention authority because, if they did, that authority would equally have to apply to rebel armed groups, which would in turn grant them unwelcomed legitimacy and force States into accepting that such groups have a right to “exercise a function which is a core aspect of state sovereignty.” (para. 245.)

While I agree that States did not intend for IHL to grant non-state armed groups an authority to detain, I’d like to dive a bit deeper into a related, but slightly different and broader issue: the impact that sovereignty had on States not wanting IHL to infringe upon their domestic law.

Romania’s delegate to the drafting process of the two Additional Protocols made a general remark that was illustrative of other State interventions, stating “The automatic application to internal conflicts of regulations applicable in international conflicts might have negative results and entail violation of international law and national sovereignty. Any future international regulations relating to non-international armed conflicts must be based on recognition of, and respect for, the sovereign rights of each State within its boundaries.” (p. 103.) Yugoslavia’s delegate similarly remarked, “When preparing the final version of draft Protocol II, account must be taken of the general principles of international law including those of non-interference in the domestic affairs of States and respect of the sovereignty and territorial integrity of States.” (p.105.)

I noted, these were general remarks, not aimed directly at the issue of NIAC internment. Nonetheless, the remarks demonstrated that States sought to protect their sovereignty and their inherent right to manage their citizens as they chose; and this implicitly included applying their domestic laws as they deemed appropriate.  India, for example, made the concise point that proposed rules on penal prosecutions in Protocol II “would be in conflict with his country’s national laws and…would constitute interference in the sovereign right of States.” (p. 359.) Pakistan’s delegate made a similar point. (p. 360.) (more…)

What Exactly Is the ICRC’s Position on Detention in NIAC?

by Kevin Jon Heller

I still need to write Part 2 of my response to Ryan Goodman, but it’s worth noting that he and I actually agree about detention in NIAC much more than we disagree. We both agree that IHL itself does not authorize such detention. We both agree that the standard governing detention in NIAC is that it must be non-arbitrary. We both agree that, in practice, it is non-arbitrary to detain individuals in NIAC for (something like) imperative reasons of security. So we seem to disagree only on one substantive point: where the requirement of non-arbitrariness comes from. Ryan says it comes from IHL itself. I argue that it comes from IHRL.

In my previous post, I took issue with Ryan’s claim that an ICRC Background Paper and Rule 99 of the ICRC’s study of customary law supported his position. I argued that neither clearly supports the idea that IHL requires detention in NIAC to be non-arbitrary, because both the Paper and the Rule rely on both IHL and IHRL for the substantive detention rules they endorse — and do not adequately disentangle the two legal strands. In response, Ryan accused me on Twitter — in a friendly manner — of arguing that he and the ICRC don’t understand the law of war.

Ryan and I obviously do disagree about whether IHL itself requires detention in NIAC to be non-arbitrary or whether its silence on that issue means IHRL’s requirement of non-arbitrariness applies as lex specialis. But I was not trying to claim that the ICRC was wrong, because I did not believe that Ryan was accurately characterizing its position. So I spent more time than than I expected after our exchange combing through the ICRC’s statements on the arbitrariness issue. I won’t bore readers with the twists and turns, but I do want to flag the ICRC’s most recent statement, an Opinion Paper dated November 2014. If the Opinion Paper does indeed reflect the ICRC’s current position on detention in NIAC, it turns out that  the ICRC disagrees with both me and Ryan, as well as with Dapo Akande and Lawrence Cawthorne-Hill at EJIL: Talk!, because it believes that IHL does, in fact, authorize detention in one kind of NIAC — extraterritorial NIAC. Here is what the ICRC says (p. 7):

In a “traditional” NIAC occurring in the territory of a State between government armed forces and one or more non-State armed groups, domestic law, informed by the State’s human rights obligations, and IHL, constitutes the legal framework for the possible internment by States of persons whose activity is deemed to pose a serious security threat. A careful examination of the interplay between national law and the applicable international legal regimes will be necessary. The right to judicial review of detention under human rights law will, of course, continue to apply; there are, however, differing views on whether this obligation may be derogated from.

Identifying the legal framework governing internment becomes particularly complicated in NIACs with an extraterritorial element, i.e. those in which the armed forces of one or more State, or of an international or regional organization, fight alongside the armed forces of a host State, in its territory, against one or more organized non-State armed groups.

The fact that Article 3 common to the Geneva Conventions neither expressly mentions internment, nor elaborates on permissible grounds or process, has become a source of different positions on the legal basis for internment by States in an extraterritorial NIAC. One view is that a legal basis for internment would have to be explicit, as it is in the Fourth Geneva Convention; in the absence of such a rule, IHL cannot provide it implicitly. Another view, shared by the ICRC, is that both customary and treaty IHL contain an inherent power to intern and may in this respect be said to provide a legal basis for internment in NIAC. This position is based on the fact that internment is a form of deprivation of liberty which is a common occurrence in armed conflict, not prohibited by Common Article 3, and that Additional Protocol II – which has been ratified by 167 States – refers explicitly to internment.

