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Non-State Actors

China’s Overbroad (Draft) Definition of Terrorism

by Kevin Jon Heller

Today’s a travel day, so I don’t have time to write a full post. But I thought I’d flag a very interesting article in The Diplomat about China’s new draft anti-terrorism bill, which seems to have a strong chance of becoming law. Here’s a snippet:

Obviously owing to the worrisome escalation of terrorist acts since the Tiananmen Square attack in October 2013, Chinese authorities decided to enact a comprehensive anti-terrorism law to address the new situation. Such a law requires, first and foremost, a well-reasoned definition of terrorism. Surprisingly, the draft law did not take up the terrorism definition that had been offered by the anti-terrorism Decision in 2011. According to Article 104 of the draft law, “terrorism” means “any thought, speech, or activity that, by means of violence, sabotage, or threat, aims to generate social panic, influence national policy-making, create ethnic hatred, subvert state power, or split the state.”

Article 104 goes on to flesh out the keyword “terrorist activity” as referred to in the “terrorism” definition. Accordingly, “terrorist activities” include (a) propagating, inciting, or instigating terrorism; or (b) forming, leading or participating in an terrorist organization; or (c) organizing, plotting, or implementing a terrorist action; or (d) supporting, assisting, or facilitating a terrorist organization or individual through the provision of information, funds, material, equipment, technologies or venues; or (e) other terrorist activities.

[snip]

Absent a comprehensive and universal definition of terrorism, individual countries, including China, are left with the authority to interpret the term for themselves. Compared with Western liberal countries, China has greater discretion to combat terrorism in an effective – albeit repressive – manner. However, whenever China resolves to address the scourge of terrorism, it must also face the challenge of how to strike a proper balance between security and liberty.

Before passing the anti-terrorism law, Chinese law-makers need to overhaul the definition of terrorism to guarantee that terrorism is described as a serious crime with an additional quality that calls both for international concern and harsh treatment. In addition, proper procedural safeguards regarding terror lists should be introduced to ensure that the definition of terrorism does not capture an unreasonably wide range of persons, or, if this happens, that the affected persons will not be subject to unreasonable consequences.

The article contains a nice comparison of the draft Chinese law with the elements of most international conventions on terrorism. It’s well worth a read.

Guest Post: IHL Doesn’t Regulate NIAC Internment–A Drafting History Perspective

by Jonathan Horowitz

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

Ryan Goodman argues in a thoughtful new post at Just Security that IHL regulations pertaining to internment in international armed conflict (IAC) should apply to internment in non-international armed conflict (NIAC).

This is a hotly debated issue.

In this post, I look back on the drafting history of Additional Protocol II which, in my view, reveals that 1) IHL was not crafted to provide regulations (neither the grounds nor procedures) for NIAC internment and 2) IHL does not have a structure that permits its IAC internment regulations to apply to NIAC.

That’s not to say States can’t intern; it’s to say that when they do, the sources of internment regulations are found not in IHL but primarily in domestic law and international human rights law.

Lack of internment regulations in the IHL of NIAC is supported by the fact that Common Article 3 and Additional Protocol II, the two main sources of treaty law regulating NIAC, provide no such rules. This absence is both indisputable and in contrast to the Third and Fourth Geneva Conventions, which are replete with regulations on IAC internment. Protocol I also contains internment regulations.

The absence of internment procedures in Additional Protocol II is also in contrast to numerous penal prosecution procedures found in Article 6 of Additional Protocol II and, to a lesser degree, Common Article 3. For these reasons, it’s clear that while the drafters of Protocol II explicitly recognized that parties to a NIAC are permitted to intern, the drafters also chose not to put in place internment regulations.

But why was this the case, and what does it tell us about IHL?

IHL’s relatively sparse rules for NIAC reflect States not wanting to provide legitimacy and legal status to non-state armed groups. This history heavily influenced U.K. High Court Justice Leggatt’s conclusion in ongoing litigation that IHL does not provide an implied power to detain in NIAC. He concluded, in part, that States did not wish to provide detention authority because, if they did, that authority would equally have to apply to rebel armed groups, which would in turn grant them unwelcomed legitimacy and force States into accepting that such groups have a right to “exercise a function which is a core aspect of state sovereignty.” (para. 245.)

While I agree that States did not intend for IHL to grant non-state armed groups an authority to detain, I’d like to dive a bit deeper into a related, but slightly different and broader issue: the impact that sovereignty had on States not wanting IHL to infringe upon their domestic law.

Romania’s delegate to the drafting process of the two Additional Protocols made a general remark that was illustrative of other State interventions, stating “The automatic application to internal conflicts of regulations applicable in international conflicts might have negative results and entail violation of international law and national sovereignty. Any future international regulations relating to non-international armed conflicts must be based on recognition of, and respect for, the sovereign rights of each State within its boundaries.” (p. 103.) Yugoslavia’s delegate similarly remarked, “When preparing the final version of draft Protocol II, account must be taken of the general principles of international law including those of non-interference in the domestic affairs of States and respect of the sovereignty and territorial integrity of States.” (p.105.)

I noted, these were general remarks, not aimed directly at the issue of NIAC internment. Nonetheless, the remarks demonstrated that States sought to protect their sovereignty and their inherent right to manage their citizens as they chose; and this implicitly included applying their domestic laws as they deemed appropriate.  India, for example, made the concise point that proposed rules on penal prosecutions in Protocol II “would be in conflict with his country’s national laws and…would constitute interference in the sovereign right of States.” (p. 359.) Pakistan’s delegate made a similar point. (p. 360.) (more…)

What Exactly Is the ICRC’s Position on Detention in NIAC?

by Kevin Jon Heller

I still need to write Part 2 of my response to Ryan Goodman, but it’s worth noting that he and I actually agree about detention in NIAC much more than we disagree. We both agree that IHL itself does not authorize such detention. We both agree that the standard governing detention in NIAC is that it must be non-arbitrary. We both agree that, in practice, it is non-arbitrary to detain individuals in NIAC for (something like) imperative reasons of security. So we seem to disagree only on one substantive point: where the requirement of non-arbitrariness comes from. Ryan says it comes from IHL itself. I argue that it comes from IHRL.

