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International Security

The Security Council Workaround: How the Iran Deal Can Become Legally Binding Via a UN Security Council Resolution

by Julian Ku

Since the United States has made clear that its “deal” with Iran will NOT be a binding legal commitment under international law, one wonders what all the fuss over the Iran Letter from US Senators was about. As Duncan explains in his great post below, there is little doubt that the President can enter into a nonbinding “political commitment” and withdraw from it without violating international law.  Confusingly, though, Iran keeps talking as if there is going to be a binding international legal commitment.

The answer to this confusion appears to be that the US government plans to make a non-binding political commitment, and then take this commitment to the UN Security Council to get it “carved into marble” as a Security Council resolution that would be binding under international law.  Jack Goldsmith explains in detail at Lawfare how this might happen, and why this is constitutional (if also kind of sneaky).  The President gets to both avoid going to Congress AND get a binding legal obligation on Iran.

Of course, a future President could choose to withdraw or defy the UN Security Council resolution, but the legal and diplomatic costs would be much higher than withdrawing from a mere political commitment.  Congress could also, unquestionably, override any domestic legal effects of a UN Security Council Resolution by passing a statute refusing to lift sanctions on Iran, or stopping the President from doing so.  Diggs v. Shultz makes clear that a statute passed by Congress later in time than a Security Council resolution will have the force of law by operation of the last in time rule.  But the legal and diplomatic costs for doing so would also be higher than for a mere political commitment or even a bilateral executive agreement.

So the Administration has a plan to avoid Congress and get its deal sanctified by international law.  Pretty clever lawyering, although I (like Goldsmith) expect some serious political blowback from Congress.

Simone Gbagbo’s Domestic Conviction Illustrates the Futility of the “Same Conduct” Requirement

by Kevin Jon Heller

Another complementarity fight is brewing, this time between the ICC and Cote d’Ivoire concerning the fate of Simone Gbagbo. In 2012, the ICC issued a warrant for her arrest, claiming that there are reasonable grounds to believe she is responsible as an indirect co-perpetrator for the crimes against humanity of murder, rape, other forms of sexual violence, and persecution. Just yesterday, however, Gbagbo was convicted in an Ivorian court and sentenced to 20 years imprisonment on very different charges:

A court in Ivory Coast has sentenced Simone Gbagbo, the wife of the former president Laurent Gbagbo, to 20 years in prison for her role in a 2011 post-election crisis in which around 3,000 people were killed, her lawyer said.

Simone Gbagbo, who is also wanted by the international criminal court, was tried alongside 82 other allies of her husband in a case that revived deep divisions in a nation still recovering from years of political turmoil and conflict.

Gen Bruno Dogbo Ble, who headed the elite republican guard, and the former navy chief Admiral Vagba Faussignaux were both jailed for 20 years, according to their lawyer, while others got shorter sentences. Michel Gbagbo, the former president’s son, was sentenced to five years.

Supporters of Laurent Gbagbo, whose refusal to acknowledge his defeat to Alassane Ouattara in elections in late 2010 sparked the brief civil war, claimed his wife’s trial was politically motivated.

“The jury members retained all the charges against her, including disturbing the peace, forming and organising armed gangs and undermining state security. It’s a shame,” said Simone Gbagbo’s lawyer, Rodrigue Dadje.

Cote d’Ivore will no doubt now file an admissibility challenge with the ICC, claiming that they do not have to surrender Gbagbo because  Art. 17(1)(c) of the Rome Statute provides that a case is inadmissible if “[t]he person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3.” Art. 20(3) specifies that, as long as the trial is genuine, “[n]o person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct.”

I do not know the precise conduct that underlies Gbagbo’s domestic conviction. But it seems highly likely that the “undermining state security” and “organizing criminal gangs” charges were not based on substantially the same conduct as the ICC’s crimes against humanity charges. If not, the case will still be admissible before the Court, because Art. 20(3) explicitly permits the ICC to prosecute conduct different than the conduct underlying a domestic conviction. That specific provision has never been litigated, but the judges are very unlikely to read Art. 20(3) more expansively. After all, in the context of cases still under investigation at the domestic level, the Appeals Chamber specifically held in the Kenya cases that the domestic investigation must focus on “substantially the same conduct” as the ICC’s investigation:

The defining elements of a concrete case before the Court are the individual and the alleged conduct. It follows that for such a case to be inadmissible under article 17(l)(a) of the Statute, the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the Court.

Here is my question: what would the ICC gain by insisting that Cote d’Ivoire surrender Gbagbo to the Court to face a second prosecution? After all, 20 years is hardly an insignificant sentence — five years longer than Lubanga’s, and eight years longer than Katanga’s. Should the ICC really waste precious (and overstretched) OTP resources to obtain another conviction of Gbagbo, even though — if the past sentencing practice by international tribunals is any guide — she is very unlikely to receive a longer sentence from the ICC than she has already received from Cote d’Ivoire?

