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Human Rights

Guest Post: The End of the Road for Ngudjolo and the Stacked Odds Against ICC Acquitted

by Emma Irving

[Emma Irving is a PhD Researcher at the University of Amsterdam School of Law, and a visiting researcher at Cornell University.]

Earlier this week was the final instalment of the story of the International Criminal Court’s (ICC) first acquittal, with the removal of Mathieu Ngjudjolo Chui from the Netherlands back to the Democratic Republic of Congo (DRC).

It was not altogether surprising when the Appeals Chamber of the ICC upheld the Ngjudjolo’s acquittal on the 27th February this year. What was surprising was the events that followed. Immediately following the judgment, Ngudjolo was escorted by Dutch police to Schiphol International Airport to be deported back to the Democratic Republic of Congo. The plane made it all the way to the runway before being dramatically called back: Ngudjolo was to have his asylum application heard a second time.

Ngudjolo first applied for asylum in the Netherlands in 2012 after he was acquitted by the ICC Trial Chamber. In this case too he made it all the way to Schiphol Airport, but not quite onto a plane, before the Dutch authorities halted the deportation. Ngudjolo contended, and still does, that he would be at risk if returned to the DRC. The Dutch authorities responded to these claims by stating that Ngudjolo had not provided enough evidence of the risks he faced, and that in any event he was excluded from refugee protection as a suspected war criminal. The issue was appealed all the way to the Council of State, the highest administrative body in the Netherlands, which ultimately sided with the Dutch government. It held that Article 1F of the 1951 Refugee Convention, which disqualifies an individual from refugee status if they are suspected of having committed war crimes or crimes against humanity, could be applied despite an acquittal by the ICC. The Council deemed that the evidentiary standard for exclusion was lower than in criminal cases, and that Ngudjolo’s acquittal did not remove suspicion of his involvement in other crimes. The asylum application was denied.

Such is how matters stood up until the appeal judgment. Ngudjolo’s legal team secured a second asylum hearing after he was acquitted on appeal, stopping his immediate deportation. However, on the 23rd of April 2015, this application was also refused. While Ngudjolo can appeal this decision, an appeal will not have suspensive effect, and his deportation was scheduled for the 1st May. For a more detailed procedural history see here and here.

After an application for residence in Switzerland on humanitarian grounds was turned down, Ngudjolo reached the end of the road in terms of preventing his return to the DRC. And that road seemed to be a dead-end all along. The odds were stacked against Ngudjolo from the beginning: 1) he was in a catch-22 position as regards acting as a witness in his own defence, 2) the ICC did not act to assist him, and 3) he could not cast his asylum seeking net beyond the Netherlands.

To begin with Ngudjolo’s role as a witness, he was caught in a no-win situation. Although important in securing his acquittal, the content of Ngudjolo’s testimony prejudiced his position on release. It both prevented him from returning home, and prevented him from remaining in the Netherlands. As regards returning home, Ngudjolo made statements against the DRC government, and in particular, provided a letter that incriminated the DRC government in the attack on the village of Bogoro, for which he himself was standing trial. Speaking out against the powers-that-be in the DRC, Ngudjolo claims, has placed him at great risk. As to remaining in the Netherlands as a refugee, Ngudjolo’s testimony handed the Dutch authorities the evidence they needed to exclude him from refugee protection. In order to prove that he was not involved in the Bogoro attack, Ngudjolo provided details as to his position in the militia hierarchy. The Dutch authorities then used this information, combined with other reports about the conflict, to invoke Article 1F. For reasons that the ICC has kept confidential, Ngudjolo was also excluded from ICC witness protection. He was therefore stuck in a lose-lose situation: give evidence in his own defence but have nowhere to go if acquitted, or do not give evidence and increase the chance of conviction.

Then there was the inaction on the part of the ICC. The dilemma of acquitted persons who cannot return to their home countries is by no means new. The International Criminal Tribunal for Rwanda (ICTR) has been dealing with this thorny issue for years, and still has no firm resolution – while the Tribunal may have wrapped up at the end of last year, there are still acquitted persons living in a safehouse in Arusha. It is perhaps this legacy that has prompted the ICC to act the way it has: to simply open its doors and allow acquitted persons to walk out (and be arrested). Granted, when a person is cleared of all charges, the right to liberty requires their release, as does the Rome Statute (Article 81(3)(c)). However, as Ngudjolo’s case demonstrates, this is not always ideal. When it comes to acquitted persons, the Rules of Procedure and Evidence also have something to say. Rule 185 obliges the Court to make such arrangements as it considers appropriate for the transfer of an acquitted person, taking into account the person’s views, to a State. This can be a State that is obliged to receive the acquitted person, a State that has agreed to receive the person, or a State that has sought the acquitted person’s extradition.

From a reading of the text of Rule 185 alone, it would seem that the ICC can order a transfer to any State willing or obliged to receive the individual. But then there is Article 21(3) Rome Statute. This Article requires that all law applicable to the ICC be interpreted and applied in accordance with internationally recognised human rights norms, of which non-refoulement is one. It is argued that when Rule 185 is read with Article 21(3), it must mean that the ICC cannot order a transfer to a State where the individual would be at risk. This application of Rule 185 would require the creation of a procedure to decide where the acquitted person is to go before they are released. A comparable process is undertaken when an accused is considered eligible for interim release; a hearing must be held in which a State willing to host the accused is identified. Neither this approach to Rule 185, nor apparently any other, was taken in Ngudjolo’s case. His release and hand over to the Dutch police seems to have been done with no formal decision on where he would be taken, at least none that is transparent and publicly available.

