[Jonathan Horowitz is writing in his personal capacity. He is the Associate Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program.]

When assessing the legality of drone strikes, attention is often focused on the State that carries out the strike—usually the United States.  On May 8th, for example, the U.S. Congressional Progressive Caucus Peace and Security Taskforce held a hearing on the United States use of weaponized drones abroad and heard testimony that detailed specific incidents of civilian harm and encouraged transparency, after-action investigations, accountability, and greater fidelity to traditional understandings of international law. (Harold Koh, the former Legal Advisor to the U.S. Department of State, made similar pleas around transparency during his May 7 speech at Oxford.)

These are all critical points that Congress and others should be hearing, but I would like to shift the focus—away from U.S. responsibilities and on to the responsibilities of the States that consent to the use lethal force on their territories.  This is part of the “drone” discussion (or, to be more accurate, the “extraterritorial use of lethal force outside an active battlefield” discussion) that has not received enough attention. Yet, it is worth exploring how the legal responsibilities of the consenting State interact with the notion of what I’ll call “transnational non-international armed conflict (NIAC) targeting.”

“Transnational NIAC targeting” occurs when a State, which is engaged in a NIAC in one country, targets with lethal force an enemy fighter who happens to be in another country.  Or, to quote John O. Brennan when he was Assistant to the President for Homeland Security and Counterterrorism, it is based on the notion that, “[t]here is nothing in international law that …prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.” (i.e., an Al Qaeda commander who is fighting the United States in Afghanistan but has traveled to Yemen seeking recruits and cash for arms.)

First, I should make clear that lethal targeting outside an active battlefield is, in certain circumstances, permissible under international law…

As Bill Schabas noted in his recent post, the Comoros referral raises interesting questions concerning the Pre-Trial Chamber’s power to review a decision by the OTP not to open a full investigation into a situation. Most people who don’t keep a copy of the Rome Statute in their back pocket probably believe that the OTP has complete discretion concerning such declinations. In fact, that is not the case. Here, in relevant part, is Art. 53 of the Rome Statute (emphasis mine):

Article 53Initiation of an investigation1.         The Prosecutor shall, having evaluated the information made available to him or her, initiate an investigation unless he or she determines that there is no reasonable basis to proceed under this Statute. In deciding whether to initiate an investigation, the Prosecutor shall consider whether:

(a)     The information available to the Prosecutor provides a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed;

(b)     The case is or would be admissible under article 17; and

(c)     Taking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

If the Prosecutor determines that there is no reasonable basis to proceed and his or her determination is based solely on subparagraph (c) above, he or she shall inform the Pre-Trial Chamber.

…

3.         (a)     At the request of the State making a referral under article 14 or the Security Council under article 13, paragraph (b), the Pre-Trial Chamber may review a decision of the Prosecutor under paragraph 1 or 2 not to proceed and may request the Prosecutor to reconsider that decision.

(b)     In addition, the Pre-Trial Chamber may, on its own initiative, review a decision of the Prosecutor not to proceed if it is based solely on paragraph 1 (c) or 2 (c). In such a case, the decision of the Prosecutor shall be effective only if confirmed by the Pre-Trial Chamber.

It is clear that Comoros would have the right under Art. 53(3)(a) to ask the Pre-Trial Chamber to review a decision by the OTP not to open a full investigation into the attack on the flotilla. And that would be true regardless of the OTP’s rationale for the declination: (1) lack of evidence that the attack involved a crime within the ICC’s jurisdiction; (2) admissibility concerns — which would turn on whether crimes allegedly committed during the attack were adequately grave and, if so, whether Israel was willing and able to investigate and prosecute those crimes itself; or (3)  the interests of justice.

But here is where things get interesting. If Comoros asked the PTC to review a decision by the OTP not to investigate the attack on the flotilla, thereby triggering Art. 53(3)(a), the PTC would have only one remedy if it disagreed with the OTP’s assessment of the merits of the referral — to “request the Prosecutor to reconsider that decision.” It could not order the OTP to open a full investigation into the attack. So if the OTP reconsidered its decision and again concluded that a full investigation was not warranted, that would be the end of the story.