In my previous post, I took issue with Ryan’s claim that an ICRC Background Paper and Rule 99 of the ICRC’s study of customary law supported his position. I argued that neither clearly supports the idea that IHL requires detention in NIAC to be non-arbitrary, because both the Paper and the Rule rely on both IHL and IHRL for the substantive detention rules they endorse — and do not adequately disentangle the two legal strands. In response, Ryan accused me on Twitter — in a friendly manner — of arguing that he and the ICRC don’t understand the law of war.

Ryan and I obviously do disagree about whether IHL itself requires detention in NIAC to be non-arbitrary or whether its silence on that issue means IHRL’s requirement of non-arbitrariness applies as lex specialis. But I was not trying to claim that the ICRC was wrong, because I did not believe that Ryan was accurately characterizing its position. So I spent more time than than I expected after our exchange combing through the ICRC’s statements on the arbitrariness issue. I won’t bore readers with the twists and turns, but I do want to flag the ICRC’s most recent statement, an Opinion Paper dated November 2014. If the Opinion Paper does indeed reflect the ICRC’s current position on detention in NIAC, it turns out that  the ICRC disagrees with both me and Ryan, as well as with Dapo Akande and Lawrence Cawthorne-Hill at EJIL: Talk!, because it believes that IHL does, in fact, authorize detention in one kind of NIAC — extraterritorial NIAC. Here is what the ICRC says (p. 7):

In a “traditional” NIAC occurring in the territory of a State between government armed forces and one or more non-State armed groups, domestic law, informed by the State’s human rights obligations, and IHL, constitutes the legal framework for the possible internment by States of persons whose activity is deemed to pose a serious security threat. A careful examination of the interplay between national law and the applicable international legal regimes will be necessary. The right to judicial review of detention under human rights law will, of course, continue to apply; there are, however, differing views on whether this obligation may be derogated from.

Identifying the legal framework governing internment becomes particularly complicated in NIACs with an extraterritorial element, i.e. those in which the armed forces of one or more State, or of an international or regional organization, fight alongside the armed forces of a host State, in its territory, against one or more organized non-State armed groups.

The fact that Article 3 common to the Geneva Conventions neither expressly mentions internment, nor elaborates on permissible grounds or process, has become a source of different positions on the legal basis for internment by States in an extraterritorial NIAC. One view is that a legal basis for internment would have to be explicit, as it is in the Fourth Geneva Convention; in the absence of such a rule, IHL cannot provide it implicitly. Another view, shared by the ICRC, is that both customary and treaty IHL contain an inherent power to intern and may in this respect be said to provide a legal basis for internment in NIAC. This position is based on the fact that internment is a form of deprivation of liberty which is a common occurrence in armed conflict, not prohibited by Common Article 3, and that Additional Protocol II – which has been ratified by 167 States – refers explicitly to internment.

In short, according to the ICRC, IHL does not authorize detention in “traditional” NIACs, those fought solely on the territory of one state, but does authorize detention in extraterritorial NIACs. Indeed, the Opinion Paper specifically cites Serdar Mohammed as an example of the first view of extraterritorial NIAC — the one that the ICRC rejects. The ICRC’s position thus seems to be closest to Aurel Sari in the comments to my previous post, as well as to Kubo Mačák at EJIL: Talk!. Then again, the ICRC doesn’t completely agree with them, either, because the Opinion Paper quite specifically limits IHL’s inherent power to detain to extraterritorial NIAC — thus seeming to agree with me, Ryan, Dapo, and Lawrence that the authority to detain in at least traditional one-state NIACs comes from domestic law, not from IHL itself.

I confess that I find the ICRC’s traditional/extraterritorial distinction rather confusing. I don’t understand how the conventional and customary IHL of NIAC could contain “an inherent power to intern” in extraterritorial NIAC but not in traditional NIAC; doesn’t it have to be both — or neither? After all, each of the factors the ICRC cites in defense of its position apply equally to traditional NIAC. Internment is indeed a “common occurrence in armed conflict,” but it is common in both traditional and extraterritorial NIACs. Common Article 3 does not prohibit detention in either traditional or extraterritorial NIAC. And Additional Protocol II is capable of applying to some traditional NIACs and of not apply to some extraterritorial NIACs. In fact, it is probably more likely to apply in a traditional NIAC.

To be clear, I’m skeptical the Opinion Paper is correct even concerning extraterritorial NIAC. Nothing in conventional IHL suggests an inherent power to detain in any kind of NIAC: as Ryan, Dapo, and Lawrence have all pointed out, international law often recognizes and regulates a practice without authorizing it. And although there could in principle be an asymmetric customary rule that says IHL authorizes detention in extraterritorial NIAC while domestic authorization is required in a traditional NIAC, there seems to be no evidence that such a rule exists. As Dapo and Lawrence point out in their post, “[e]ven in the context of extraterritorial NIACs, states have looked elsewhere for authorisation [to detain] (see, e.g., Iraq and Security Council Resolution 1546).”

My point, then, is simply that I don’t think the ICRC can have it both ways. Either there is an inherent power in IHL to detain in NIAC or there isn’t.

One thing is clear: the ICRC really needs to clarify its position on detention in NIAC.

Responding to Ryan Goodman About Serdar Mohammed — Part I

by Kevin Jon Heller

At Just Security, my friend Ryan Goodman has posted a long analysis of Serdar Mohammed v. Ministry of Defense, in which the UK High Court held that IHL neither authorizes nor regulates detention in non-international armed conflict (NIAC). That decision will soon be considered by the Court of Appeal.

