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Law of War

Feiglin Is Advocating Crimes Against Humanity and War Crimes, Not Genocide

by Kevin Jon Heller

Twitter is abuzz with claims that Moshe Feiglin, the Deputy Speaker of the Knesset in Israel, has called for the commission of genocide against the Palestinians. Here is what he said, in relevant part:

Conquer – After the IDF completes the “softening” of the targets with its fire-power, the IDF will conquer the entire Gaza, using all the means necessary to minimize any harm to our soldiers, with no other considerations.

Elimination- The GSS and IDF will thoroughly eliminate all armed enemies from Gaza. The enemy population that is innocent of wrong-doing and separated itself from the armed terrorists will be treated in accordance with international law and will be allowed to leave. Israel will generously aid those who wish to leave.

Feiglin’s comments are vile, horrifying, and unfortunately all too common in Israel’s increasingly toxic right-wing political culture. As awful as they are, though, they do not amount to incitement to genocide, because Feiglin is advocating the forcible transfer or deportation of the Palestinians — commonly referred to as ethnic cleansing — not genocide. There are five types of genocidal acts: (1) killing members of a group; (2) causing serious bodily or mental harm to members of a group; (3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (4) imposing measures intended to prevent births within the group; and (5) forcibly transferring children of the group to another group. The actions Feiglin advocates come closest to (3), but he makes clear that he is not advocating displacing Palestinians into a location where they could not physically survive, which would be genocide. (A pre-Genocide Convention example is the Armenian genocide, in which the Ottoman empire not only ethnically cleansed the Armenians, but drove them into the Syrian desert to die.) In short, Feiglin is advocating that Israel commit not genocide but crimes against humanity.

Feiglin is also, it’s worth noting, urging Israel to commit war crimes against the Palestinians. Here is another one of his suggestions:

Defense – Any place from which Israel or Israel’s forces were attacked will be immediately attacked with full force and no consideration for ‘human shields’ or ‘environmental damage’.

It is ICL 101 that it is a war crime to intentionally launch an attack knowing that it will — in the words of the Rome Statute — “cause incidental loss of life or injury to civilians… which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” In making that determination, an attacker must take into account any civilian who will be incidentally killed in an attack, even one who is serving as a human shield. Two wrongs do not make a right in ICL. By urging Israel to ignore the presence of civilians, therefore, Feiglin is urging Israel to launch attacks that are highly likely to be disproportionate.

Guest Post: Remarks on Henderson & Cavanagh Guest Post on Unit Self-Defence–Perspectives from the Courtroom

by Kinga Tibori-Szabó

[Kinga Tibori-Szabó currently works for the Legal Representative of Victims at the Special Tribunal for Lebanon. She is also a New York attorney. In 2012, she won the ASIL Lieber Prize for her book Anticipatory Action in Self-Defence.]

What could be more straightforward than a unit commander’s right to defend his unit, or other specified units against hostile acts and hostile intent? But as obvious this right may seem in the military sense, as eclectic and elusive its legal nature can be.

Ian Henderson and Bryan Cavanagh rightly point out that unit self-defence, in the legal realm, can be thought of both as a unit-level derivate of states’ inherent right of national self-defence and as a form of the criminal law concept of personal self-defence. It is also viewed as a corollary of the fundamental human right to life.

Indeed, as pointed out by the authors, if the defensive action taken at the unit level ends up being litigated at the International Court of Justice, it will be the responsibility of the state that will be in question and the legal issue will be whether the right of national self-defence applies.

Equally, Article 31(c) of the ICC Statute and ICTY jurisprudence have approached the question of unit-level action from the perspective of personal self-defence, as a ground excluding criminal liability. The ICTY stated that the “notion of self-defence may be broadly defined as providing a defence to a person who acts to defend or protect himself or his property (or another person or person’s property) against attack” and applied that definition to questions regarding the legality of forceful action taken by military units (Kordic and Cerkez, Judgment, 2001, para. 449).

