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International Security

Israel’s Indiscriminate Attack on Shujaiya

by Kevin Jon Heller

On the record, US officials invariably defend even the most indefensible IDF uses of force in Gaza, most often parroting the Israeli line that the IDF does everything it can to spare civilian lives and that Hamas’s use of human shields is responsible for any innocent civilians the IDF does kill.

When speaking anonymously, however, those same officials tell a very different story.

Exhibit A: an absolutely devastating new article in Al Jazeera America about Israel’s destruction of Shujaiya in Gaza, which involved 258 IDF artillery pieces firing 7,000 high-explosive shells into the neighborhood, including 4,800 shells in seven hours. I’m not sure I’ve ever read quite such damning statements about the IDF’s tactics, going far beyond John Kerry’s widely reported sarcastic comment that the attack was “a hell of a pinpoint operation.” Here is a snippet from the article:

Artillery pieces used during the operation included a mix of Soltam M71 guns and U.S.-manufactured Paladin M109s (a 155 mm howitzer), each of which fires three shells per minute. “The only possible reason for doing that is to kill a lot of people in as short a period of time as possible,” said the senior U.S. military officer who spoke with me about the report. “It’s not mowing the lawn,” he added, referring to a popular IDF term for periodic military operations against Hamas in Gaza. “It’s removing the topsoil.”

“Holy Bejesus,” exclaimed retired Lt. General Robert Gard when told the numbers of artillery pieces and rounds fired during the July 21 action. “That rate of fire over that period of time is astonishing. If the figures are even half right, Israel’s response was absolutely disproportionate.” A West Point graduate, who is veteran of two wars and now the Chairman of the Washington, D.C.-based Center for Arms Control and Non-Proliferation, Gard added that even if Israeli artillery units fired guided munitions, it would have made little difference.

[snip]

Senior U.S. officers who are familiar with the battle and Israeli artillery operations, which are modeled on U.S. doctrine, assessed that, based on the rate of artillery fire into Shujaiya overnight Sunday, IDF commanders weren’t precisely targeting Palestinian military formations, as much as laying down an indiscriminate barrage aimed at “cratering” the neighborhood. The cratering operation was designed to collapse the Hamas tunnels discovered when IDF ground units came under fire in the neighborhood. Initially, said the senior U.S. military officer who spoke with me about the military summaries of IDF operations, Israel’s artillery had used “suppressing fire to protect their forward units, but then poured in everything they had — in a kind of walking barrage. Suppressing fire is perfectly defensible — a walking barrage isn’t.”

The Israelis’ own defense of their action reinforced the belief among some senior U.S. officers that artillery fire into Shujaiya had been indiscriminate. That’s because the Israelis explained the civilian casualty toll on the basis that the neighborhood’s non-combatant population had been used as “human shields” because they had been “ordered to stay” in their homes by Hamas after the IDF had warned them to leave.

“Listen, we know what it’s like to kill civilians in war,” said the senior U.S. officer. “Hell, we even put it on the front pages. We call it collateral damage. We absolutely try to minimize it, because we know it turns people against you. Killing civilians is a sure prescription for defeat. But that’s not what the IDF did in Shujaiya on July 21. Human shields? C’mon, just own up to it.”

As I said, stunning stuff. And utterly damning of the IDF — the “most moral army in the world.” It’s just a shame the US government won’t be more open with what it really thinks about the IDF’s actions. Perhaps then Israel wouldn’t feel free to use force against Palestine with impunity.

NOTE: After reading the article in Al Jazeera America, make sure to read Shane Darcy’s important post at EJIL: Talk! discussing a recent decision by Israel’s Supreme Court that upholds the legality of collective punishment.

IHL’s Era of Application?

by Duncan Hollis

Today marks the 150th Anniversary of the signing of the first Geneva Convention — the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.  12 States signed it on August 22, 1864, and the treaty went on to have 57 parties before being replaced by later Geneva Conventions in 1906, 1929 and 1949.  The ICRC is using the occasion to make a call for more action on international humanitarian law and to spread knowledge about that law more generally (including a 4 minute video on the Rules of War in a Nutshell).  

It’s interesting to think about the full arc of IHL that this anniversary represents. It seems we’ve gone from decades of iteration — where States and others worked to hammer out what rules actually exist — to what is now much more an era of application.  Today’s IHL debates (many of which we’ve hosted here in recent weeks) regularly revolve around where, when and how specific rules apply to particular cases.  Or, they debate which rules exist only in treaty form versus those that have the status of customary international law.  Even in areas of new technology, the prevailing effort is to explain how existing rules govern by analogy (see, e.g., the Tallinn Manual).  These are all important and even laudatory causes.  But it does leave me with a question:  Is the corpus of IHL now largely complete, or should we expect another round of law generation akin to the Geneva Convention projects of 150 and 75 years ago?  Simply put, is there any new IHL to be made, and, if so, what should it be?   

Okay, This Time Britain Really Has Killed Terrorism (Updated)

by Kevin Jon Heller

Last November, I wrote a post entitled “Terrorism Is Dead, and Britain Has Killed It.” I chose that title because I couldn’t imagine a conception of terrorism more absurd than the one argued by the British government and accepted by a Divisional Court: namely, that David Miranda’s mere possession of documents illegally obtained by Edward Snowden qualified as terrorism under the Terrorism Act 2000.