Art. 53(3)(b), by contrast, would appear to put the PTC in a much more powerful position…

In my previous post, I expressed my skepticism that the OTP will open a formal investigation into the situation — loosely defined — involving Israel’s attack on the MV Mavi Marmara. In this post, I want to raise two issues concerning Comoros’ referral that I find particularly troubling.

First, why is Comoros being represented by Turkish lawyers, the Elmadag Law Firm Istanbul? There is nothing wrong with a state outsourcing its legal work, of course, and most of the victims of the attack on the MV Mavi Marmara were Turkish. But if the referral is really being driven by Comoros, you’d think the government would be relying on lawyers in its Ministry of Justice — or at least on a Comorian law firm. Instead, the Comoros hired a foreign law firm that has already unsuccessfully requested, on behalf of victims and a Turkish NGO, the OTP to investigate the attack on the flotilla. (See para. 9 of the referral.) That suggests, in my view, that this new request is a “state referral” in name only — a smart litigation strategy, but a curious one.

Second, why now? The attack on the flotilla took place nearly three years ago, yet Comoros is only now referring the situation to the Court. The timing seems particularly curious given that Israel and Turkey appear to be making genuine diplomatic progress in resolving the Mavi Marmara crisis. Just a few weeks ago, Haaretz reported that Israel has agreed to pay “as much as tens of millions of dollars” in compensation to the Turkish citizens wounded and killed during the attack. This latest effort to get the ICC to investigate will not only fail, it could well harm negotiations between Israel and Turkey — especially as one of the points that apparently remains to be resolved is whether Turkey is willing to immunize the IDF soldiers involved in the attack. Indeed, a cynic might suggest that this new referral is designed to undermine those negotiations.

This referral clearly puts Fatou Bensouda in a difficult situation. My hope is that she will conclude her preliminary examination quickly and will release a detailed explain of why (I predict) the OTP is not opening a formal investigation into the attack on the flotilla. Doing so would provide Bensouda with an opportunity to affirm the Court’s potential jurisdiction over the attack — Article 12(2) means what it says about a ship qualifying as a state’s territory, although I assume the drafters of the article assumed that the OTP would investigate crimes committed at sea only as part of a larger situation — while explaining why it would not be appropriate for the OTP to investigate only one small aspect, and only one side, of the Israel-Palestine conflict.

UPDATE: Make sure to read excellent posts on the referral by Bill Schabas and Dapo Akande.

This is very interesting. The Union of the Comoros, a state party to the Rome Statute since 2002, has formally referred Israel’s attack on the flotilla that included the MV Mavi Marmara to the ICC. The question I want to address in this post is whether the Court has jurisdiction over the flotilla attack. I think it’s clear that it does — although there is at least one important wrinkle in the analysis. But I also think it’s exceedingly unlikely the OPT will open a formal investigation into the attack.

In terms of jurisdiction, the critical provision in the Rome Statute is Art. 12, “Preconditions to Jurisdiction.” Article 12(2) provides as follows (emphasis mine):

In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

(a)     The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;

The bolded text is critical. The Court has jurisdiction over an international crime only if that crime was committed by a national of a state party to the Rome Statute or on the territory of a state party. Art. 12(a) makes clear, however, that a vessel registered to a state party qualifies as the territory of that state. According to the referral, the MV Mavi Marmara was registered to Comoros at the time of the attack, 31 May 2010. (Comoros provides documentation of registration in an appendix to its referral that is not available on the ICC website.) For purposes of jurisdiction, therefore, the MV Mavi Marmara does indeed qualify as Comoros territory. And that means Art. 12 is satisfied.

The wrinkle in the analysis is whether the attack on the MV Mavi Marmara qualifies as a “situation.” States are permitted to refer situations to the Court, not specific crimes. Here is Art. 14(1):

A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes.

