Both Eugene and Maggie disagree with my claim that politically-motivated acts of violence on the high seas were not traditionally considered piracy under international law, but were instead simply criminal acts that the offended state could prosecute as it saw fit. Here is Eugene (my emphasis; combining two comments):

The rule is clear as both a matter of customary international law and the Law of the Sea Convention. On the latter score, the “private” ends requirement of the UNCLOS Art. 101 (which defines piracy) has to be read in conjunction with Art. 102, which distinguishes between “warship” or “government ship” – which cannot commit piracy while under governmental control and “private” ships, which are the kind that can be pirates. Thus “private” clearly means “non-governmental,” rather than selfish or not selfish.

I would add that the Harvard commentary only seems to make an exception for the classic hard case – rebel warships in an actual belligerency. The International Law Commission seems to endorse that exception in its commentary to the treaty draft, but at the same time seem to exclude merchant vessels not in a belligerent context from an possible immunity.

There are three problems with Eugene’s argument. First, it does not address the League of Nations report, which specifically states that politically-motivated acts do not qualify as piracy. The report adopted a private/political binary, not a private/public one. Second, the Harvard commentary does not make an exception only for “rebel warships in an actual belligerency.” On the contrary, the commentary specifically rejects the idea that the exception applies only to rebel groups that have been recognized as belligerents. Here is the quote from my previous post (emphasis mine)…

As Julian noted earlier, the Ninth Circuit, in an opinion written by Judge Kozinski, has decided that anti-whaling activism qualifies as piracy if it involves violence against a ship on the high seas. I’m running short for time right now, but I want to briefly respond to Kozinski’s key claim about the traditional understanding of piracy’s “private ends” requirement (p.4; emphasis mine; internal citations omitted):

The district court construed “private ends” as limited to those pursued for “financial enrichment.” But the common understanding of “private” is far broader. The term is normally used as an antonym to “public” (e.g., private attorney general) and often refers to matters of a personal nature that are not necessarily connected to finance (e.g., private property, private entrance, private understanding and invasion of privacy)…. We give words their ordinary meaning unless the context requires otherwise. The context here is provided by the rich history of piracy law, which defines acts taken for private ends as those not taken on behalf of a state.

Kozinski doesn’t mention any of the historical sources that ostensibly constitute this “rich history”; he simply cites the dictionary definition of “private” and a 25-year-old Belgian case that has never been followed by any other court. But that’s not surprising: although the traditional understanding of piracy is not limited to acts of violence motivated by the desire for financial gain (an error made by many scholars and activists), there is significant historical support for the idea that piracy specifically excludes acts of violence that are politically motivated.  Here, for example, is what the rapporteur of the League of Nations Committee of Experts for the Progressive Codification of International Law had to say in 1927 about the meaning of “private ends” (emphasis added)…

The Australian political world is all abuzz at the prospect of Assange running for the Senate in the upcoming federal election, which will be held on September 14.  It’s not completely clear whom he’ll run against, but he will register as a voter in my home state of Victoria and intends to start a new political party, surprisingly entitled the WikiLeaks Party.  There are some interesting election-law aspects regarding Assange’s plan, such as his ability to register from overseas and take the oath of office, but what I find particularly interesting is his view of what winning (which is by no means inconceivable, particularly if he runs in a liberal state like Victoria) would mean for the ongoing US grand jury investigation of his activities.  From The Guardian (which I’ve just learned, to my great excitement, is planning to start an Australian edition):

The WikiLeaks founder Julian Assange has told an Australian news website that his bid to become an Australian senator will serve as a defence against potential criminal prosecution in the United States and Britain

Assange spoke to the Conversation website at the Ecuadorian embassy in London where he was granted asylum in June to avoid extradition to Sweden on sex crime allegations.

If he were to win a Senate seat at elections on 24 September, Assange told the website, the US department of justice would drop its espionage investigation rather than risk a diplomatic row. The British government would follow suit otherwise “the political costs of the current standoff will be higher still”, Assange said.

Readers know that I have the greatest respect for WikiLeaks’ tireless efforts to promote government transparency — and that I am completely opposed to any attempt to prosecute Assange for espionage.  But I think the idea that holding a seat in the Australian Senate would prevent the US from pursuing charges against him is, well… a tad optimistic.  Has he met the United States lately?  Its current government — run by Democrats — has no problem executing American citizens on the unreviewable whim of a “senior administration official.”  And Assange really thinks that it would hesitate to prosecute a “sitting” Senator from a country that many Americans think is next to Germany?