I obviously need to expand my imagination.

Why? Because the British government’s is now arguing that merely watching the video of James Foley’s execution is terrorism. From the Telegraph:

Viewing or sharing the harrowing video of James Foley’s beheading online could be regarded as a terrorist offence, Scotland Yard has warned.

A spokesman for the Metropolitan Police said specialists from the Counter Terrorism unit were continuing to examine the footage in order to look for clues as to the identity of the suspected British jihadist but said the public should refrain from viewing the video.

In a statement a spokesman said: “We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under Terrorism legislation.”

Metropolitan Police Commissioner Sir Bernard Hogan-Howe explained that while viewing the video was technically a crime, his officers would be more focused on tracking down those who shared the footage or glorified it.

Um, no — viewing the Foley video is not “technically a crime.” Foley’s execution is a horrific act by a horrific organisation. But there is absolutely no plausible argument that merely watching a video of it qualifies as terrorism under the Terrorism Act 2000 — not even in light of the awful Miranda judgment. We can see why by quoting the UK Independent Reviewer of Terrorism Legislation‘s summary of that case:

What the Miranda judgment reveals is that the publication (or threatened publication) of words may equally constitute terrorist action. It seems that the writing of a book, an article or a blog may therefore amount to terrorism if publication is “for the purpose of advancing a political, religious, racial or ideological cause”, “designed to influence the government” and liable to endanger life or create a serious risk to health or safety.

There are two obvious problems with considering the mere act of watching the Foley video an act of terrorism. First, watching the video is not “liable to endanger life or create a serious risk of health or safety,” as required by s 1(2) of the Terrorism Act 2000 — unless, of course, we think that anyone who watches it will somehow magically be transformed into an ISIS terrorist. Second, although I don’t understand why anyone would want to watch the savage murder of an innocent person, individuals are clearly not watching the video “for the purpose of advancing a political, religious, racial or ideological cause” or because they intend “to influence the government.” So no, watching the Foley video does not qualify as a terrorist act under s 1(1).

Nor does merely watching the Foley video violate any of the substantive offences in either the Terrorism Act 2000 or the Terrorism Act 2006. (Section 1(1) is not an offence in itself; it provides the definition of terrorism for the substantive offences.) In terms of the Terrorism Act 2000, it’s not “support” under s 12, because that section requires the defendant to have “invite[d] support for a proscribed organisation.” It’s not “use and possession” under s 16, because that section, like s 1(1), requires the specific intent to promote terrorism. It’s not “possession for terrorist purposes” under s 57, because merely having the Foley video on a computer (which streaming does not even involve) does not “give rise to a reasonable suspicion that his possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism.” And it’s not “collection of information” under s 58, because an execution video, though disgusting, is not “a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism.”

Merely watching the Foley video also does not run afoul of the Terrorism Act 2006. Section 1 criminalises “encouragement of terrorism,” but it applies only to those who “publish” a statement that encourages “the commission or preparation of acts of terrorism.” Watching a video is not publication. For similar reasons, watching a video does not qualify as “dissemination of terrorist publications” under s 2 — not even in light of s 2(2)(f), which criminalises possessing a terrorist publication “with a view to its” dissemination.

In his most recent report, the Independent Reviewer wrote that “[a] statutory definition [of terrorism] so broad that the enforcement authorities resort to their own rules of thumb in order to make sense of it is unhelpful.” I think the Metropolitan Police’s argument about the Foley video makes his point.

NOTE: I have updated the post in response to Adrian Hunt‘s excellent comment below, which deserves to be read in full.

Should the U.S. Government Change Its Approach to Zero-Day Exploits?

by Chris Borgen

Dan Geer, the chief of information security for In-Q-Tel (essentially, the venture capital fund that supports tech innovation for the CIA) gave a wide-ranging keynote speech at Black Hat, a convention of cybersecurity experts.  A video of the speech is available here.

I want to focus on one specific issue among the many he discussed: his call for the US government to publicly disclose the software loopholes and hacks that it purchases.

I have discussed in other posts (1, 2) the market for information regarding security loopholes known as “zero-day exploits.”  The U.S. is already a big player in this market,  purchasing exploits for use by its intelligence and law-enforcement agencies.

Rather than informing producers, purchasers, or users of the software of the flaws, the U.S. government (and other governments that participate in the exploits market) allegedly require non-disclosure agreements from the hackers who sell exploits so that the holes will stay open as long as possible. This has been called a strategy of offense: trying to maximize intelligence gathering capabilities. Geer  paraphrases a former senior NSA official:

If we were to score cybersecurity the way we score soccer, we would be twenty minutes into the game and the score would be 462 to 456. That is to say: all offense.

He further explains: “Offense is where is where the innovations that only states can afford is going on.”

Some have argued that the result is the widespread use of software riven with security flaws that could have been fixed.  Instead, the U.S. should use its market power to make software more secure by purchasing and then disclosing zero-day exploits.  As reported by Wired, Geer argues that by incentivizing disclosure:

the U.S. can drastically lower the impact of international cyberwarfare. [He explains:] “We don’t need intelligence on what weapons our adversaries have if we have something close to a complete inventory of the world’s vulns and have shared that with all the affected software suppliers.”