In his post, which is a must-read, Ryan states that he agrees with the High Court that IHL does not authorize detention in NIAC but disagrees that IHL does not regulate such detention. I share Ryan’s position on the first point, but I disagree with him — and agree with Justice Leggatt in Serdar Mohammed — on the second. In a subsequent post, I will address Ryan’s argument that “whatever is permitted in international armed conflict is permitted in noninternational armed conflict.” I have described that argument in a forthcoming book chapter as “reasoning by analogy”; Ryan rejects that description and says he is engaging in “reasoning by structure.” I will try to show in the next post that the “whatever is permitted” argument is problematic no matter how we describe its underlying reasoning.

In this post, I want to focus Ryan’s argument that, contrary to Justice Leggatt, IHL does in fact regulate the permissible grounds for detention in NIAC. Here is what he says (emphasis mine):

So far we have discussed the permissive boundaries of detention in NIAC but what about limitations on states in these contexts? IHL also imposes a set of prohibitions on the grounds for detention in internal armed conflict. That is, multiple sources conclude that IHL prohibits arbitrary deprivation of liberty in NIAC (see footnote 12 of the AJIL article, for example). Subsequent to that law review article, several important states through the Copenhagen Process—including “specially affected” states which is a significant category for customary international law purposes—explicitly accepted such restrictions on detention in NIAC.  Consider also the ICRC’s statement in a Background Paper on detention for the regional consultations 2012-2013: “In terms of grounds for internment, the ICRC, along with a growing international consensus of experts considers that ‘imperative reasons of security’ is an appropriate standard for internment in NIAC.” And a Report by a group of experts convened by the ICRC and Chatham House “quite easily” reached a consensus that in NIACs “parties to a conflict may capture persons deemed to pose a serious security threat and that such persons may be interned as long as they continue to pose a threat.” (See also the ICRC’s customary international humanitarian law Rule 99: Deprivation of Liberty).

To begin, it’s worth noting that Ryan does not seem to be “reasoning by structure” here — he seems to be arguing that, as a matter of customary international law, IHL prohibits arbitrary detention in NIAC. After all, he specifically mentions custom and “specially affected” states in the context of the Copenhagen Process. Moreover, he refers to the ICTY’s jurisdiction decision in Tadic both here and in his superb law-review article on security detention — and Tadic specifically based its (methodologically dubious) extension of IAC-based rules of IHL to NIAC on customary international law. As it said with regard to those rules (para. 127), “it cannot be denied that customary rules have developed to govern internal strife.”

If Ryan is claiming that IHL prohibits arbitrary detention in NIAC as a matter of customary international law, I have no theoretical objection to his argument. Indeed, as I’ll explain in my next post, my position is that international human rights law (IHRL) governs the regulation of detention in NIAC precisely because there are no contrary customary rules of IHL that can serve as the lex specialis of detention. If there are such customary rules, IHL may well displace IHRL (depending on how we understand the lex specialis principle).

That said, I take issue with Ryan’s claim that (as a matter of custom?) IHL prohibits arbitrary detention in NIAC — a standard that has no basis in the conventional IHL of NIAC and is normally associated with IHRL

The CIA Violated the Terrorist Bombing Convention

by Kevin Jon Heller

The Washington Post has a long article today about how Mossad and the CIA collaborated to blow up Hezbollah’s chief of international operations in 2008. Here are the key paragraphs:

On Feb. 12, 2008, Imad Mughniyah, Hezbollah’s international operations chief, walked on a quiet nighttime street in Damascus after dinner at a nearby restaurant. Not far away, a team of CIA spotters in the Syrian capital was tracking his movements.

As Mughniyah approached a parked SUV, a bomb planted in a spare tire on the back of the vehicle exploded, sending a burst of shrapnel across a tight radius. He was killed instantly.

The device was triggered remotely from Tel Aviv by agents with Mossad, the Israeli foreign intelligence service, who were in communication with the operatives on the ground in Damascus. “The way it was set up, the U.S. could object and call it off, but it could not execute,” said a former U.S. intelligence official.

The United States helped build the bomb, the former official said, and tested it repeatedly at a CIA facility in North Carolina to ensure the potential blast area was contained and would not result in collateral damage.

“We probably blew up 25 bombs to make sure we got it right,” the former official said.

The extraordinarily close cooperation between the U.S. and Israeli intelligence services suggested the importance of the target — a man who over the years had been implicated in some of Hezbollah’s most spectacular terrorist attacks, including those against the U.S. Embassy in Beirut and the Israeli Embassy in Argentina.

The United States has never acknowledged participation in the killing of Mughniyah, which Hezbollah blamed on Israel. Until now, there has been little detail about the joint operation by the CIA and Mossad to kill him, how the car bombing was planned or the exact U.S. role. With the exception of the 2011 killing of Osama bin Laden, the mission marked one of the most high-risk covert actions by the United States in recent years.

The article touches on the legality of Mughniyah’s killing, with the US arguing that it was a lawful act of self-defense under Art. 51 of the UN Charter and Mary Ellen O’Connell claiming that it was perfidy. Regular readers will anticipate my skepticism toward the former claim, and there is simply no support in IHL for the latter claim. Perfidy is an act “inviting the confidence of an adversary to lead him to believe that he is entitled to, or obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence.” Mossad and the CIA did nothing of the kind.

Mossad and the CIA did, however, violate the International Convention for the Suppression of Terrorist Bombings, which Israel ratified on 10 February 2003 and the US ratified on 26 June 2002. I don’t want to dwell on Mossad in this post; the analysis is the same as the one I provided here with regard to its assassination of Iranian nuclear scientists. Instead, I want to focus on the US’s complicity in Mughniyah’s death.

To begin with, there is no question that the bombing itself qualifies as a prohibited act of terrorism under the Terrorist Bombing Convention. Here is the relevant definition, Art. 2(1):

1. Any person commits an offence within the meaning of this Convention if that person unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a State or government facility, a public transportation system or an infrastructure facility:

(a) With the intent to cause death or serious bodily injury; or

(b) With the intent to cause extensive destruction of such a place, facility or system, where such destruction results in or is likely to result in major economic loss.

