Since I was unable to attend their book launch at Georgetown yesterday, the least I can do is put in a hearty plug for a new casebook written by a number of superb IHL scholars: Geoff Corn, Victor Hansen, Chris Jenks, Richard Jackson, Eric Jensen, and James Schoettler. It’s entitled The Law of Armed Conflict: An Operational Approach, and it more than lives up to its name — which not surprising, given that all of the authors have vast experience in the military. Here is the description:

The Law of Armed Conflict: An Operational Approach comes to students with stunning authority. All of the authors are active or retired United States Army officers with more than 140 years of collective military operational experience among them. Several have experience in both legal and operational assignments as well.  They deliver a comprehensive coverage of all aspects of the law of armed conflict, explaining the difference between law and policy in regulation of military operations. The Law of Armed Conflict provides a complete operational scenario and introduction to the operational organization of United States forces. The focus remains on United States law perspective, balanced with exposure to areas where the interpretation of its allied forces diverge. Jus ad bellum and jus in bello issues are addressed at length. Rich with documentation and examples, the text includes excerpts from treaties and treaty commentaries, domestic and international cases, Department of Defense directives, service field manuals, and regulations implementing legal obligations. Its unique pedagogy is based on overviews of each topical area of the law and utilizes a wartime scenario. Students experience operational legal issues from pre-deployment preparation through post-conflict stability operations to war crimes investigation and prosecution. Carefully crafted problems, most based on actual operational experience, follow each chapter and place the student in the position of a military legal adviser providing operational legal advice.  In this way, students enhance their understanding of the relevance of the law in planning and executing military operations. Designed for either a three or four credit offering, 14 chapters correspond to a 14-week course.

A robust ancillary package accompanies the text with solutions to all study problems, model exam questions (multiple choice, short answer, essay,) recommended supplemental sources, suggested video clips to illustrate issues, Power Point slides for each chapter, and a website with links to all primary sources.

I have already used the book in my scholarship multiple times, and I am sure it will be a great text for any IHL course. The operational emphasis is particularly exciting; when I’ve taught IHL to UN field officers and to officers from various militaries, I’ve always found practical exercises to be the most effective way to convey the basic rules and principles of IHL. Anyone who teaches IHL will definitely want to check the book out.

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.

In my earlier post, I voiced grave concerns with the ICTY’s recent decision on complicity in a case called Prosecutor v Momčilo Perišić (see here). In my earlier posting, I provided background to this seminal case and criticized the new notion of “specific direction” as an actus reus element of complicity. In this second posting, I discuss how the concerns that animated the Appeals Chamber are better considered within the confines of the mental element required for complicity. Some of the judges in Perišić share this intuition—in their Separate Opinion, Judges Agius and Meron indicate that they might be willing to consider “specific direction” as a component of mens rea if they were entitled to rewrite tribunal jurisprudence (Appeal Judgment, Meron and Agius Separate Opinion, para. 3). For myself, I doubt whether the rewrite required would be anywhere as far-reaching as that they have adopted, especially when the extant law governing the mental element of complicity already contemplates these issues.

International criminal courts and tribunals apply varying mental elements for complicity, including purpose, knowledge and recklessness (see here, pp. 36-47). In the Perišić case, the Appeals Chamber’s recourse to the “specifically directed” standard as an actus reus appears to be a reaction to the notion of reckless complicity i.e. awareness of a probability that assistance will lead to crimes. As such, its embrace of the “specific direction” standard as part of the actus reus could be read as a pragmatic attempt at restraining the scope of an over-inclusive mental element. Nonetheless, if elevating the mental element through the back door like this is the desired effect, it is arbitrary, unprincipled and unnecessary when more moderate interpretations of existing doctrine better account for the underlying concerns.