In short, according to the ICRC, IHL does not authorize detention in “traditional” NIACs, those fought solely on the territory of one state, but does authorize detention in extraterritorial NIACs. Indeed, the Opinion Paper specifically cites Serdar Mohammed as an example of the first view of extraterritorial NIAC — the one that the ICRC rejects. The ICRC’s position thus seems to be closest to Aurel Sari in the comments to my previous post, as well as to Kubo Mačák at EJIL: Talk!. Then again, the ICRC doesn’t completely agree with them, either, because the Opinion Paper quite specifically limits IHL’s inherent power to detain to extraterritorial NIAC — thus seeming to agree with me, Ryan, Dapo, and Lawrence that the authority to detain in at least traditional one-state NIACs comes from domestic law, not from IHL itself.

I confess that I find the ICRC’s traditional/extraterritorial distinction rather confusing. I don’t understand how the conventional and customary IHL of NIAC could contain “an inherent power to intern” in extraterritorial NIAC but not in traditional NIAC; doesn’t it have to be both — or neither? After all, each of the factors the ICRC cites in defense of its position apply equally to traditional NIAC. Internment is indeed a “common occurrence in armed conflict,” but it is common in both traditional and extraterritorial NIACs. Common Article 3 does not prohibit detention in either traditional or extraterritorial NIAC. And Additional Protocol II is capable of applying to some traditional NIACs and of not apply to some extraterritorial NIACs. In fact, it is probably more likely to apply in a traditional NIAC.

To be clear, I’m skeptical the Opinion Paper is correct even concerning extraterritorial NIAC. Nothing in conventional IHL suggests an inherent power to detain in any kind of NIAC: as Ryan, Dapo, and Lawrence have all pointed out, international law often recognizes and regulates a practice without authorizing it. And although there could in principle be an asymmetric customary rule that says IHL authorizes detention in extraterritorial NIAC while domestic authorization is required in a traditional NIAC, there seems to be no evidence that such a rule exists. As Dapo and Lawrence point out in their post, “[e]ven in the context of extraterritorial NIACs, states have looked elsewhere for authorisation [to detain] (see, e.g., Iraq and Security Council Resolution 1546).”

My point, then, is simply that I don’t think the ICRC can have it both ways. Either there is an inherent power in IHL to detain in NIAC or there isn’t.

One thing is clear: the ICRC really needs to clarify its position on detention in NIAC.

Guest Post: Samantar and the Perils of Executive Discretion

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

On Monday, the Solicitor General responded to the Supreme Court’s call for his views in Samantar v. Yousuf, a case raising questions of foreign official immunity. After significant diplomatic efforts to determine the official position of the Somali Government (see below), the State Department decided to stand by its prior determination that Samantar was not immune from the jurisdiction of U.S. courts in a case that found him liable for torture and extrajudicial killing. Although the Solicitor General disagrees with the reasoning of the decision below, the State Department’s decision not to alter its immunity determination clearly makes the case uncertworthy. “[B]ecause the court of appeals’ judgment . . . is consistent with the Executive Branch’s determination that petitioner is not immune,” the U.S. brief notes, “this Court should not grant review simply to correct the erroneous reasoning in the Fourth Circuit’s opinion” (p. 23).

Still, according to the Solicitor General, the Fourth Circuit erred in two respects. First, it gave the State Department’s determination of conduct-based immunity only “substantial weight” rather than treating that determination as binding on the court. Second, it announced “a new categorical judicial exception to conduct-based immunity for cases involving alleged violations of jus cogens norms” (p. 12). With respect to the second point, I have previously explained that the Fourth Circuit did not create an “exception” to an existing immunity but rather, quite properly, addressed the question whether torture and extrajudicial killing can be “official acts” to which conduct-based immunity attaches in the first place. Nor is the Fourth Circuit’s position “new,” having been the consistent position of U.S. courts of appeals in human rights cases for at least twenty years. See, e.g., Enahoro v. Abubakar, 408 F.3d 877, 893 (7th Cir. 2005) (discussing prior cases and noting that “officials receive no immunity for acts that violate international jus cogens human rights norms (which by definition are not legally authorized acts)”).