Mughniyah’s killing satisfies this definition. The attack involved an “explosive device” and it was clearly intended to “cause death.” It also took place on a public street, which qualifies as a “place of public use” under Article 1(5) of the Terrorist Bombing Convention. Article 1(5) defines a place of public use as “those parts of any building, land, street, waterway or other location that are accessible or open to members of the public, whether continuously, periodically or occasionally.”

The CIA was also complicit in that prohibited act of terrorism, pursuant to Art. 2(3):

3. Any person also commits an offence if that person:

(a) Participates as an accomplice in an offence as set forth in paragraph 1 or 2; or

(b) Organizes or directs others to commit an offence as set forth in paragraph 1 or 2; or

(c) In any other way contributes to the commission of one or more offences as set forth in paragraph 1 or 2 by a group of persons acting with a common purpose; such contribution shall be intentional and either be made with the aim of furthering the general criminal activity or purpose of the group or be made in the knowledge of the intention of the group to commit the offence or offences concerned.

The language of Art. 2(3) easily encompasses the CIA’s involvement in Mughniyah’s death, given that the US admits the CIA built the bomb, helped track Mughniyah’s movements, and had the power to call off the attack.

The US will no doubt object to this analysis by arguing that the Terrorist Bombing Convention is intended to apply to bombings by terrorists, not bombings of terrorists. That objection would be valid had the US military been involved in the operation instead of the CIA. Justifiably or not, Article 19(2) of the Convention specifically permits acts that would otherwise qualify as terrorist bombing when they are committed by the military forces of a state:

2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.

The CIA, however, does not qualify as the US’s “military forces” under the Terrorist Bombing Convention. Art. 1(4) specifically defines “military forces of a State” as “the armed forces of a State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility.” The second provision does not apply, because there is no evidence the CIA was acting under the “formal command, control and responsibility” of the military when it participated in Mughniyah’s killing. And neither does the first provision: although there is no question that the CIA contributes to the US’s “national defence or security,” it is not an “armed force” under US “internal law.” According to 10 USC § 101, “[t]he term ‘armed forces’ means the Army, Navy, Air Force, Marine Corps, and Coast Guard.”

The bottom line: the CIA committed an act of terrorism — actual terrorism, not figurative terrorism — when it participated in blowing up Mughniyah. The US military has the right to kill terrorists with bombs; the CIA does not. There is no doctrine of “close enough” in the Terrorist Bombing Convention.

No, Going to the ICC Is Not “Lawfare” by Palestine

by Kevin Jon Heller

Just Security has published two long guest posts (here and here) on the ICC and Palestine by Nimrod Karin, a J.S.D. candidate at New York University School of Law who was previously Deputy Legal Adviser to Israel’s Permanent Mission to the United Nations. There is much to respect about the posts, which are careful, substantive, and avoid needless hyperbole. And I agree with Karin on a surprising number of issues, particularly concerning the institutional reasons why (for better or worse) the ICC is likely to avoid opening a formal investigation into the situation in Palestine.

I disagree, though, with Karin’s insistence that Palestine has engaged in “lawfare” by ratifying the Rome Statute and using Art. 12(3) to accept the Court’s jurisdiction retroactive to 13 June 2014 — the day after the kidnapping and murder of the three young Israelis. Here is what he says in his second post (emphasis in original):

To readers who are utterly unsurprised by the dating of the ad hoc declaration I would simply add – likewise. It’s an example illustrating the strategic nature of the Palestinian multilateral maneuvering, which is squarely within their prerogative, acting as any other self-interested political entity would. But then maybe we should dial down the discourse depicting this as an idealistically motivated move – striking a blow for international criminal justice, or placing a conflict under the umbrella of law – and come to terms with the fact that the Palestinians are practicing lawfare by any other name, even at the expense of the values supposedly guiding their march to the ICC.

I wince whenever I see the term “lawfare,” because it is normally just short-hand for “I disagree with X’s legal actions.” Even if the concept has meaning, though, I don’t see how it can be used to describe what Palestine has done. To begin with, as Karin acknowledges, Palestine did not pluck the June 13 date out of thin air — it’s the same date that the Human Rights Committee selected for the beginning of the Schabas Commission’s mandate. Perhaps that was a political decision by the HRC, but Palestine can hardly be faulted for following its lead, especially given that it could have gone much further back in time (its first Art. 12(3) declaration purported to accept jurisdiction from 1 July 2002) — something for which Karin curiously gives Palestine no credit whatsoever.

I also don’t understand what is so troubling about the June 13 date. To be sure, the kidnap and murder of the three young Israelis was a horrific act. But it’s anything but clear whether Hamas leadership was responsible for their kidnapping and murder. It’s not even clear whether they were killed late on June 12 or early June 13 — the latter date within Palestine’s grant of jurisdiction. So how can Palestine’s choice of June 13 be some kind of devious move to maximise Israel’s criminal exposure while minimising its own?

More fundamentally, though, I simply reject the basic premise of Karin’s argument: namely, that taking a dispute to an international criminal tribunal with general jurisdiction can be seen as lawfare. Perhaps it’s possible to view tribunals with a one-sided mandate (de jure or de facto) as lawfare — the IMT prosecuting only Nazis, the ICTR prosecuting only Hutus. But the ICC? The ICC investigates situations, not specific crimes. By ratifying the Rome Statute and filing its Art. 12(3) declaration, Palestine has taken both Israel and itself to the ICC, not Israel alone. Palestine thus no longer has any control whatsoever over which individuals and which crimes the OTP investigates. That’s not lawfare, that’s bravery — especially given that, as I’ve pointed out time and again on the blog, the OTP is quite likely to go after Hamas crimes before it goes after Israeli crimes. In fact, the only lawfare being practiced in the context of Operation Protective Edge would seem to be by Israel, which has responded to the OTP’s preliminary investigation — which it opened as a matter of situation-neutral policy, not because of some kind of animus toward Israel — by condemning the ICC as a “political body” and launching a campaign to convince member states to stop funding it (which would be a clear violation of their treaty obligations under the Rome Statute).