There are several better routes. (more…)

Omar al-Bashir, the President of Sudan, visited Chad earlier this year. The Chadian government made no attempt to arrest him, despite the fact that — as a member of the ICC — both SC Res. 1593 (the Darfur referral) and the Rome Statute obligated it to cooperate with the Court’s arrest warrant. Human rights groups criticized Chad’s unwillingness to arrest Bashir at the time, and now the Pre-Trial Chamber has formally referred Chad’s non-cooperation to the Security Council. Here are the relevant paragraphs of its judgment:

22. In this context, the Chamber wishes to point out that, unlike domestic courts, the ICC has no direct enforcement mechanism in the sense that it lacks a police force. As such, the ICC relies mainly on the States’ cooperation, without which it cannot fulfil its mandate. When the Security Council, acting under Chapter VII of the UN Charter, refers a situation to the Court as constituting a threat to international peace and security, it is expected that the Council would respond by way of taking such measures which are considered appropriate, if there is an apparent failure on the part of the relevant State Party to the Statute to cooperate in fulfilling the Court’s mandate entrusted to it by the Council. Otherwise, if there is no follow up action on the part of the Security Council, any referral by the Council to the ICC under Chapter VII would never achieve its ultimate goal, namely, to put an end to impunity. Accordingly, any such referral would become futile.

23. Having said the above, the Chamber recalls article 87(7) of the Statute according to which, “[wjhere a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute [...] the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council”. Since the Republic of Chad has failed to cooperate with the Court with regard to the arrest and surrender of Omar Al-Bashir, thus preventing the institution from exercising its functions and powers under the Statute, the Court cannot but refer the matter to the Assembly of States Parties and the Security Council.

Although necessary, this is a risky move by the ICC. As Mark Kersten has repeatedly documented, the Security Council has proven far more willing to refer situations to the Court than to ensure that the Court has the ability to successfully investigate those situations. If the Security Council stays true to form and fails to respond to the PTC’s referral, it will do significant damage to the Court’s legitimacy. Why should any suspect fear arrest while traveling abroad if the Security Council won’t even penalize ICC member-states that fail to comply with its own resolutions?

Stay tuned.

[James G. Stewart is an Assistant Professor at the University of British Columbia. He is also presently a Global Hauser Fellow at New York University School of Law.]

The International Criminal Tribunal for the former Yugoslavia (ICTY) is undoubtedly one of the most important institutions in the history of international law, not only for its catalytic effect in generating trials for international crimes before both international and domestic courts but also for breathing new life into both international humanitarian and criminal law. Yet, the ICTY Appeals Chamber recently rendered a judgment on the law of complicity in Prosecutor v Momčilo Perišić (see here), that could undo much of its legacy. In this first of two posts, I will set out the background to this case and consider the problem of “specific direction” as an element of the actus reus, which the Appeals Chamber has newly adopted. In a second post, I will focus on the mental element of complicity, showing how a more traditional approach to mens rea can address the underlying concerns without so seriously disrupting the law of complicity.

Two weeks ago, I attended a roundtable dedicated to the law of complicity at the University of San Diego.  Over the course of two days, a dozen of the best criminal theorists in the English-speaking world came together to debate four competing accounts of complicity.  On the flight home, however, I was more than slightly surprised to learn that the ICTY had just announced a new understanding of the doctrine that is without equivalent in any national law, very different from the Tribunal’s earlier jurisprudence and at odds with the views of all experts congregated at the roundtable I had just attended. Indeed, the new understanding of complicity that the ICTY adopts in Perišić appears inconsistent with foundational principles of criminal law in ways that seriously compromise the doctrine.  Below, I explain why this new position is so troublesome, before I go on to suggest a safer path the Appeals Chamber could have followed.

Momčilo Perišić was the Chief of the General Staff of the Yugoslav Army (VJ), making him the highest ranking officer in that army. Between August 1993 and November 1995, he provided extensive military and logistical aid to the Army of Republika Srpska (VRS), lead by the infamous Radovan Karadžić and Ratko Mladić. At trial, Perišić was convicted of aiding and abetting international crimes perpetrated by the VRS, most notably for crimes associated with the sniping campaign used to terrorize civilians within Sarajevo and for the terrible bloodletting at Srebrenica. Perišić unquestionably provided the VRS with large quantities of weapons, seconded officers involved in these crimes to the VRS (Mladić included), and supported the VRS in a host of other ways. Was all this support innocuous assistance of a general type or criminal complicity in the international crimes undertaken by the VRS?
(more…)

And remarkably enough, it has nothing to do with Assange himself. On the contrary:

The top Swedish prosecutor pursuing sexual assault charges against Julian Assange has abruptly left the case and one of Mr Assange’s accusers has sacked her lawyer.