Add to that the fact that many domestic jurisdictions do not recognize unit self-defence as an independent legal concept, albeit its substance is acknowledged, usually in the form of collective personal self-defence, as a right of a unit commander (have a look at the General Report 19th Congress ISMLLW, Quebec). Even in jurisdictions where unit self-defence is explicitly acknowledged, its content might not be identical. For instance, the US SROE define hostile acts to include force used directly to preclude or impede the mission and/or duties of US forces, including the recovery of US personnel and vital US government property, while other states define the term more narrowly.

Against this background, it seems sensible to aver that unit self-defence should be viewed as a ROE concept that has underlying law and legal consequences, but is not a legal term of itself. Or as Kalshoven and Fontein noted, “the true significance of the right of unit self-defence may lie in its cohesive power”.

Then again, as a lawyer trapped in the courtroom most of the time, I cannot help thinking of that odd situation, at the international judicial level, when none of the mantles we just bestowed on unit self-defence would fit. Every operational term, if it ends up playing a role in (international) courts, will have to be associated with a legal term or drawn from a legal basis. Take, for instance, one of those quintessential on-the-spot-reaction scenarios of a naval vessel under sail, being attacked while transiting between the harbours of allied nations. If the attack, because of its nature and scale, reaches the threshold of an armed attack, the inherent right of national self-defence can be invoked and force may be used within the limits of that right. In such a case, unit self-defence would be absorbed within the jus ad bellum concept. If the use of force triggers an armed conflict, the law of armed conflict will become applicable, in which case, as discussed by Henderson & Cavanagh as well as Jens David Ohlin, the concept of self-defence (unit or personal) becomes arguably redundant. But what if the attack on the vessel does not reach the threshold of an armed attack and the response does not trigger an armed conflict? In that nebulous territory, where neither jus ad bellum nor the law of armed conflict applies, we are left with personal self-defence, in its collective form. Obviously, if the operational term on which the unit’s action is based can be easily linked with provisions similar to those contained in Article 31(c) of the ICC Statute, then the problem is solved. But such provisions might not be readily available (the ICTY, ICTR and STL statutes do not expressly assert an exception of personal self-defence), and the court will have to rely on its case-law or develop relevant jurisprudence. But what if the ROE of the vessel’s nation state allows for a unit self-defence that is more permissive than the personal defence case-law of the international court? Or what if the definition of a unit in the domestic operational term is different from how the court’s jurisprudence defines defence of others or defence of property? Or what if there is no such definition in the case-law? Or what if other gaps, stemming from the different nature of the two terms (unit self-defence as a permissive rule authorising the use military force v. personal self-defence as a narrowly interpreted exception to criminal responsibility) would make it cumbersome to convert the operational term into the legal? Wouldn’t these situations warrant the acknowledgment of an independent legal term of unit self-defence, with its own elements and limits, rather than fiddling with personal self-defence, to fit a purpose it was not primarily meant to fulfil?

The odd situation, however, may never arise. It may as well be that unit self-defence will make more sense as an operational term, capable of being morphed into various, related legal terms. In any case, the debate should be kept alive and, if pertinent, room should be left for an independent legal term of unit self-defence to develop.

Guest Post: Unit Self-Defence

by Ian Henderson and Bryan Cavanagh

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence. This is the third in a four-part series. The first post can be found here (along with a response here), the second here and the third here.]

In this final post, we briefly discuss the concept of unit self-defence. Unit self-defence is a term used in rules of engagement (ROE) and can be defined as ‘the right of unit commanders to defend their unit, or others units of their nation, and other specified units against hostile acts or hostile intent’ (see the annex D of the San Remo ROE Handbook). In some militaries, along with being described as a right, it is also described as an obligation (see CJCSI 3131.01B, U.S Standing Rules of Engagement). In other words, a commander is positively required to act in unit self-defence and can be held accountable for not doing so.