I have little doubt that Palestine would be delighted if the ICC prosecuted only Israelis for international crimes. But it has to know how unlikely that is. Instead of condemning its decision to ratify the Rome Statute and submit an Art. 12(3) declaration as “lawfare,” therefore, we should be celebrating its commitment to international criminal justice. Indeed, if a state can practice lawfare by giving an international criminal tribunal the jurisdiction to investigate its own crimes as well as the crimes committed by its enemy, the concept has no meaning at all.

New Essay: The Use and Abuse of Analogy in IHL

by Kevin Jon Heller

I have posted a long new essay on SSRN, my contribution to a fantastic collection of essays that OJ’s own Jens Ohlin is editing for Cambridge University Press, The Theoretical Boundaries of Armed Conflict & Human Rights. The essay is entitled “The Use and Abuse of Analogy in IHL,” and here is the abstract:

It is a truism to say that conventional international humanitarian law (IHL) regulates international armed conflict (IAC) far more extensively than non-international armed conflict (NIAC). In IAC, conventional IHL authorizes both targeting and detention and carefully circumscribes their use. In NIAC, by contrast, conventional IHL is silent on the authorization for targeting and detention and imposes only rudimentary limits on when individuals may be targeted or detained.

Like nature, however, international law abhors a vacuum. Many of the gaps in the conventional IHL of NIAC have been slowly filled by custom; the ICRC has concluded that 138 of the 161 customary rules of IHL now apply in both IAC and NIAC – nearly 86%. As a result, it is now common for scholars to claim that, with the notorious exceptions of the combatant’s privilege and POW status, very few critical differences remain between IAC and NIAC concerning the applicable rules of IHL.

From a positivist perspective, the gradual harmonization of IAC and NIAC through convention and custom is unproblematic, because both are formal sources of international law. Since 9/11, however, the United States has consistently taken the position that certain IAC-based rules of IHL can be applied in NIAC via a third method: analogy. The U.S. has argued, for example, that it can target members of any organized armed group that would qualify under IAC rules as a “co-belligerent” of al-Qaeda.

In assessing the legitimacy of such analogies, it is tempting to focus on whether it makes sense to apply a particular IAC rule in NIAC. Is the Haqqani Network’s relationship with al-Qaeda really equivalent to Italy’s relationship with Nazi Germany? Emphasizing the substantive “fit” between IAC and NIAC, however, simply obscures a more fundamental question: where does the U.S.’s authority to analogize between IAC and NIAC come from?

That is a critical question, for two reasons. First, targeting and detention potentially violate the human rights of the individuals they affect. As the International Law Commission has noted, it is not enough for targeting or detention to qualify as a legitimate act of self-defence under Art. 51 of the UN Charter; that targeting or detention must also be consistent with either IHL or international human rights law (IHRL), depending on which legal regime applies. Second, because all of the targeting and detention activities that occur in the NIAC between the U.S. and al-Qaeda take place extraterritorially, each U.S. use of force and each capture operation potentially violates the sovereignty of the state on whose territory it takes place.

Put more simply, by relying on analogized rules of IHL to justify expanded targeting and detention of al-Qaeda, the U.S. potentially runs afoul of a number of prohibitive rules of international law: the principle of non-intervention; the prohibition on the use of force; and IHRL prohibitions on the arbitrary deprivation of life and liberty. What, then, is the legal basis for those analogies?

This chapter’s answer is straightforward: nothing. There is no basis in international law for taking rules of IHL that exist as a matter of convention and custom only in IAC and applying them in NIAC by analogy – which means that the U.S. is systematically violating international law by relying on those analogized rules to target and detain extraterritorially.

I am very rarely happy with essays when I finish them, but I’m quite happy with this one. I’m sure many people will disagree with it, and I’ve likely made plenty of mistakes. But I think the essay addresses a number of difficult issues in IHL/IHRL that deserve further discussion. If I can provoke debate, I’ll be happy.

As always, comments, criticisms, and ad hominem attacks are welcome.

PS:  I should note that the essay was inspired by, and provides a response to, my friend Ryan Goodman’s excellent 2009 article in AJIL, “The Detention of Civilians in Armed Conflict” (pdf here). I highly recommend reading his article before reading my essay.

H-Diplo Roundtable on David Bosco’s “Rough Justice”

by Kevin Jon Heller

H-Diplo, part of H-Net, recently hosted a virtual roundtable on David Bosco’s excellent book Rough Justice:The International Criminal Court in a World of Power Politics, published by Oxford last year. Erik Vroeten introduced the roundtable, and Sam Moyn, David Kaye, and I submitted reviews. David then wrote a response. Here is a snippet from Erik’s introduction:

It is my pleasure to introduce the distinguished and diverse set of reviewers of this timely and important book. Samuel Moyn embeds Bosco’s book in a longer history of the tensions between power and justice. If international justice is not impartial, then it loses its legitimacy. Yet, powerful states have always had incentives to interfere with individual exercises of justice and they rarely fail to act on these temptations.  The ICC, despite all its normative appeal, has been unable to break this pattern.

David Kaye lauds Bosco for the clarity of his exposition and for treating the intersection between idealism and power politics “with great modesty and insight, and without a hint of dogma.” Yet, Kaye also finds that in evaluating the ICC we must look beyond power politics. Questions about the way the ICC has had more subtle influences on how national, subnational, and international actors conceive of justice-related issues are not answered in this book. Looking at such questions may lead to a different and more nuanced perspective about the role of the ICC in international affairs.