My answer is simple: the ICC would gain nothing, so it shouldn’t. As I have argued at length in my essay “A Sentence-Based Theory of Complementarity,” the ICC simply cannot afford the kind of hyper-formalism that underlies both the “same conduct” requirement and Art. 20(3). In my view, the Court should defer to any national prosecution that results (or any national investigation is likely to result) in a sentence equal to or longer than the sentence the suspect could expect to receive at the ICC, even if the national prosecution is based on completely different conduct than the ICC’s investigation. The upcoming Gbagbo complementarity fight, I think, will likely illustrate why my theory of complementarity makes sense.

Finally, it’s worth noting that should the ICC agree with me, it does in fact have an out — Art. 89(4) of the Rome Statute, which provides as follows:

If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.

Nothing in the Rome Statute seems to prohibit the Court from deciding, after such a consultation, to let the suspect serve his or her domestic sentence prior to — or even instead of — requiring the state to surrender the suspect to the Court. I hope the ICC will consider such a decision regarding Gbagbo. It has nothing to gain by forcing Cote d’Ivoire to turn her over.

Dealing with Iran: A Primer on the President’s Options for a Nuclear Agreement

by Duncan Hollis

Without weighing in on the merits of any deal with Iran on nuclear matters, I’ll express some frustration over the rhetoric used in the current firestorm between the White House, 47 Senators (plus Governors Perry and Jindal), Iran’s Foreign Minister, and the 4th Estate on what kind of deal the United States might conclude with Iran and the so-called P5+1 (the UK, France, China, Russia and Germany).  There seems to be a great deal of confusion and conflation of issues in terms of the legal logistics of concluding any deal.  Now, maybe some of that is willful — obfuscation in service of each side’s political goals.  But, on the chance that some of those weighing in are under-informed on the actual issues and options available, I thought I’d offer a (brief) primer on what the actual options are in this case and how those options may limit/shape U.S. behavior.

For starters, it’s critical to differentiate the question of how nation states can reach agreement from the question of how a domestic legal system authorizes a State to enter into agreements (let alone what effect it gives them).  As such, I think the conversation needs to split off the question of (1) what kind of international deal this will be; from asking (2) what authority does the United States have (or will it need) to conclude such a deal as a matter of U.S. law.  Let’s take each angle separately.

International Commitments

When it comes to nation States entering into an agreement (that is, a mutual commitment of shared expectations as to future behavior), there are actually three basic options States can choose: (a) a treaty; (b) a contract; or (c) a political commitment.

(a) a treaty:  The treaty is a (relatively) well understood vehicle that rests on international law for its authority and effects.  Article 2(a) of the Vienna Convention on the Law of Treaties (VCLT) defines a treaty as

an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation

There’s some nuance to this definition, which I’ve explained in the Defining Treaties chapter of my book.  But for our purposes, it suffices to note that the VCLT lays out who has authority to make a treaty (i.e., heads of state and government, foreign ministers and those with full powers) and how they can do so (i.e., by signature, ratification, accession, acceptance, approval or any other agreed means).  Once formed, a treaty is subject to the general (and fundamental) principle of pacta sunt servanda — treaties are “binding upon the parties to it and must be performed by them in good faith.” Domestic legal obligations are not recognized as a basis for breaching treaty commitments, with one exception.  Article 46 provides that

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

Article 46, however, has proven relatively limited in its availability to States as an exit option; the one time it got raised before the ICJ, the Court suggested that States are not obliged to keep track of other states’ legislative and constitutional regulations on treaty-making and that a violation could not be manifest “unless at least properly publicized.”   Given the varied ways the U.S. authorizes treaties (discussed in more detail below), it’s hard to imagine a later Administration being able to invoke Article 46.  Indeed, if U.S. foreign relations scholars can’t agree on the ground rules for when specific treaty-making procedures are required (or prohibited), I’m hard pressed to say other countries should be able to identify a manifest violation in a case where the Executive branch pursues one specific procedure over others.

(b) a contract:  Interstate commitments can also be contracts instead of treaties. Contracts, like treaties, are considered legally binding, but differ from them in that contracts rely on domestic law as the source of their “bindingness” instead of being governed by international law as treaties are. Still, governments from time to time will do deals (e.g., one State selling helicopters to another) where the agreement specifically indicates its terms are governed by, say, the “law of New York.” This doesn’t seem to be on the table with Iran though, so I’ll reserve to a latter date more detailed analysis of how contracts and treaties differ. 

(c) a political commitment:  The third — and final — option for agreements among States is a “political commitment.”  Some scholars prefer to call it “soft law,” but for reasons Josh Newcomer and I elaborated in our article on political commitments, I think that term is a bit of a misnomer. The basic idea is simple — states can make agreements where the basis of their commitment does not rest on law, but “political” (or perhaps “moral”) forces.  In a political commitment, the fact of the promise itself motivates compliance rather than importing the sanctity of law and its legitimacy to do so. Non-legally binding commitments have now been a feature of international relations for more than a century, and include some pretty high-profile agreements, including the Shanghai Communique, the Helsinki Accords, the recent US-China Deal on Climate Change, and the Comprehensive Joint Plan that started this whole set of negotiations with Iran.  Moreover, as Josh and my article details, these commitments exhibit a tremendous diversity in terms of the form they take, the substantive commitments they contain, the extent to which they establish or implicate institutions, not to mention their varied relationships to other legal and non-legal commitments.