The final obstacle facing Ngudjolo was the fact that the Netherlands was his only option for seeking asylum. The construction of the Refugee Convention is such that no other State is obliged to hear an asylum application from him, as he is neither on their territory nor at their border. For this reason he is only able to make applications for humanitarian residence, or variations of, which are entirely discretionary (this limitation is what led to the chronic problem of acquitted persons at the ICTR). The consequence is the overburdening of The Netherlands with asylum claims from not only acquitted, but also witnesses. It is perhaps not surprising that the Netherlands has fought hard against such applications, for fear of establishing a precedent.

In the end it was May 11th, rather than May 1st, that saw Ngudjolo deported from the Netherlands. Interestingly, the website for the 1533 Sanctions Committee still lists Ngudjolo as being subject to a UN travel ban, although this does not seemed to have proven a hindrance. The Ngudjolo case is another instalment in the story of the ICC’s growing pains, and in The Netherlands’ fight to minimise the impact of it hosting the Court. This story will go on as the ICC continues its operations and more judgments are rendered, and it is hoped that in future the odds become a bit more evenly distributed.

The Fog of Technology and International Law

by Duncan Hollis

[Note: This piece is cross-posted to the SIDIblog, the blog of the Italian Society of International Law, which was kind enough to ask for my views on these topics; for those interested in their other posts (in multiple languages), see here.]


  • War is the realm of uncertainty; three quarters of the factors on which action in war is based are wrapped in a fog of greater or lesser uncertainty.

Carl von Clausewitz, Vom Kriege (1832), Bk. 1, Ch. 3.

  • It is a cruel and bitter truth that in the fog of war generally and our fight against terrorists specifically, mistakes — sometimes deadly mistakes — can occur.  But one of the things that sets America apart from many other nations, one of the things that makes us exceptional is our willingness to confront squarely our imperfections and to learn from our mistakes. 

U.S. President Barack Obama, April 23, 2015

I arrived in Rome for a month-long visit at LUISS Universita Guido Carli to find a country wrestling with the tragic news of the death of one of its own – Giovanni Lo Porto.  As President Obama himself announced, the United States inadvertently killed Lo Porto and Warren Weinstein, a USAID contractor, as part of a January drone strike targeting an al Qaeda compound in the Afghanistan-Pakistan border region.   Both aid workers were Al Qaeda hostages; Lo Porto had been kidnapped in 2012, while Weinstein was abducted in 2011.

The story made global headlines for Obama’s apology that the United States had not realized these hostages were hidden on-site, and thus their deaths were a tragic mistake:

As President and as Commander-in-Chief, I take full responsibility for all our counterterrorism operations, including the one that inadvertently took the lives of Warren and Giovanni.  I profoundly regret what happened.  On behalf of the United States government, I offer our deepest apologies to the families.

President Obama directed a “full review” of the strike, and there are calls for other investigations as well, including here in Italy.

Amidst this tragedy – and some of the apparent missteps by the U.S. (not to mention Pakistani) governments (painfully noted by Mr. Weinstein’s family) — there is something remarkable in the Obama statement.  Unlike so many other reports of U.S. errors or controversial programs in recent years (think Wikileaks or this guy), here was the U.S. Government, on its own, declassifying and disclosing the facts surrounding a drone strike that by all accounts appears to have included a major mistake in its execution.  For lawyers, moreover, such disclosures are critical – without them we are left with what I’d call the “fog of technology” which precludes the application of the rule of law in an open and transparent way.

Clausewitz’s concept of the “fog of war” is simple, and well known:  it describes the situational uncertainty that military actors face, their lack of perfect information about an adversaries’ intentions and capabilities (not to mention incomplete knowledge of their allies’ intentions and capabilities).   What looks good on paper before an armed conflict may prove unworkable as the conditions of war – physical hardship, the need for immediate decision-making, emotional strains, etc. – complicate decision-making, and with it, the achievement of military objectives.

I use the term “fog of technology” to identify a similar situational uncertainty that lawyers face when confronting the deployment of new technology.  Simply put, new technology can cloud how lawyers understand the content of law.  Of course, lawyers can assess new technology and find it analogous to prior cases, allowing for what I call “law by analogy”, where the nature or function of a new technology is regulated according to how an analogous technology or function has been regulated in the past.  But the more novel the technology – the more it can function in non-analogous ways, or with effects previously unimagined – the more lawyers may (or at least should) struggle with interpreting and applying the law to it.

Now, the fog of technology can emerge in all sorts of legal systems and all sorts of contexts from 3D printing to nanotechnology to driverless cars.  But President Obama’s explicit reference to Clausewitz makes me think about it in the particular context of warfare itself.  We are very much in a fog of technology when it comes to applying law to modern conflicts, whether it’s the remotely-piloted drone that killed Lo Porto and Weinstein, Stuxnet, or rumors of truly autonomous weapon systems (or “killer robots”).  Which domestic and international legal frameworks regulate the deployment of these technologies?  Does international humanitarian law (IHL) govern these operations, and, if so, does it do so exclusively, or do other regimes like international human rights apply as well?  To the extent a specific regime applies – IHL – how do its rules on things like distinction or neutrality apply to technologies and operations that may have no prior analogues?  More specifically, how does the law treat specific cases – was the killing of Lo Porto and Weinstein, tragic but legal, or was it an internationally wrongful act?

