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Non-State Actors

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.

For Unrecognized Entities and Would-Be States, the World Cup is Already Over

by Chris Borgen

While awaiting the FIFA World Cup quarterfinal matches to begin, and U.S. Secretary of Defense Tim Howard taking a well-deserved rest, I thought it might be useful to check-in on the status of the ConIFA World Cup, the tournament among teams from unrecognized entities and would-be states.  The New York Times has just published a great pictorial of that tournament, which was held in June.

ConIFA, the Confederation of Independent Football Associations, explains on its website that it:

… is a global umbrella organization for all the football teams outside FIFA. There are more than 5 500 ethnicities around the world and hundreds of sportingly isolated regions that doesn´t have an international arena to play international football.

CONIFA welcome all registered Football Associations and teams to play. We organize the official World Championship for teams outside FIFA, Continental Championships, International tournament and Cups combined with Cultural Events and Youth Exchanges. The Football World outside FIFA is fast growing and millions of dedicated fans follow the scene – this is happening now…

Why aren’t these teams in FIFA, the international federation of football associations? Membership in FIFA is not based on being a state, but rather on being a football association.  Thus, if you look at a list of FIFA member associations, England and Wales are separate associations, and thus separate World Cup teams. However, joining FIFA can be subject at times to some of the same political tensions as the recognition of a state.

According to FIFA’s statutes (.pdf), to be eligible to become a member of FIFA, an applicant must first be a member of one of the six main football confederations: the Confederación Sudamericana de Fútbol (CONMEBOL), the Asian Football Confederation (AFC), the Union des Associations Européennes de Football (UEFA), the Confédération Africaine de Football (CAF), the Confederation of North, Central American and Caribbean Association Football (CONCACAF), or the Oceania Football Confederation (OFC). Without going into all the statutes of these individual confederations, it is likely that some vote among the existing member associations in a given confederation will be a first hurdle that an aspirant FIFA-member must pass. (See, for example, UEFA’s rules (.pdf).)

Once a member of a confederation, an association may then apply for FIFA membership. Admission is based on a vote of the FIFA Congress, which is comprised of a representative of each member association. Article 10 of FIFA’s Statutes states:

Any Association which is responsible for organising and supervising football in all of its forms in its Country may become a Member of FIFA. Consequently, it is recommended that all Members of FIFA involve all relevant stakeholders in football in their own structure. Subject to par.5 and par.6 below, only one Association shall be recognised in each Country.

Paragraph 5 allows for separate membership for the British associations and paragraph 6 explains:

An Association in a region which has not yet gained independence may, with the authorisation of the Association in the Country on which it is dependent, also apply for admission to FIFA.

Thus, although membership in FIFA is technically not based on statehood, the process is based on statehood and defers to recognized national organizations. Consequently, unrecognized secessionist entities such as South Ossetia and Nagorno Karabakh have no real chance of having their football associations become part of a confederation, let alone FIFA. The New York Times further describes some of the results of FIFA’s membership process:

For many teams, membership confers legitimacy and a shot at reaching the World Cup finals, a huge stage from which to wave their nation’s flag.

Palestine — recognized as a “nonmember observer state” by the United Nations and a member of FIFA since 1998 — now has a national stadium near Ramallah and has attempted to qualify for four World Cup finals. Other teams, like Kosovo, have been unable to join European soccer’s governing body, UEFA, because of political lobbying from Serbia. When Gibraltar, a British overseas territory on the Iberian Peninsula claimed by Spain, tried to join FIFA, Spain threatened to pull all of its teams — including the powerhouses of Barcelona and Real Madrid — from the European Champions League and international football. Despite the political pressure, Gibraltar became a member of UEFA in 2013 and hopes to join FIFA next.

While not all the associations in the ConIFA World Cup are from entities that are attempting to become states, the politics of statehood nonetheless is one of the variables defining this World Cup among the unrecognized. If statehood is the gold standard of the international system, then being accepted by such a state-centric organization as FIFA is viewed by some as a mark of legitimacy. At the very least, it is a benefit that existing states may wish to deny to unrecognized separatists.

And so we get the ConIFA World Cup, which gets into the legitimacy game by calling itself the “official” tournament of associations not in FIFA.

Some results of note: South Ossetia beat Abkhazia on penalties in quarterfinals. Nice beat defending Padania (the defending champs, I believe)  in quarterfinals and then the Isle of Man in the finals. You can see the full ConIFA tournament results here. You can also read more about a previous World Cup among unrecognized entities in this post.

 

Syria and International Justice at the LSE

by Kevin Jon Heller

I will be participating in a roundtable about Syria and international justice next Monday night at the LSE. It’s free and open to the public, so I hope at least a few OJ readers will come. You can also send questions to the following hashtag: #LSESyriaICC. We will try to answer at least a few of them!