The turmoil in the Swedish Prosecution Authority’s effort to extradite Mr Assange comes as another leading Swedish judge prepares to deliver an unprecedented public lecture in Australia next week on the WikiLeaks publisher’s case.

The Swedish Prosecution Authority want to extradite Mr Assange to have him questioned in Stockholm in relation to sexual assault allegations by two women.

Fairfax Media has obtained Swedish court documents that reveal high-profile Swedish prosecutor Marianne Nye has unexpectedly left the handling Mr Assange’s case, effective from Wednesday, and has been replaced by a more junior prosecutor, Ingrid Isgren. The reasons for the change have not yet been disclosed.

One of Mr Assange’s two accusers, political activist Anna Ardin, also applied to the Swedish courts on February 28 to replace her controversial lawyer Claes Borgstrom. Ms Ardin complained that she found Mr Borgstrom spent much more time talking to the media than to her, referred her inquiries to his secretary or assistant, and that she had lost faith in him as her legal representative.

As well as pursuing the prosecution of Mr Assange, Mr Borgstrom has been heavily criticised for his handling of another high-profile case involving an alleged mass murderer, with one prominent Swedish commentator describing him as doing “the worst defence counsel job in modern Swedish history”.

Ms Ardin’s engagement of a new lawyer, Elisabeth Massi Fritz, has now been approved.

News of changes in the Swedish prosecution of Mr Assange comes shortly before Swedish Supreme Court judge Stefan Lindskog delivers a keynote lecture on “the Assange affair, and freedom of speech, from the Swedish perspective” at the University of Adelaide next Wednesday.

[snip]

Justice Lindskog is chairman of the Supreme Court of Sweden, the country’s highest court of appeal. In announcing his forthcoming lecture, Adelaide University observed that “as one of Sweden’s most eminent jurists, he is uniquely able to provide an authoritative view of the Assange affair”.

In an article in today’s Australian Financial Review the judge observes that he finds it “amusing how the Assange case offers possibilities of sharp turns when it comes to topics to be discussed. From, on the one hand, whether lies about condoms can result in a sexual crime to, on the other, the question of if telling the truth, by publishing classified information, can amount to a crime permitting extradition to the state that claims being harmed.”

Greg Barns, a barrister spokesman for the Australian Lawyers Alliance, said it was a fundamental legal principle that judges do not speak publicly on matters that are likely to come before the courts or are yet to be decided.

“That a Swedish supreme court judge thinks this is acceptable tends to confirm the fears people have about the impartiality and robustness of the Swedish judicial system. It gives great currency to the belief that Mr Assange’s case in Sweden has been heavily politicised.

As I said, chaos. It will be interesting to see what the Swedish judge has to say in Adelaide. If I weren’t currently in the US for the ASIL conference, I would have made the trip to see him speak…

A depressingly large number of U.S. media outlets are covering the Italian Supreme Court’s decision to order a new trial in the case against Amanda Knox, the American exchange student charged with murdering her British roommate in Italy. Knox was convicted in trial court, but that conviction was overturned on appeal.

I say depressing because this is hardly the most significant international criminal trial going on these days. It is also depressing because most of the U.S. media coverage, and even the “expert” legal commentary, can’t seem to understand that if Italy requests Knox’ extradition, Knox has no double jeopardy defense.