As far as I understand, proponents of a strategy of maximizing offensive capability assume that computer systems will always have many holes and the U.S. might as well use these flaws to get as much useful intelligence as possible rather than chasing what they view as the illusory promise of real defense.

I do not know enough about the ins-and-outs of computer security architecture to opine as to whether the U.S. should maintain an offensive strategy or move to securing vulnerable systems with a primarily defensive strategy of disclosure. However, I would suggest that a defensive strategy may be strengthened by international coordination.

In any case, if you are interested in issues of cyber-security then Geer’s speech is a must-listen.

[This post has been corrected to fix the misspelling of Dan Geer's name.]

 

MH17 Should Be Framed as Murder, Not as a War Crime

by Kevin Jon Heller

It has become quite common to describe the downing of MH17 as a war crime. In late July, for example, Navi Pillay, the UN High Commissioner for Human Rights, said that “[t]his violation of international law, given the prevailing circumstances, may amount to a war crime,” More recently, William Burke-White has said that, for framing purposes, “[t]he time has come for governments and international organizations to call the attack on MH17 a probable war crime.” 

[I]f whoever launched the missile did so with the intent of killing the civilian passengers aboard MH17, the act was unmistakably a war crime.

Even if the objective was to strike a Ukrainian transport aircraft, the act likely constitutes a war crime. Fundamental to the law of war, including the law applicable in non-international armed conflicts, is the principle of distinction – the requirement that fighting parties distinguish between civilian and military targets. In the words of the International Committee of the Red Cross, that duty of care includes doing “everything feasible to verify that targets are military objectives.”

In this case, many steps could easily have been taken to differentiate MH17 from a military-transport plane, including visual identification (perhaps with binoculars), radar-signature analysis, and a check of the civilian aircraft transponder-code broadcast. If, as seems likely, these basic steps were not taken, even an accidental strike on MH17 would constitute a war crime.

If the Ukrainian separatists did indeed intend to kill civilians, Bill and Navi Pillay are absolutely right to describe the attack as a war crime — in this case, murder and/or intentionally directing attacks at civilians or civilian objects (to use the Rome Statute’s terminology). But everything we know to date about the attack indicates that the separatists honestly believed MH17 was a Ukrainian military transport, not a civilian airplane. If so, that changes the legal assessment of the attack considerably. The attack would still qualify as murder under domestic law — but it would not qualify as a war crime, under either the Rome Statute or the jurisprudence of the ICTY. (The latter likely representing the customary definition of the war crimes of murder and attacking civilians or civilian objects, which most states would apply in a prosecution based on universal jurisdiction.)

Let’s go in order. The problem with describing the attack on MH17 as a war crime under the Rome Statute is Article 32(1), which provides that “[a] mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime.” The actus rei of the war crime of murder and the war crime of intentionally directing attacks at civilians or civilian objects each include a circumstance element: the individuals attacked must qualify as civilians (or as otherwise protected persons). The relevant mens rea for circumstance elements is knowledge, pursuant to Art. 30(3) of the Rome Statute: “For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists.” Black-letter criminal law provides that an honest mistake of fact negatives any mens rea that requires subjective awareness. So if the separatists honestly believed they were attacking a Ukrainian military transport, they were not aware that they were attacking civilians. In which case they could not be convicted of either the war crime of murder or the war crime of intentionally directing attacks at civilians or civilian objects.

The result is no different under the ICTY’s jurisprudence, even though the ICTY applies a lower mens rea to the war crimes of murder and attacking civilians. A complete discussion of the issue is beyond the scope of this post; suffice it to say here that an accused will be responsible for either war crime only if he was reckless toward the possibility that the objects of his attack qualified as civilian. (Dolus eventualis in civil-law terminology.) Recklessness is a subjective mental state in the ICTY’s jurisprudence; as the Trial Chamber noted in Brdjanin, specifically in the context of murder, “the threshold of dolus eventualis entails the concept of recklessness, but not that of negligence or gross negligence.”” Like the ICC, the ICTY recognizes mistakes of fact. As a result, the separatists could not be convicted of either the war crime or murder or the war crime of attacking civilians under ICTY jurisprudence if they honestly believed they were attacking a Ukrainian military transport: although that belief might have been negligent, even grossly negligent, its honesty meant that they were not subjectively aware they were attacking civilians.

The bottom line is that the accidental downing of civilian airplane based on an honest belief that the airplane was a military objective is not a war crime. Failing to take adequate precautions may violate IHL, but it is not criminal. The downing of MH17, therefore, should be framed not as a war crime but as murder.

My Podcast on Palestine and the ICC — and an Additional Thought

by Kevin Jon Heller

I had the pleasure of doing a podcast yesterday with Mark Leon Goldberg, purveyor of the essential UN Dispatch website, on the possibility of Palestine ratifying the Rome Statute or accepting the Court’s jurisdiction on an ad hoc basis. It’s about 20 minutes long, and you can find it here (or on iTunes).