Kevin Jon Heller praises Bosco for writing “[..] a history of a complex international organization that is eminently readable yet does not sacrifice analytic rigor.” He especially appreciates the “deceptively simple theoretical structure,” which characterizes the relationship between the Court and powerful states. Yet, Heller also has some pointed criticisms. Most notably, he believes that Bosco underplays the failings of Luis Moreno-Ocampo as the Chief Prosecutor of the ICC. He also takes issue with some historical assessments. At times, Heller argues, Bosco understates the agency of the Court. For example, Moreno-Ocampo was under no obligation to accept the Security Council’s terms on Libya. At other times, Bosco oversells what the Office of the Prosecutor (OTP) might have done. It is really not up to the OTP to lobby in pursuit of referrals against non-member states.

I share the reviewers’ praise for the analytical clarity of the book. From the perspective of my discipline, international relations, I hope it will contribute to more subtle understandings of how power affects the workings of international institutions. But, as the reviews show, there are also important lessons for historians and lawyers. As in his previous volume,), David Bosco has given us a book that has the distinguished qualities of being clear, interesting, and persuasive.

The roundtable is well worth your time. You can download a PDF of all the contributions here.

16 things to know about UN Sanctions

by Kristen Boon

The UN’s Department of Political Affairs recently published this list of “13 things to know about UN sanctions.”  If you scroll down on the link above, you’ll also see some great sanctions graphics.

United Nations Sanctions Primer

1. Since the creation of the United Nations, the Security Council has established 25 sanctions regimes. They have been used to support conflict resolution efforts, prevent the proliferation of nuclear and other weapons of mass destruction, and counter terrorism.

2. “UN sanctions have proved to be an effective complement to other Security Council instruments and actions. We know it is not perfect, but there is also no doubt that it works,” Under-Secretary-General Jeffrey Feltman told the 15-Member of the Council in the 25 November briefing.

3. There are currently 15 sanction regimes, the highest number in the history of the Organization.

4. UN sanctions are fairly economical. The total cost of supporting the 15 sanctions regimes is less than $30 million per year.

5. The first United Nations sanctions regime was established in 1966 when the Security Council imposed sanctions on Southern Rhodesia. By a vote of 11 to 0 – with four abstentions – the Council declared an international embargo on 90 per cent of Rhodesia’s exports, forbade the UN’s then 122 Member States (there are now 193) to sell oil, arms, motor vehicles or airplanes to Rhodesia.

6. The most recent sanctions were applied against Yemen this November. The UN Council ordered a freeze of all assets and a global travel ban on Saleh, the rebel group’s military commander, Abd al-Khaliq al-Huthi, and the Houthi’s second-in-command, Abdullah Yahya al Hakim.

7. In 1999, the Council established its first sanctions monitoring group on Angola.

8. There are now 11 monitoring groups, teams and panels with a total of 66 experts working in support of the Security Council and its sanctions committees.

9. Expert panels regularly cooperate with international organizations, such as INTERPOL, the International Civil Aviation Organization (ICAO), the International Air Transport Association (IATA) on issues related to travel bans, and with national authorities and the private sector on asset freezes.

10. DPA underscored in today’s briefing that UN sanctions are meant to be supportive not punitive. They are not meant to cripple states but to help them overcome instability, address massive human rights violations, curb illegal smuggling, and counter terrorism.

11. The DPA’s Security Council Affairs Division provides substantive and administrative support to the sanctions committees and expert panels; as well as engages the wider UN system in support of UN sanctions.

12. This year, among its other activities on sanctions, DPA let two missions on sanctions issues, one on the partial lifting of the arms embargo on Somalia and another on the termination of sanctions in Liberia. The aim was to strengthen these countries’ understanding of what the Council expects on sanctions issues and to enhance UN coordination on how the Organization can support implementation in these countries.

13. In 2006, the Secretary-General outlined four elements to improve the fairness and transparency of the sanctions procedures: the right to be informed; the right to be heard; the right to be reviewed by an affective review mechanism; and the need for periodic reviews, especially regarding the freezing of assets.

Let me add three things of my own:

14.   A recent UN high level review on sanctions took place between May – October 2014 (thus the reference to the 2006 document in #13 is a bit dated).  The background paper on the High Level Review website is well worth reading, as are the reports from the 3 working groups. See for example this briefing on Working Group 1, that included Security Council members.

15.   Technical assistance remains an important but controversial topic.   Australia proposed a resolution on technical assistance in November, 2014 but due to opposition by Russia, China and Argentina, the resolution was not put to a vote.   The basis of the opposition, as I understood it from statements during the Security Council session, was largely due to concern over an expansion of the Secretariat’s policy making role.   To put it differently, more technical assistance managed by the Secretariat might result in less Security Council authority.  Nonetheless, implementation gaps in sanctions remain a serious bar to sanctions effectiveness.  As sanctions become more sophisticated, so too do techniques of evasion, and for UN sanctions to be effective, there is no question that common ground will need to be identified to assist states, particularly, but not exclusively those states in whose territories individual and entities are targeted, neighboring states, and regional hegemons.

16.   There is growing support to expand the Ombudsperson’s jurisdiction to other sanctions regimes.  Currently, her office reviews delisting requests from the 1267 Al Qaida regime.   Individuals and entities listed under other regimes only have access to a focal point, who has far less powers.  If these proposals continue to gain momentum, there will be a significant improvement to the due process procedures noted above.  See an overview of developments in this debate here.

Do you have anything else to add to the list?  Please use the comments box to chime in.

Do Attacks on ISIS in Syria Justify the “Unwilling or Unable” Test?

by Kevin Jon Heller

Almost three years ago to the day, I critiqued an article by Ashley Deeks that argued the right of self-defence under Art. 51 of the UN Charter extends to situations in which states are “unwilling or unable” to prevent non-state actors from using their territory to launch armed attacks. As I noted in my post, Deeks herself admitted that she had “found no cases in which states clearly assert that they follow the test out of a sense of legal obligation (i.e., the opinio juris aspect of custom).”