Traditionally, political commitments are seen as distinct from treaties in terms of being (i) more flexible; (ii) less credible because exit options are easier; with (iii) greater opportunities for confidentiality; and (iv) fewer domestic legal hurdles to their formation.  The actual variation in political commitments suggests, however, that these differences may be over-stated — today’s practice suggests that there is some significant overlap in what political commitments and treaties do.  For example, it may have been true at one time that treaties were necessarily less flexible than political commitments, but with the advent of tacit amendment procedures, treaties have gained in flexibility, while some political commitments have become more highly structured and inflexible in terms of the precision or normativity of their contents or the institutional structure in which they operate.  The one area where political commitments appear to hold a distinct advantage (or disadvantage depending on your perspective) is with the relatively weak domestic law attention they receive.  As Josh and I concluded in our article — a point reiterated earlier today by Jack Goldsmith and Marty Lederman, states like the United States have imposed few (if any) legal restrictions on the Executive’s ability to enter into political commitments.

Domestic Authorities to Commit the United States Internationally

In Article II, Section 2, clause 2 of the Constitution, the President has the “power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”  If one were to take up the issue de novo, you might think this text requires that all treaties the United States wishes to conclude under international law have to proceed to the Senate.  In practice, however, Senate Advice and Consent has become one of only four ways the United States may gain authority to enter into a treaty (in the international law sense of that term).  Add in the possibility that the Iran deal might be a political commitment, and there are actually five options for how U.S. law might authorize a deal with Iran: (i) Senate Advice and Consent; (ii) a Congressional-Executive agreement; (iii) via an existing Senate Advice and Consent treaty; (iv) a sole Executive Agreement; or (v) a political commitment.

(i) Senate Advice and Consent Treaty.  If the United States concludes a treaty (in the international law sense of the term) with Iran and the P5+1, President Obama could send that treaty to the Senate for advice and consent, and, assuming the Senate agreed (with or without reservations, understandings or declarations), the President would then clearly have constitutional authority to consent to the deal.  Senate advice and consent is much less used compared to the past (less than 10% of modern treaties go through the Senate), although it should be noted that almost all past arms control agreements have received Senate advice and consent.  Still, given the general stalemate that has pervaded the Senate’s role in treaty-making the last few years, this seems a complete non-starter as a path forward, particularly with 47 Senators on record against virtually any deal involving Iran.

(ii) Congressional-Executive Agreement:  The President could gain authority to conclude a treaty (again, in the international law sense of that term) with Iran and the P5+1 via Congress instead of the Senate alone.  A simply majority vote of both Houses could enact a bill that with the President’s signature would become federal law and thus create legal authority for the United States to conclude (and perform) an Iranian treaty.  As a practical matter, congressional consent can be ex ante or ex post, but again, domestic politics in this case countenances against this being a likely option (even though today the vast, vast majority of U.S. treaty commitments under international law rely on one or more statutory authorities for their formation).

(iii) via an Existing Senate Advice and Consent Treaty:  Article VI of the Constitution treats both statutes and treaties (i.e., those receiving Senate advice and consent) as the “supreme law of the land.” Thus, just as a statute could authorize President Obama to conclude an international agreement with Iran, so too could a pre-existing Senate advice and consent treaty.  So far, I’m not aware of any nominations for an existing U.S. treaty that could do this (but someone might want to carefully parse the 1955 Treaty of Amity and Peace with Iran if it’s still in force (it’s not listed in Treaties in Force)).   Or, this might be a way forward if, as Marty and Jack hint, the Executive branch concluded the deal with Iran as a political commitment, but then had it endorsed by the U.N. Security Council pursuant to its Chapter VII authorities.  In that case, legal authority to conclude the deal might reside in the U.N. Charter itself since the Senate long ago gave consent, subject to a U.S. veto, to Security Council measures to preserve international peace and security.  As such, I don’t think we can dismiss this option as much as it might seem inapplicable at first glance.

(iv) Sole Executive Agreement:  The President may rely on his own Constitutional powers (e.g., as commander in chief) to authorize a U.S. treaty commitment.  In practice, this is rarely done as the State Department will usually try to also locate authority in at least one federal statute (even something as bland as Congress’ authorization of State Department responsibility for foreign affairs).  That said, the Supreme Court has endorsed the President’s ability to conclude certain treaties as sole executive agreements, although often in the face of congressional acquiescence, not outright opposition.  So, one might imagine this option would generate some inter-branch litigation if the Republican-controlled Congress rejects reading the president’s powers to include whatever sort of commitments are contained in any agreement the United States concludes with Iran.  Still, if the deal is to be a treaty under international law, this seems the most likely basis for authorizing it under U.S. law.  As Fred Kaplan noted yesterday, and Secretary Kerry apparently suggested a few hours ago, all the attention on treaties may have been misplaced and an entirely different deal might be at work here, namely a political one.