The biggest mistake made by most of the media commentary (I’m looking at you Alan Dershowitz and various law prof types here) is that almost no one seems to have read the U.S. Italy Extradition Treaty.  Article VI reads:

Extradition shall not be granted when the person sought has been convicted, acquitted, or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested

(Emphasis added.) The Requested Party in this scenario would be the United States (Italy would be the “Requesting Party”).  The U.S. has never charged Knox with anything, much less with the murder of her UK roommate.  So Article VI does not bar Knox’ extradition to Italy. Period.

What about the U.S. Constitution’s Fifth Amendment prohibition on Double Jeopardy? Well, the short answer is that the Fifth Amendment’s Double Jeopardy Protection doesn’t apply in an extradition proceeding since the U.S. is not the one trying Knox (they are just handing her over).  The long answer is that even if the Fifth Amendment did apply, under US law, an appeal that overturns a lower court conviction is not an acquittal for purposes of the Fifth Amendment.  That is basically what happened here.  Knox was convicted, then her conviction was overturned on appeal, and then the appellate court judgment was reversed, and a new trial ordered (albeit at the appellate level). This is not double jeopardy, either under Italian law or US law.

So Knox had better get ready to be extradited, or she better get ready to move to Brazil. She has no serious double jeopardy defense here that I can see.  Now, if only someone would tell Alan Dershowitz.

It’s always exciting when the media pays attention to expert reports on international law. Unfortunately, the media all too often gets international law wrong — and recent reporting on the Tallinn Manual on International Law Applicable to Cyber Warfare is no exception. There has been a spate of articles in the past couple of days that breathlessly claim the Tallinn Manual permits the use of lethal force against hackers. The Huffington Post’s article is entitled “Report for NATO Justifies Killing of Hackers in a Cyberwar.” According to the Verge, “Killing Hackers is Justified in Cyber Warfare, Says NATO-Commissioned Report.”  And Silicon Angle claims that “Hacktivists Can Be Killed Under Rules of CyberWarfare.”

Does the Tallinn Manual permit a hacker to be killed? Yes, in extraordinary circumstances. But the articles mentioned above each fail to mention that the Manual imposes very significant limits on the use of lethal force against individuals involved in cyber-warfare — and that all of those limits are based on, and reflect, the traditional rules of international humanitarian law (IHL). There is nothing particularly troubling in the Manual, and I say that as someone who is profoundly sympathetic to hacking collectives like Anonymous. Indeed, properly understood, it almost inconceivable that the Manual would permit a state to use lethal force against Anonymous or a similar collective — no matter how dangerous (in the view of a state) their hacking might be.

To begin with, the Tallinn Manual deserves credit for not conflating the jus ad bellum and the jus in bello…

Ben Emmerson, counsel for al-Senussi, has asked the Pre-Trial Chamber to refer Libya to the Security Council for ignoring its February 6 decision ordering Libya to transfer al-Senussi to the Court. Here are the key paragraphs:

3. It has been almost six weeks since the Chamber‟s Order of 6 February, and Libya has failed to comply with every one of these instructions. Libya has failed to make any attempt to transfer Mr. Al-Senussi to the ICC and continues to detain him in Libya in violation of Security Council Resolution 1970 and the orders and requests of the ICC. Libya has ignored a formal request from the Registry to send representatives to The Hague to make arrangements to facilitate Mr. Al-Senussi‟s transfer and has not taken any other action to arrange his surrender.

4. Instead, the Libyan authorities continue to detain Mr. Al-Senussi, and are actively preparing to commence his trial in Libya as soon as possible. In so doing Libya has also violated the injunction contained within the Chamber‟s 6 February Order to the effect that Libya must refrain from any action which could hinder or delay his immediate transfer to the ICC.

5. Libya has also ignored the third order made by the Chamber requiring arrangements to be made for a privileged legal visit by appointed Defence Counsel. Mr. Al-Senussi has now spent six months in detention in Libya (from September 2012 to date) being questioned about criminal allegations without access to counsel. This in itself makes any claims regarding the fairness of proceedings in Libya untenable.

