While in DC last week for the ICC/Palestine event at George Mason — I’ll post a link to the video when it becomes available — I had the pleasure of sitting down with Lawfare’s Wells Bennet and Just Security’s Steve Vladeck to discuss the oral argument at the DC Circuit on the al-Bahlul remand, which the three of us attended that morning. You can listen to the podcast at Lawfare here; Steve did most of the talking, because he understands the constitutional issues in the case better than anyone, but I weighed in a few times on the international-law side. I hope you enjoy it — and my thanks to Wells for inviting me to participate.
Archive of posts for category
These days, I usually use Twitter to point readers to blog posts that deserve their attention. But Mark Kersten’s new post at Justice in Conflict is so good — and so important — that I want to highlight it here. The post achieves the near-impossible, passionately indicting Canada’s right-wing government for creating a political environment ripe for terrorism without in any way suggesting that Wednesday’s terror attacks were justified. It’s a truly brilliant post, from top to bottom. Here is a snippet, concerning the Harper government’s foreign-policy disasters:
The Canadian government has actively pursued a political philosophy of retribution and control that tarnishes the country’s image as an ‘honest international broker’. Harper’s record attests to an unyielding mission to reshape Canada’s international identity as a tough and hard-power state. The Harper government plays the part of destructive belligerent in climate change negotiations and tar-sands cheerleader. It is first in line to threaten Palestine with “consequences” if Ramallah pursues accountability for alleged crimes committed by Israeli forces in Gaza. While it isn’t usually described as such (many prefer terms like “militarily engaged”), the reality is that Canada has been at war, primarily in Afghanistan, for most of the last decade. And while we should judge each decision to engage in wars on their own terms, the government has positioned itself as a military – rather than diplomatic or humanitarian – middle power. The role of Canadian citizens in the Afghan detainee scandal has been swept under the rug. The government willfully left a child soldier, Omar Khadr, to rot in Guantanamo and were the only Western government not to request the repatriation of their citizens from that nefarious island prison. It left Abousfian Abdelrazik, a Canadian citizen wrongly accused of terrorism, stranded in Khartoum for years and threatened anyone who tried to help him return to Canada with aiding and abetting terrorism. In a country that takes pride in seeing Lester B. Pearson as the father of peacekeeping, the government prefers to count the number of fighter jets it will buy than the number of peacekeepers it deploys. And, making matters worse, those who disagree with the Harper government’s approach to being “hard on crime”, “tough on justice”, and “a military power” are too often portrayed as naive or betraying Canadian values.
Sadly, it’s not just Canada that has pursued the kind of right-wing policies that make horrific acts of terrorism more likely. Very similar posts could — and should — be written about the Key government in New Zealand, the Abbott government in Australia, and (yes) the Obama government in the US. These misguided policies have done next to nothing to prevent terrorism; they create the illusion of security, not its actuality. Indeed, insofar as they do little more than further radicalize the populations they affect, the policies have made us all that much less safe.
Read Kersten. And if you are on an academic committee that is looking to appoint a brilliant young lecturer, hire him.
The event at George Mason University on the ICC and Palestine is today. Here, again, is the flyer:
If you cannot attend, the live-stream link is here.
I will be participating next week in what should be an excellent event at George Mason University on the ICC and Palestine. The other participants are all excellent — David Luban, Meg DeGuzman, George Bisharat, and the organizer, Noura Erakat. Here is the flyer:
I hope at least some Opinio Juris readers will be able to attend and hear my dire prognostications in person. (If you do, make sure to come say hello.) The event will be live-streamed for those that do not live nearby.
A few years ago, John Brennan articulated the US position concerning self-defence against non-state actors:
Because we are engaged in an armed conflict with al-Qa’ida, the United States takes the legal position that —in accordance with international law—we have the authority to take action against al-Qa’ida and its associated forces without doing a separate self-defense analysis each time.
As the quote makes clear, the US believes that its position is consistent with international law. Yoram Dinstein takes a similar position in his seminal War, Aggression and Self-Defence, at least in the context of international armed conflict. So here are my questions:
 Does anyone know where the US might have defended/explained its position at more length, whether in a legal brief or elsewhere?
 Does anyone know of scholars other than Dinstein who take the position that once a state acts in self-defence, none of its (extraterritorial) acts in the resulting armed conflict are subject to the jus ad bellum?
Any suggestions or citations from readers would be most appreciated.