Is Comoros referring a situation to the Court? All of the situations currently being investigated by the OTP — Kenya, Libya, Cote D’Ivoire, etc. — are much broader than the situation being referred by Comoros. That said, the referral is not limited solely to the attack on the MV Mavi Marmara. As Comoros’ supporting documentation notes, one other ship in the attacked flotilla, the MV Sofia, was registered to a state party — Greece. Moreover, the referral suggests that Israel’s June 6 attack on the MV Rachel Corrie, which was registered to Cambodia, a state party, should also be included in the overall situation. (The referral tries to link the attack on the flotilla to the situation in Gaza, suggesting that the attack would be part of any situation referred to the Court by Palestine. That’s clever but irrelevant, at least at this point, because Palestine has not yet ratified the Rome Statute.)

In terms of the Rome Statute’s legal requirements, I think that Comoros has indeed referred a situation to the Court. Article 14(1) speaks of situations in which “one or more crimes… appear to have been committed,” suggesting that even one crime can, in the right circumstances, qualify as a situation. (An attack with a nuclear or chemical weapon, for example.) The limited scope of the situation being referred by Comoros, therefore, should not legally disqualify the referral.

In short, the ICC does indeed have jurisdiction over the attack on the flotilla (and the later attack on the MV Rachel Corrie), so the OTP would be well within its rights to open a formal investigation into the attack. The real question is whether the OTP will open an investigation. A full answer is beyond the scope of this post, but I think it’s exceedingly unlikely. Although the limited scope of the referred situation is not legally disqualifying, I think it significantly reduces the situation’s overall gravity. To begin with, it is not clear whether any international crimes were committed on the MV Sofia or the MV Rachel Corrie (readers should feel free to weigh in), so the referred “situation” may, in practice, be limited to crimes allegedly committed on the MV Mavi Marmara. I don’t want to minimize the tragedy of nine civilian deaths, and I am no fan of determining gravity by simply counting victims, but I think the OTP would have a difficult time justifying a decision to prioritize the flotilla attack over many of the other situations it is considering, such as Colombia, Georgia, or Afghanistan.

Moreover, and more fundamentally, it does not seem sensible for the OTP to investigate one isolated component of the much larger conflict between Israel and Palestine. If the OTP ever does investigate that conflict — which, as I’ve discussed before, I don’t think it should — it needs to address all of the potential crimes, both Israeli and Palestinian. And that, I think, is the fatal flaw in the Comoros referral: it is essentially asking the OTP to investigate crimes committed by only one side of the conflict, Israel. Even if Israel’s account of the attack on the flotilla is correct and the IDF killed the civilians in self-defense, the ICC would still not have jurisdiction over the civilians’ actions — it is not a war crime to attack a soldier (though it could, of course, be a domestic crime).

Finally, a plea to the media: please do not overstate the importance of the OTP’s “decision” to open a preliminary examination into the attack on the flotilla. As the ICC’s press release notes, the OTP is required to conduct such an examination into every state referral, regardless of merit. I have no doubt that the OTP takes state referrals more seriously than referrals from individuals and human-rights groups. But that does not mean, nor does it even suggest, that the OTP will decide to open a formal investigation into the flotilla attack. Indeed, for all the reasons mentioned in this post, I think that is exceedingly unlikely.

Baher Azmy, the legal director of the Center for Constitutional Rights (CCR), has flagged a very interesting ATS case that is due to be re-argued in light of the Supreme Court’s recent — and much discussed here at Opinio Juris — decision in Kiobel. Here is CCR’s description of the case, Al Shimari v. CACI:

Al Shimari  v. CACI was originally brought against L-3 Services Incorporated (formerly Titan Corporation), CACI International Inc., and Timothy Dugan, a former employee of CACI.  CACI and L-3 Services were the U.S. government contractors responsible for interrogation and translation services, respectively, at Abu Ghraib prison and other facilities in Iraq. L-3 Services and Timothy Dugan have since been dismissed as Defendants in the case. The complaint alleges that CACI directed and participated in illegal conduct, including torture, at the Abu Ghraib prison in Iraq where it was hired by the U.S. to provide interrogation services.   The four Plaintiffs had all been held at the “hard site” in Abu Ghraib prison.