When Deeks wrote her article, ISIS did not yet exist — and the US and other states had not started attacking ISIS in Syria. It is not surprising, therefore, that Deeks is now relying on the international response to ISIS to argue, in the words of a new post at Lawfare, that “the ‘unwilling or unable’ test is starting to seem less controversial and better settled as doctrine.”

There is no question that the US believes the “unwilling or unable” test is consistent with Art. 51. As Jens noted a few months ago, the US officially invoked the test with regard to ISIS and the Khorasan Group in a letter to the Security Council. Moreover, the UK seems to agree with the US: according to Deeks, the UK submitted a similar Art. 51 letter to the Security Council, stating that it supports international efforts to defend Iraq “by striking ISIL sites and military strongholds in Syria” — a position that, in her view,”implicitly adopts the ‘unwilling or unable’ test.”

Deeks does not provide a link to the UK letter, but I have little doubt she is characterizing the UK’s position accurately. I have significant issues, though, with the rest of her post, which argues that three other factors related to the international response to ISIS support the “unwilling or unable” test. Let’s go in order. Here is Deeks’ first argument:

[S]tates such as Jordan, Bahrain, Qatar, and the UAE, which also have undertaken airstrikes in Syria, presumably are relying on the same legal theory as the United States and UK.  (That said, those states have not proffered clear statements about their legal theories.)

There are two problems with this claim. To begin with, even if the four states are relying on “unwilling or unable” to justify their attacks on ISIS in Syria, they have not said so publicly — which means that their actions cannot qualify as opinio juris in support of the test. The publicity requirement is Customary Law 101.

More importantly, though, and pace Deeks, it is actually exceptionally unlikely that these states support the “unwilling or unable” test. All four are members of the Non-Aligned Movement (NAM), which has consistently rejected the test, most notably in response to Turkey’s cross-border attacks on the PKK in Iraq (see Ruys at p. 431):

We strongly condemn the repeated actions of Turkish armed forces violating the territorial integrity of Iraq under the pretext of fighting guerrilla elements hiding inside Iraqi territory. … We also reject the so-called ‘hot pursuit’ measures adopted by Turkey to justify such actions that are abhorrent to international law and to the norms of practice amongst States.

To be sure, Jordan, Bahrain, Qatar, and the UAE have not rejected the “unwilling or unable” test since 9/11 — the statement by NAM above was made in 2000. But there is little reason to believe that their understanding of Art. 51 has fundamentally changed over the past decade. On the contrary, all four are also members of the Arab League, and in 2006 the Arab League formally rejected the “unwilling or unable” test in the context of Israel’s attacks on Hezbollah in Lebanon (see Ruys at p. 453).

Here is Deeks’ second argument:

Iraq vocally has supported strikes within Syria.

This is not surprising, given that ISIS is using Syria as a base for attacks on Iraq. But does Iraq’s support for airstrikes on ISIS in Syria count as opinio juris in favour of the “unwilling or unable” test? I doubt it. After all, not only is Iraq a member of the Arab League, it consistently denounced Turkey’s attacks on PKK bases in its territory between 2007 and 2008 as inconsistent with its sovereignty (see Ruys at p. 461). Iraq’s attitude toward the “unwilling or unable” test thus seems driven exclusively by political opportunism; there is no indication that it considers the test to represent customary international law.

Here is Deeks third argument:

Syria itself has not objected to these intrusions into its territory.

This factor seriously complicates Deeks’ argument. Another word for “not objecting” is “consenting.” And if Syria is consenting to attacks on ISIS in its territory, it is problematic to simply assume — as Deeks does — that all such attacks provide evidence in favour of the “unwilling or unable” test. The US and UK may not want to rely on Syrian consent to justify their attacks. But it seems likely that Jordan, Bahrain, Qatar, and the UAE are relying on Syrian consent rather than Syrian unwillingness or inability to justify their attacks on ISIS in Syria — particularly given their traditional narrow understanding of Art. 51.

Finally, it is important to note what Deeks says immediately after claiming that “[i]In view of these developments, the ‘unwilling or unable’ test is starting to seem less controversial and better settled as doctrine”:

Whether other European states ultimately commit to airstrikes in Syria will be informative; to date, states such as France, Denmark, and Belgium only have provided support to strikes against ISIS within Iraq, not Syria.

This is an important admission, because it means that a member of P-5 and two other important Western states have suggested they are not comfortable with using the “unwilling or unable” test to justify attacks on ISIS in Syria.

So, to recap: the US and UK clearly support the “unwilling or unable” test; Jordan, Bahrain, Qatar, and the UAE are likely basing their willingness to attack ISIS in Syria on Syrian consent; Iraq has a completely opportunistic approach to the “unwilling or unable” test; and France, Denmark, and Belgium seem to reject the test, even if they have not done so explicitly.

And yet we are supposed to believe that the “unwilling or unable” test “is starting to seem less controversial and better settled as doctrine”?

OTP Suspends Darfur Investigation

by Kevin Jon Heller

This is quite big news, and I hope it doesn’t get lost in the welter of voices discussing the collapse of the Kenyatta prosecution. Here is a snippet from the Washington Post:

The prosecutor for the International Criminal Court told the U.N. Security Council on Friday she is stopping her investigations in Sudan’s chaotic Darfur region for now because no one has been brought to justice in a decade and the council has done little or nothing to help.

Darfur’s situation is deteriorating and the brutality of crimes is increasing, but there have been no discussions with the council for “concrete solutions,” Fatou Bensouda said. She demanded a new approach.

Darfur was the council’s first referral to the ICC, which is seen as a court of last resort for genocide, war crimes and crimes against humanity.

[snip]

“It is becoming increasingly difficult for me to appear before you and purport to be updating you when all I am doing is repeating the same things I have said over and over again,” Bensouda told the council, which has been divided on how to press Sudan for cooperation. This was the 20th time the prosecutor has briefed the council on Darfur.