[snip]

8. This case has reached a point at which the impasse between Libya and the ICC can only be broken by a referral to the Security Council. If the authority of the Court is to be respected, its orders and requests must be complied with. Further latitude would simply enable Libya to perpetuate its tactics of delay, obfuscation and prevarication and its consistent attempts to mislead the Chamber and the Registry as to its true intentions. Libya’s intentions and actions are very clear.

None of this is remotely surprising, of course. But it puts the lie to Libya’s constant claims in Saif’s case to be cooperating fully with the Court. Libya only cooperates when it gets what it wants.

Wells Bennett calls my attention to this statement by Marc Ambinder in a recent article in The Week entitled “Five Truths About the Drone War”:

The CIA does not “fly” drones. It “owns” drones, but the Air Force flies them. The Air Force coordinates (and deconflicts) their use through the CIA’s Office of Military Affairs, which is run by an Air Force general. The Air Force performs maintenance on them. The Air Force presses the button that releases the missile. There are no CIA civilians piloting remote controlled air vehicles. The Agency has about 40 unmanned aerial vehicles in its worldwide arsenal, about 30 of which are deployed in the Middle East and Africa. Most of these thingies are equipped with sophisticated surveillance gear. A few of them are modified to launch missiles. The Air Force owns many more “lethal” RPVs, but it uses them in the contiguous battlefield of Afghanistan.

Wells points out at Lawfare that “if Ambinder is correct, then it is military personnel who do the drone-flying and the button-pushing, and military personnel can invoke a public authority justification for strikes implicating 1119, in Kevin’s view.” In other words, Wells suggests that it might be irrelevant whether CIA officers are entitled to a public authority defence, because they may not actually be involved in lethal drone attacks, including the one that killed al-Awlaki.

I completely agree with Wells’ restatement and application of my position on the public authority defence. But I am less sure that Ambinder’s “truth” insulates CIA from potential criminal liability. Ken Dilanian, a leading national-security reporter, had a long article in the Los Angeles Times last month discussing the possibility of the military taking over much of the CIA drone program. Ambinder’s reporting seemed to contradict Dilanian’s article, so I tweeted Dilanian about it. Here was his reply:

@kevinjonheller no it doesn’t. The cia doesn’t fly it’s drones, but it does the targeting and gives the order to fire.

— Ken Dilanian (@KenDilanianLAT) March 17, 2013

Dilanian is right: the articles don’t necessarily contradict each other. Ambinder says that the military flies the drones and pushes the button that launches the weapon; he does not claim that the military chooses the targets and makes the decision to launch the attack. There are some interesting questions about what it means for the CIA to “give the order to fire,” but it seems clear that CIA officers are still involved in lethal drone attacks in a manner that gives rise to a potential violation of the foreign-murder statute — as conspirators or instigators or as aiders-and-abettors. So the fact that a CIA officer is not entitled to a public authority defence remains an important issue.

A couple of weeks ago, I noted that the Pre-Trial Chamber had ordered Libya to return the documents it wrongfully seized from Melinda Taylor during her privileged meeting with Saif Gaddafi. I also predicted that Libya would try to avoid complying with the order by filing various motions challenging the Pre-Trial Chamber’s decision.

Guess what? Libya has filed two motions in response, one asking for leave to appeal and the other asking the Pre-Trial Chamber to reconsider its decision. The arguments are the same in both motions, and the reconsideration motion doesn’t even cite any legal basis — in the Rome Statute, in the Rules of Procedure and Evidence, or in ICC jurisprudence — for being able to request the Pre-Trial Chamber to reconsider its decision. The leave for appeal motion at least points to Art. 82(1)(d) of the Rome Statute — but as the OPCD points out in its response, that provision permits only the Prosecution and Defence (“Either Party”) to seek interlocutory review of a Pre-Trial Chamber decision.