In our view, and with due respect to those who have argued that unit self-defence has an independent legal basis, the better approach is to view unit self-defence purely as an ROE concept (much like the terms observed indirect fire and unobserved indirect fire) that has underlying law and legal consequences but is not a legal term in and of itself. Considered that way, unit self-defence can be thought of as:

a) a form of delegated authority from the national command chain of a State to exercise a State’s right of national self-defence in limited circumstances and in a constrained fashion;

b) a reminder of the criminal law authority to act in self-defence to protect oneself and protect others, (recalling that the criminal law concept of self-defence allows a person to not only defend his or herself, but also to defend another person where the person to be aided is in a situation where the law would allow that person to act in self-defence); and

c) an order or command to use military force when certain ‘triggers’ are present.

We believe deconstructing unit self-defence in this way is helpful as it focuses on the legal basis for any given use force (or non-use of force if a commander failed to act in unit self-defence) based on the jurisdiction in which the issue would be litigated. For example, if the matter is being litigated in the International Court of Justice, it will be the State that is the party. As such, the legal issue is likely to be whether the State had a right to use force. Conversely, in a criminal proceeding in a domestic court or international tribunal, it will be individual military members who are being prosecuted; and so, combatant’s privilege aside, the issue is more likely to be whether the individual had the right to use force. And finally, through ROE a commander (or for that matter, any other military member) can be ordered to use force (and held accountable for not doing so) where the circumstances are such that under the law of self-defence they would be legally permitted but not compelled to use force in defence of another.

We are very thankful to the editors of OpinioJuris for giving us this opportunity, as well as for the useful comments and discussion from the readers.

Guest Post: Self-Defence – Weapons, Lawful Commands, Duty to Retreat and Summary

by Ian Henderson and Bryan Cavanagh

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence. This is the third in a four-part series. The first post can be found here (along with a response here) and the second post here.]

This is the third in a series of four posts that address the relationship between self-defence and LOAC.  In this post we compare how LOAC and the law of self-defence deal with a number of discrete issues like use of prohibited weapons, obedience to lawful commands, and a ‘duty’ to retreat. It also provides a table which summarises the main points in the first three posts.

Can you use a poisoned bullet to protect yourself in self-defence?

The Law of Armed Conflict (LOAC) prohibits the use of certain weapons. Under the Rome Statute and the Australian Commonwealth Criminal Code, it is a war crime to employ poison or poisoned weapons, prohibited gases, or prohibited bullets.In contrast, the law of self-defence does not specifically address the means of response to a threat, but rather merely requires the response to be necessary, reasonable and proportional.

Under the Australian Criminal Code and the Rome Statute, there is no limitation on pleading self-defence only to crimes relating to the use of force. Therefore, the use of a prohibited weapon would be consistent with self-defence analysed under the Australian Criminal Code and the Rome Statute provided that a person’s actions were a necessary, reasonable and proportionate response to the threat.

In some jurisdictions, for example New Zealand, self-defence operates to exclude criminal responsibility for use of force. It is possible in these jurisdictions a combatant could not successfully plead self-defence in relation to weapons offences which are separate and distinct to offences relating to the actual use of force. We did not come to any conclusion on this issue.

Nowhere to run

Under LOAC, not unsurprisingly there is no requirement to retreat from an attack. The position under self-defence varies from jurisdiction to jurisdiction. We found Leverick’s categorisation of the different approaches useful:

a) An absolute retreat rule. The accused must make an attempt to retreat before using force in self-defence regardless of the circumstances.

b) A strong retreat rule. The accused must make an attempt to retreat before using force in self-defence only if an opportunity to do so actually exists.

c) A weak retreat rule. Retreat is not treated as an independent variable, but rather as one factor that is taken into account in deciding whether the accused’s actions were necessary or reasonable.

d) No retreat rule. There is no duty on the accused to take an opportunity to retreat. The victim of an attack has the right to stand their ground and meet force with force.