The suit, brought under the Alien Tort Statute (ATS) and federal question jurisdiction, brings claims arising from violations of U.S. and international law including torture; cruel, inhuman, or degrading treatment; war crimes; assault and battery; sexual assault and battery; intentional infliction of emotional distress; negligent hiring and supervision; and negligent infliction of emotional distress. There are also civil conspiracy and aiding and abetting counts attached to most of these charges.  Through this action, Plaintiffs seek compensatory and punitive damages.

Among the heinous acts to which the four Plaintiffs were subjected at the hands of the Defendant and certain government co-conspirators were: electric shocks; repeated brutal beatings; sleep deprivation; sensory deprivation; forced nudity; stress positions; sexual assault; mock executions; humiliation; hooding; isolated detention; and prolonged hanging from the limbs.

All of the Plaintiffs are innocent Iraqis who were ultimately released without ever being charged with a crime. They all continue to suffer from physical and mental injuries caused by the torture and other abuse.

CCR makes a strong argument in the relevant brief that Al Shimari is precisely the rare ATS lawsuit that can survive Kiobel. First, CCR argues that Kiobel‘s presumption against extraterritorial application of the ATS should not even apply in Al Shimari, because the conduct in question occurred in Iraq during the US occupation, a period in which (quoting Rasul) the US had “complete jurisdiction and control” over Abu Ghraib (recall that the Coalition Provisional Authority had “all executive, legislative, and judicial authority” over Iraq at this time), making it effectively US territory. The fact that the US was functioning as the sovereign in Iraq at the time of the relevant conduct, CCR also points out, means that allowing the lawsuit to proceed would be unlikely to result in “international discord” between the US and Iraq.

Second, CCR argues that the relevant conduct does indeed “touch and concern” the US “with sufficient force to displace the presumption against extraterritorial application.” It notes that CACI is a US corporation headquartered in the US; that CACI’s immunity from Iraqi legal process made it subject to US law; and that the conduct in question was directed from the US. It also notes that the US’s control over Abu Ghraib is — or should be — relevant to the “touch and concern” analysis.

Third, and finally, CCR claims that ATS lawsuits involving war crimes and torture should always be deemed to satisfy Kiobel, especially where — as in Al Shimari — the perpetrators of those crimes are present in the US. It argues that the potential for “international discord” is minor in such lawsuits, because war crimes and torture are types of conduct that all states are obligated to prevent and punish.

I am skeptical that CCR’s third argument will convince many federal courts post-Kiobel. Its first and second arguments, however, seem very compelling. I hope our resident and extraterritorial experts on the ATS will weigh in.

[Milena Sterio holds a dual J.D./maitrise en droit degree, and she is Associate Professor of Law at the Cleveland-Marshall College of Law, where she specializes in International Law and International Criminal Law.]

The Court of Appeal of Versailles, France, ruled last week on an important case regarding the civil liability of French companies for their role in the construction of a light rail tramway system in the Israeli-controlled West Bank.  The Versailles Court determined that the French companies’ participation in this construction project did not violate international law.  As this case has already sparked academic debate in the blogosphere (click here for excellent posts by Eugene Kontorovich and by Kevin Jon Heller), I will take this opportunity to discuss in more detail some of the legal issues involved, as well as to weigh in on the significance of the Versailles Court’s ruling.

The Jerusalem light rail system began operating in August 2011.  A French building conglomerate, Alstom Transport (as well as another company, called Veolia Transport; for the purposes of this post, I will refer to both of these as “Alstom” or “Alstom Transport” because the court’s discussion of legal issues and its ultimate ruling concerns both of these companies equally), had participated in the light rail’s construction, despite protests and political opposition to such participation in France.  The transaction, relevant for the purposes of the legal discussion below, was structured as follows: Alstom had formed an Israeli company, called Citypass, which then signed a general concession contract with the State of Israel.  Additionally, Alstom signed a series of separate construction contracts with Citypass.  Alstom was thus not a party to the general concession contract.  A pro-Palestinian group, Association France Palestine Solidarité (AFPS), filed a lawsuit against Alstom Transport in 2007 in a French lower court (Tribunal de Grande Instance de Nanterre); another pro-Palestinian organization, l’Organisation de Libération de la Palestine (OLP), later joined the lawsuit as co-plaintiff.