I will be back blogging regularly soon, but I want to call readers’ attention to a phenomenal new article at the Intercept by Glenn Greenwald and Murtaza Hussain about how the US government has cynically manipulated public fears of terrorism in order to justify its bombing campaign in Syria. Recall that Samantha Power — the UN Ambassador formerly known as a progressive — invoked the scary spectre of the Khorasan Group in her letter to the Security Council concerning the US’s supposed right to bomb terrorists in Syria in “self-defence.” As it turns out, not only is there literally no evidence that the Khorasan Group intends to launch an imminent attack on US interests — unless “imminent” is defined as “sometime before the Rapture” — there is also very little evidence that the Khorasan Group actually exists in a form that could threaten the US. Here is a snippet from the article on the latter point:
Even more remarkable, it turns out the very existence of an actual “Khorasan Group” was to some degree an invention of the American government. NBC’s Engel, the day after he reported on the U.S. Government’s claims about the group for Nightly News, seemed to have serious second thoughts about the group’s existence, tweeting “Syrian activists telling us they’ve never heard of Khorosan or its leader.”
Indeed, a NEXIS search for the group found almost no mentions of its name prior to the September 13 AP article based on anonymous officials. There was one oblique reference to it in a July 31 CNN op-ed by Peter Bergen. The other mention was an article in the LA Times from two weeks earlier about Pakistan which mentioned the group’s name as something quite different than how it’s being used now: as “the intelligence wing of the powerful Pakistani Taliban faction led by Hafiz Gul Bahadur.” Tim Shorrock noted that the name appears in a 2011 hacked Stratfor email published by WikiLeaks, referencing a Dawn article that depicts them as a Pakistan-based group which was fighting against and “expelled by” (not “led by”) Bahadur.
There are serious questions about whether the Khorasan Group even exists in any meaningful or identifiable manner. Aki Peritz, a CIA counterterrorism official until 2009, told Time: “I’d certainly never heard of this group while working at the agency,” while Obama’s former U.S. ambassador to Syria Robert Ford said: ”We used the term [Khorasan] inside the government, we don’t know where it came from…. All I know is that they don’t call themselves that.”
I don’t know for a fact that the Khorasan Group doesn’t exist. But it is profoundly troubling that the Obama administration has provided no evidence that it does — especially given that its case for the international legality of bombing Syria is based so heavily on the supposed threat the Khorasan Group poses to the “homeland.”
And let’s not forget that the Obama administration is doing everything it can to denude the concept of “self-defence” of all meaning. Here is the Intercept article on the “imminent” threat posed to the US by the maybe-existing Khorasan Group:
One senior American official on Wednesday described the Khorasan plotting as “aspirational” and said that there did not yet seem to be a concrete plan in the works.
Literally within a matter of days, we went from “perhaps in its final stages of planning its attack” (CNN) to “plotting as ‘aspirational’” and “there did not yet seem to be a concrete plan in the works” (NYT).
Late last week, Associated Press’ Ken Dilanian – the first to unveil the new Khorasan Product in mid-September – published a new story explaining that just days after bombing “Khorasan” targets in Syria, high-ranking U.S. officials seemingly backed off all their previous claims of an “imminent” threat from the group. Headlined “U.S. Officials Offer More Nuanced Take on Khorasan Threat,” it noted that “several U.S. officials told reporters this week that the group was in the final stages of planning an attack on the West, leaving the impression that such an attack was about to happen.” But now:
Senior U.S. officials offered a more nuanced picture Thursday of the threat they believe is posed by an al-Qaida cell in Syria targeted in military strikes this week, even as they defended the decision to attack the militants.
James Comey, the FBI director, and Rear Adm. John Kirby, the Pentagon spokesman, each acknowledged that the U.S. did not have precise intelligence about where or when the cell, known as the Khorasan Group, would attempt to strike a Western target. . . .
Kirby, briefing reporters at the Pentagon, said, “I don’t know that we can pin that down to a day or month or week or six months….We can have this debate about whether it was valid to hit them or not, or whether it was too soon or too late… We hit them. And I don’t think we need to throw up a dossier here to prove that these are bad dudes.”
Regarding claims that an attack was “imminent,” Comey said: “I don’t know exactly what that word means… ‘imminent’” — a rather consequential admission given that said imminence was used as the justification for launching military action in the first place.
According to the Obama administration, in short, the US is entitled to act in self-defence against “bad dudes” no matter when — or even if — those “bad dudes” might launch an armed attack against the US. This isn’t even the Bush administration’s “anticipatory self-defence.” This is, for lack of a better expression, “hypothetical self-defence.” Apparently, the US government believes it is entitled to use force against a non-state actor anywhere in the world as long as it can imagine a future state of affairs in which that actor would attack it.
The mind — and international law — reels.
