The OTP has weighed in on Libya’s ongoing challenge to the admissibility of the case against Saif Gaddafi. In its view, although there are serious questions concerning whether Libya is investigating the same conduct as the OTP, Libya is currently willing and able to conduct a genuine prosecution. Unfortunately, its conclusion regarding ability rests on a very serious legal error. Here are the relevant paragraphs (emphasis mine):

42. However, the Prosecution also notes that not all detention centers, including apparently the one holding the suspect in this case, are under the control of the Minister of Justice and Libya has no access to certain detainees held in these centers. Further, abuses and deaths have occurred in detention centers in 2012,

43. Most notably, Libya does not clarify whether it has gained custody over Saif Al-Islam and when his transfer to Tripoli will be effected…

44. Nonetheless, the investigation of the case against Saif Al-Islam has progressed and the Libyan legislation does permit a trial in absentia. Hence, and in light of the evidence submitted and notwithstanding the challenges faced by Libya as a post-conflict country, the Prosecution concludes that Libya appears, at this time and in light of the materials considered, able to conduct the proceedings.

Libyan criminal law may permit a trial to be held in absentia, but the Rome Statute does not. Article 17(3) of the Rome Statute is explicit on this point — a state cannot be considered “able” to prosecute a defendant if it does not have that defendant in custody (emphasis mine):

In order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.

This is not a question of whether Libya will give Saif a fair trial; it is a question whether Libya’s can hold a trial at all, as “trial” is defined by the Rome Statute. And according to the plain language of Article 17(3), Libya is not currently able to try Saif. Unless it actually effectuates Saif’s transfer, therefore, its admissibility challenge must fail.

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.

We know what is stake at in Libya’s admissibility challenge regarding Saif Gaddafi: either a fair trial at the ICC that will likely result in a lengthy prison sentence or an unfair trial in Libya that will almost certainly result in execution. Libya has done nothing to disguise the unfairness of its national proceedings, but it has generally pretended to be concerned with Saif’s right to a fair trial in its many filings at the ICC. So I was very surprised to find Libya argue in its most recent motion that Saif’s lawyers, the Office of Public Counsel for the Defence (OPCD), should not even be allowed to see the evidence it provides the Pre-Trial Chamber in support of its admissibility challenge:

29. In its 7 December 2012 Decision concerning Mr. Gaddafi the Pre-Trial Chamber requested Libya to make available sample investigative materials. Libya has made such samples available (as set out in Annexes 4 to 7 and 15 to 17), prior to the accusatory phase of proceedings on an exceptional basis as a demonstration of its genuine commitment to fully cooperate with the Court in these admissibility proceedings. Libya requests however that this material be treated as being submitted to the Chamber on an ex parte basis. This is necessitated by the strict non-disclosure requirements of investigative material prior to the accusatory phase of proceedings under Article 59 of the Libyan Code of Criminal Procedure (as set forth in the Application of Libya), and for
obvious reasons of confidentiality.

30. Article 59 requires non-disclosure of investigative material under threat of criminal punishment. It provides that:

Investigation procedures and their results shall be considered confidential.
Investigators, prosecution members and their assistants of clerks and experts who are related to the investigation or attend to their profession or post shall undertake not to disclose same. Anyone who breaches this provision shall be punished in accordance with Article 236 of the Penal Code.

The unfairness of Libya’s ex parte request is obvious — the OPCD can hardly challenge Libya’s claim that the national proceedings against Saif satisfy the principle of complementarity if they don’t have access to the supporting evidence. Which is, of course, precisely the point of the request.

To be sure, Libya doesn’t acknowledge the real reason it doesn’t want the OPCD to see its evidence. Instead, it chooses to once again attack the integrity of the OPCD’s lawyers…

Libya has filed a lengthy response to a series of Pre-Trial Chamber questions about the domestic proceedings against Saif. There is much of interest in the motion, but what particularly caught my eye is Libya’s open admission that it has repeatedly interrogated Saif and confronted him with witnesses in the absence of defence counsel. Here are the relevant paragraphs (emphasis mine):

49. In the period since 1 May 2012, testimonies regarding the actions of Saif Al-­Islam Gaddafi have been obtained from individuals who previously operated at the highest civilian and military levels of the Gaddafi regime. These individuals include [Redacted]. Mr. Gaddafi himself has also been interviewed on a number of occasions since 1 May 2012 (the last occasion being on 13 November 2012), and has been confronted with witnesses who have given testimonies in his case during such interviews.

51. The procedure for prosecution team interviews is that a private meeting is scheduled, to be attended by the witness and prosecution lawyers (other people are not permitted to be present at such meetings). The witness is then asked to swear an oath that he or she will tell the truth in answering the questions posed by members of the prosecution team. The questions asked of the witness and the witness’ answers to these questions are then written down, and each page of the witness testimony is sealed by the witness with their signature and/or fingerprint, as well as the signature of the attending representative/s of the prosecution team. The accuracy of witness testimonies which might be contested by the suspect are verified through a process under Libyan law known as confrontation (Article 106 of the Criminal Procedure Code). During this process the accused person in the investigation (i.e. Mr. Gaddafi) is presented with each witness whose account differs from that given by him, and is given the opportunity to refute the testimony of that witness in front of one or more member of the prosecution investigative team.

These uncounseled interrogations and confrontations categorically violate Libyan criminal procedure. (As readers know, I don’t think it’s relevant whether they violate international standards of due process.). Here is what Libya said in its original admissibility challenge…

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…

[Michael Lewis is a Professor at Ohio Northern University’s Petit College of Law and a former F-14 pilot for the US Navy.]