Plaintiffs argued that the French court should void Alstom’s construction contracts, because the general concession contract’s (between Citypass and Israel) object or purpose (“cause” in French) was illicit (because the State of Israel’s true motivation in the construction project was…

This according to the Commission of Inquiry on Syria, which has considerable investigative ability. Reuters:

(Reuters) – U.N. human rights investigators have gathered testimony from casualties of Syria’s civil war and medical staff indicating that rebel forces have used the nerve agent sarin, one of the lead investigators said on Sunday.

The United Nations independent commission of inquiry on Syria has not yet seen evidence of government forces having used chemical weapons, which are banned under international law, said commission member Carla Del Ponte.

“Our investigators have been in neighboring countries interviewing victims, doctors and field hospitals and, according to their report of last week which I have seen, there are strong, concrete suspicions but not yet incontrovertible proof of the use of sarin gas, from the way the victims were treated,” Del Ponte said in an interview with Swiss-Italian television.

“This was use on the part of the opposition, the rebels, not by the government authorities,” she added, speaking in Italian.

Recent news reports indicate that the Obama administration has been rethinking its opposition to arming the Syrian rebels. The Commission’s revelations, if true, not only complicate that idea but also deprive those who (in my view misguidedly) want to invoke the responsibility to protect to justify military intervention in Syria of one of their most potent rhetorical weapons. It’s easy to justify intervening in a civil war when one side is “good” and the other is “bad.” The situation is much more complicated, however, when a civil war involves two bad sides, even if one side — here, clearly the Syrian government — is worse than the other.

PS. As Ty McCormick points out at FP.com, the Commission’s findings would seem to validate Obama’s unwillingness to conclude — as demanded by the British, French, and Israelis — that the Syrian government has been responsible for using chemical weapons.

I have no desire to get into an argument with Eugene Kontorovich about the ostensibly “landmark” decision of a French intermediate court — especially because, like him, I am far from fluent in French and the decision strikes me as quite legally complicated. But it is important to push back against claims like these (emphasis mine):

This is an extraordinarily important holding in light of the decades old-debate about the meaning of 49(6) in the context of Israeli civilian migration into the West Bank. It is in direct opposition to the political and international law position on settlements. In the standard narrative, any migration of Israeli Jews past the Green Line, or the expansion of their residences and communities once there, is a war crime. Thus when private citizens decides to buy or build a house across the Green Line, or even expand an existing one, it is a war crime.

Moreover, Israeli citizens who migrate to the West Bank are often said to be guilty of war crimes themselves as aiders-and-abettors. The Versailles decision would seem to reject such a position.

There are two significant problems here. First, despite emphasizing war crimes, Eugene’s post focuses solely on the Fourth Geneva Convention’s prohibition on the transfer of civilians into occupied territory; it simply ignores the Rome Statute’s very different war crime of direct or indirect transfer. Here is Art. 49(6) of GC IV (emphasis mine):

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

And here is Article 8(2)(b)(viii) of the Rome Statute (emphasis mine):

(viii)     The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian 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.

To begin with, it’s worth noting that it is anything but self-evident that Art. 49(6) requires “actually organizing and moving population en masse (compare to individual transfers in 49.1),” as Eugene claims in the comments to his post. His analogy to the Nazis’ colonization of Poland and Ukraine — in which civilians “weren’t merely encouraged, but rounded up” — is misplaced, because unlike Art. 49(1), Art. 49(6) does not require the transfer of civilians to be forcible. Moreover, the war crime in question — Art. 8(2)(b)(viii) — even more clearly does not require “actually organizing and moving population en masse,” because it prohibits both direct and indirect transfer. Art. 8(2)(b)(viii) thus prohibits a much broader range of actions than Art. 46(1). And, of course, a violation of Art. 8(2)(b)(viii), unlike a violation of Art. 49(6), gives rise to individual criminal responsibility.