[Myriam Feinberg is a Post-Doctoral Fellow of the GlobalTrust Project, Tel Aviv University (as of October 1, 2014)]
As part of the International Institute for Counter-Terrorism’s 14th Annual World Summit on Counter-Terrorism, a workshop was jointly organised by the ICT and the Institute for National Security and Counterterrorism of Syracuse University (INSCT), as part of the project ‘New Battlefields, Old Laws.’ Started in 2006 to adapt our understanding of laws of war, the NBOL Project brings together scholars and experts who aim to address the challenges for the future of armed conflict.
This year’s NBOL workshop dealt with the way we adapt to new threats and expanding battlefields in counterterrorism and culminated in an Oxford Union style debate on the future of the 2001 AUMF. A video of the debate can be found here.
The debate could not have been timelier as the blogosphere is abuzz following President Obama’s speech on the United States’ ‘Strategy to Counter the Islamic State of Iraq and the Levant (ISIL)’ delivered on the eve of the thirteenth anniversary of the attacks of 11 September 2001. In his speech, the President authorised further air strikes against ISIL militants in Iraq and appeared to authorise air strikes in Syria. He stated that he secured bipartisan support and welcomed further congressional action, yet also made clear that he did not need further authorisation from Congress to launch the strike. Other official statements made clear that the administration was relying on the 2001 Authorization to Use Military Force, which authorized the use of force against those responsible for the September 11, 2001, as a justification for striking ISIL. This comes despite a national security address at the US Military Academy in May 2013, when Obama said he wanted to repeal the 2001 AUMF.
At the NBOL workshop, Professor Nathan A. Sales of Syracuse University College of Law and Professor Jennifer Daskal of American University Washington College of Law debated the following motion: ‘This House believes that the 2001 AUMF should be amended to authorize force against future terrorist threats’.
[Jennifer Trahan is an Associate Clinical Professor of Global Affairs at NYU-SPS.]
President Obama’s speech on September 10th raised many legal issues, including, whether there needs to be added Congressional authorization for the use of force, or one can utilize the pre-existing Authorization for the Use of Military Force (“AUMF”) that Congress granted after 9/11 (see Deborah Pearlstein’s post and Peter Spiro’s). But his speech also raised profound questions at a second level – that of public international law (touched upon by Kevin Jon Heller).
This may not seize the attention of the American public, but surely coalition partners would ask these questions: what was Obama’s basis for the legality of air strikes in Syria?
It is somewhat troubling that President Obama took the step of supporting air strikes in Syria, without articulating any clear legal foundation at the international level. Just to be clear, the issue of air strikes in Iraq against the Islamic State in Iraq and Syria (“ISIS”) does not raise similar questions, as Iraq had earlier consented to the use of force.
There are a number of possible legal rationales for air strikes in Syria, but the U.S. needs to make the case under one of these grounds. Such a legal foundation was not well-articulated in President Obama’s speech. (more…)
[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.]
Kevin was right that my Just Security post misstated the legal standard for self-defense by stating that Syria could rightfully treat US attacks on ISIS on Syrian soil as aggression if the US had established that it was acting in self-defense. As he said, such a use of force in self-defense cures any sovereignty violation that the United States might have committed. This is, of course, how it works in theory. Reality is somewhat different.
In practice, any state relying on the “unable or unwilling” standard (as the United States did in Pakistan to support the bin Laden raid) will have no way of knowing whether the target state will see things the same way. By definition a state relying on the “unable or unwilling” standard lacks permission from the host/target state to use force on its territory. This is why I said that the US would act at its own peril in Syria. Any state taking such action will do so at its own peril because the host/target state might believe itself to be justified in using force to repel perceived aggression. That is why the US used its most advanced and stealthiest helicopters for the bin Laden raid because they anticipated that Pakistan might react to an unannounced incursion with force.
Further, in most incidents of anticipatory self-defense (which is what any strike relying on the “unable or unwilling” standard is likely to be based upon) the host/target state claimed that the use of force on its territory was illegal and in many cases did exercise what it maintained were its sovereign rights to respond to the incursion with force. To use the 1967 War as an example, Israel claimed that its first strike against the Egyptian Air Force was an exercise of self-defense because Egyptian, Syrian, Jordanian and Iraqi troops were massing on its borders and Egypt had closed the Straits of Tiran to Israeli shipping. IF Israel’s claim of self-defense was valid this would cure its sovereignty violations, and the Egyptian anti-aircraft batteries would be prohibited from firing on the Israeli planes as they bombed the Egyptian airfields. Even if theoretically international law contained such a prohibition, would any state in Egypt’s position honor it? The answer is self-evidently, no.