Here are the event details:

Syria and International Justice
LSE Centre for International Studies Dialogue
30 June 2014
6.30-8pm at LSE
Thai Theatre
New Academic Building

With a draft Security Council resolution to refer the situation in Syria to the International Criminal Court vetoed, what, if anything, should the international community or other interested actors do to achieve justice in Syria?

SPEAKERS

Kevin Jon Heller, Professor of Criminal Law, SOAS. @kevinjonheller
Dov Jacobs, Asst Professor of Int’l Law, Grotius Centre. @dovjacobs
Mark Kersten, Researcher, LSE. Justiceinconflict.org. @MarkKersten
Jason Ralph, Professor of Int’l Relations, University of Leeds. @JasonRalph4
Leslie Vinjamuri, Senior Lecturer in IR, SOAS. @londonvinjamuri

CHAIR

Kirsten Ainley, Director of LSE CIS. @kirstenainley

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)…

Analysing the US Invocation of Self-Defence Re: Abu Khattallah

by Kevin Jon Heller

Most of the discussion about Abu Khattallah’s capture in Libya has focused on the operation’s basis — or lack thereof — in domestic US law. Less attention has been paid to whether international law permitted the US to use force on Libyan soil. As Marty Lederman recently noted at Just Security, Abu Khattallah’s capture can potentially be justified on two different grounds: (1) Libya consented to the capture operation; or (2) the capture operation represented a legitimate act of self-defence under the UN Charter. The first justification does not appear open to the US; the available evidence indicates that the operation was conducted without Libya’s consent. So it’s not surprising that the US has claimed — in a letter submitted to the UN by Samantha Power on June 17 — that Article 51 permitted the operation:

The investigation also determined that [Abu Khattallah] continued to plan further armed attacks against U.S. persons. The measures we have taken to capture Abu Khattallah in Libya were therefore necessary to prevent such armed attacks, and were taken in accordance with the United States’ inherent right of self-defense. We are therefore reporting these measures to the Security Council in accordance with Article 51 of the United Nations Charter.

Power’s letter obscures far more than it reveals. In fact, the US’s invocation of self-defence raises four very difficult questions:

  • Can a non-state actor launch an “armed attack” that triggers the right of self-defence?
  • If so, must that armed attack be attributable in some fashion to the state whose territory is the object of “self-defensive” force?
  • Do all uses of armed force qualify as an “armed attack” for purposes of Article 51?
  • Does the right of self-defence permit force to be used anticipatorily?

In this post, I want to put aside the first two questions. I have no doubt that a non-state actor can launch an armed attack within the meaning of Article 51, and my views on the “unwilling or unable” test are well-known. It’s worth spending some time, though, on the third and fourth questions.

The third question is interesting because it’s not clear that all uses of force qualify as “armed attacks” for purposes of Article 51. The UN Charter itself distinguishes between the “use of force” (Art. 2(4)) and “armed attack” (Art. 51), and the ICJ has suggested in both Nicaragua and Oil Platforms that at least some uses of force may be so de minimis that they do not entitle the victim state to use force in self-defence. (As opposed to taking other countermeasures.) On the other hand, customary international law seems to indicate that the threshold of force for an armed attack is extremely low. Here is Tom Ruys’ conclusion in his magisterial book “Armed Attack” and Article 51 of the UN Charter (p. 155):

In the end, customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.

In sum, the following general conclusions can be made: (1) the travaux of the Definition of Aggression suggest that a minimal gravity is indeed required and seem to rule out the aforementioned Option 3; (2) ‘concrete’ customary evidence nonetheless makes clear that the gravity threshold should not be set too high and that even small-scale attacks involving the use of (possibly) lethal force may trigger Article 51.

If Ruys is right — and he has examined state practice and opinio juris far more carefully than any other scholar writing on the use of force — the attack on the US embassy in Benghazi almost certainly was, in fact, an “armed attack” for purposes of Art. 51.

What, then, about the fourth question? Here is where the US claim of self-defence regarding the Abu Khattallah operation becomes problematic. The US clearly cannot use the original Benghazi armed attack to justify the operation — although a state’s response to an armed attack may not have to be immediate, the prohibition on armed force in Art. 2(4) of the UN Charter would be meaningless if a state could “pocket” an armed attack and respond to it with armed force much later — nearly two years later, in the case of Benghazi. Indeed, Power seems to acknowledge as much when she emphasises that Abu Khattallah was planning further armed attacks. Does that planning mean the capture operation was a legitimate act of self-defence by the US?