The second significant problem with Eugene’s post is that, in fact, the French intermediate court’s decision appears to say nothing at all about whether settlement activities qualify as war crimes. Given my French, I am loathe to conclude unequivocally that it does not. But the decision does not mention either the Statut de Rome or Art. 8(2)(b)(viii), nor does it mention crimes de guerre (war crimes) or transfert… indirect (indirect transfer) — two obviously critical expressions in the French version of the Rome Statute.

The French intermediate court’s decision may well be a landmark concerning corporate responsibility; I’m sure Eugene will tell us in his next post. But I think it is to safe to say that the decision tells us little, if anything, about whether Israel’s settlement activities qualify as the war crime of direct or indirect transfer of civilians into occupied territory.

Note: I have restructured the post for clarity.

New evidence that Syria has used chemical weapons against insurgents have spurred new calls here in the U.S. for military action in Syria.  Here is the LA Times (hardly an interventionist paper):

An American or multilateral response should of course be proportional to the offense. That means considering whether chemical weapons were used against civilians or militants, and whether a “whole bunch” were used, as Obama put it, or much less. But there’s no doubt that an operation to secure or destroy the regime’s chemical weapons would be consistent with this country’s stated commitment (one that all too often has not been honored) to protect civilians from the worst ravages of war.

The editorial was plainly drafted carefully with some knowledge of the legal issues that would apply to such an operation.  First of all, there is that pesky U.S. Constitution, Article I, Section 8 which many folks think grants the the U.S. Congress the exclusive power to authorize U.S. military force.  I don’t think the editorial envisions President Obama seeking congressional authorization, so it is probably assuming he would act under his inherent Commander-in-Chief powers. (When George W. Bush was president, newspapers like the LA Times used to worry about the unilateral exercise of this type of power, but these days, not so much.)

Second, there is the international law governing the use of force. I raised this question back in December, when President Obama drew his red line, suggesting that the self-defense justification under the U.N. Charter can’t work here.  This post drew two very good responses from experts in the field, one from Daniel Bethlehem (formerly the chief legal advisor to the UK’s Foreign Office) and the other from Ashley Deeks (former legal advisor to the U.S. State Department, now UVA Law Prof).

My earlier post offered a simple no-frills reading of the U.N. Charter, building on the simple no-frills reading of the U.N. Charter critics of the Iraq War were fond of making in the Bush years. This was a useful strawman, since I pointed out it would lead to a “silly result.”  Still, I am not totally sold on the more sophisticated rationales offered by Daniel and Ashley.  As far as I know, Syria has not threatened (at least recently) to attack its neighbors. I don’t count its skirmishes with Turkey, which seem in any event to have settled down. It has certainly not threatened use of chemical weapons against Turkey, Israel, or anyone other than the Syrian rebels.  I am just not buying self-defense here, unless we really are back in 2002 and President Bush’s doctrine of preemptive self-defense for WMDs has achieved international consensus.

What is it about chemical weapons that changes the legal calculus? Sure, I realize the use of chemical weapons here is a plain and blatant violation of the law of armed conflict, and really horrible in every way possible.   But as horrible as it is, I wonder why chemical weapons would be the trigger since the casualties from the non-chemical weapons in Syria has been much worse. And what is it about chemical weapons that would per se justify humanitarian intervention, while the mass bombings or killings of thousands of civilians would not?

I am guessing the answer here is going to come from a different path that has nothing (formally) to do with chemical weapons.  Since the U.S. has recognized the Syrian opposition as the legitimate government of Syria, I suppose consent for an intervention can be had without too much trouble. But, this opposition doesn’t exactly have widespread recognition, and doesn’t really control most of the country. Still, it probably is the least difficult legal path.

When President Obama said using chemical weapons would “cross a red line,” he must have had something in mind, unless it was a total bluff.  A unilateral U.S attack is very possible, and may even be desirable.  But legality is going to have to be finessed in ways that critics of the Iraq War should not be happy with.