The reality is that any states relying on the “unable or unwilling” standard to support a claim of self-defense will do so while anticipating and preparing for armed resistance from the host/target state. And host/target states which have not granted permission for others to use force on their territory will assert a right to defend their sovereignty by treating such uses of force as aggression, and by responding with force if they so choose. The host/target state’s response, though theoretically unlawful, is very likely to occur and is something that any state relying upon the “unable or unwilling” standard will both anticipate and factor in to its decision to use force.
There’s been much discussion in the blogosphere about the University of Illinois’ decision to “un-hire” (read: fire) a Palestinian-American scholar who resigned a tenured position at Virginia Tech to join its faculty, a decision motivated by a series of anti-Zionist (but not anti-Semitic) tweets that made the University’s wealthy donors uncomfortable. But the rightful revulsion at Illinois’ decision (more than 5,000 academics, including me, have agreed to boycott the University until Steven Salaita’s offer of a tenured position is honoured) shouldn’t obscure the fact that Illinois is far from the only university that does not take academic freedom seriously.
Case in point: the University of Sydney’s distressing decision — abetted by one of its faculty members — to “un-invite” Sri Lankan NGOs from an international conference on the enforcement of human rights in the Asia-Pacific because of pressure from the Sri Lankan military. Here’s a snippet of the Guardian‘s story, which deserves to be read in full:
The University of Sydney has withdrawn invitations for two Sri Lankan human rights organisations to an international conference at the request of the Sri Lankan military, angering campaigners.
The university is due to host a two-day event in Bangkok from Monday along with the University of Colombo, which will see delegates from around the world discuss the enhancement of human rights in the Asia Pacific region.
Delegations from the Sri Lankan military and the Sri Lankan police are expected to attend the conference. Leaked correspondence, seen by Guardian Australia, shows that these delegations had originally requested that all non-government organisations (NGOs) from Sri Lanka be uninvited, and organisers subsequently rescinded two invitations.
The civil war in Sri Lanka, in which up to 100,000 people were killed, ended in 2009. The Rajapaksa regime stands accused of war crimes for its brutal suppression of civilians in the north of the country, with both sides subject to a UN human rights council inquiry into alleged war crimes.
Australia was one of 12 countries to abstain in a UN vote for the investigation.
Guardian Australia has also seen a letter discussing the reasons for rescinding the invitations to the two NGOs sent by the conference’s director, University of Sydney associate professor Danielle Celermajer.
“With about 130 people from across the region confirmed from the conference, it would be a disaster for all members of the Sri Lankan forces, who have been at the heart of the project, to withdraw,” it states.
As the article’s reference to the UN vote indicates, Tony “Difficult Things Happen” Abbott’s administration has proven to be one of the murderous Sri Lankan government’s staunchest allies. But that’s a right-wing government for you; no surprise there. It’s absolutely appalling, though, that a major Australian university cares so little about academic freedom that it would allow the Sri Lankan military to dictate who can attend a conference it sponsors — a conference about the enforcement of human rights in the region.
Dr. Celermajer says it would be a “disaster” for the academic conference if the Sri Lankan military didn’t attend. You know what an actual disaster is? The Sri Lankan military’s systematic violation of the human rights of hundreds of thousands of Sri Lankans — the very acts that make the conference in question so necessary.
I guess it’s more important to discuss human-rights violations among the perpetrators than among those who work to end the violations. Shameful.
NOTE: You can find the powerful open letter the Sri Lanka Campaign for Peace and Justice sent to participants in the conference — ironically entitled “Enhancing Human Rights and Security in the Asia Pacific” — here. Key line: “By allowing the Sri Lankan Army to dictate who can or cannot attend, the organisers of this conference are, in effect… potentially making themselves complicit in the Sri Lankan government’s systematic attempts to suppress dissent and intimidate critical voices within civil society, and to legitimize that policy internationally. “
Mike Lewis has a guest post at Just Security today responding to Ryan Goodman’s recent post exploring what the US’s claimed “unwilling or unable” test for self-defence against non-state actors means in the context of Syria and ISIS. Ryan, careful scholar as always, rightly points out that the test “remains controversial under international law.” Mike doesn’t seem to have any such qualms, but that’s not what I want to respond to here. Instead, it’s important to note that Mike makes a basic error concerning how the “unwilling or unable” test functions — assuming for sake of argument it is a valid approach to self-defence under Art. 51 of the UN Charter (emphasis mine):
It is important to note that this interpretation does not give the US unlimited license to act in violation of the sovereignty of other states as some opponents of the standard claim. There are limits and dangers associated with taking such a course of action. First of all, an intervening state can only take such actions after giving the host/target state a meaningful opportunity to prevent its territory from being used by the non-state actor to launch attacks. In the case of Syria, there is no question that it is unable to control the territory under ISIS control so further delays are unnecessary. Secondly, the intervening state does so at its own peril. Syria can rightfully interpret any strikes as aggression by the US and it is justified in taking steps to prevent such attacks and to destroy the drones/aircraft conducting such attacks.