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Meanwhile, over at ABC News…

by Kevin Jon Heller

BsJXdWkCYAEhdi_Diane Sawyer had a hard-hitting report tonight at ABC News on the recent hostilities between Israel and Palestine. The segment opens with her saying, “We take you overseas now to the rockets raining down on Israel today as Israel tried to shoot them out of the sky.” As she speaks, a video box next to her shows explosions on an urban landscape. Sawyer then shows a still photo of two haggard men carrying clothes in front of a destroyed building and says, “here is an Israeli family trying to salvage what they can.”

There’s only one problem with Sawyer’s report: the explosions are in Gaza, the result of IDF airstrikes, and the men are Palestinian, not Israeli.

Welcome to the mainstream media’s even-handed coverage of the Israeli/Palestinian conflict.

Name That Pinko!

by Kevin Jon Heller

What Israel-hating, Hamas-loving lefty said the following on Facebook?

Dear friends: Take a few moments to read the following words and share them with others. I see the severe and rapid deterioration of the security situation in the territories, Jerusalem and the Triangle and I’m not surprised. Don’t be confused for a moment. This is the result of the policy conducted by the current government, whose essence is: Let’s frighten the public over everything that’s happening around us in the Middle East, let’s prove that there’s no Palestinian partner, let’s build more and more settlements and create a reality that can’t be changed, let’s continue not dealing with the severe problems of the Arab sector in Israel, let’s continue not solving the severe social gaps in Israeli society. This illusion worked wonderfully as long as the security establishment was able to provide impressive calm on the security front over the last few years as a result of the high-quality, dedicated work of the people of the Shin Bet, the IDF and the Israel Police as well as the Palestinians whose significant contribution to the relative calm in the West Bank should not be taken lightly.

However, the rapid deterioration we’re experiencing in the security situation did not come because of the vile murder of Naftali, Eyal and Gil-Ad, may their memories be blessed. The deterioration is first and foremost a result of the illusion that the government’s inaction on every front can actually freeze the situation in place, the illusion that “price tag” is simply a few slogans on the wall and not pure racism, the illusion that everything can be solved with a little more force, the illusion that the Palestinians will accept everything that’s done in the West Bank and won’t respond despite the rage and frustration and the worsening economic situation, the illusion that the international community won’t impose sanctions on us, that the Arab citizens of Israel won’t take to the streets at the end of the day because of the lack of care for their problems, and that the Israeli public will continue submissively to accept the government’s helplessness in dealing with the social gaps that its policies have created and are worsening, while corruption continues to poison everything good, and so on and so on.

But anyone who thinks the situation can tread water over the long run is making a mistake, and a big one. What’s been happening in the last few days can get much worse — even if things calm down momentarily. Don’t be fooled for a moment, because the enormous internal pressure will still be there, the combustible fumes in the air won’t diminish and if we don’t learn to lessen them the situation will get much worse.

The pinko in question would be Yuval Diskin, the director of Israel’s Shin Bet from 2005 to 2011. Further proof that being outside of government is conducive to honesty — especially when the government in question is overseen by someone like Netanyahu.

Guest Post: Self-Defence, Collateral Damage and Precautions in Attack

by Ian Henderson and Bryan Cavanagh

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence. This is the second in a four-part series and the first post can be found here along with a response here.]

This is the second in a series of four posts that address the relationship between self-defence and LOAC. Yesterday we looked at when self-defence does and does not apply during a period of armed conflict. Today we discuss whether it is lawful under the criminal law concept of self-defence to cause incidental injury (aka, collateral damage) and whether self-defence imposes requirements similar to the ‘precautions in attack’ under article 57of Additional Protocol I (API).

Killing and injuring people that are not the object of the attack

Under the Law of Armed Conflict (LOAC), the rules relating to collateral damage are fairly easy to state – but difficult to apply. LOAC permits expected incidental loss of civilian life and injury to civilians (collateral damage), provided that the collateral damage is not excessive in relation to the military advantage anticipated to be gained from the attack. What then is the law relating to causing collateral damage when acting in self-defence?