Of course, technology is not the only reason we have such questions.  Indeed, several scholars (most notably Michael Glennon) have identified the idea of a “fog of law.”  The rise of new types of non-state actors such as Al Qaeda continue to generate legal uncertainty; more than a decade after September 11, debates persist over whether and when U.S. counter-terrorism operations fall within a criminal law framework, or, as the U.S. insists, within the laws of armed conflict.   Similarly, when the United States targets and kills a U.S. citizen abroad (such as Ahmed Farouq, the American affiliated with Al Qaeda, who died in the same strike that killed Lo Porto and Weinstein), the question is not so much how the technology did this, but whether the U.S. Constitution regulates such killing.

Still, I think there are features of technology itself that make lawyering in this context significantly more difficult.  My co-blogger Ken Anderson recently summarized a few of the most important aspects in a recent post at the Hoover Institution.  He identifies several commonalities among cyberweapons, drones, and killer robots:  (i) their ability to operate remotely; (ii) their capacity for extreme precision (at least when compared to earlier weapons); and (iii) the diminished ease of attribution.  Of these, I think the problem of attribution is foundational; law will have little to say if legal interpreters and decision-makers do not know how the technology has been deployed, let alone how it functions or even that it exists in the first place.   In such cases, the fog of technology is tangible.

Consider the story of drones and international law. (more…)

Must Read: Darryl Robinson on the ICC’s “Inescapable Dyads”

by Kevin Jon Heller

Darryl is one of my very favourite international criminal law scholars. Indeed, I think he is the leading purveyor of what we might call “meta” ICL scholarship — scholarship that is concerned less with doctrine than with the nature of ICL reasoning and rhetoric itself. His article “The Identity Crisis of International Criminal Law” is a genuine classic, and I learn from everything he writes. So it is with great pleasure that I call readers’ attention to Darryl’s brilliant new article, just published in the Leiden Journal of International Law. It’s entitled “Inescapable Dyads: Why the ICC Cannot Win,” and here is the abstract:

The International Criminal Court (ICC) is surrounded by controversies and criticisms. This article highlights some patterns in the arguments, showing that many plausible criticisms reflect inescapable dyads. For any position that Court could take, one or more powerful criticisms can inevitably be advanced. The tension can be obscured because shared terms are often recruited for opposite meanings. Awareness of these patterns can (i) provide a framework to better situate arguments, (ii) reveal the deeper complexity of the problems, and (iii) help us to evaluate and improve upon the arguments. Awareness of dyadic structures can lead to a debate that is more generous, as we acknowledge the difficulty and uncertainty of choosing among flawed options, yet also more rigorous, as we attempt to articulate and improve upon our frameworks of evaluation. The goal of this article is to encourage a better conversation that can generate better insights.

The article is a must-read for anyone interested in ICL. You can find the published version here (free until end of October 2015) and an earlier SSRN draft here.

Guest Post: Stephen W. Preston on ‘The Legal Framework for the United States’ Use of Military Force since 9/11’ (ASIL Annual Meeting 2015)–Old Wine in New Bottles

by Elisa Freiburg

[Elisa Freiburg, LL.M. (LSE), is research associate for international law at the University of Potsdam and a doctoral candidate at the University of Heidelberg. Her research focuses on international human rights, development, international criminal law, and the use of force.]

On April 10, 2015, Stephen W. Preston, General Counsel at the United States Department of Defense, delivered a keynote speech at the ASIL Annual Meeting. This speech addressed a vast number of US policy issues and describes the current state of the US understanding of international law on the use of force – an understanding that should worry the international community.

A central issue and starting point of Preston’s speech was the 2001 Authorization for Use of Military Force (AUMF), which had been passed by the US Congress in the aftermath of 9/11 on September 14, 2001, and still, as of today almost 14 years later, continues to authorizes the US President under domestic law to use “all necessary and appropriate force against those nations, organizations, or persons” responsible for 9/11  (or those who harbored such organizations or persons), “in order to prevent any future acts of international terrorism against the United States”. In 2009, the Obama Administration filed a memorandum in the Guantánamo habeas litigation, arguing that the President’s authority to detain “persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners” could be derived from the 2001 AUMF (thereby actually abandoning the “enemy combatant” argument of the Bush administration). By the National Defense Authorization Act for Fiscal Year 2012, US Congress endorsed this new formula which meant that the initial definition of the 2001 AUMF had been significantly expanded.

Certainly, the term “or associated forces” in that definition offers endless possibility to expand the scope of alleged detention authorities. Preston reiterated the interpretation by his predecessor, Jeh Johnson, who had held in 2012 that an associated force must be both (1) an organized, armed group that has entered the fight alongside al-Qa’ida (no mere alignment), and (2) a co-belligerent with al-Qa’ida in hostilities against the US or its coalition partners. Preston also referred to a public hearing before the Senate Foreign Relations Committee in May 2014, during which he had listed the groups and individuals against which the US were taking military action (in the sense of capture or lethal operations) under the 2001 AUMF, namely: al-Qa’ida, the Taliban and certain other terrorist or insurgent groups in Afghanistan; al-Qa’ida in the Arabian Peninsula (AQAP) Yemen; individuals who are part of al-Qa’ida in Somalia and Libya; (since 2014) the Nusrah Front and the Khorasan Group in Syria; and “the group we fought in Iraq when it was known as al-Qa’ida in Iraq”, the Islamic State. This list already shows how the understanding of the original scope of the AUMF (applicable to those responsible for the 9/11 attacks) has been expanded since 2001. Though Preston tried to differentiate between the Islamic State and its ties with al-Qa’ida, and (theoretically) a totally new group arising “fully formed from the head of Zeus”, in practice one might wonder whether a new group in the region without any links to al-Qa’ida would not rather constitute an abnormality than the rule (at least for the foreseeable future), thereby allegedly allowing the US to include every terrorist group in the region into the AUMF scope if they wanted to. The inclusion of the Islamic State, which does not consider itself as forming part of al-Qa’ida, but as a new group, demonstrates that this line of association might last, from the US perspective if not forever, then for quite a while. (more…)

Guest Post: The Mediterranean Migrants Crisis and the Use of Force–Is There a Case for Destroying Smugglers’ Boats?

by Sondre Torp Helmersen and Niccolo Ridi

[Sondre Torp Helmersen is a PhD Candidate at the University of Oslo and Niccolò Ridi is a PhD Candidate at King’s College London and SNSF Research Assistant, The Graduate Institute, Geneva.]