I do want to mention another aspect of Palestine’s decision — one I hadn’t thought about until I read this excellent article in the Guardian by Joshua Rozenberg. (And it’s not just excellent because he quotes me.) As I discuss in the podcast, Palestine has two roads to a potential ICC investigation of Operation Protective Edge: (1) accept the Court’s jurisdiction on an ad hoc basis retroactive to 29 November 2012, the date of UNGA Res. 69/17; or (2) ratify the Rome Statute and then file an ad hoc declaration retroactive to 29 November 2012. Although both roads would give the ICC jurisdiction over the situation in Gaza, there is actually a critical procedural difference between them — assuming that the OTP wanted to investigate (which I still think is extremely unlikely). If Palestine simply accepts the Court’s jurisdiction on an ad hoc basis, the OTP’s decision to investigate would be considered proprio motu — and that decision would be subject to review by the Pre-Trial Chamber. (See, in that regard, the Cote d’Ivoire situation.) By contrast, if Palestine ratified the Rome Statute and then filed an ad hoc declaration, the OTP’s decision to investigate would be based on the referral of a State Party — and would not be subject to Pre-Trial Chamber review.

We’ll see what happens…

Three Thoughts on the OTP’s Rejection of Jurisdiction over the Situation in Palestine

by Kevin Jon Heller

The ICC Office of the Prosecutor has just released the following statement:

Palestine is not a State Party to the Rome Statute, the founding treaty of the ICC; neither has the Court received any official document from Palestine indicating acceptance of ICC jurisdiction or requesting the Prosecutor to open an investigation into any alleged crimes following the November 2012 United Nations General Assembly Resolution (67/19), which accorded non-member observer State status to Palestine.

The ICC has no jurisdiction over alleged crimes committed on the territory of Palestine.

I have three thoughts on the statement. First, the OTP clearly believes that the 2009 Declaration by the Palestinian Authority is void. If Palestine wants the OTP to investigate, it will have to either ratify the Rome Statute or file a new declaration accepting the Court’s jurisdiction on an ad hoc basis.

Second, it seems equally clear that the OTP will not accept a Palestinian declaration accepting jurisdiction over events prior to before 29 November 2012, when the UNGA adopted Res. 67/19. The statement strongly implies — if it doesn’t quite say it explicitly — that Palestine’s statehood, at least for the ICC’s purposes, began on that date. Any other conclusion is difficult to reconcile with the statement’s emphasis on Res. 67/19; the fatal flaw of the 2009 Declaration seems to be that it was made before the UNGA upgraded Palestine’s status.

Third, the statement’s reference to “the territory of Palestine” raises the possibility that the OTP will not accept an ad hoc declaration that is limited to Gaza — even one that properly focuses, as the 2009 Declaration did, on crimes committed by both parties to the conflict. To be sure, the reference may just reflect casual or sloppy drafting; indeed, I see no reason why Palestine could not self-refer only the Gaza situation, given previous situations the OTP has accepted (Northern Uganda, Ituri, Darfur, etc.) But it’s a point to ponder going forward.

Bar Human Rights Committee of England and Wales Asks OTP to Investigate Gaza (Updated)

by Kevin Jon Heller

The request is supported by a number of leading QCs and professors in Britain. (Full disclosure: three of the signatories are barrister members and one is an academic member of Doughty Street Chambers, with which I’m associated.) Here is the Bar Human Rights Committee’s summary:

Public international law and criminal law Q.C.s and Professors based in Britain join with the Bar Human Rights Committee of England and Wales to urge the Prosecutor of the International Criminal Court (ICC) to initiate a preliminary investigation into crimes being committed in the Gaza Strip.

In response to the extreme gravity of the situation in the Gaza Strip, including spiralling civilian deaths and large scale destruction of homes, hospitals and schools, the Bar Human Rights Committee of England and Wales, supported by leading Q.Cs and Professors, has submitted a formal request, calling upon the Prosecutor of the International Criminal Court to initiate an investigation, pursuant to Article 15 of the Rome Statute.

The letter of request was submitted to the ICC on 3rd August 2014. It asserts that the 2009 Declaration, submitted by the Government of Palestine pursuant to Article 12(3) of the Rome Statute, provides the prosecutor with the necessary jurisdictional basis on which to act.

Kirsty Brimelow Q.C., Chair of the Bar Human Rights Committee, stated: “The initiation of an investigation would send a clear and unequivocal message to those involved in the commission of these crimes that the accountability and justice called for by the United Nations on the part of victims are not hollow watchwords. It would bring about an end to the impunity which has prevailed in the region to date, fuelling ever increasingly brutal cycles of violence. The international community cannot continue to act simply as witness to such bloodshed and extreme civilian suffering.”

I declined to sign the request, despite my profound respect and admiration for the signatories. Although I have no doubt that serious international crimes have been committed by both Israel and Hamas in Gaza, I find the request problematic. Moreno-Ocampo formally rejected the Palestinian Authority’s 2009 Declaration on behalf of the OTP, and the UNGA did not give Res. 67/19 — which upgraded Palestine to non-member-state status — retroactive effect. In my view, therefore, the 2009 declaration is effectively (and perhaps even legally) void. That conclusion is supported by Fatou Bensouda’s public statement that “the ball is now in the court of Palestine”, “Palestine has to come back,” and “we are waiting for them.”