Color me unconvinced.  But I’d still vote for him, if I could.

PS. It goes without saying — I hope — that being elected to the Senate would not provide Assange with any kind of immunity, especially not the kind of immunity that would require the Brits to let him leave the Ecuadorian embassy.

Last May, I offered some critical thoughts on Opinio Juris about Charles Taylor’s 50-year sentence at the Special Court for Sierra Leone.  I have just finished a short essay (8,000 words) on Taylor’s sentence that will appear in an upcoming issue of the Journal of International Criminal Justice; you can find the essay on SSRN. Here is the introduction:

On 30 May 2012, despite concluding that he was liable for crimes committed in Sierra Leone only as an accessory, Trial Chamber II of the Special Court for Sierra Leone (SCSL) sentenced Charles Taylor to 50 years imprisonment – the second longest sentence in the Tribunal’s history. This article provides a critical analysis of Taylor’s sentence, asking whether it comports with the principle – widely accepted by international tribunals – that a sentence must not be ‘out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences’. The article concludes that Taylor’s sentence is, in fact disproportionate in comparison to other sentences imposed by the SCSL – Augustine Gbao’s 25-year sentence in particular.

In reaching that conclusion, the article is mindful of how difficult it is to reliably compare sentences. Sentencing is highly discretionary, and no two cases are ever completely alike. Moreover, sentencing judgments rarely explain in a systematic way how the judges have decided upon a particular sentence; as Boas et al. have noted, ‘it often seems as though the trial chamber has simply pulled the number out of the air’. The Taylor Sentencing Judgment, unfortunately, is no exception. A mere 40 pages long – in contrast to the 2,499-page Trial Judgment – it discusses the gravity of Taylor’s offences, his individual circumstances, and the relevant aggravating and mitigating factors, but makes little attempt to explain why those factors require a 50-year sentence.

The article itself is divided into four sections. Section 1 provides a brief summary of the Sentencing Judgment. Section 2 explains why the Trial Chamber has overestimated the gravity of Taylor’s offenses. Section 3 argues that the Trial Chamber misapplied a number of aggravating factors and impermissibly double-counted others. Finally, Section 4 criticizes the Trial Chamber’s refusal to consider Taylor’s contributions to the Sierra Leone peace process as a mitigating factor.

Comments and criticisms welcome!

Noam Lubell and Nathan Derejko, both at the University of Essex, have posted “A Global Battlefield? Drones and the Geographical Scope of Armed Conflict” on SSRN. The essay will appear in the same Journal of International Criminal Justice symposium as my essay on signature strikes. Their abstract is all of one sentence, so here are the first couple of paragraphs:

Defining the geographical scope of an armed conflict is a matter that carries weight in more ways than one. Outside the legal sphere the question might seem like one that requires nothing more than common sense – if two (or more) parties are engaged in battle, then the area of conflict is wherever they are fighting. The reality – or at least the legal reality – is unfortunately one that does not conform to simple formulations. Being ‘at war’ or ‘going to war’ does not necessarily mean that the whole of a state is in fact embroiled in an armed conflict. For example, while most of Iraq became a zone of armed conflict in 2003, life for most people in the United States continued uninterrupted while its troops invaded a country on the other side of the globe. This can even be the case for both states involved, as was seen in the 1982 Falklands/Malvinas conflict between the UK and Argentina. The same is true for armed conflicts between a state and an organised armed group, which may be raging in one part of the country with little manifestation in other areas as is evident from the armed conflict between the armed forces of the Philippines and the Moro Islamic Liberation Front (MILF), which, for more than 20 years, was largely confined to the southern island of Mindanao. Clearly then, the actual hostilities do not necessarily correspond with the borders of the states(s) concerned. Another possibility is to base the determination of geographical scope on the existence of actual fighting. In other words, wherever there are hostilities, there is an armed conflict. But this too has its obstacles, including the question of how to determine what should count as hostilities, and whether there must be a temporal consistency within a specific geographical area that would eliminate occasional flare-ups from the scope. These issues will be returned to in greater detail in later sections.

Our focus is on the particular challenges raised to the geographical scope of armed conflict by the use of unmanned aerial vehicles, commonly referred to as drones. Much has been written about drones from a variety of perspectives,4 and we do not intend to repeat all the debates. Instead, the aim of this work is to asses not the drones themselves, but rather to examine one of the perceived ways in which the use of drones is affecting, if not leading, to the metamorphosis of armed conflict. The very notion of armed conflict appears to be going through a process of shape-shifting whereby the use of new technologies such as drones or cyber-operations are slowly erasing the crucial significance of geographical boundaries, truncating vast distances, and diminishing the need for boots on the ground.