Two years ago, I wrote a long post analyzing the most serious charge in Bradley Manning’s court martial — aiding the enemy, a violation of Art. 104 of the Uniform Code of Military Justice (UCMJ) and 10 USC 904. I claimed in the post that someone like Bill Keller, the Executive Editor of the New York Times during the WikiLeaks era, could not face similar charges, because the UCMJ applies only to soldiers.

I was wrong.

Here is the text of Art. 104 (my emphasis):

“Any person who—

(1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or

(2) without proper authority, knowingly harbors or protects or gives intelligence to or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct.”

The key here is “any person.” Such broad personal jurisdiction is very unusual among the UCMJ’s punitive articles; the only other ones that use it are Art. 83 (fraudulent enlistment in the armed forces) and Art. 106 (spying). All of the other punitive articles have more limited jurisdiction, applying only to “any person subject to this chapter” (such as solicitation, Art. 82) or “any member of the armed forces” (such as desertion, Art. 85). The difference is critical, because it means that a person does not have to be subject to the UCMJ to be subject to court-martial for aiding the enemy. Indeed, both Art. 104 and Art. 2 in the Manual for Courts Martial (MCM) are explicit on that point. Here is the MCM’s explanation of Art. 104 (emphasis added):

Scope of Article 104. This article denounces offenses by all persons whether or not otherwise subject to military law. Offenders may be tried by court-martial or by military commission.

And here is the MCM’s explanation of Art. 2 (emphasis added):

(1) Authority under the code. Article 2 lists classes of per­sons who are subject to the code. These include active duty personnel (Article 2(a)(1)); cadets, aviation cadets, and midship­ men (Article 2(a)(2)); certain retired personnel (Article 2(a)(4) and (5)); members of Reserve components not on active duty under some circumstances (Article 2(a)(3) and (6)); persons in the custody of the armed forces serving a sentence imposed by courtmartial (Article 2(a)(7)); and, under some circumstances, speci­fied categories of civilians (Article 2(a)(8), (9), (10), (11), and (12); see subsection (3) and (4) of this discussion). In addition, certain persons whose status as members of the armed forces or as persons otherwise subject to the code apparently has ended may, nevertheless, be amendable to trial by court-martial. See Article 3, 4, and 73. A person need not be subject to the code to be subject to trial by court-martial under Articles 83, 104, or 106.

There is no reason, then, why Bill Keller could not be court-martialed for aiding the enemy. And indeed, for all the reasons I discussed in my post two years ago, he is no less guilty of that crime than Bradley Manning. Here are the elements of aiding the enemy via communication:

(5) Communicating with the enemy.

(a) That the accused, without proper authority, communicated, corresponded, or held intercourse with the enemy, and;

(b) That the accused knew that the accused was communicating, corresponding, or holding intercourse with the enemy.

If Manning has aided the enemy, so has Bill Keller. The crux of the government’s argument is this (see Specification 1 on the charge sheet): (1) Manning gave classified documents to WikiLeaks; (2) Manning knew that WikiLeaks would publish the documents on the internet; (3) the “enemy” — basically al-Qaeda and its associated forces — had access to the documents on the internet; (4) Manning thus indirectly communicated with the enemy. That argument, however frightening, is unfortunately far from frivolous. The crime does not require any intention to communicate with the enemy, much less an intention to harm the United States; as the MCM commentary says,”the intent, content, and method of the communication, correspondence, or intercourse are immaterial.” Nor does the crime require proof that the enemy actually received the prohibited communication: “[t]he offense is complete the moment the communication, correspondence, or intercourse issues from the accused.”

The government’s argument obviously applies to Bill Keller no less than to Bradley Manning. Indeed, in one respect, the case against Keller is even stronger than the case against Manning. Manning “communicated with the enemy” indirectly: he gave the documents to WikiLeaks; he did not post them on the internet himself. Keller, by contrast, authorized the New York Times to post Manning’s documents on its website, where anyone — al-Qaeda included — could find it. His communication with the enemy was thus direct, not indirect.