The bottom line for me is that Palestine needs to submit a new declaration accepting the ICC’s jurisdiction on an ad hoc basis. (Assuming the Palestinian Authority has the authority to do so — about which see my previous post.) That declaration should refer the situation in Gaza, not simply Israel’s crimes, as the 2009 Declaration properly did. (The primary reason I do not believe the complaint filed by the Palestinian Authority’s Justice Minister can be considered an ad hoc declaration is that it singles out Israel for investigation.) The declaration should also clearly specify the temporal parameters of the jurisdiction Palestine is giving to the ICC. Any attempt to accept the Court’s jurisdiction retroactive to 1 July 2002, when the Rome Statute entered into force, is likely to fail, because I seriously doubt that the OTP wants to determine when Palestine became a state. The most plausible date for retroactive jurisdiction would be 29 November 2012, when the UNGA adopted Res. 67/19. (Like many others, I believe Palestine qualified as a state long before that. But I wouldn’t be the one deciding whether to investigate.)

In short, and again with the greatest respect to the signatories of the present request, I do not think it is wise to pursue what seems to me to be a procedural shortcut to ICC jurisdiction over the situation in Gaza. If the ICC is to become involved in the most heavily politicised conflict in recent history — and I think the likelihood the OTP would act on even a proper request is essentially zero — there should be no doubt whatsoever about either Palestine’s desire for an investigation or the ICC’s jurisdictional competence. If we’ve learned anything about the conflict in Gaza, it’s the importance of always crossing the legal “t’s” and dotting the legal “i’s.”

UPDATE: Multiple sources are reporting on Twitter that the ICC has announced it has no jurisdiction over the situation in Gaza. (See here, for example.) That would seem to put beyond doubt that any attempt to rely on the 2009 Declaration will fail.

Can the PA Ratify the Rome Statute? (A Response to Eugene)

by Kevin Jon Heller

As Eugene notes in today’s guest post, the Palestinian Authority (PA) appears to have decided to ratify the Rome Statute. I’ll believe it when I see it: the PA has threatened to ratify before, only to back down at the last moment. But could it? Most observers have assumed it could, but Eugene disagrees. I think his bottom line may well be right, as I will explain at the end of this post. But I have problems with other aspects of it.

To begin with, let’s dispense with Eugene’s claim that Abbas’s lack of control has an upside for him, because it “prevents him from being held responsible for the war crimes there. If he does control the territory, and has allowed it to be a rocket launching base for years, he would be in trouble.” Abbas has neither de jure nor de facto effective control over the members of the groups (especially Hamas) that are responsible for the rocket attacks on Israel. Nor does it seem likely that he would be part of the military chain of command in a Fatah-Hamas unity government. So whatever the state of Palestine’s responsibility for the rocket attacks might be, it is extraordinarily unlikely that Abbas would ever be held individually criminally responsible for them — now or in the future.

I also think that Eugene is overreading the OTP’s rejection of Mohammed Morsi’s attempt to accept the ICC’s jurisdiction. In particular, I think he is eliding the difference between two different concepts of “effective control”: for purposes of determining the government of a state, and for purposes of determining whether part or all of a state’s territory is belligerently occupied. Here is the relevant paragraph of the ICC press release concerning the decision:

In accordance with the legal test of “effective control,” the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law. Application of that test, on both the date that the purported declaration was signed and the date it was submitted, lead to the conclusion that Dr Morsi was no longer the governmental authority with the legal capacity to incur new international legal obligations on behalf of the State of Egypt. The information available indicates that, at all material times, the applicants did not exercise effective control over any part of Egyptian territory, including on the date the declaration was signed. Nor would it be consistent with the “effective control” test to have one putative authority exercising effective control over the territory of a State, and the other competing authority retaining international treaty-making capacity.

As the paragraph indicates, the OTP relied on effective control to determine which of two rival domestic Egyptian entities represented the government of Egypt. In that context, the OTP quite rightly decided that “the entity which is in fact in control of a State’s territory, enjoys the habitual obedience of the bulk of the population, and has a reasonable expectancy of permanence, is recognized as the government of that State under international law.” Morsi lost under that test, because his claimed failed all three conditions.

That concept of effective control has little to do with the concept of effective control in the law of occupation. Effective control in the latter context determines whether the law of occupation applies; it does not determine who the sovereign is in the occupied state. On the contrary, one state’s effective control over the territory of another state does not transfer sovereignty from the government of the occupied state to the occupying state; the government in the occupied state remains the occupied state’s government, even if it loses some of its powers of governance for the duration of the (ostensibly temporary) occupation.

I see no reason, therefore, why Israel’s occupation of the West Bank and possible occupation of Gaza would have any impact on the OTP’s decision to accept or reject the Palestinian Authority’s ratification of the Rome Statute. Even if the state of Palestine is completely occupied by Israel — which Israel obviously rejects — the government of Palestine is still the government of Palestine. Indeed, the only way that wouldn’t be true is if the state of Palestine suffered debellatio, understood as the complete destruction of a state’s sovereignty through conquest. If that were the case, then Israel would be the government of Palestine and would be entitled (exclusively) to make decisions on its behalf. That was the situation after World War II: because of the debellatio of the German state, the Allies, via the Control Council, exercised supreme legislative authority in Germany as a condominium. But that is hardly the case in Palestine, as both sides agree. (And in any case, the concept of debellatio may well have fallen into desuetude.)