Moreover, even if the Pre-Trial Chamber erroneously allows Libya to invoke Art. 82(1)(d), that provision only permits interlocutory review of “[a] decision that involves an issue that would significantly affect the fair and expeditious conduct of the proceedings or the outcome of the trial.” Whether the documents were wrongly seized has nothing to do with the fairness or expeditiousness of Libya’s admissibility challenge; they are relevant only to Libya’s prosecution of Saif in Zintan for allegedly violating national security and trying to escape custody, charges that — as Libya itself has admitted in the past — do not involve the “same conduct” that is at issue in the ICC proceedings. The OPCD makes the point well in its response:

68. When stripped of its indignation and rhetoric, it is quite clear that the current Request actually bears no relation to the Impugned Decision, but is simply a last ditch stalling tactic by the Govemment in order to obtain more time for its admissibility challenge. However, in light of the fact that the Impugned Decision only concems the discrete question as to the Government’s obligation to retum these documents and destroy any copies, even if the Appeals Chamber were to grant suspensive effect of the Impugned Decision, this would have absolutely no impact on the pending admissibility proceedings. Appellate review would therefore fail to advance admissibility proceedings, which are already at a very advanced stage.

Once again, let me express my hope that the Pre-Trial Chamber will resolve Libya’s admissibility challenge sooner rather than later. Each time it permits Libya to engage in these kind of stall tactics, the ICC loses a bit more credibility.

This according to a bizarre — and bizarrely inaccurate — article in the Jerusalem Post. How many errors can you find?

An Israeli law firm on Thursday formally announced its request to the prosecutor of the International Criminal Court, Fatou Bensada, to open a criminal investigation into violations by Palestinian Authority President Mahmoud Abbas and nine members of Hamas for war crimes, crimes against humanity and crimes of aggression.

[snip]

After years of public threats by the PA to file such a request or case against Israeli soldiers and political leaders, an Israeli lawyer, Mordechai Tzivin, was the first to strike, filing a complaint and request for an investigation.

The request is unprecedented not only because it involves the Israeli-Palestinian conflict and is against “Palestine” as a state and its leaders such as Abbas and nine Hamas members, but also because it is filed by an individual law firm as opposed to by a state.

Generally speaking, the ICC can only hear cases filed by states.

However, as the Tzivin wrote in his request to Bensada, the ICC prosecutor has a little known and almost entirely unused power to essentially self-open an investigation and self-file an indictment against individuals for international law violations.

The power, referred to as the prosecutor’s “propio motu” power, is generally not used by the prosecutor because it requires special approvals from the ICC itself and leaves the prosecutor’s office exposed for using an extraordinary measure not requested by any state.

[snip]

Asked whether he had coordinated his move with Israeli officials, Tzivin said he had spoken with top legal officials in all of the key ministries as well as a top official in the security establishment.

Despite Israel’s official position that there is still no state of Palestine, Tzivin said that he was either told that he had their blessing or that at least no one told him to hold back.

Here’s my count: (1) the ICC does not yet have jurisdiction over the crime of aggression; (2) there is nothing remotely unprecedented about a private individual asking the Court to investigate a situation; (3) it is not true that, “generally speaking,” the Court can hear only cases brought by states; and (4) the Prosecutor’s proprio motu power is not remotely “almost entirely unused” (Kenya, Cote D’Ivoire?).

Did I miss any?

Ken noted last week that Lawfare has been hosting an ongoing debate over Ryan Goodman’s fascinating new article ”The Power to Kill or Capture Enemy Combatants,” which is forthcoming in the European Journal of International Law. I contributed a long post criticizing Goodman’s claim that Art. 35(2) of the First Additional Protocol — which provides that “[i]t is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering” — supports the existence of a duty to capture instead of kill. Goodman has now responded with a long post of his own in which he claims that my post is “riddled with errors.”

I don’t have time to recapitulate the entire debate; interested readers should head to Lawfare. (Bobby Chesney’s introduction to Goodman’s most recent response contains links to all of the contributions.) I also don’t have time to respond to all of my supposed errors. Instead, in this post, I simply want to address three of Goodman’s most problematic claims, all of which are based on selective quotation of the historical sources he uses to build his argument.

Goodman’s first problematic claim is that an article by Henri Meyrowitz supports his reading of Art. 35(2). Here is what he says in his response to my Lawfare post (emphasis mine)…