To be clear, I am categorically opposed to prosecuting anyone, Bradley Manning or Bill Keller, for “aiding the enemy” in circumstances like these. It is impossible to overstate the chilling effect the government’s argument — that causing intelligence to be posted on the internet qualifies as communicating with the enemy — will have on media freedom. But there is not simply moral equivalence between Manning’s actions and the actions of the New York Times. There is legal equivalence, as well. So if Manning deserves to be court-martialed for aiding the enemy, Bill Keller should be in the dock with him.

Literally.

An opinion piece in Al-Jazeera by an international lawyer who works with the Palestinians, John Whitbeck, reports some interesting comments by Fatou Bensouda about Palestinian ratification:

During a public discussion held at the Academie Diplomatique Internationale in Paris on March 20, Fatou Bensouda, the Prosecutor of the International Criminal Court, addressed the potential membership of Palestine in the ICC. During the question time, she was asked:

“If and when the State of Palestine, whose state status has now been overwhelmingly confirmed by the UN General Assembly, revives its application for ICC membership, what will be the procedure for considering its application and, if it is approved, would the court’s jurisdiction be retroactive to 2002, permitting prosecutions for crimes already committed in Palestine or by Palestinians?”

She started her reply by recalling why Palestine’s initial application was not approved — essentially, as was clear from the ICC’s response, the court’s view that it was not the role of the court, but rather the role of the UN General Assembly, to determine who was or was not a state. She then went on to say that, now that the UN General Assembly had made its determination that Palestine is a state, “the ball is now in the court of Palestine”, “Palestine has to come back” and “we are waiting for them”.

While she said, unsurprisingly, that any new application would have to be considered, there was no ambiguity or suspense as to the result of the requisite consideration. It was clear that, in her eyes, ICC membership for the State of Palestine was Palestine’s for the asking. There was even a hint of puzzlement that the ICC had not heard from Palestine subsequent to the UN vote. 

On the issue of retroactivity, she said that she did not think that any retroactivity could extend back to the birth of the court in 2002 – at most, if prior to Palestine’s formal accession to the Rome Statute, to November 29, 2012, when the UN General Assembly determined the issue of Palestine’s state status.

There is nothing particularly new here, but the retroactivity comment is useful. As a theoretical matter, I think the ICC could determine that Palestine qualified as a state prior to the UNGA resolution upgrading its status. But I think that the Court would be well-advised to take a conservative approach to Palestinian ratification — and as Whitbeck notes in his piece, the less retroactive Palestine’s acceptance of the Court’s jurisdiction (perhaps even purely prospective, from the date of ratification), the more difficult it will be for Israel to complain about it.

That said, as I’ve pointed out before, Palestine has reason to be wary of even prospective ratification. The ICC would find it much easier to prosecute Hamas’s rocket attacks on Israel than Israel’s expansion of the settlements or disproportionate attacks on Gaza.

Apparently, the answer is yes, according to Professor Jeremi Suri of the University of Texas writing in the New York Times:

The Korean crisis has now become a strategic threat to America’s core national interests. The best option is to destroy the North Korean missile on the ground before it is launched. The United States should use a precise airstrike to render the missile and its mobile launcher inoperable.

President Obama should state clearly and forthrightly that this is an act of self-defense in response to explicit threats from North Korea and clear evidence of a prepared weapon. He should give the leaders of South Korea, Japan, China and Taiwan advance notice before acting. And he should explain that this is a limited defensive strike on a military target — an operation that poses no threat to civilians — and that America does not intend to bring about regime change. The purpose is to neutralize a clear and present danger. That is all.

I am highly dubious about this action as a policy matter, but I think that such a strike would be legal as a “preemptive” act of self-defense under international law.  Even for those wedded to the possibly outdated Caroline principle, I think the various statements by North Korea (including denouncing the armistice and making specific threats against South Korea and the United States) and its act of moving its missile into launch position would satisfy the Caroline’s imminence requirement.  I think a surgical strike that targeted only the missile would satisfy the proportionality requirement.

I am somewhat skeptical of Prof. Suri’s assurance that this will actually improve the security situation in Korea and Secretary Kerry seems to be going in the opposite direction.  But I do think he is right in putting this option on the table.   In any event, legal concerns should not constrain U.S. actions here.