All that said, I agree with Eugene’s claim that the Palestinian Authority may not qualify as the government of Palestine — at least without the inclusion of Hamas. According to Eugene, “Hamas came to power in a coup against Abbas’s government, and since the ‘statehood’ of Palestine, the latter has never exercise ‘effective control’ over the area. Indeed, the Hamas authorities in Gaza, such as Palestinian Prime Minister Ismail Haniyeh, dispute Abbas’s standing as president.” That’s an inaccurate description of the situation: Hamas was democratically elected by Palestinians in 2006, but was prevented from governing by Fatah until it seized control of Gaza in the 2007 civil war. Hamas’s election, however, only strengthens Eugene’s point, because it indicates that the Palestinian Authority may well have a Morsi problem if it attempts to ratify the Rome Statute without Hamas’s consent. The Palestinian Authority fails all of the elements of the OTP’s “effective control” test in the context of rival governments: it does not control all of the state of Palestine, it does not enjoy the “habitual obedience of the bulk of the population,” and it does not have “a reasonable expectancy of permanence.”

Nor, for that matter, does Hamas — for similar reasons. So it may well be that only a unity government between Fatah and Hamas, such as the one that Israel desperately tried to undermine prior to its invasion of Gaza, is competent to ratify the Rome Statute. Whether the Palestinians will still be able to form such a unity government remains to be seen.

Is Violating “Serious Obligations” of the INF Treaty the same as its “Material Breach”?

by Duncan Hollis

A few hours ago, the NY Times broke a story that the United States views Russian tests of a ground-launched missile as violating the 1987 INF treaty, formally (and lengthily) titled, “The Treaty Between The United States Of America And The Union Of Soviet Socialist Republics On The Elimination Of Their Intermediate-Range And Shorter-Range Missiles”.  According to the story, the State Department will publicly issue a report that says, among other things:

The United States has determined that the Russian Federation is in violation of its obligations under the I.N.F. treaty not to possess, produce or flight test a ground launched cruise missile (GLCM) with a range capability of 500 kilometers to 5,500 kilometers or to possess or produce launchers of such missiles,”

In addition, President Obama has notified Russian President Putin of the U.S. charges in a letter delivered today.

The U.S. move adds a new brick to the wall of tensions building in the U.S.-Russian relationship (others include Crimea, Russian support for Eastern Ukrainian separatists, the MH17 tragedy, not to mention Edward Snowden’s continuing presence in Moscow).  I assume the timing of the U.S. accusations is no accident.  Moreover, I find it interesting that in so many of these recent crises with Russia, the United States has consistently relied on law and legal argumentation to push against Russia’s actions (or inaction).  This case may be the most extreme example of such an approach since the issue here is entirely one of international law and treaty interpretation.  As such, it’s very much in the wheelhouse of Opinio Juris and its readers. I thought I’d start the conversation with a few preliminary thoughts (emphasis on the “preliminary” since we don’t have too many details to go on as yet).

For starters, the precise language used to describe Russia’s tests — a violation of its obligations under the I.N.F. Treaty” — appears quite significant (especially where it comes after reportedly extensive deliberation). Certainly, the concept of a violation is easy to grasp and has important political implications. For treaty lawyers, however, the term “violation” is not the language we’d expect to see where there’s non-compliance with a treaty’s terms. The Vienna Convention on the Law of Treaties (VCLT), which sets the customary international law rules in these cases, describes violations in terms of a treaty’s “breach”  More specifically, it articulates a set of remedies where breaches are “material” (see VCLT Article 60 here).  In this case, however, that key adjective — “material” — is nowhere to be found, suggesting the United States is not looking to invoke this VCLT provision.  But even if it were, in a move that has stumped generations of international law students, the VCLT’s remedies for a treaty’s material breach are quite limited — they entitle the non-breaching party to suspend or terminate its own obligations under the treaty in whole or in part (the VCLT also adds some procedural hurdles but these are largely ignored in State practice). Of course, there’s no evidence suggesting that the U.S. has any intention of suspending or terminating the INF Treaty; on the contrary, U.S. interests seem to lie squarely on keeping Russia obligated by the treaty as long as possible and forestalling any Russian move to withdraw from the INF Treaty (which Article XV allows it to do).  Simply put, the United States does not appear to consider Russia’s behavior as a material breach of the INF treaty nor want the remedies that label conveys; such a path would actually undercut the stability of the INF treaty’s continued performance for which the United States is pushing.

Second, just because the VCLT remedies are undesirable does not foreclose the United States from all legal leverage in this case. By using the term “violation . . . of obligations” the United States may be invoking a different set of international law rules … those of State responsibility.  Although the United States has been ambivalent to the UN’s Draft Articles on State Responsibility, those articles elaborate a detailed sets of obligations, rights and remedies where a State commits an internationally wrongful act (defined to include a breach of treaty obligations).  The offending State is required to cease (and not repeat) non-compliant behavior and the injured State(s) may engage in “counter-measures” to induce such a return to compliance. These counter-measures may include behavior previously categorized as a retorsion (lawful behavior such as canceling foreign assistance done in response to a prior breach) and a reprisal (behavior that would be unlawful but for the existence of the prior breach).  At present, the types of U.S. responses on offer described in Michael Gordon’s story are likely retorsions, but I assume other measures, including reprisals, could follow if Russia does not respond appropriately.