The essay is absolutely superb — I wish I had written it myself. If I have one criticism, it’s that the authors could have spent more time discussing what actions suffice to establish that an individual located away from an active combat zone has assumed the kind of continuous combat function in a terrorist group that makes him targetable at any time, not simply when he directly participates in hostilities.

In any case, it’s a must-read. Check it out.

According to the White Paper (p. 6), a US citizen “who is located outside the United States and is an operational leader continually planning attacks against US persons or interests” cannot lawfully be killed unless, inter alia, “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of attack against the United States.” Early criticism of the White Paper has focused on how it defines imminence. The ACLU’s Jameel Jaffer, for example, says that it “redefines the word imminence in a way that deprives the word of its ordinary meaning.” That’s actually something of an understatement; as I’ll discuss in this post, the White Paper’s entire approach to the concept of imminence is deeply confused — and deeply problematic from the standpoint of international law.

The first thing to note is that it’s not clear why the White Paper even discusses imminence. As I noted in my previous post, the White Paper’s central premise is that all targeted killings of “senior operational leaders” in “al-Qa’ida or its associated forces” take place in the context of a global non-international armed conflict (NIAC) and are thus all subject to the laws of war (IHL). The White Paper also takes the position that the laws of war apply to a U.S. citizen in the same way that they apply to a non-citizen; it specifically argues (p. 3) that because ”the military may constitutionally use force against a US citizen who is part of enemy forces,” the DoJ “does not believe that US citizenship would immunize a senior operational leader of al-Qa’ida or its associated forces from a use of force abroad.”

Although I reject the White Paper’s claim that the US is engaged in a global NIAC with “al-Qa’ida and its associated forces,” I have no problem with the idea that US citizenship does not affect the targetability of an individual who is otherwise a legitimate target under IHL. But why, then, discuss imminence at all? It is black-letter IHL that a legitimate target can be targeted at any time; it is not necessary to show that the target is an imminent threat, regardless of how imminence is defined. Given that the White Paper assumes both that all targeted killings of US citizens take place in armed conflict and that US citizenship does not affect targetability under IHL, it should consider whether a US citizen poses “an imminent threat of attack against the United States” — or against anything else — to be completely irrelevant.

So why does the White Paper graft an imminence requirement onto IHL?  There are two possible explanations…

There is much to say about the DoJ White Paper on the targeted killing of US citizens, which reflects the US’s idiosyncratic interpretation of international law. In this post I want to focus on the White Paper’s primary — and in my view fatal — flaw: its complete failure to address the relationship between the organized armed groups that it considers to be engaged in a single non-international armed conflict (NIAC) with the US.

The White Paper begins with the standard premise that “[t]he United States is in an armed conflict with al-Qa’ida and its associated forces” (p. 2). It then claims that the armed conflict in question is a global NIAC that extends to any member of “al-Qai’da and its associated forces” anywhere in the world (p. 3; citations omitted; emphasis mine):

[T]he United States retains its authority to use force against al-Qa’ida and associated forces outside the area of hostilities that targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill Americans. The United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces. Any U.S. operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities.

After making that claim, the White Paper does something interesting: it explicitly addresses the argument that the existence of a NIAC between the US and al-Qaida must be determined according to the test established by the ICTY in Tadic – the test adopted by the ICRC, by the ICC, and by nearly all international law scholars. Here is what it says (pp. 3-4; some citations omitted)…

Michael Isikoff has obtained the 16-page memo.  It is available here.

Analysis later!

H/T — Lawfare.

Nothing in the Human Right’s Council’s report is particularly novel; it’s long been obvious that both the settlements and the transfer of Israeli civilians into the Occupied Palestinian Territories are illegal. Nevertheless, it’s worth noting the report’s most important conclusions:

100. The facts brought to the attention of the Mission indicate that the State of Israel has had full control of the settlements in the OPT since 1967 and continues to promote and sustain them through infrastructure and security measures. The Mission notes that despite all the pertinent United Nations resolutions declaring that the existence of the settlements is illegal and calling for their cessation, the planning and growth of the settlements continues both of existing as well as new structures.

101. The establishment of the settlements in the West Bank including East Jerusalem is a mesh of construction and infrastructure leading to a creeping annexation that prevents the establishment of a contiguous and viable Palestinian State and undermines the right of the Palestinian people to self-determination.