(v) Political Commitment;  It’s possible that the White House is looking for a political commitment with Iran and the P5+1.  If so, then all the machinations about forming a treaty under international law, and, just as importantly, the relatively robust set of domestic approval options for treaty-making, are inapplicable.  Although Josh and I argued that functional similarities between treaties and political commitments should require a Congressional role in the formation of at least some political commitments, I concede that Marty and Jack are correct that at present it’s hard to say this is the law of the United States.  On the contrary, today, it still appears that political commitments by their very nature do not implicate any of the domestic legal, procedural hurdles associated with treaties and thus may be a path forward for the United States to do a deal with Iran without worrying about the views of either the Senate or Congress as a whole.

That said, if the United States is actually going to argue it is concluding a political commitment with Iran and not a treaty, I want to conclude with two important caveats on the international and domestic aspects of such a deal that I’ve not seen mentioned previously.

First, a political commitment must be a political commitment for all sides, not just one side.  There’s much ambiguity in the U.S. and Iranian statements surrounding some of the negotiations, and it’s possible to read some of yesterday’s press briefing to suggest a deal where the United States would have only a political commitment while Iran was legally bound to perform its promises (see, for example, the carefully worded “verifiable and enforceable commitments” language used). That, however, is not an available option in international law.  Either the agreement is a treaty for all parties or its a political commitment for all participants.  I am unaware of any case where the nature of the agreement varies for the parties to it (that is it was a treaty for one state and a political commitment for everyone else).  Certainly, there have been disputes in the past as to the status of a particular agreement, with the ICJ and international arbiters called upon to weigh in on whether the deal struck gave rise to international legal obligations or not.  And it’s also possible for a treaty to contain not just legally binding commitments but also political ones (see, e.g., Article 1 of the Algiers Accords).  But, a stand-alone political commitment is, by definition, mutually exclusive from the international legal commitment that defines a treaty.  As such, once an agreement contains at least one commitment intended to be governed by international law, it’s a treaty not a political commitment.  Indeed, unlike contracts, treaties do not require consideration.  Thus, a treaty can exist where only one side (e.g., Iran) makes all the promises to do (or not do) certain things. Taken together, this suggests that, unless the United States is making some new, novel move to unsettle the existing forms of international commitment, its suggestion that it is pursuing a political commitment with Iran should mean that none of the commitments will give rise to any international legal obligations in and of themselves (there may be separate estoppel arguments, but let’s save those for another post).

Second, turning to the U.S. domestic context, it may be true that the Constitution does not require any particular approval procedure for political commitments, but it is also true that the Senate retains significant political power to pressure the President to pursue a treaty over a political commitment or even to insist on having a treaty submitted for Senate advice and consent in lieu of simply relying on Executive Power.  For example, before it became the Senate-approved Moscow Treaty, President Bush had apparently considered the possibility of doing the deal with Russia as either a political commitment or a Sole Executive Agreement.  But the Senate objected; and in a bipartisan push succeeded in having the deal submitted for its advice and consent.  Thus, one could imagine that if the Senate (or I suppose Congress as a whole) wanted to deploy their political checks on Executive power (think appropriations or ambassadorial/cabinet approvals), the White House might have to recalculate whether and how it wants to proceed with Iran here.  Nor is this entirely a U.S. problem; reports suggest that when the United States was looking to craft a strategic framework with Iraq a few years back, the Iraqis ended up concluding that the deal had to be done as a treaty (in the international law sense) since their Parliament was insisting on approving it in lieu of going to more streamlined political commitment route.  Simply put, just because there may be no extant constitutional constraints on the President’s ability to conclude a political commitment with Iran does not mean that there won’t be domestic negotiations over whether and how the United States concludes any deal involving Iran and nuclear matters.

So . . . now that I have that all off my chest, I’ll get out of the way and let the various actors continue to negotiate and debate the merits of the appropriate way(s) forward here.  I just hope that folks will do so with more attention to what the existing international and domestic law has to say (or not say) on these questions.

 

Mea Culpa Regarding Israel’s Attacks on Hezbollah in 2006

by Kevin Jon Heller

In a number of posts (see, for example, here and here), I have claimed that the League of Arab States (LAS) formally rejected the “unwilling or unable” test in the context of Israel’s 2006 attacks on Hezbollah in Lebanon. Thanks to comments by Ori and Tom Ruys on the most recent post, I now realize I have been guilty of the same kind of methodological sloppiness that characterizes most scholarly work in defence of the test. If you read the statement by the LAS — you can find it here — there is no way to determine whether the it denounced Israel’s attack because it rejected the “unwilling or unable” test or — and this actually seems more likely — because it simply rejected Israel’s claim that it was acting in self-defence. (I disagree with Ori that the statement can be read as an indictment of Israel solely for using disproportionate force in self-defence.) And if we cannot determine the precise reason why LAS rejected Israel’s self-defence claim, that rejection obviously cannot provide opinio juris against the “unwilling or unable” test.