Peter Margulies’s recent posts here at Opinio Juris and over at Lawfare broadly covered the issues raised and discussed at the Boundaries of the Battlefield symposium recently hosted by the Asser Institute at the Hague.  I just wanted to briefly discuss two issues raised at the conference that may warrant further discussion.

The first involved complaints that the term “imminence” has been stretched beyond recognition by the Obama Administration.  Speeches by Brennan, Holder, Koh and others describing the legal justification for using force, particularly outside of traditionally recognized battlefields, have been careful to maintain two bases for doing so.  The first, which I personally favor and appears to be the primary justification for most US strikes, is based upon consent of the state in which the strikes take place.  The second is self-defense.  It is here where the “elongation” of imminence has occurred.  Brennan in particular has made it clear that the US will not pass up a window of opportunity to strike operational members of groups that are actively engaged in planning and executing attacks against Americans.  And he has acknowledged that this position requires a broader reading of the term “imminence” than is found in typical situations.  But is this truly unrecognizable “imminence”?

First of all it must be recognized that, like the term “proportionality”, “imminence” is an important term in two different areas of international law, and it carries different meanings in these different contexts.  Imminence is at the core of the jus ad bellum concept of self-defense based on its use in the Caroline standard.  Since the adoption of the UN Charter there has been debate about whether the “inherent right” of self-defense contained in Article 51 is broader or narrower than the Caroline standard.  While that question has not been definitively settled, 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”.  If for over 40 years most states believe that…

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.

David Bosco has an important post at The Multilateralist today reminding people that Palestine does not have to ratify the Rome Statute for the ICC to be able to investigate the situation in the West Bank and Gaza.  As David notes, because Palestine has filed a declaration under Article 12(3) accepting the Court’s jurisdiction on an ad hoc basis, the Prosecutor already has the authority to initiate an investigation, should she so choose.

That said, it still matters — at least formally — whether Palestine takes advantage of its newly-recognized statehood and ratifies the Rome Statute.  The Court’s jurisdiction over a situation can be triggered in three different ways: (1) a referral by a State Party; (2) a referral by the Security Council; and (3) a decision to investigate proprio motu by the Prosecutor.  Procedurally, there is a significant difference between those methods: unlike investigations triggered by a State Party or Security Council referral, the Pre-Trial Chamber has to authorize a proprio motu investigation.  The relevant provision of the Rome Statute is Article 15:

1.         The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

2.         The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.

3.         If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

4.         If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

The Rome Statute’s differential treatment of proprio motu investigations is not an accident.  During the drafting of the Rome Statute, some states wanted the Prosecutor to have unfettered authority to initiate investigations, while others — fearing politically-motivated prosecutions — wanted to limit investigations to referrals by States Parties and the Security Council.  Article 15 reflects the compromise the drafters reached: the Prosecutor would have proprio motu power, but the use of that power would always be subject to judicial review.

Why does this matter for the new state of Palestine? Because an investigation conducted pursuant to an ad hoc declaration like Palestine’s is treated as a proprio motu investigation, so the Prosecutor’s decision to investigate must be confirmed by the Pre-Trial Chamber.  That was the case, for example, in Cote d’Ivoire: once the Prosecutor decided to act on Cote d’Ivoire’s ad hoc acceptance of the Court jurisdiction (retroactive, as I’ve noted before), he submitted a formal request under Article 15 to the Pre-Trial Chamber asking it to authorize the investigation — which it did.

At least procedurally, then, Palestine does indeed have a significant incentive to ratify the Rome Statute.  If it ratifies, a formal referral of the situation in the West Bank and Gaza to the Court would qualify as a State Party referral under Article 14 of the Rome Statute, exempting a decision by the Prosecutor to investigate from Pre-Trial Chamber review,  By contrast, if Palestine does not ratify the Rome Statute and rests on its previous ad hoc declaration, a decision by the Prosecutor to investigate would qualify as a proprio motu investigation that would require the Pre-Trial Chamber’s authorization.

As I have pointed out numerous times before, I find it inconceivable that this Prosecutor will decide to investigate the situation in the West Bank and Gaza.  But if she does, it will be easier for her to open that investigation if Palestine has ratified the Rome Statute.

The indefatigable Glenn Greenwald has unearthed an even more appalling appropriation of Dr. King by the military — a Department of Defense news article entitled “King Might Understand Today’s Wars, Pentagon Lawyer Says.”  The lawyer in question is none other than Jeh Johnson, former DoD General Counsel.  Here is what he says:

In the final year of his life, King became an outspoken opponent of the Vietnam War, Johnson told a packed auditorium. However, he added, today’s wars are not out of line with the iconic Nobel Peace Prize winner’s teachings.

“I believe that if Dr. King were alive today, he would recognize that we live in a complicated world, and that our nation’s military should not and cannot lay down its arms and leave the American people vulnerable to terrorist attack,” he said.

This is a stunning example of the myth I mentioned in my previous post — that US violence is always used for noble purposes and always promotes peace.  Nearly everything that Dr. King said about Vietnam applies with equal force to the war on terrorism; now as then, instead of trying to understand the complicated relationship between the US and its supposed enemies, the US simply assumes it can kill its way to peace and security.  Not to put too fine a point on it, but the idea that Dr. King would support the US drone program and the war in Afghanistan (to say nothing of the war in Iraq) is both completely absurd and an insult to his memory.