A response in self-defence must be reasonable – so the question becomes – when (if ever) is it reasonable to kill or injure people who are not attacking you when responding to those who are? We had some difficulty in tracking down authority on point — in fact we could not find any reported Australian case law that addressed the issue — but domestic law of the US does. Case law in the US has held that while acting in self-defence can excuse injury or even death to a bystander in certain circumstances (eg, when not acting carelessly), self-defence does not excuse knowingly or recklessly injuring or killing a bystander (see Henwood v People, 54 Colo 188 (1913) [8]). Our conclusion is that it is highly likely that reasonableness under the law of self-defence imposes a higher standard of care on a military member than LOAC to avoid causing any injury or death to civilians. In other words, where a person acts ‘lawfully’ in self-defence, self-defence would operate as a successful defence to a charge relating to injuring or killing the attacker but not to a charge relating to injuring or killing a bystander.

To remove some confusion around this topic, we spelt out what ‘proportionality’ means under LOAC and self-defence. Proportionality under LOAC is used as a reference to the collateral damage equation mentioned above. Proportionality under self-defence is about the degree of force used in response to a threat. Proportionality under self-defence does not directly address the issue of collateral damage.

Precautions in attack

Article 57 of API sets out a number of precautions applicable to those who plan, decide and execute attacks. For example, they must do everything feasible to verify that the objectives to be attacked are military objectives; take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing collateral damage, and to cancel or suspend an attack if it becomes apparent that the objective is not a military one or that the attack may be expected to cause excessive collateral damage.

We concluded that it is unclear whether the requirement of reasonableness under the law of self-defence would extend to requiring a military member to take all of the precautions set out in article 57. Even if it could be said that these requirements are relevant to the reasonableness assessment, they are unlikely to be as effective as protecting the civilian population as the explicit requirements set out in the article. We view this as unsurprising, as the law of self-defence was not developed to specifically address these types of issues that are unique to military operations.

In tomorrow’s post, we will compare how LOAC and the law of self-defence deal with a number of discrete issues like use of prohibited weapons, obedience to lawful commands, and a ‘duty’ to retreat.

Guest Post: Henderson & Cavanagh on Self-Defense & The Privilege of Combatancy

by Jens David Ohlin

[Jens David Ohlin is Professor of Law at Cornell Law School.]

Ian Henderson and Bryan Cavanagh have hit the nail on the head in identifying a crucial and under-theorized question that goes right to the basic structure of the laws of war. I am in complete agreement that invocations of self-defense during armed conflict are both confused and confusing.

There is already the frequent problem of conflating individual self-defense (in the criminal law sense) with collective self-defense (jus ad bellum and article 51 of the UN Charter).  In addition, one often hears talk of a soldier’s right of self-defense – a claim that is mostly redundant since soldiers hold the privilege of combatancy and have no need to invoke a separate justification for their behavior. A justification like self-defense serves to negate the wrongdoing of the act, but a privileged soldier who kills a legitimate target has committed no wrongful act that requires negating.  Consequently, the justification of self-defense is only relevant during armed conflict when the defender is unprivileged, such as a civilian who has no right to participate in armed conflict.  If the civilian is challenged by an enemy combatant who refuses to obey the principle of distinction, then the civilian is entitled to kill the soldier in self-defense. If a soldier is attacked by a civilian, the soldier can legitimately kill the civilian because he is directly participating in hostilities; no claim of self-defense is required because the privilege applies.

Understanding self-defense from a civilian’s perspective is more difficult.  Consider the complicated problem of a civilian who kills an enemy soldier who is in the process of killing the civilian as collateral damage during a lawful attack against a military objective. In that scenario, does the civilian have the right of self-defense? In the criminal law we usually view the right of self-defense as only applicable against unlawful attacks, but in this case the attacking soldier’s original assault is lawful under LOAC as long as the anticipated collateral damage is not disproportionate to the value of the military objective. If the envisioned collateral damage is disproportionate, then the attack is unlawful.  So, in that case, the right of the civilian to exercise self-defense would depend entirely on the civilian making the correct assessment of not only the collateral damage, but also the anticipated collateral damage viewed — not from his perspective – but rather from the perspective of the person attacking him!  A greater conceptual riddle I cannot fathom.  This would be a nightmare for a criminal court, international or domestic, to adjudicate.