That said, loathe though I am to disagree with Tom, I don’t see the international response to Israel’s attacks on Hezbollah in Lebanon as supporting the “unwilling or unable” test. Most obviously, Israel claimed that Hezbollah’s actions were attributable to Lebanon — it did not invoke the test at all. Moreover, no state specifically invoked “unwilling or unable” during the Security Council debate over Israel’s actions — some expressed concern over Lebanon’s failure to exercise effective control over the entirety its territory, but a number of those states attributed that failure to Israel’s occupation of southern Lebanon, not to Hezbollah’s actions. So I agree with Olivier Corten that “these standpoints are highly ambiguous and so it seems a very difficult business to deduce from them any opinio juris.”

My thanks to Ori and Tom for weighing in — and to Ori for providing links to the relevant documents. Apologies to readers for being so sloppy. I just hope my lack of care will not distract from my basic point, which is that scholars who claim that the “unwilling or unable” test represents customary international law have failed to identify (anywhere near) sufficient significant state practice or opinio juris in defense of their position.

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

by Julian Ku

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

Here are the key paragraphs in the letter;

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

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

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

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

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

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

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

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

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

The Seemingly Inexorable March of “Unwilling or Unable” Through the Academy

by Kevin Jon Heller

How does an international-law doctrine become conventional wisdom without actually having support in the practice of states? It starts with one article asserting the doctrine, but failing to defend it. Then another article makes the same claim, citing only the first article. And then another. And another. And so on — until no one remembers that the first article did not actually identify any state practice at all.

So it is with the “unwilling or unable” test, as indicated by an otherwise quite good new article in the Journal of Conflict & Security Law entitled “Jus ad Bellum and American Targeted Use of Force to Fight Terrorism Around the World.” Consider (p. 228):

With regard to the use of self-defence against private actors located in another state, two consequences flow from the requirement of necessity. First, state practice indicates that the exercise of self-defence against the private actor is conditioned on the inability or unwillingness of the authorities in the host state to stop the private actor’s activities.98 Obviously, if the host state both can and will stop the activities in question, it will not be necessary for the victim state to resort to the use of force.

I’ve left the footnote number in, because it refers to precisely one source: Ashley Deeks’ essay “Unwilling or Unable: Toward an Normative Framework for Extra-Territorial Self-Defense.” An essay in which, as I have pointed out, the author openly admits that she “found no cases in which states clearly assert that they follow the test out of a sense of legal obligation.” (The US and UK have formally endorsed the unwilling or unable test since Deeks’ article was published.)

To be sure, the new article elaborates a bit on the “support” for the unwilling or unable test. But none of that support involves the practice of states — nor does the article acknowledge the inconvenient fact that the Arab League (22 states) has formally rejected the test (post-9/11, even). Instead, it simply says this (p. 229):

The test is widely supported in the literature, and it is also mentioned in two 2013 UN reports by, respectively, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. It also features among a series of “Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors” proposed by the former legal adviser of the United Kingdom Foreign & Commonwealth Office, Daniel Bethlehem.

“Instant custom”? How passé. Who needs state practice at all? And please don’t bore us by pointing out contrary practice by a bunch of benighted states in the Global South. All we really need are enough scholars, special rapporteurs, and former legal advisors in the Global North willing and able to endorse a particular doctrine and poof — customary international law.

CMCR Voids David Hicks’ Conviction for Material Support

by Kevin Jon Heller

Big news — and news I wasn’t expecting:

A former prisoner at the U.S. Navy base at Guantanamo Bay, Cuba, from Australia on Wednesday won a legal challenge to his terrorism conviction before a military court.

The U.S. Court of Military Commission Review struck down the March 2007 conviction of David Hicks in a unanimous ruling that reverses what had been one of the government’s few successes in prosecuting prisoners at Guantanamo.

Attorney Wells Dixon said he immediately called Hicks’ attorney in Australia, where it was the middle of the night, to pass on the news to his client.

“David is aware of the decision and he is thrilled,” Dixon said. “He is free to live his life without this conviction hanging over his head.”

Hicks, 39, pleaded guilty to providing material support to terrorism. It was a plea bargain in which all but nine months of his seven-year sentence was suspended and he was allowed to return home by the end of that year.

In 2014, an appeal’s court ruled that material support was not a legally viable war crime for the special wartime court at Guantanamo known as a military commission. Prosecutors argued his conviction should still stand because he agreed not to appeal as part of the plea deal, an argument rejected by the U.S. Court of Military Commission Review.

Quite a journey for Hicks. When he was first charged, he was one of the most hated men in Australia. By the time the military-commission farce was through with him, he was a national hero.

Kudos to the CMCR for doing the right thing.

Guest Post Part II: The Chilcot Inquiry–The Publication Saga of an Official History

by Charlotte Peevers

[Charlotte Peevers is a Lecturer in Law at the University of Technology, Sydney and author of ‘The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law‘ (Oxford University Press: 2013). Part one of this guest post can be found here.]