But what of the Solicitor General’s first argument that State Department determinations with respect to foreign official immunity are binding on the courts? Ingrid Wuerth has argued persuasively that the executive branch lacks independent constitutional authority to make rules of foreign official immunity. As Chief Justice Roberts reiterated in Medellin v. Texas, “‘the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.’” 552 U.S. 491, 526-27 (2008) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)). Whatever legal force of the State Department’s immunity determinations may have depends entirely on a federal common law rule created by the Supreme Court. Prior to 1938, federal courts did not defer to executive branch determinations of immunity. See, e.g., Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562 (1926). In a series of cases beginning in 1938, the Supreme Court established a rule of federal common law delegating authority over immunity determinations to the State Department. See Compania Espanola de Navegacion Maritima, S.A. v. The Navemar, 303 U.S. 68 (1938); Ex Parte Peru, 318 U.S. 578 (1943); Republic of Mexico v. Hoffman, 324 U.S. 30 (1945). But the discretion the Supreme Court has given as a matter of federal common law, the Supreme Court may also take away. And as Wuerth and Harlan Cohen have pointed out, the current Supreme Court is not very deferential to the executive on questions of foreign affairs.

The U.S. brief notes that foreign official immunity, like foreign state immunity, rests on “considerations of comity” (p. 17). But as I explain in a draft paper, the notion that questions of comity must be left to the executive branch is a myth. Indeed, the State Department’s experience with determinations of foreign state immunity in the decades prior to passage of the 1976 Foreign Sovereign Immunities Act (FSIA) shows what harm executive discretion can do not only to the rule of law but also to U.S. foreign relations. When the State Department had the power to determine the immunity of foreign states from suit in U.S. courts, foreign states naturally lobbied the Department for immunity. Moreover, despite the State Department’s best efforts to apply the restrictive theory of foreign sovereign immunity faithfully, foreign governments tended to view the denial of immunity as a political rather than a legal decision. It was precisely to avoid this negative impact on U.S. foreign relations that the executive branch asked Congress to remove its authority by passing the FSIA. “The transfer of this function to the courts,” the Secretary of State and Attorney General explained in their letter of transmittal to Congress, would “free the Department from pressures by foreign states to suggest immunity and from any adverse consequences resulting from the unwillingness of the Department to suggest immunity.”

As John Bellinger predicted, the same dynamic is now playing itself out in the context of foreign official immunity. When the Samantar case first came before the Supreme Court in 2010, the U.S. amicus brief (pp. 24-26) identified a number of factors the State Department might consider in making an immunity determination. On remand, the State Department’s 2011 determination emphasized two of particular relevance to Samantar’s case: (1) the lack of a recognized government in Somalia; and (2) the fact that the defendant was a U.S. resident who “ordinarily should be subject to the jurisdiction of our courts, particularly when sued by U.S. residents.” In January 2013, the United States recognized the Government of Somalia. As recounted in the U.S. brief filed Monday (pp. 7-8), there followed a confusing series of letters from different members of the Somali Government alternately purporting to assert and to waive Samantar’s immunity. In January 2014, the Solicitor General told the Supreme Court that “further diplomatic discussions” were needed “to clarify the position of the Government of Somalia on the immunity issue.” By April, the State Department had still not been able to have the necessary discussions because of the security situation in Somalia. In July, the Department was finally able to meet with the proper Somali official, who indicated that Somalia would not seek immunity for Samantar, but the Department received no diplomatic correspondence to confirm this position. So on December 23, 2014, the State Department sent Somalia a formal communication, relating its understanding that Somalia did not wish to seek immunity for Samantar and asking Somalia to respond by January 23, 2015 if that understanding were in error. Having received no response from Somalia, the State Department reaffirmed its determination that Samantar was not immune in a letter to the Solicitor General dated January 28, 2015. See U.S. brief (pp. 10-11).

Ironically, the State Department invested all this diplomatic energy with respect to a factor that is not even dispositive in its analysis. Although a foreign government may waive the immunity of its current or former officials, the United States does not treat a foreign government’s assertion of immunity as binding. See, e.g., Statement of Interest and Suggestion of Immunity at 9, Rosenberg v. Lashkar-e-Taiba (“Notwithstanding such a request, however, the Department of State could determine that a foreign official is not entitled to immunity.”). As I suggested in an earlier post, I find it hard to believe that the State Department would have changed its immunity determination with respect to Samantar, who has admitted liability for torture and extrajudicial killing, even if Somalia had sought immunity on his behalf. The State Department should be commended for its diligent efforts to clarify Somalia’s position in this case. But those efforts are likely to have two unintended and harmful effects: (1) to raise the profile of the case in U.S.-Somali relations; and (2) to suggest to Somalia and other governments that they can influence State Department’s determinations in future cases. As was true with foreign state immunity four decades ago, executive discretion over foreign official immunity is proving to be a poisoned chalice.