1. Introduction

The recent disasters off the coasts of Italy have been the deadliest documented incidents in the troubled history of migration in the Mediterranean sea. The unprecedented number of lives lost at sea has prompted outrage in a number of countries and brought the Mediterranean migrants Crisis at the top of the European political agenda. After more than 1000 people drowned in ten days, a summit was finally called by the President of the European Council Donald Tusk.

The outcome of the meeting has been met with disappointment: outside of southern European Countries, plans for a more equitable distribution of migrants within the European Union states do not seem a priority, and the measures agreed upon focus merely on preventing departure. States have agreed on a number of measures comprising the tripling of the funding allocated to Europe’s Operation Triton (which had previously been called ‘woefully inadequate’ by the UN High Commissioner for Refugees Antonio Guterres), improved cooperation against smugglers networks, a generic pledge to do more for refugee protection and resettlement on a voluntary basis and, more controversially, actions directed to identify, capture and destroy vessels used by smugglers before they can be used.

The idea of targeting smugglers’ vessels was originally included in a 10-point action plan relying on the precedent of Operation Atalanta, which focuses on protecting on preventing piracy acts off the coast of Somalia. The adoption of such a strategy as a means of dealing with a migrants crisis, however, calls for careful consideration.

European leaders have asked EU High Representative for Foreign Affairs Federica Mogherini “to propose actions in order to capture and destroy the smugglers’ vessels before they can be used”. However, aside from rumours on the possible use of Apache helicopters targeting vessels from a range of 2 km, proposals on the use of force have so far been quite vague, and their wording careful enough to suggest that any action would have to be consistent with international law. Angela Merkel is reported to have suggested that either a Security Council resolution or the cooperation of a Libyan unity government would be prerequisite for these operations. French President François Hollande has said that France and the United Kingdom will push for a Security Council resolution. But how do these proposed operations fit in the traditional paradigms on the use of force?

2. The Legality of Using Force

The force envisaged by European leaders would apparently be used to destroy boats docked in African harbours or internal or territorial waters. This would violate the prohibition of using force in Article 2(4) of the UN Charter, unless one of its exceptions apply. Attacking the boats may alternatively be classified as ‘law enforcement’ rather than ‘use of force’ (e.g. Guyana v Suriname para 445), but such enforcement would be equally illegal in another State’s territory or internal or territorial waters in the absence of the same exceptions.

The exception for self-defence is not applicable, since there has been no “armed attack” against European countries from African States or people smugglers (the latter would be relevant if one recognises a right to self-defence against non-State actors). There may also be a right for States to use force to protect their nationals abroad, but European nationals are generally neither threatened by nor involved in the smuggling. The more or less debunked doctrine of ‘humanitarian intervention’ would also not be applicable, since, even if one could argue that parts of Africa and/or the Middle East are suffering humanitarian crises, destroying people smugglers’ ships would not help alleviate those crises.

The simplest approach would be to have the consent of the relevant African States. In most cases this would mean Libya. A complicating factor is the current split between the two governments that claim to represent the State of Libya. One is based in Tripoli, the other in Tobruk. This raises the question of which of these, if any, that may give valid consent to the use of force in Libyan harbours and waters. The Tobruk government controls the majority of Libya’s territory, and is recognised by most other States as Libya’s government. However the Tripoli government controls the country’s traditional capital as well a substantial part of its territory. Some territory is also controlled by other groups, including the (so-called) Islamic State. In short, the situation is murky. After having repeatedly offered its cooperation to help fight the smuggling operations, the Tripoli government has said it will not give consent to using force against people smugglers. The Tobruk government has apparently not yet taken an official position.

The second option is to get authorisation from the UN Security Council, under the UN Charter Chapter VII. Such authorisation was given for the EU’s anti-piracy ‘Operation Atalanta’ off the coast of Somalia. However in that case the authorisation was made conditional on the consent of the Somali government. A similar condition could be set now. Authorisation would also require the consent of the UNSC’s five permanent members. Relations are currently frosty between Russia and the West, and one reason is how the Western powers used and possibly abused the 2011 authorisation to use force in Libya. Indeed, President Hollande has conceded that some convincing might be necessary to overcome Russian reluctance. Another basic condition for the UNSC to authorise the use of force is that the force is necessary to “maintain or restore international peace and security” (Article 42), in the presence of either a “threat to” or “breach of” international peace or an “act of aggression” (Article 39). The most plausible route would be to argue that the situation in the Mediterranean constitutes a “threat to the peace”. This is not obvious from the text of Article 39, but the UNSC has interpreted the provision highly flexibly in the past, and may well do so again. For example, in Resolution 668 (on Iraq’s treatment of its Kurdish population), the UNSC held that “a massive flow of refugees towards and across international frontiers … threaten[s] international peace and security”.