Legal-Political Authority and International Law

Any review of the inquiry hearings would be incomplete without a word from Tony Blair. In this extract from his so-called ‘recall’ to the inquiry on 21 January 2011 Sir Roderick Lyne asks him about his statement to the House of Commons in February 2003. The statement referred to the apparent exercise of an “unreasonable veto” in relation to a second resolution – that is, beyond 1441 – a subject upon which Lord Goldsmith had already advised was not a justifiable legal position to take against the French or Russian postures within the Security Council.

Video clip begins at 109.26 and ends at 116.05

Transcript (line 11 page 71 – line 6 page 75)

In this extract, Blair’s rather tortured distinction between legal and political arguments highlights a particularly interesting aspect of the relationship between international law and politics. His is an attempt to parse political and legal authority, to justify his deployment of legalistic language as a pure political exercise that was not only permissible, but that his audience would have appreciated and known was not premised upon legal authority. This parsing of authority highlights the difficulty faced by those who might oppose government policy or at least question its bases: without the contemporary knowledge as to the legal advice proffered by government experts, there is no way of holding statements such as Blair’s to account. The ambiguity of his articulation – that encompasses the possibility of legal justification, but not necessarily being explicit about it – leaves him able to claim ex post facto that he was merely making a political point. If this was interpreted the ‘wrong way’ by his audience, or indeed by Sir Roderick Lyne in his questioning, that that was not his fault, nor was it his intention.

In addition, this parsing can be seen as an attempt at making a representation of legal authority in the absence of having political authority. In other words, in the absence of majority public support – a democratic mandate – for using force without UN backing. And this is particularly problematic when, as Roderick Lyne seeks to point out, the government had been advised explicitly that there was no legal authority for such a claim. Blair’s evidence therefore seeks to claim an excessive sovereign right to wage war on the premise of an internationalized legal authority, avoiding the strictures of democratic mandates, or indeed international authority vested in the UN Security Council’s authorization of force. The boundaries of that legal authority were, at the time, entirely subject to secrecy and could therefore be publicly represented in any way deemed justifiable by the government; and then later as merely a political argument that did not in fact rely upon legal authority!

The Chilcot Inquiry as International Legal Archive

These two brief extracts from the present Chilcot Inquiry archive illustrate the wealth of material that can be analysed now, regardless of when the final report will be published together with the promised publication alongside it of 1,500 or so declassified documents. (See the video of Sir John Chilcot’s evidence before the Foreign Affairs Committee on 4 February 2015 at 27.05 where he discusses the publication of declassified material alongside the final report, available here.) Perhaps the most important thing we have learnt is that there is still a huge amount to learn from secrecy. Secrecy as a structural, structuring force on the generation of public policy and the place of law – not just international law – in the exercise of sovereign power.

In addition, we have learnt more of the ‘inner life’ of international law – how international law actually works in policy-making. It exists not just in formal sources, or texts, but behind closed doors, in corridors of extreme power. It is given life in memoranda, letters and meeting records. In order to understand how international law works, we need to consider the processes of advice-giving, the means by which decisions are taken in government – sofa government, ad hocism, inner war cabinets, limited disclosures to Cabinet and to Parliament, and the like – and the production of a government archive.

The archive disclosed through the Chilcot Inquiry, like any archive, is already constructed, is incomplete and partial. Reflecting, by way of comparison, on the Suez Crisis archive is particularly instructive (see Charlotte Peevers The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law (OUP: 2013): despite the existence of an Israeli copy of the Protocol of Sèvres – the document proving collusion and that the Anglo-French occupation of the Suez Canal in late October 1956 was a pretext for invading Egypt following the nationalization of the Suez Canal Company – it has never surfaced in the British archive, in any form. Collusion was suspected for many years before the Israeli copy finally surfaced, but was always denied by the British government and no amount of archival material could have resolved the question of collusion one way or another – evidence had been destroyed and all reference to it expunged from the records (including presumably the direction that all reference be expunged!).

Despite the ‘constructedness’ of any archive, the ability to rake back over documents and oral evidence in relation to the Iraq War ought to be considered a hugely rich potential source for us as international lawyers, and of course as historians and political scientists. The danger with the saga generated over the publication of the Chilcot Inquiry report is that in all the dramatic distraction we miss the opportunity for reading the current archive for ourselves. An official history, however critical or otherwise, will act as the final word over the Iraq Affair, framing our future treatment of the archive and guiding our interpretations of it, whether in opposition or affirmation of the Inquiry’s final conclusions.

Again, the Suez Affair gives pause for thought. There was never an official inquiry into or official history of the Suez Crisis, its scandalous nature rumbling on in Parliament, behind-closed-doors in Whitehall, and in the public imagination without any final word being drafted. Whilst the absence of any holding to account of Anthony Eden’s government is not necessarily something to celebrate, one lesson that might be learned is this: an official history would not have been able to substantiate collusion – which went to the very heart of the question of accountability. In the absence of an official accounting, Suez has become the mythologized nail in the coffin of the British Empire, a supreme act of folly that was, unquestionably, illegal. We can continue to discover the lessons to be learned from Suez, particularly in relation to how international law was used to justify military action, by reading the archive for ourselves. I hope we will continue to quarry the mine of material produced by the Inquiry process, going beyond the limiting – and limited – question of whether the Iraq War was legal or illegal, instead proposing unofficial histories of the place of international law in domestic and international politics.