“Given this council’s lack of foresight on what should happen in Darfur, I am left with no choice but to hibernate investigative activities in Darfur as I shift resources to other urgent cases,” Bensouda said.

It’s never good news when any OTP investigation falters, but it’s particularly disturbing in the context of the first Security Council referral to the ICC. Unfortunately, as many have noted (Mark Kersten, Dov Jacobs, me), the Security Council has an unfortunate tendency to treat the ICC like a political football — referring a situation to the Court when it needs to appear concerned about mass atrocity, then abandoning it when an attention-challenged international community has moved on to a different situation. Darfur is a perfect example of that troubling dynamic.

There is, however, a silver lining to the OTP’s decision to suspend the Darfur investigation: it indicates that Fatou Bensouda is getting tired of being Charlie Brown to the Security Council’s Lucy. I’m quite certain the Security Council would have preferred the Darfur investigation to continue ad infinitum: as long as the OTP is trying to investigate, the ICC will get the lion’s share of the blame for the failure to get Bashir. Now Bensouda has cleverly shifted the terrain, making it clear that the problem is the Security Council, not the ICC. Whether the Security Council will care is an open question — but at least Bensouda will take some of the heat off the ICC regarding Darfur. The last thing the Court needs now is additional bad publicity…

Guest Post: The Courts’ Misunderstanding of IHL is Deeper than You Think – A Response to Kevin Jon Heller

by Eric Sigmund

[Eric C. Sigmund is a legal advisor for the international humanitarian law program at the American Red Cross.  He is a 2012 graduate of Syracuse University College of Law and the Maxwell School of Citizenship and Public Affairs at Syracuse University.  All opinions expressed in this article are solely those of the author and should not be attributed to the American Red Cross.]

Recently, Kevin Jon Heller published a short piece on Opinion Juris entitled Why Can’t US Courts Understand IHL?  The piece, which addresses Al Warafi v. Obama, suggests that the United States District Court for the District of Columbia, as well as the D.C. Circuit Court of Appeals misunderstood and misapplied international humanitarian law as it denied Al Warafi’s habeas petition.  Heller, who seems both exasperated by the misapplication of the law but also sobered by the inevitability of this fact, posits that the Courts ignore clear language governing whether Al Warafi’s was required to carry or wear official identification demonstrating that he was protected as “medical personnel exclusively engaged in the search for, or the collection, or treatment of the wounded or sick, or in the prevention of disease…” as provided in Article 24 of the First Geneva Convention of 1949 (GC I).  While noteworthy, it is Michael Schmitt’s short comment to the post which raises a bigger question about the misapplication of the law and suggests that the Courts weren’t looking in the right place to begin with.

A more comprehensive description of the facts of the case can be found elsewhere but I’ll recap a few to provide context.  Mukhtar Yahia Naji Al Warafi was detained shortly after the invasion of Afghanistan by U.S. and Coalition forces in October 2001.  The U.S. government claimed that Al Warafi was a member of the Taliban who served on the frontlines against the Northern Alliance.  Al Warafi denied this claim, contending that he only provided medical assistance to wounded fighters.  Citing Article 24 and other supporting articles of GC I, petitioner Al Warafi argued that his prolonged detention was unlawful since he was exclusively engaged in the provision of medical care at the time of the invasion and therefore should have been repatriated upon capture.

At first glance, Al Warafi’s reliance on Article 24 seems misplaced as this provision is only applicable in situations of international armed conflict.  Common Article 2, which governs the application of the Geneva Conventions of 1949, states that the treaties are applicable to conflicts between High Contracting Parties or to situations of occupation.  While Afghanistan was a High Contracting Party to the Conventions at the time of the US invasion, the Taliban had not been recognized as the legitimate governing authority of the country.  As a result, the coalition invasion of Afghanistan did not amount to an international armed conflict since force was being directed against a non-state actor even though al-Qaeda and the Taliban were located in a foreign territory and the Taliban exerted control over much of the country.  Accordingly, the status and protections afforded to members of a nation’s armed forces during international armed conflict were not available to members of the Taliban regime.

Assuming for the sake of argument that the legitimacy of the Taliban’s rule was in question, Article 13 of GC I may come into play.  Specifically, Article 13(3) establishes protective status for “[m]embers of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power.” This article mirrors the language in Article 4 of the Third Geneva Convention of 1949 (GC III) which is an authoritative list of persons who receive combatant immunity and/or prisoner of war status once captured.

While an analysis of this rule would not be used as a basis to classify the conflict, the Commentary to this provision reveals that the framers of the Conventions declined to extend combatant status to groups like the Taliban.  The Conference of Government Experts sought to limit the scope of this clause to prevent “any abusive interpretation which might have led to the formation of armed bands such as the “Great Companies””. The Commentary further notes that the “provision must be interpreted, in the first place, in the light of the actual case which motivated its drafting — that of the forces of General de Gaulle which were under the authority of the French National Liberation Committee”.  It concludes that only those forces which resemble the armed forces of a state Party to the conflict, which are recognized by third party states, and which assume obligations of the government subject to the Conventions may gain belligerent rights and protections afforded to members of the national armed forces.  None of these conditions were met by the Taliban.

The appeal of Al Warafi’s argument is easy to see.  Those who fall into one of the categories enumerated in Article 24 are provided a unique status of “retained personnel”.  Upon capture, such persons should be repatriated unless they are needed to provide medical care to prisoners of war and only for such time as their services are necessary.   With regards to those falling within the purview of Article 24 “repatriation is the rule; retention the exception [p.53]”.

Unfortunately for Al Warafi, the Commentary to Article 24, as well as Army Regulation 190-8 §3-15, specifies that only medical personnel of the armed forces of a nation are entitled to this protection.  Therefore, while the lack of proper identification is not dispositive as to whether Al Warafi was exclusively engaged in the provision of medical aid, the issue becomes moot as the Taliban lacked the proper authority to issue the credentials necessary for Al Warafi to obtain protection under Article 24.  (more…)