Other legal issues may also arise. African countries’ failure to clamp down on people smugglers’ activities may constitute a violation of the ‘duty of vigilance’ (Armed Activities para 246-250), but such a violation does not in itself authorise other States to respond with armed force. Further, if we concede that international humanitarian law applies, smugglers’ boats would be entitled to protection as civilian objects. The smugglers’ activities should not qualify as ‘piracy’ under the UNCLOS Article 101. That would in any case only make them liable to seizure by force by any State on the high seas (Article 105). To argue that the provision allows to destroy their ships when docked in a harbour seems too much of a stretch.

3. Conclusion: Another Problem that Cannot be Solved by Force

While there are legal avenues open for using force against African people smugglers, a wholly different question is whether this would actually contribute to solving the problem. The former head of operations of Atalanta has recently stated that to destroy smugglers’ boats would not be effective, as the boats used tend to be cheap and easy to replace. In a broader perspective, it would help solve neither the underlying causes of migration, which include conflict and misrule in Africa, nor the causes of the EU’s attempts to restrict migration, which include its social and economic costs.

The EU does seem to envisage the destruction of boats as one element in a broader set of tools. What is lacking, though, is an attempt to improve the current European asylum framework and a more equitable distribution of migrants among the members of the Union. This remains one of the most controversial and polarising issues in the EU. It therefore comes as no surprise that states less concerned by the refugee flows, such as the UK, would lend their support to operations at sea but avoid committing to any plans for a new resettlement system.

Finally, but perhaps most importantly, the construction of a narrative that places emphasis on the criminal nature of smuggling activities is conspicuous. There is clearly no question that smugglers are criminals. The idea of a “war on smugglers” seems to fit the policy goal of avoiding to give the Triton operation a clear search and rescue mandate – indeed, one of the most significant concerns voiced by human rights groups. As Kenneth Roth has suggested, to reduce the problem to the “false pretext of criminality” is to ignore the gravity of the situations from which many migrants are fleeing, and the resulting readiness to go to any lengths to seek better opportunities on European soil.

Breaking the Silence — About Israel’s Assault on Gaza

by Kevin Jon Heller

The irreplaceable Breaking the Silence has released a new report on Operation Protective Edge — and it’s a doozy. Here are some particularly disturbing snippets from the Guardian‘s article on the report, which contains dozens of testimonials by past and present IDF soldiers:

“[The commander] said: ‘We don’t take risks. We do not spare ammo. We unload, we use as much as possible.’”

“The rules of engagement [were] pretty identical,” added another sergeant who served in a mechanised infantry unit in Deir al-Balah. “Anything inside [the Gaza Strip] is a threat. The area has to be ‘sterilised,’ empty of people – and if we don’t see someone waving a white flag, screaming: “I give up” or something – then he’s a threat and there’s authorisation to open fire … The saying was: ‘There’s no such thing there as a person who is uninvolved.’ In that situation, anyone there is involved.”

“The rules of engagement for soldiers advancing on the ground were: open fire, open fire everywhere, first thing when you go in,” recalled another soldier who served during the ground operation in Gaza City. The assumption being that the moment we went in [to the Gaza Strip], anyone who dared poke his head out was a terrorist.”

Soldiers were also encouraged to treat individuals who came too close or watched from windows or other vantage points as “scouts” who could be killed regardless of whether there was hard evidence they were spotting for Hamas or other militant groups. “If it looks like a man, shoot. It was simple: you’re in a motherfucking combat zone,” said a sergeant who served in an infantry unit in the northern Gaza strip.

“A few hours before you went in the whole area was bombed, if there’s anyone there who doesn’t clearly look innocent, you apparently need to shoot that person.” Defining ‘innocent’ he added: “If you see the person is less than 1.40 metres tall or if you see it’s a lady … If it’s a man you shoot.”

In at least one instance described by soldiers, being female did not help two women who were killed because one had a mobile phone. A soldier described the incident: “After the commander told the tank commander to go scan that place, and three tanks went to check [the bodies] … it was two women, over the age of 30 … unarmed. They were listed as terrorists. They were fired at. So of course they must have been terrorists.”

The soldiers’ descriptions are disturbingly reminiscent of the notorious “free fire” zones in Vietnam and the US government’s well-documented (and erroneous) belief that signature strikes directed against “military-age men in an area of known terrorist activity” comply with IHL’s principle of distinction. The testimonials are, in a word, stunning — and put the lie to oft-repeated shibboleths about the IDF being “the most moral army in the world.” As ever, the stories told by the IDF and the Israeli government are contradicted by the soldiers who actually have to do the killing and dying.

You can find the report here. And if you’re interested in a predictable right-wing attempt to discredit the report — which basically just complains that Breaking the Silence doesn’t release the identity of the soldiers who gave testimony (gee, can’t imagine why not…) — see here.

Elisa Massimino Defends Harold Koh (And So Do I)

by Kevin Jon Heller

Massimino is the head of Human Rights First, one of the leading human-rights organisations in the US. Here is a snippet from her editorial today in the Washington Post, with which I almost completely agree:

As a close observer of the U.S. government’s national security policy, I know it is better for Koh’s involvement.

That’s not to say that I agreed with all the positions he took and defended. Two years ago at our annual human rights summit, Koh gave a speech defending the Obama administration’s use of drone strikes. He made the best case anyone could, but it left a lot to be desired. Throughout his tenure at State, we called on the administration to ensure that its targeted killing program was consistent with the laws of war. We’re still not satisfied that it is.