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

by Kevin Jon Heller

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

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

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

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

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

Guest Post Part I: The Chilcot Inquiry–The Publication Saga of an Official History

by Charlotte Peevers

[Charlotte Peevers is a Lecturer in Law at the University of Technology, Sydney and author of ‘The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law‘ (Oxford University Press: 2013).] 

In the past few weeks we have learned, though we have suspected for quite some time, that the Chilcot Inquiry will not be in a position to publish its final, wide-ranging, ‘lessons learned’ report until after the next General Election, in June 2015. Media commentators and numerous Members of Parliament have decried the “scandalous” delays that have plagued publication, blaming at turns the civil service, Tony Blair, and/or the American Administration.

But this drama over publication delay – the latest in the saga of producing an official history of the Iraq War that has played out in the media – is something of a distraction from the real value of the Chilcot Inquiry, at least for scholars and students of international law. I argue that through its process of declassifying previously secret documents, holding public, oral hearings and receiving written testimony, the Inquiry has already informed our understanding of the operation of international law in the justification to use force.

During the course of oral evidence between 2009 and 2011 we heard more international legal debate than ever before, certainly than during the original debates of 2002/2003. We also heard about what I have come to think of as the ‘inner life’ of international law: revelations of back room disagreements – jousting, even – between figures such as Sir Michael Wood, then Senior Legal Adviser at the Foreign & Commonwealth Office and Jack Straw, then Foreign Secretary, over the “vagueness” and consequent interpretive latitude of international law. We also saw the careful, self-conscious production of numerous memos between the Foreign Office, Attorney General’s Office, Ministry of Defence and No 10. And of course memos within those departments, documenting and recording for history the disagreements amongst officials and politicians. In addition we saw how law, evidence and intelligence related to policy demands.

The production and accessibility of this rich textual and testimonial archive has already generated a map for us to navigate how international law and its users – including advisers, government policy-makers, and politicians – actually work. How did people such as Sir Michael Wood conceive of their role as expert authority on the interpretation of the prohibition on the use of force? How did politicians such as Jack Straw or Tony Blair view and use international law as a body of rules to justify their commitment to military action? And how did these politicians and their policy officials interact with in-house experts such as Wood, or his deputy Elizabeth Wilmshurst, not to mention the government’s chief legal adviser, the Attorney General ,Lord Goldsmith?

The rich archive – all available at http://www.iraqinquiry.org.uk/ – fleshes out a detailed map of how international legal rules are navigated, are traced into routes for action or inaction, or demarcate the boundaries of certain policy decisions. This map allows us to traverse beyond the restrictive self-imposed boundaries of strict doctrine or bare textual analysis of the prohibition on the use of force, and instead navigate the extent of international law’s scope, impact on and relationship with domestic and international politics.

As scholars and students of international law we ought not be deterred from engaging with an already rich archive created by the Inquiry simply because there will be yet more delay in the publication of the final report.   Indeed, we ought to revel in the exploratory freedom that delay provides: there is yet to be a final word on the Iraq War, evidence is yet to be marshaled to support the drawing of particular conclusions or interpretations. This continued delay is, therefore, a prime opportunity to read and digest the current raw material produced through the inquiry process. Two examples from the oral and documentary evidence illustrate the richness of the existing archive.

Lawyers and International Law

To give a fuller sense of some of the rich detail of the ‘inner life’ of international law the following links detail an extract from Sir Michael Wood’s evidence to the Inquiry:

Video clip (begins at 53.10 and ends at 62.35)

Transcript (line 16 p28 – line 20 p.34)

First off, Wood’s comments are so interesting for a range of reasons which are not necessarily limited to international law. For instance, the comment that Jack Straw was used to pushing the boundaries of law whilst at the Home Office, even when faced with clear legal advice that what he was doing went against existing legal opinion and precedent domestically, tells an intriguing, partial tale of the political relationship to law, to courts and to cases more generally. This tells us something incredibly rich and perhaps disturbing about the way law works, stripping away the mythologised notion of a separation of powers, and making us think more about the institutional deference manifest in courts faced with government policies and actions that run counter to existing law. And that is just an example from the domestic realm.

For scholars and students of international law, Wood’s comments are particularly revealing when we consider the role of a government legal adviser – acting much in the way that Harold Koh and the transnational legal process school might envisage – as a benign (or enlightened) adviser to princes. Wood considers his overriding duty to international law in the absence of a court. Wood expresses a deep commitment to international law precisely because of its horizontal interpretive nature; it is for government legal advisers to demarcate the acceptable boundaries of policy versus international law, providing apparent ‘clear bright lines’ beyond which policy cannot traverse without incurring international illegality.