Um, no. The entire point of arguing self-defence — in any form, including pursuant to the controversial “unwilling or unable” test — is that it cures any violation of state sovereignty under Art. 2(4) of the UN Charter. So if the US attacked ISIS in Syria because Syria was unwilling or unable to prevent ISIS from using its territory as a base for attacks, the US would not violate Art. 2(4) and Syria would have no right whatsoever to act in self-defence against that armed attack. Indeed, any attempt to “prevent such attacks and to destroy the drones/aircraft conducting such attacks” would represent an act of aggression by Syria against the US, thereby opening the door to legitimate acts of self-defence against Syria itself.
Again, I don’t accept that the “unwilling or unable” test reflects current customary international law. But it’s important not to let that debate obscure how self-defence functions under Art. 51 of the UN Charter.
Last night I blogged about Obama’s speech that outlined the administration’s plan to contain and destroy ISIS. I noted that Obama announced his intention to ask for congressional authorization for the plan while steadfastly maintaining that he did not need this authorization. He was vague about why. In my blog last night, I presumed that he was asserting that he had authority under his Article II commander-in-chief power.
Marty Lederman notes in the comments, as well as on Just Security, that this was not a reference to an Article II argument. A senior administration official released a statement last night confirming that Obama is relying on the 9/11 AUMF as an enduring authorization that covers the new military initiative against ISIS.
I find this argument implausible. Here is the relevant text of the AUMF:
IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Since, al-Qaeda launched the 9/11 attacks, the AUMF covers al-Qaeda. It also covers organizations that planned, authorized, committed or aided the attacks, or organizations that harbored those organizations. Consequently, non-al-Qaeda organizations are covered by the AUMF insofar as they are connected to al-Qaeda in the right way.
This is a question of law application to fact, so it is necessarily a fact-dependent analysis. However, there appears to be little evidence that this link exists between ISIS and al-Qaeda. Of course, ISIS was once part of (or closely associated with al-Qaeda), and therefore at that time the AUMF arguably covered ISIS. Before its current manifestation, ISIS was considered an Iraq franchise of al-Qaeda, operating under the banner of Osama bin Laden and ostensibly subordinating itself under his operational control.
That relationship no longer exists. ISIS no longer operates under the banner of al-Qaeda, nor is it operationally subordinate to what is left of al-Qaeda core or any of the other al-Qaeda franchises. And famously, al-Qaeda effectively excommunicated ISIS for not following its central directives regarding target selection. Al-Qaeda officials correctly concluded that ISIS’s strategy was counter-productive because it alienated Muslims, and they promptly disassociated themselves from a group that was too radical even by al-Qaeda’s standards. So the operational link is broken, and has long-since been broken.
So what is the connection that the administration is asserting? They argue that
Based on ISIL’s longstanding relationship with al-Qa’ida (AQ) and Usama bin Laden; its long history of conducting, and continued desire to conduct, attacks against U.S. persons and interests, the extensive history of U.S. combat operations against ISIL dating back to the time the group first affiliated with AQ in 2004; and ISIL’s position – supported by some individual members and factions of AQ-aligned groups – that it is the true inheritor of Usama bin Laden’s legacy…
This is a weak argument. Yes, ISIS once had a relationship with al-Qaeda and Osama Bin Laden, but that prior relationship no longer governs. What matters is the current relationship. Furthermore, the fact that ISIS is the “true inheritor” of Bin Laden’s legacy is neither here nor there. In what sense is ISIS the “inheritor” of Bin Laden’s legacy? The only one I can think of is that ISIS represents the gravest Jihadist threat to the peaceful world — a position once held by Osama Bin Laden. Also, the fact that they threaten U.S. personnel and interests is an argument that proves way too much — plenty of other groups do that as well, which isn’t terribly relevant. None of this makes ISIS fit into one of the AUMF categories (planning, aiding, haboring, etc). Simply put, ISIS is not al-Qaeda.
Don’t get me wrong. I think ISIS represents the biggest threat to regional and national security since 9/11, and military force is warranted for that reason. Congress should immediately pass a new AUMF authorizing force against ISIS. I just don’t think that the original AUMF can be stretched to cover ISIS today. It’s a weak argument that sounds like a pretext to avoid making an Article II constitutional argument (which Obama presumably disfavors).