But on a range of issues — military commissions, treaties, Guantanamo Bay, detention, and transparency on drones — Koh forged progress behind the scenes. This wasn’t the kind of work that made headlines, but it strengthened respect for human rights and reduced suffering. If that makes Koh a sellout, we need more of them.

I hope that the students who signed the anti-Koh petition — who by doing so have demonstrated a concern for human rights — will spend their lives trying to advance them. They would, I’m confident, find such work fulfilling. But they will discover that victories are seldom, if ever, absolute, and that we in the movement simply can’t afford to mistake allies for enemies.

In a better world, the views of knowledgeable (and progressive) national-security experts like Massimino would carry some weight with Koh’s critics. I’d also like to think I have at least some credibility regarding the situation — after all, it was my blog post arguing that the killing of al-Aulaqi was murder under US criminal law that seemingly led the OLC to greatly expand its notorious memo justifying the attack, and I wrote the first substantial (and deeply critical) legal analysis of signature strikes. Moreover, although I don’t think having a been a student or colleague of Koh’s disqualifies someone from defending him, I have no such ties — although I have always admired Koh’s scholarship, I had never even met him until about a year ago, when he gave a lecture at Melbourne (which I disagreed with!) about his time at State.

Alas, many of Koh’s most vociferous critics — though certainly not all — have little interest in reasoned debate. My posts defending Koh are “laughable” and nothing more than “the academic equivalent of the ‘I’m not a racist, but….’ argument” — because it apparently makes no difference how critical you are of the US government’s drone program; if you defend Koh, you’re just an apologist for the program. I have taken “a careerist and opportunity [sic] approach when it suits” me — even though I am a professor in the UK and shudder in horror at the thought of ever having a position in the US government (or any government, for that matter). I am a “hitman” for Koh and an agent “in the market of favors (rather than ideas)” — this part of a bizarre ad hominem attack (with bonus points for working in the word “Zionist”) on Koh for alleged venality. I’m “bullying” the students by defending Koh on the blog instead of letting their accusations of murder go unchallenged. And I’m “elitist’ and “insular” because I believe students have no right to demand “standards” from their professors — a claim based on precisely nothing other than my disagreement with the petition. This is the kind of rhetoric that people use when they have nothing substantive to argue.

Let me be clear: I have no problem with students, faculty, or anyone else criticising Koh. I’ve done that myself. I also fully support the First Amendment right of students, faculty, and anyone else to circulate a petition calling for NYU to rescind its offer to Koh to teach human rights at the law school. But it is not “bullying” for those who respect Koh to respond to irresponsible claims that he is a murderer and war criminal. Nor is it an “attack on the students” to meet their speech with counter-speech. Indeed, if Koh’s critics are “drowned out” by the response to their petition — by the fact that more than 750 people of every political persuasion imaginable believe that the petitioners are, in Massimino’s words, “mistaking allies for enemies” — perhaps the problem isn’t the response.

Perhaps the problem is that the petition’s claims are wrong.

Students, Junior Faculty, and Human Rights Scholars are Delicate Flowers

by Kevin Jon Heller

At least according to Fionnuala Ní Aolain, criticising the counter-petition that I and hundreds of others signed in defense of Harold Koh. Her entire Just Security post is deeply problematic; let’s go through it systematically.

When asked to sign, I articulated a deep discomfort with the petition and the precedent it sets. I strongly believe that any academic should be able (as should any student) to openly and fully raise any issues about the decision(s) a person made while wearing a government lawyer’s hat. The capacity to question and unreservedly critique is particularly important when the decisions made were controversial.

Actually, she doesn’t believe any academic should be able “to openly and fully raise any issues about the decision(s) a person made while wearing a government lawyer’s hat.” If she did, that belief would extend to academics who believe — rightly or wrongly — that the petition calling for NYU to rescind its offer to Koh to teach international human-rights law fundamentally misstates Koh’s role in the drone program. Why are the academics who signed the counter-petition not entitled to the same freedom as those who signed the original one?

I also expressed my discomfort as a non-American international lawyer, echoing the views of many others within and outside the United States, that one can reasonably take the position that the US government and its targeted killing programs breached international and human rights law standards.

As does the counter-petition, which specifically acknowledges “that individuals can have significant and understandable concerns about the use of lethal force by the United States, including the U.S. drones program,” and that “U.S. actions must conform to a demanding application of constitutional law and international law.”

The bottom line is that I am not fully in a position to judge, but neither really are those students who chose to express their views as they did, nor are the academics who were asked and chose to sign the petition. Petitions that purport to know what is unknowable and not in the public domain are neither good individual defenses, nor are they robust defenses that advance the protection of human rights in the United States or elsewhere.

True, we do not know exactly what Koh did. But that did not stop the signatories of the original petition from claiming that Koh “directly facilitated the extrajudicial, unconstitutional killing of Anwar al-Aulaqi, an American citizen killed by a drone strike in Yemen in 2011” and generally played a significant role “in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes.” Yet Ní Aolain says not a word about the propriety of the signatories accusing Koh of being a murderer (and war criminal); her criticism is directed solely at the scholars who had the temerity to disagree with that accusation. And she simply ignores Ryan Goodman’s post on the same blog, which makes clear that what is publicly known about Koh favours the counter-petition, not the original one…

400+ Academics Sign an Open Letter in Support of Harold Koh

by Kevin Jon Heller

I’m one of them. Here is the text of the letter:

To Whom It May Concern,

A recent petition at NYU urges people to express “no confidence” in the Law School’s invitation to Harold Hongju Koh to teach international human rights law this semester. We understand that this petition is motivated by Professor Koh’s recent service as Legal Adviser to the U.S. Department of State in the Obama Administration. We agree that individuals can have significant and understandable concerns about the use of lethal force by the United States, including the U.S. drones program. We also agree that U.S. actions must conform to a demanding application of constitutional law and international law.