102. The settlements have been established and developed at the expense of violating international human rights laws and international humanitarian law, as applicable in the OPT as notably recognised by the 2004 ICJ Advisory Opinion.

103. The settlements are established for the exclusive benefit of Israeli Jews; settlements are being maintained and developed through a system of total segregation between the settlers and the rest of the population living in the OPT. This system of segregation is supported and facilitated by a strict military and law enforcement control to the detriment of the rights of the Palestinian population.

104. The Mission considers that in relation to the settlements Israel is committing serious breaches of its obligations under the right to self-determination and “certain obligations under international humanitarian law”, including the obligation not to transfer its population into the OPT. The Rome Statute establishes the International Criminal Court’s jurisdiction over the deportation or transfer, directly or indirectly, by the occupying Power of parts of its own population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. Ratification of the Statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims.

105. The existence of the settlements has had a heavy toll on the rights of the Palestinians. Their rights to freedom of self-determination, non-discrimination, freedom of movement, equality, due process, fair trial, not to be arbitrarily detained, liberty and security of person, freedom of expression, freedom to access places of worship, education, water, housing, adequate standard of living, property, access to natural resources and effective remedy are being violated consistently and on a daily basis.

Based on those conclusions, the HRC report demands that Israel “cease all settlement activities without preconditions” and “immediately initiate a process of withdrawal of all settlers from the OPT.” Interestingly, the report also encourages both states and corporations to ensure that their business dealings with Israel do not support the settlements — even if that means terminating those dealings…

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law School]

A recent Washington Post story posits that the rendition of terrorism suspects has continued under the Obama administration. While the story fails to describe how renditions have changed since the Bush administration, it highlights several areas of concern.

The story focuses on the prosecution of three European men with Somali roots (two Swedes, the third a long-term U.K.-resident) in federal court in Brooklyn for supporting al-Shabab, an Islamist militia in Somalia that the United States considers a terrorist group. Many details about the case have not been made public, but the basic facts are as follows. The men were arrested while passing through Djibouti, under what the story describes as “a murky pretext.” They were held without access to a lawyer or a judge in Djibouti, where they were questioned by U.S. officials. The men were subsequently arrested by the FBI and brought to the United States on charges of providing material support for terrorism.

Plainly, these facts differ from Bush-era “extraordinary renditions.” Bush’s extraordinary rendition program had two main features: prolonged incommunicado detention in secret CIA-run jails (or “black sites”); and transfers to foreign countries for torture and other abusive interrogation practices. In many cases, the same individuals were subjected to both, as they were secretly moved around a global U.S. detention network in a manner that resembled a shell game.

President Obama ended the extraordinary rendition program through his 2009 executive order requiring the closure of “black sites” and banning torture (including by ordering that the interrogation of all individuals in U.S. custody comply with the Army Field Manual on interrogation and Common Article 3). Moreover, by shifting U.S. policy away from torture, he undermined the program’s raison d’être, which was not incapacitating terrorism suspects but exploiting them for intelligence-gathering
purposes.

Obama did not end all renditions—a practice which pre-dates the Bush administration. (I define renditions as the transfer of an individual without extradition or some other formal process). Obama, however, has returned the focus of renditions to bringing terrorism suspects to justice through criminal prosecution rather than making them disappear.

Yet, despite these important changes, concerns remain.

First, as the Post story highlights, the United States’ increasing reliance on proxy detention raises due process issues. Proxy detention occurs when one country detains a person within its borders at another country’s direction or behest.

Proxy detention is not necessarily problematic, and its continued use reflects the fact that countries often need the assistance of foreign governments in counter-terrorism operations. It can also facilitate criminal prosecution in the absence of an extradition treaty and thus without a formal mechanism for a suspect’s arrest and transfer. Proxy detention can, however, raise concerns where the foreign government has no independent interest in detaining the person, there is no lawful basis for the detention, and where the detention is used as a means for the foreign government to collect evidence and build a criminal case. In the past, the United States has utilized proxy detention to avoid the limitations of its own laws that would otherwise restrict its ability to detain without prompt access to counsel and judicial process.

Second, proxy detention increases the risk of abusive interrogation. Defense attorneys for the three men arrested in Djibouti have said Djibouti officials treated their clients roughly. I do not know whether these allegations are valid, nor have the attorneys provided much detail. But U.S. officials should not be able to engage foreign proxies to use techniques that those officials are themselves prohibited from using, or turn a blind eye if those techniques are employed. The risk of abuse is heightened by the U.S. government’s position that foreign terrorism suspects overseas are not covered either by the Constitution or international human rights treaty obligations, which it maintains do not apply extraterritorially.