The deeper issue imbedded in Henderson and Cavanaugh’s research is the application of the privilege of combatancy to non-international armed conflicts.  The standard textbook answer is that the privilege is inapplicable to NIAC because the very concept of “combatant” is part of the legal architecture of IAC.  Under this view, a NIAC can only have government forces and rebels – never combatants per se.

To my mind, this statement is often reflexively repeated in the literature without due consideration for whether it is always and universally true.  Few individuals have challenged it, though Henderson himself is one of the few to have seriously studied the issue, writing articles suggesting that government forces in NIACs are privileged belligerents and that prosecuting them domestically would violate the laws of war.  Henderson is to be commended for tackling an understudied but vital topic.

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Guest Post: Military Members Claiming Self-Defence During Armed Conflict–Often Misguided and Unhelpful

by Ian Henderson and Bryan Cavanagh

[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence.]

We would like to thank the editors of Opinio Juris for allowing us this opportunity to discuss our draft book chapter on the how the concept of self-defence under criminal law operates in relation to military members during an armed conflict. We would also like to thank the ASIL Lieber Society and the judges who kindly awarded our paper a Certificate of Merit (second prize) in the 2014 Richard R. Baxter Military Prize for ‘a paper that significantly enhances the understanding and implementation of the law of war’.

The Law of Armed Conflict (LOAC) reflects a balance between military necessity and humanity. Potentially upsetting this balance is an apparent trend towards relying on self-defence under criminal law as a justification for the use of force by military members during armed conflicts. We argue that this trend is based on a misunderstanding of the scope self-defence when applied in light of the combatant’s privilege.

As the relevant law that would apply to a claim of self-defence depends upon the jurisdiction, we limited our analysis to the Australian Commonwealth Criminal Code and the Rome Statute. We would be very interested to hear about how our analysis might apply in other jurisdictions.

We have split the issues up into four discrete posts. In this post, we discuss the circumstances where self-defence does and does not apply during an armed conflict. This also entails discussing the combatant’s privilege.

In our next post, we will deal with whether it is lawful under the criminal law concept of self-defence to cause incidental injury (aka, collateral damage) and whether the law relating to self-defence imposes requirements similar to the ‘precautions in attack’ under article 57 Additional Protocol I.

The third post will be a comparison of how LOAC and the law of self-defence deal with a number of discrete issues like the use of prohibited weapons, obedience to lawful commands, and ‘duty’ to retreat.

And in the final post we will briefly address the rules of engagement (ROE) concept of unit self-defence.

You say tomato, I say tomahto

Self-defence is not a unitary concept, but rather has different legal and operational meanings. It is vital to distinguish between the different meanings and ask in what context is the term ‘self-defence’ being used. Our chapter is about an individual claiming self-defence when facing potential criminal (or disciplinary) charges. It is not about a State’s right of self-defence under article 51 UN Charter (or customary international law).. Whether or not a State has a right to use force in national self-defence is a separate and distinct issue from whether an individual is not guilty of crime under the relevant self-defence provisions pertaining in a particular criminal jurisdiction. (more…)

The CIA and the Public Authority Justification: A Response to Orr

by Kevin Jon Heller

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It’s a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don’t find his arguments convincing.

Orr begins by citing Art. 43 of the First Additional Protocol (AP I), which defines the armed forces as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” In Orr’s view, that means the CIA qualifies as “armed forces” under Art. 43, because the CIA is responsible to President Obama, the Commander in Chief:

The CIA may not be a part of the US military, not subordinate to the Secretary of Defense, but it is hard to claim it is not in any way an armed “group” or “unit” which is under the Command of the responsible party – the same person with responsibility for the military services, namely the Commander in Chief.