Nevertheless, we believe the petition is deeply misguided. Professor Koh has been a leading scholar of, and advocate for, human rights for decades. While some may disagree with him on particular issues of law or policy, he is widely known for his unquestionable personal commitment to human rights and his eminent professional qualifications to teach and write on the subject. Any number of reports confirm that Professor Koh was a leading advocate for preservation of the rule of law, human rights and transparency within the Obama Administration, including on the drones issue.

While we strongly support the free exchange of ideas that is fundamental to civil society in general, and the academy in particular, we think it is patently wrong and unfair to suggest that Professor Koh acted unethically by his recent government service, or that his service now disqualifies him to teach human rights law on a leading law faculty. The world needs more human rights professionals who are willing to commit themselves to government service on behalf of their nation.

You can find a list of the signatories, which span the political spectrum, here.

NYU Petitioners Do Harold Koh — and Themselves — a Grave Disservice

by Kevin Jon Heller

Newsweek published a long article today about a petition organized by NYU students, alumni, and non-law faculty claiming that it would be “unacceptable” for Harold Koh to teach international human-rights law at the law school. Here is a snippet:

While working for the Obama administration, Koh was the most public legal defender of the president’s drone strike program. Last month, a petition was circulated at NYU Law—one of the top law schools in the country—that called Koh’s teaching of international human rights law for the 2014-1015 academic year “unacceptable.”

“Given Mr. Koh’s role in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes, we find his presence at NYU Law and, in particular, as a professor of International Human Rights Law, to be unacceptable,” the petition reads.

The petition has drawn around 200 signatures, but it has stirred a much bigger controversy on campus than the numbers might suggest.

I do not think scholars should get a free pass for their ideas simply because they were government officials when they embraced them. I continue to believe that it’s a terrible idea for serious scholars to go into government — this kerfuffle being Exhibit A. And I have very serious disagreements with Koh about the legality of the Obama administration’s drone program; indeed, I’ve discussed them with him.

That said, I find the petition appalling. Koh is one of the great international human-rights scholars of his generation — and he has personally taught or mentored most of the great international human-rights scholars of the current one. He is brilliant, compassionate, kind, and profoundly ethical. No one who knows him even a little (and although I know him, I can’t say I know him well) could possibly believe that he did not bring all of those qualities to his role as the State Department’s legal advisor. Does that mean he was always right? Of course not. As I said, I don’t share his view of the drone program. On the contrary, I think the program is abhorrent and quite often illegal. (And have said as much in my scholarship.)  But I would bet my last dollar that Koh never went against his beliefs while working at State — and that he did everything he could, within the confines of his position, to make the drone program comply with international law as he understood it.

Those of us on the left — and readers know just how far left I am — need to stop viewing US administrations as monoliths. Not all government officials are bad. Even terrible administrations have good people in them who work behind the scenes to minimise their terribleness. John Bellinger III falls into that category in the Bush administration; commenters on the blog have done him a disservice by lumping him together with people like John Yoo. And the NYU students, alumni, and faculty who have signed this petition have done Harold Koh an even worse disservice by accusing him — publicly — of being unfit to teach international human-rights law. On the contrary, NYU would be lucky to have him.

Guest Post: Maldonado v. Holder and the US’ “Understanding” of Its Convention Against Torture Obligations

by Gabor Rona

[Gabor Rona is a Visiting Professor of Law and Director, Law and Armed Conflict Project at Cardozo Law School.]

The 9th Circuit issued a revised Opinion on March 27th in Maldonado v. Holder, a case about non-refoulement (the obligation not to expel, return or extradite someone to a country where they would be in danger of being tortured) and deferral of removal under the UN Convention Against Torture. The En Banc panel said that the lower court erred in placing the burden on the petitioner to show that he could not relocate within Mexico in order to mitigate the risk that he would be subjected to torture. The Court also overruled several precedents that placed excessive burdens on petitioners seeking protection from torture abroad, saying they were incompatible with federal regulations designed to implement the non-refoulement obligation. This decision is a big deal in the realm of immigration law. Petitioner’s lawyer was quoted in the San Francisco Chronicle: “(The ruling) puts us in compliance with our international obligations and protects tortured people.”

Well, not exactly, counselor. It depends on what you mean by “obligations.”

The result is commendable, as far as it goes, but a US “understanding” upon ratification of the Convention Against Torture considers the non-refoulement obligation to be triggered only if torture is more likely than not. In other words, if the petitioner can only show a 49% chance that he will be tortured, he loses. The Convention is not nearly so demanding. It prohibits refoulement “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” (Emphasis added). The Convention certainly doesn’t require proof that torture, or even the danger of torture, is more likely than not.

The US “understanding” is actually a “reservation” that significantly varies from the text of the Convention. One might say it tends to defeat the object and purpose of the treaty, and thus, is unacceptable. If so, the US is still some distance from compliance with its international obligation to protect people from torture.