The better course is the one taken by the Fourth Circuit—to allow federal courts to decide the immunity of foreign officials under federal common law, including the established rule that jus cogens violations are not “official acts” for purposes of conduct-based immunity. Foreign governments might not like the results in every case, but they would not be able to blame the executive branch for the outcomes. Of course, conclusory allegations of a jus cogens violations would not be enough to allow a suit against a foreign official to go forward. Under Ashcroft v. Iqbal, 556 U.S. 662 (2009), the plaintiff must plead facts sufficient to make a facially plausible claim that the defendant is liable, which in the case of a foreign official may include that defendant’s lack of immunity from suit. If the relevant facts are in dispute, the trial court may allow jurisdictional discovery limited to the question of immunity, as courts currently do with questions of state immunity under the FSIA. See, e.g., Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534 (5th Cir. 1992) (noting that jurisdictional discovery “should be ordered circumspectly and only to verify allegations of specific facts crucial to an immunity determination.”). At present, the State Department plays this screening role in cases against foreign officials, suggesting immunity if the complaint does not allege facts establishing a lack of immunity with sufficient specificity. But surely courts are better equipped for the task.

I expect the Supreme Court to deny cert in Samantar. But the uncomfortable position of the State Department in these cases—and the corresponding harm to U.S. foreign relations—will continue until Congress or the courts make clear that the executive branch does not have the final word on determinations of foreign official immunity.

Responding to Ryan Goodman About Serdar Mohammed — Part I

by Kevin Jon Heller

At Just Security, my friend Ryan Goodman has posted a long analysis of Serdar Mohammed v. Ministry of Defense, in which the UK High Court held that IHL neither authorizes nor regulates detention in non-international armed conflict (NIAC). That decision will soon be considered by the Court of Appeal.

In his post, which is a must-read, Ryan states that he agrees with the High Court that IHL does not authorize detention in NIAC but disagrees that IHL does not regulate such detention. I share Ryan’s position on the first point, but I disagree with him — and agree with Justice Leggatt in Serdar Mohammed — on the second. In a subsequent post, I will address Ryan’s argument that “whatever is permitted in international armed conflict is permitted in noninternational armed conflict.” I have described that argument in a forthcoming book chapter as “reasoning by analogy”; Ryan rejects that description and says he is engaging in “reasoning by structure.” I will try to show in the next post that the “whatever is permitted” argument is problematic no matter how we describe its underlying reasoning.

In this post, I want to focus Ryan’s argument that, contrary to Justice Leggatt, IHL does in fact regulate the permissible grounds for detention in NIAC. Here is what he says (emphasis mine):

So far we have discussed the permissive boundaries of detention in NIAC but what about limitations on states in these contexts? IHL also imposes a set of prohibitions on the grounds for detention in internal armed conflict. That is, multiple sources conclude that IHL prohibits arbitrary deprivation of liberty in NIAC (see footnote 12 of the AJIL article, for example). Subsequent to that law review article, several important states through the Copenhagen Process—including “specially affected” states which is a significant category for customary international law purposes—explicitly accepted such restrictions on detention in NIAC.  Consider also the ICRC’s statement in a Background Paper on detention for the regional consultations 2012-2013: “In terms of grounds for internment, the ICRC, along with a growing international consensus of experts considers that ‘imperative reasons of security’ is an appropriate standard for internment in NIAC.” And a Report by a group of experts convened by the ICRC and Chatham House “quite easily” reached a consensus that in NIACs “parties to a conflict may capture persons deemed to pose a serious security threat and that such persons may be interned as long as they continue to pose a threat.” (See also the ICRC’s customary international humanitarian law Rule 99: Deprivation of Liberty).

To begin, it’s worth noting that Ryan does not seem to be “reasoning by structure” here — he seems to be arguing that, as a matter of customary international law, IHL prohibits arbitrary detention in NIAC. After all, he specifically mentions custom and “specially affected” states in the context of the Copenhagen Process. Moreover, he refers to the ICTY’s jurisdiction decision in Tadic both here and in his superb law-review article on security detention — and Tadic specifically based its (methodologically dubious) extension of IAC-based rules of IHL to NIAC on customary international law. As it said with regard to those rules (para. 127), “it cannot be denied that customary rules have developed to govern internal strife.”

If Ryan is claiming that IHL prohibits arbitrary detention in NIAC as a matter of customary international law, I have no theoretical objection to his argument. Indeed, as I’ll explain in my next post, my position is that international human rights law (IHRL) governs the regulation of detention in NIAC precisely because there are no contrary customary rules of IHL that can serve as the lex specialis of detention. If there are such customary rules, IHL may well displace IHRL (depending on how we understand the lex specialis principle).

That said, I take issue with Ryan’s claim that (as a matter of custom?) IHL prohibits arbitrary detention in NIAC — a standard that has no basis in the conventional IHL of NIAC and is normally associated with IHRL