Not so, according to the government, if instructing Independent Counsel. In a document declassified and released by the Attorney General’s Office dated 13 March 2003 (ie on the eve of formal invasion) the legal secretary to the Attorney General, David Brummell, considered the difficulty with the government’s legal position – in particular highlighting the position vis à vis revival in the absence of a further resolution and therefore on the sole basis of Security Council Resolution 1441 – and advised that the position would have to be bolstered by obtaining formal legal opinion of Christopher Greenwood, David (he meant Daniel) Bethlehem, and Sam Wordsworth – three of the leading international lawyers at the English bar. (Bethlehem was to go on to be Wood’s successor at the FCO.) It seems that faced with intransigence from in-house Counsel, the government wanted to turn to the independence of senior international lawyers who they felt, given their lack of ties to government policy-making, might have been more able to express an opinion, if asked, in support of the government legal position (in the event none of the three were in fact approached to provide a legal opinion).

In these contrasting roles we see the distinction between advisory capacities and advocating positions: Wood was clearly deeply uncomfortable with the prospect of advocating on behalf of government in relation to a legal position he could not support, because he held a special position as expert adviser to government, acutely aware of the need to police the boundary of forceful intervention. Whereas independent Counsel could more freely take on the role of advocate for government as would be taken on for any other client looking for a legal position to support its policy choices.

Interestingly, we also learn from Wood’s evidence that the Attorney General appeared to take on both of these distinct roles at different times: he adopted an advisory role very early, though was careful to avoid documenting this in the immediate run up to war in the Autumn of 2002 (presumably to avoid hamstringing any later need to justify government policy in legal terms); but when war became inevitable, in around February 2003, he moved to advocate’s role, documenting the possible legal justifications that could be made in support of the government’s use of force.

In addition, the disagreement evidenced in the oral testimony between Sir Michael Wood and Jack Straw is particularly enlightening for us if we are to try to interpret an archive that is already self-consciously (re)constructed. We learn from Wood that Straw was careful to document his insistence on the ambiguity of international law and that reasonable difference of opinion could be had on the issue of the using force, even where opinion emanated from the apparent government expert, the Senior Legal Adviser’s office in the FCO. This recording of, and thereby justification of, an opposing legal view is significant from at least two perspectives.

The first is as an articulated understanding of what international law means to a politician in government such as Jack Straw. We learn that there is a high degree of self-awareness as to the power – and latitude – afforded to state actors in international legal doctrine. This self-awareness appears to translate as authority to speak to what international law actually is, or could be as interpreted by such a state actor. In a sense, this gives a behind-the-scenes affirmation of what scholars and students of international law already superficially recognize as ‘custom’ formation. Here, we learn that state actors know the force they command over international law, even in an area that is apparently so black and white: the prohibition on the use of force.

Secondly, we see the self-conscious fashioning of an archive; the production of official documentation that will, it is known by its author(s), represent government decision-making once it is categorized into the various filing systems of the National Archives (filed under ‘Iraq War’ within the FCO Ministerial and Legal Adviser’s records as sender and recipient respectively).

China’s Overbroad (Draft) Definition of Terrorism

by Kevin Jon Heller

Today’s a travel day, so I don’t have time to write a full post. But I thought I’d flag a very interesting article in The Diplomat about China’s new draft anti-terrorism bill, which seems to have a strong chance of becoming law. Here’s a snippet:

Obviously owing to the worrisome escalation of terrorist acts since the Tiananmen Square attack in October 2013, Chinese authorities decided to enact a comprehensive anti-terrorism law to address the new situation. Such a law requires, first and foremost, a well-reasoned definition of terrorism. Surprisingly, the draft law did not take up the terrorism definition that had been offered by the anti-terrorism Decision in 2011. According to Article 104 of the draft law, “terrorism” means “any thought, speech, or activity that, by means of violence, sabotage, or threat, aims to generate social panic, influence national policy-making, create ethnic hatred, subvert state power, or split the state.”

Article 104 goes on to flesh out the keyword “terrorist activity” as referred to in the “terrorism” definition. Accordingly, “terrorist activities” include (a) propagating, inciting, or instigating terrorism; or (b) forming, leading or participating in an terrorist organization; or (c) organizing, plotting, or implementing a terrorist action; or (d) supporting, assisting, or facilitating a terrorist organization or individual through the provision of information, funds, material, equipment, technologies or venues; or (e) other terrorist activities.

[snip]

Absent a comprehensive and universal definition of terrorism, individual countries, including China, are left with the authority to interpret the term for themselves. Compared with Western liberal countries, China has greater discretion to combat terrorism in an effective – albeit repressive – manner. However, whenever China resolves to address the scourge of terrorism, it must also face the challenge of how to strike a proper balance between security and liberty.

Before passing the anti-terrorism law, Chinese law-makers need to overhaul the definition of terrorism to guarantee that terrorism is described as a serious crime with an additional quality that calls both for international concern and harsh treatment. In addition, proper procedural safeguards regarding terror lists should be introduced to ensure that the definition of terrorism does not capture an unreasonably wide range of persons, or, if this happens, that the affected persons will not be subject to unreasonable consequences.

The article contains a nice comparison of the draft Chinese law with the elements of most international conventions on terrorism. It’s well worth a read.

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

by Kevin Jon Heller

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

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

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

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

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

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

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

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

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

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

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