Book Symposium: Is there Existential Interpretation in International Law?

by Duncan Hollis

I want to start off our conversation about the larger project Bianchi, Peat and Windsor have undertaken with their new book before introducing my own contribution to it.  For years, the concept of interpretation has had a fairly narrow focus within the international legal landscape.  It has almost uniformly been associated with a discrete set of objects — treaties. From Grotius to Oppenheim, let alone McNair to Gardiner, when international lawyers have thought about interpretation, there has been a strong push to do so almost entirely with respect to treaty instruments.  Moreover, for several decades now the vehicle for interpretation has been widely accepted in the rules of the 1969 Vienna Convention on the Law of Treaties.  Although there was a time when the issue of how to interpret treaties garnered a really diverse range of views, modern discourse has largely devolved into claiming that the VCLT approach gives priority to (or at least endorses inclusion of) different methods of interpretation (e.g., intentional, textual, teleological). Now, to be clear, these are tremendously important issues given the role of treaties in international law today; scholarship on these topics has been, and remains, an important part of international legal discourse.  Nevertheless, what I like about the Bianchi, Peat and Windsor book (putting aside my own contribution) is the editors’ willingness to deal with the traditional games of treaty interpretation while also expanding the discourse to frame interpretation as a much larger project within the international legal order.  It is an important move, and one I hope to see continued in future scholarship as international lawyers begin to recognize all the ways interpretation operates within every nook and cranny of the field.

As for my own chapter (which is still up on SSRN, although you should really buy the book), its inspiration lay in one other aspect of the conventional approach to interpretation — defining interpretation simply as a process of giving meaning to treaty texts.  I’ve always thought that this approach under-claimed the functions interpretation can serve.  Certainly, interpretation has an expository function where its processes help interpreters ascertain what meaning to assign some treaty provision or other aspect of international law.  But, interpretation can have other functions as well.  For example, although still controversial in some circles, there is the idea that interpretation has an inventive or creative function where instead of simply “finding” meaning, interpreters craft one for the circumstances presented.  Alternatively, interpretation may serve a relational role in delimiting not what specific things mean, but how they relate to one another (i.e. whether one treaty provision supersedes another, whether some international humanitarian law rule takes priority over a human right guarantee, etc.).

My contribution to this functional analysis is to highlight the existential potential of interpretation.  My chapter explores how, in ascertaining meaning, interpretation operates to confirm—or even establish—the existence of the subject interpreted within (or outside) the corpus of international law.  I argue that all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects.  Interpreters can foreground or background existential interpretations depending on whether the existence of the subject-matter is accepted or disputed. Moreover, I find existential interpretations are not limited to the treaty-context.  Rather, they are visible at all levels of international legal discourse, including which particular (i) authorities, (ii) evidence, (iii) rules, or (iv) sources exist for purposes of international law.

Some of these existential interpretations are quite prominent and should actually be familiar to most international lawyers even if not previously couched in such terms.  Does the U.N. Human Rights Committee have authority to sever reservations as inconsistent with the object and purpose of the ICCPR?  For purposes of identifying customary international law, is evidence of “State practice” only comprised of what States “do” or can it also count what States “say”?   Is there an “unwilling or unable” test in the jus ad bellum in response to non-State actor attacks?  Is R2P now a part of international law?  Is the new Iran Deal a treaty or not? Are decisions of international organizations a separate source of international law?   These are all examples of existential interpretative inquiries.

My chapter seeks to illuminate the existential function of interpretation and illustrate such interpretations in all the various aspects of the international legal system.  But my paper is not simply an exercise in interpretative taxonomy — identifying different frames for interpretative questions.  Rather, I seek to illuminate the consequences that the presence or absence of an existential interpretation may have in terms of international legal (a) discourse, (b) doctrine, and (c) theories of international law.  For starters, existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right).

I conclude my paper by calling for further study of existential interpretation for practical and theoretical reasons.  As a practical matter, it would be useful to know more about when and how actors actually foreground existential interpretations.  Obviously, there may be cases where an interpreter does so in good faith, but I suspect existential interpretations might also be deployed instrumentally.  Consider the possibilities when a State (or other actor) objects to an interpreter X claiming that Rule Y means Z.  Of course, the State might simply disagree that Z is the correct meaning of Rule Y. But a State could expand the scope of the interpretative dispute by also questioning whether X has authority to interpret, the evidence on which Rule Y rests as well as the source of international law it is derived from. The objecting State may thus complicate the dispute by expanding its scope.  In doing so, moreover, the objecting State may change the nature of the dispute itself, shifting a discussion away from the initial question (e.g., protecting victims of a humanitarian crisis) to issues of authority or procedure (does international law contain a rule requiring such protection and who has authority to invoke its mantel).

As a theoretical matter, existential interpretations can serve as a new lens for mapping the unity and fragmentation of the international legal order itself. Instead of examining fragmentation along a single axis (eg norms), mapping existential arguments offers a way to gauge the extent of unity versus fragmentation along multiple axes.  Since existential interpretations are manifest throughout international legal discourse, questions of unity or fragmentation can be examined in terms of authority, the sources of international law, the rules of international law and the evidence on which they are based, the actors who may participate, or the remedies international law affords.  In each area, the number and depth of existential debates offer a rough gauge for mapping unity versus fragmentation.  Where existential inquiries are absent or where a consensus exists on the answers, unity may be presumed.  Conversely, where there are existential disputes, they indicate a fragmentation of the legal system.

In sum, as much as I love treaties, I believe that there is significant value in thinking about interpretation as more than a process of giving treaty provisions meaning.  My introduction of the concept of existential interpretation is an effort to show just how broadly interpretative processes reach and structure the international legal order.  In doing so, I hope to illustrate — as the book itself does — the importance of thinking about interpretation as its own field within international law.

[An introductory post to the book symposium can be found here.]