Third, the Post article highlights another issue— one that has less to do with human rights norms than with the substantive reach of U.S. counter-terrorism laws and the material support for terrorism statute in particular. It suggests that discomfort with the Djibouti arrests may have less to do with how the three men were treated in foreign custody than with why they are being prosecuted by the United States in the first place. Their lawyers concede they were combatants who fought on behalf of al-Shabab in Somalia, but deny they ever engaged in any terrorist activity against the United States. The case thus raises larger concerns about the scope of criminal liability under the material support statute—concerns that are magnified by the defendants’ extraterritorial seizure and detention. (For a recent case discussing limitations on the United States’ authority to prosecute piracy absent a direct connection to the United States, see the district court’s decision in United States v. Ali). Their rendition to the United States, in other words, would seem less problematic if they were being prosecuted for terrorist activity aimed at the United States or its nationals.

Labels like “rendition,” which can cover a range of conduct, are not terribly illuminating. More important is the extent to which the United States is utilizing foreign governments to avoid procedural safeguards against arbitrary detention; the increased risk of abusive treatment in proxy detention; and the implications of aggressively using the material support statute without a nexus to the United States. These issues do not trigger the same alarms as the sheer lawlessness that characterized extraordinary rendition, but they are worthy of continuing scrutiny nonetheless.

Michael Lewis claims, in his very interesting post, that “it is fair to say that if Israel’s action in the 1967 war was justified by Article 51 (something that most states, if not most scholars, seem to agree with), then Article 51 ‘imminence’ is broader than Caroline ’imminence’.” I don’t have time today to address that claim in any detail, but I want to point out — once again using Tom Ruys’ fantastic, and extraordinarily careful, book on Article 51 (pp. 272-80) — that the Six Day War actually provides little support for an “elongated” concept of imminence. To begin with, Israel itself did not claim that it was engaging in anticipatory self-defense:

McClatchy reports that Israel now believes Iran will not be able to produce a nuclear weapon until 2015 or 2016.  That is progress of a sort; Netanyahu had previously been claiming that Iran would have the bomb no later than late summer 2013 — around six months from now.  But Israel is still insisting that Iran is only two or three years away from nuclear capability, so I think it is useful to recall and update the timeline I mentioned early last year of breathless Israeli and Western claims about Iran’s nuclear program:

1984: West German intelligence sources claim that Iran’s production of a bomb “is entering its final stages.” US Senator Alan Cranston claims Iran is seven years away from making a weapon.

1992: Israeli parliamentarian Benjamin Netanyahu tells the Knesset that Iran is 3 to 5 years from being able to produce a nuclear weapon.

1995: The New York Times reports that US and Israeli officials fear “Iran is much closer to producing nuclear weapons than previously thought” – less than five years away.  Netanyahu claims the time frame is three to five years.

1996: Israeli Prime Minister Shimon Peres claims Iran will have nuclear weapons in four years.

1998: Former Secretary of Defense Donald Rumsfeld claims Iran could build an ICBM capable of reaching the US within five years.

1999: An Israeli military official claims that Iran will have a nuclear weapon within five years.

2001: The Israeli Minister of Defence claims that Iran will be ready to launch a nuclear weapon in less than four years.

2002: The CIA warns that the danger of nuclear weapons from Iran is higher than during the Cold War, because its missile capability has grown more quickly than expected since 2000 – putting it on par with North Korea.

2003: A high-ranking Israeli military officer tells the Knesset that Iran will have the bomb by 2005 — 17 months away.

2006: A State Department official claims that Iran may be capable of building a nuclear weapon in 16 days.

2008: An Israeli general tells the Cabinet that Iran is “half-way” to enriching enough uranium to build a nuclear weapon and will have a working weapon no later than the end of 2010.

2009: Israeli Defense Minister Ehud Barak estimates that Iran is 6-18 months away from building an operative nuclear weapon.

2010: Israeli decision-makers believe that Iran is at most 1-3 years away from being able to assemble a nuclear weapon.

2011: An IAEA report indicates that Iran could build a nuclear weapon within months.

2013: Israeli intelligence officials claim that Iran could have the bomb by 2015 or 2016.

The McClatchy articles quotes an Israeli intelligence officer as asking “Did we cry wolf too early?” That’s amusing: Israel (and the West) have been crying wolf over Iran’s nuclear capability for nearly three decades.