Taken together, these moves lend support to Bruno Simma and Christian Tams argument in my book that the law of state responsibility has proven more attractive to States than the VCLT’s remedies for treaty breach. That said, I do not mean to suggest that the VCLT is entirely irrelevant to this case.  On the contrary, its provisions on interpretation (Articles 31-33) are likely central to the U.S. claim of a Russian violation.  What’s more, I’d expect Russia to offer its own interpretation to the contrary employing the same interpretative framework (not to mention counter-claims of U.S. violations as described in tonight’s story).

All in all, there’s quite a bit here that should be of interest not just to those who care about arms control and nonproliferation, but international law and international relations more generally.  I’d be interested to hear what others think the U.S. claim suggests and how you see things playing out? Comments welcome.

What is The Common Law of War?  

by Jens David Ohlin

Since the recent al Bahlul en banc decision before the D.C. Circuit, I have been thinking a lot about the Common Law of War. As others have already analyzed in detail (Steve, Peter, JonathanMarty & Steve), the D.C. Circuit upheld Bahlul’s conviction for conspiracy but threw out his conviction for material support for terrorism and solicitation. Material support and solicitation are unavailable for pre-2006 conduct because they are neither international crimes nor historically charged before military commissions. Conspiracy, on the other hand, is a different story. While it seems pretty clear that conspiracy is not a stand-alone offense under international law, the government has relied on the argument that conspiracy is historically chargeable before a military commission as part of the “common law of war.”

The exact status of the common law of war theory remains unknown because the court’s majority applied “plain error” review and not de novo review on the merits. Some judges concluded that Bahlul waived his objections by not raising them at trial (when Bahlul was declining legal assistance). For his part, Judge Kavanaugh appeared sympathetic to the common law of war argument, which arguably departs from his previous notes of skepticism regarding the theory in Hamdan II.

Since the common law of war idea is still wide open, I’ve been trying to come to terms with it and articulate precisely why I’ve been uncomfortable with it in the past. Indeed, when I first heard the government’s assertion of this theory, I was deeply skeptical and found it almost outrageous. The law of war is international by definition—it is the same for everyone and that’s the whole point of it. The law of war is based on reciprocity and it makes no sense to think of it as a creature of domestic law.

That being said, I think the issue is more complicated than I initially assumed.  In particular, it is important to note that Lieber himself makes reference to the common law of war in article 13 of the Lieber Code. Also, Richard Baxter, in his famous article on spies and unprivileged belligerency, concludes that acts of belligerency by an unprivileged belligerent simply aren’t violations of international law at all – they are violations of domestic criminal law. That’s absolutely correct. The absence of the privilege means that the unprivileged belligerent cannot exempt himself from the demands of domestic law. That’s something far different from an international crime. Unfortunately, Baxter also says in the preceding sentence that the saboteurs in Ex Parte Quirin were “no doubt” triable under the statutes and “military common law of the captors” – though he never explains what he means by this. Presumably he felt that the saboteurs in Quirin were subject to military commission jurisdiction despite the fact that their crimes were domestic violations, though he never articulates his reasoning. Of course, I don’t want to parse Baxter’s article like it’s gospel; I find there’s too much of that already with people treating semi-authoritative Commentaries like treaties. But I still find it interesting that both Baxter and Lieber used the phrase or something close to it.

So why is it so difficult to understand the common law of war? Here are four possible reasons:

1. We no longer live a common law world. Well not exactly. The U.S. is still part of the common law, in the historical sense, but really the common law doesn’t play the role it once did. It has substantially evolved. Statutes and regulations play a much larger role now – and this applies in almost every field of law. This certainly applies in the criminal law, where even the idea of a common law crime sounds just bizarre to today’s students. It’s just so far removed from how the law operates today.

2. Although state courts in the U.S. continue to evolve the common law in each jurisdiction in subject areas that are not covered by a particular statute (say tort law), this endeavor is temporally removed from its historical roots in common law England. Although the law in each jurisdiction can all be traced back to a common source, the doctrines have been developed in unique and different ways in each court. The common law – as something truly common across jurisdictions – has receded into history.

3. The law of war in general, and the jurisdiction of military commissions in particular, were woefully under-theorized in previous generations. This was certainly true in the Civil War, when other than Ex Parte Milligan as an enduring constraint on military jurisdiction, there was insufficient attention paid to developing a deep theory of military jurisdiction. Famously, Ex Parte Quirin was a rush decision, arguably fast-tracked because the Supreme Court was concerned that the administration might execute the prisoners before a decision was reached – which would have dealt a near-fatal blow to the Supreme Court’s institutional legitimacy and its self-asserted purview, announced in Madison v. Marbury, to say what the law is. It is no surprise that we now look back on Quirin as “not this Court’s finest hour” (Hamdi v. Rumsfeld, Scalia J. dissenting). One way of putting the point is to follow Steve Vladeck and say that the Court has never fully rationalized why military commissions are exempt from the Article III requirement of trial before a regular court. Another way of putting the point is that during the Civil War the concept of military jurisdiction was under-theorized and we are only now playing catch-up.