Orr’s argument, however, proves too much. By his logic, every armed organisation in the federal government that is ultimately responsible to Obama would qualify as the “armed forces” of the US — the FBI, the DEA, the ATF, even the US Marshals Service. That can’t possibly be correct.

To be fir, Orr recognises that it is not evident a “paramilitary” group like the CIA qualifies as the armed forces of the US and thus has the right to participate in hostilities. In particular, he acknowledges that, at a minimum, the CIA would have to comply with the four criteria set out in Art. 4 of the Third Geneva Convention (GC III): (1) responsible command; (2) a fixed distinctive sign; (3) open carry of arms; and (4) compliance with IHL. Here is his argument that it does:

(a) and (c) seem to apply (remotely piloted aircraft are operated in the open). The claim is made that (d) applies. Does (b)? Hard to say, but it’s also hard to understand how this criteria has modern relevance with stand-off weapons of any sort.

I don’t think it’s hard to say at all that (b) is not satisfied. CIA agents does not wear uniforms, nor do they wear anything that identifies them as CIA — particularly at a distance. And why would they? The CIA is an intelligence organisation that operates almost exclusively in secret; as noted by its own website, the CIA’s mission is “conducting effective covert action as directed by the President.” Fixed distinctive signs are the last thing CIA agents would ever wear.

Indeed, that’s almost certainly why Orr downplays the role of a fixed distinctive sign, saying that its “hard to understand how this criteria has modern relevance with stand-off weapons of any sort.” But that comment gives away the ballgame. Orr is not really arguing that the CIA is entitled to participate in hostilities because its members comply with the four criteria in GC III, art. 4. On the contrary, he is arguing that the CIA only has to comply with three of the four criteria — conveniently, the three with which it can comply. The inconvenient fourth criteria is simply wished out of existence. (And note that the question is not whether the CIA’s weapons have a fixed distinctive sign; it’s whether the CIA’s agents have one. Which they don’t.) Lex ferenda, not lex lata.

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It’s a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don’t find his arguments convincing.

Orr begins by citing Art. 43 of the First Additional Protocol (AP I), which defines the armed forces as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” In Orr’s view, that means the CIA qualifies as “armed forces” under Art. 43, because the CIA is responsible to President Obama, the Commander in Chief:

The CIA may not be a part of the US military, not subordinate to the Secretary of Defense, but it is hard to claim it is not in any way an armed “group” or “unit” which is under the Command of the responsible party – the same person with responsibility for the military services, namely the Commander in Chief.

Orr’s argument, however, proves too much. By his logic, every armed organisation in the federal government that is ultimately responsible to Obama would qualify as the “armed forces” of the US and be entitled to participate in hostilities — the FBI, the DEA, the ATF, even the US Marshals Service. That can’t possibly be correct.

To be fair, Orr recognises that it is not evident a “paramilitary” group like the CIA qualifies as the armed forces of the US and thus has the right to participate in hostilities. In particular, he acknowledges that, at a minimum, the CIA would have to comply with the four criteria set out in Art. 4 of the Third Geneva Convention (GC III): (1) responsible command; (2) a fixed distinctive sign; (3) open carry of arms; and (4) compliance with IHL. Here is his argument that it does:

(a) and (c) seem to apply (remotely piloted aircraft are operated in the open). The claim is made that (d) applies. Does (b)? Hard to say, but it’s also hard to understand how this criteria has modern relevance with stand-off weapons of any sort.

I don’t think it’s hard to say at all that (b) is not satisfied. CIA agents does not wear uniforms, nor do they wear anything that identifies them as CIA — particularly at a distance. And why would they? The CIA is an intelligence organisation that operates almost exclusively in secret; as noted by its own website, the CIA’s mission is “conducting effective covert action as directed by the President.” Fixed distinctive signs are the last thing CIA agents would ever wear.