4. There is something that unites our use of the terms “international law” today with how the term “common law” might have been used in previous generations. This might help explain why there is an international law of war today and a common law of war in the past.  Although they are different, what unites them is a shared participation in a larger legal culture. For international law, the larger legal culture is the international order, with its unique sources for lawmaking (treaties, custom, etc.) and international organizations. For the common law, the larger legal culture is the law that is “common” to many jurisdictions who are all participating in a common legal culture and apply its law together – the “common law.” Although the common law is not the same as international law, it is something larger than pure domestic law, and as such it could, in theory, and historically as well, fulfill some of the demands of reciprocity that the laws of war demand. The problem, of course, is that the common law doesn’t function that way in today’s world. The whole point of the law of war is that it has to be bigger than just domestic law. And maybe the common law in the past was just big enough to support the law of war in some limited sense. Whether that’s enough in today’s world, I really don’t know.

ECHR Rules Against Poland in CIA Black Sites Case

by Jens David Ohlin

In two decisions (here and here) handed down this morning, the European Court of Human Rights has found that Poland violated its obligations under the European Convention of Human Rights for its complicity in the United States’ running of a CIA black site and high-value detainees program on Polish territory.

One of the cases involved al-Nashiri, who was prosecuted before a U.S. military commission and the subject of protracted habeas litigation in the DC Circuit. He was accused of orchestrating the attack against the USS Cole in 2000. In federal court his lawyers raised the very interesting issue of whether there existed an armed conflict with al-Qaeda at that time (i.e. before 9/11), and whether a military commission could properly assert jurisdiction over a crime that was allegedly committed before (in their view) the commencement of the armed conflict.

Nashiri was captured in Dubai in 2002, transferred to a CIA prison in Afghanistan (called the “Salt Pit”), then to a CIA facility in Bangkok (called “Cat’s Eye”) where detainee Abu Zubaydah (the subject of the other case) also was held. Both were then transferred to the CIA black site in Poland. After his time in Poland, he was transferred briefly to Morocco on his way to Guantanamo Bay, Cuba.

The decision goes into extensive detail of the CIA interrogation program, including a review of internal CIA documents explaining the interrogation methods that officers were authorized to use against detainees, as well as the unauthorized techniques that were sometimes used. The court concluded that (para. 417):

Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that:

(1)  on 5 December 2002 the applicant, together with Mr Abu Zubaydah, arrived in Szymany on board the CIA rendition aircraft N63MU;

(2)  from 5 December 2002 to 6 June 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename “Quartz” and located in Stare Kiejkuty;

(3)  during his detention in Poland under the HVD Programme he was interrogated by the CIA and subjected to EITs and also to unauthorised interrogation techniques as described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report;

4)  on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P.

The ECHR then concludes that Poland was aware of (and complicit) in the CIA activities:

442.  Taking into consideration all the material in its possession (see paragraphs 418-439 above), the Court finds that there is abundant and coherent circumstantial evidence, which leads inevitably to the following conclusions:

(a)  that Poland knew of the nature and purposes of the CIA’s activities on its territory at the material time and that, by enabling the CIA to use its airspace and the airport, by its complicity in disguising the movements of rendition aircraft and by its provision of logistics and services, including the special security arrangements, the special procedure for landings, the transportation of the CIA teams with detainees on land, and the securing of the Stare Kiejkuty base for the CIA’s secret detention, Poland cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory;

(b)  that, given that knowledge and the emerging widespread public information about ill-treatment and abuse of detained terrorist suspects in the custody of the US authorities, Poland ought to have known that, by enabling the CIA to detain such persons on its territory, it was exposing them to a serious risk of treatment contrary to the Convention (see also ElMasri, cited above, §§ 217-221).

443.  Consequently, Poland was in a position where its responsibility for securing “to everyone within [its] jurisdiction the rights and freedoms defined …. in [the] Convention” set forth in Article 1 was engaged in respect of the applicant at the material time.

The Court holds that Poland violated Article 3 of the Convention for its failure to adequately investigate the mistreatment, and for failing to ensure that “individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals .”  Again, here is the Court’s holding (para. 517):

Notwithstanding the above Convention obligation, Poland, for all practical purposes, facilitated the whole process, created the conditions for it to happen and made no attempt to prevent it from occurring. As the Court has already held aboveon the basis of their own knowledge of the CIA activities deriving from Poland’s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “war on terror” to terrorist suspects in US custody the authorities – even if they did not witness or participate in the specific acts of ill-treatment and abuse endured by the applicant – must have been aware of the serious risk of treatment contrary to Article 3 occurring on Polish territory.

Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory (see paragraph 452 above and El-Masri, cited above, §§ 206 and 211).

The Court also found a violation of the article 5 prohibition against arbitrary detention (para. 532), the article 8 prohibition against interference with family life for holding him incommunicado (para. 540), the article 13 requirement of an effective domestic remedy (para. 551), and the article 6 prohibition against an unfair trial (para. 569).

The last holding on article 6 required the Court to conclude that the petitioner’s trial before a U.S. military commission would be unfair — which is a substantial legal determination. Unfortunately, the Court’s analysis on this point is incredibly thin, and relies mostly on the U.S. Supreme Court’s determination in Hamdan that the creation of the tribunals was procedurally defective and violated Common Article 3 of the Geneva Convention, without much independent analysis. There is no discussion of post-Hamdan military commission reforms.

Finally, the Court concludes that Poland violated its Protocol 6 (abolition of the death penalty) obligations because of the risk that the petitioner would be subject to capital punishment before a U.S. military commission (para. 579).