Indeed, that’s almost certainly why Orr downplays the role of a fixed distinctive sign, saying that its “hard to understand how this criteria has modern relevance with stand-off weapons of any sort.” But that comment gives away the ballgame. Orr is not really arguing that the CIA is entitled to participate in hostilities because its members comply with the four criteria in GC III, art. 4. On the contrary, he is arguing that the CIA only has to comply with three of the four criteria — conveniently, the three with which it can comply. The inconvenient fourth criteria is simply wished out of existence. (And note that the question is not whether the CIA’s weapons have a fixed distinctive sign; it’s whether the CIA’s agents have one. Which they don’t.)

It is important to recognize, though, that Orr’s argument concerning Art. 43 of AP I and Art. 4 of the GC III is ultimately beside the point. Orr may think that, as a matter of international law, the CIA is part of the US’s armed forces and thus has the right to participate in hostilities. But the US government doesn’t. Footnote 44 in the drone memo makes that exquisitely clear…

Let’s Call Killing al-Awlaki What It Still Is — Murder

by Kevin Jon Heller

As everyone on Twitter knows by now, the US government has released the notorious memorandum in which the OLC provides the supposed legal justification for killing Anwar al-Awlaki. I’m a bit disappointed not to get a mention in the memo; people in the know have suggested that a post I wrote in April 2010 led the OLC to substantially rewrite it. Vanity aside, though, I’m more disappointed by the memo’s failure to adequately address the most important issue regarding the “public authority justification,” which is at the heart of the memo’s conclusion that it would be lawful to kill al-Awlaki: how can the CIA be entitled to the public-authority justification when the CIA had no authority to use force against Al Qaeda in the Arabian Peninsula (AQAP)?

To understand why that’s a problem, let’s step back and consider what the memo says about whether the Department of Defense (DoD) had the legal authority to kill al-Awlaki. Remember, the memo was written before al-Awlaki was killed, at a time when it wasn’t clear which organisation — the DoD or the CIA — would actually kill him. (It was also written long after al-Awlaki was put on the kill list, as Hina Shamsi reminds us.)

The memo begins by emphasizing (p. 14) that its analysis — for both the DoD and the CIA — turns on whether 18 USC 1119, the foreign-murder statute, incorporates the “public authority justification” (PAJ). Indeed, it notes in n. 24 that the PAJ is the only defence it will consider. The memo then concludes (p. 20), after five pages of analysis, that in fact s 1119 does incorporate the PAJ. It’s an impressive analysis, and I find it convincing. So let’s grant that the PAJ potentially applies to the killing of al-Awlaki.

The question then becomes: who can invoke the public authority justification? The memo has little problem concluding that the DoD would be entitled to it, because (p. 20) “the operation would constitute the ‘lawful conduct of war’ — a well-established variant of the public authority justification.” In reaching that conclusion, the memo argues (1) that the AUMF covers AQAP, (2) that al-Awlaki qualifies as a targetable member of AQAP; (3) that the US is involved in a NIAC with AQ, making the laws of war applicable; and (4) that the DoD had pledged to obey the laws of war in any lethal operation.

I would quibble with much of the analysis, particularly the memo’s discussion of the scope of the non-international armed conflict between the US and “al-Qaeda.” But I’m prepared to accept that, in the abstract, the DoD would be entitled to invoke the PAJ. My problem is with the memo’s casual assertion that the PAJ applies equally to the CIA, which actually killed al-Awlaki. Here is its conclusion (p. 32)…

ICRC President’s Lecture for the Foreign and Commonwealth Office

by Kevin Jon Heller

On May 19, the Legal Directorate of the Foreign and Commonwealth Office held their 2nd Annual International Law Lecture. The lecture was delivered by Peter Maurer, the President of the ICRC, who spoke on “War, Protection and the Law: The ICRC’s approach to International Humanitarian Law.” More information about the speech is available at EJIL: Talk!, but I thought it would be worth posting links at OJ:

  • Video of the talk here.
  • Video of the subsequent Q&A here.
  • Transcript of the talk here.

Well worth checking out!