Answering that question, of course, requires us to address the temporal limits of self-defence under Art. 51. Three basic positions on that issue are possible:

  • Self-defence permits the use of force only in response to an armed attack; force cannot be used pre-emptively or preventively (“responsive self-defence”)
  • Self-defence permits the use of force to pre-empt an imminent armed attack but not to prevent a temporally more remote armed attack (“pre-emptive self-defence”)
  • Self-defence permits the use of force to prevent even a temporally remote armed attack (“preventive self-defence”)

Unfortunately, because of the US’s typical lack of transparency concerning its use of force, Power’s letter says nothing about the time-frame of the armed attacks Abu Khattallah was supposedly planning. (Nor does it provide any evidence of that planning, but that’s another question.) The time-frame doesn’t matter, however, if responsive self-defence is the correct position — as noted, the capture operation cannot be justified as a response to the original Benghazi attack.

Most readers — at least those in the West — will no doubt be inclined to reject responsive self-defence as too narrow, even though it is the only position consistent with the text of Article 51, which permits self-defence “if an armed attack occurs.” Surely customary international law does not require a state to wait until an armed attack has already taken place to defend itself, no matter what the UN Charter says.

This issue is much more difficult issue than it may appear. Those interested should read the relevant section of Ruys’ book; I’ll just quote his bottom line (pp. 341-42):

In light of the available evidence, it can be concluded that there has indeed been a shift in States’ opinio iuris insofar as support for pre-emptive self-defence, fairly rare and muted prior to 2001, has become more widespread and explicit in recent years. At the same time, it seems a bridge too far to claim that there exists today widespread acceptance of the legality of self-defence against so-called “imminent” threats. Such assertion tends to forego the opposition of a considerable group of mainly Latin-American, north-African and Asian States. In the present author’s view, it would therefore be more appropriate to argue that the crack in opinio iuris among States has widened, without, however, identifying one approach or the other as the majority view. The implication is that, taking account of the Charter “baseline” and the absence of a concrete precedent in State practice which convincingly demonstrates the international community’s support for some form of anticipatory self-defence, it is impossible to identify de lege lata a general right of pre- emptive – and a fortiori preventive – self-defence.

Ruys’ reference to the UN Charter’s “baseline” is important, because Art. 51’s adoption of responsive self-defence indicates that states who support a more relaxed concept of self-defence, such as the US, have the obligation to find sufficient state practice and opinio juris to establish a broader rule. And such state practice and opinio juris is simply lacking — unless, as is too often the case with custom, we simply ignore the views of the Global South.

Even if responsive self-defence is too narrow, however, that does not mean the Abu Khattallah operation was a legitimate act of self-defence. If the US had evidence that Abu Khattallah was about to launch another armed attack, it is reasonable to assume Powers would have said so in her letter. That she failed to do so thus seems to indicate — though is clearly not dispositive — that the US did not believe another armed attack was imminent when it launched the capture operation. Power’s letter may well indicate, therefore, that the US is promoting the broadest understanding of self-defence possible — preventive self-defence instead of pre-emptive self-defence. If so, as Ruys notes (pp. 336-38), the US is on shaky ground indeed:

[T]here can be no doubt that even among States adhering to the “counter-restrictionist” view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation “Iraqi Freedom” avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of “preventive self-defence.” Likewise, the French politique de defense unequivocally “rejects… the notion of preventive self-defence.”

What is more, even the “traditional” adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to “In Larger Freedom” was rather cautious: it simply “[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack.” Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence “in the event of both actual and imminent attacks.” As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: “It is… the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote.”…

[W]e may therefore conclude that the trend in State practice has been broadly similar to that in legal doctrine: support for anticipatory self-defence has increased, but has by and large restricted this concept to imminent threats.

Again, in the absence of additional information, we cannot categorically reject the US’s insistence that the Abu Khattallah operation was a legitimate act of self-defence. But there is considerable reason to be skeptical. Indeed, the US’s lack of transparency concerning its understanding of Art. 51 of the UN Charter may well indicate it has adopted a position that even its closest allies formally disavow.

New ILO Treaty on Forced Labor Victims

by Duncan Hollis

With all the talk of the End of Treaties and Treaty Survival, it’s worth noting that the wheels of multilateral treaty-making have not come to a complete stop.  Earlier today, the ILO adopted a Protocol to ILO Convention No. 29, the 1930 Forced Labour Convention.  On paper, the 1930 Convention was a success — it currently has 177 parties.  But it’s also considered outdated within the human rights community, which has emphasized the continuing and significant costs of forced labor in humanitarian and economic terms, necessitating new legal tools to limit or mitigate the effects of this horrible practice.

Some of the 2014 Protocol’s provisions are standard treaty fare on modern global problems — i.e., requiring “national” plans of action and domestic legislation on forced labor issues.  Other provisions reflect the need to update the 84 year old Convention itself (i.e., deleting provisions on forced labor in overseas “colonies”).  The heart of the treaty appears to be Article 4:

Article 4
1. Each Member shall ensure that all victims of forced or compulsory labour, irrespective of their presence or legal status in the national territory, have access to appropriate and effective remedies, such as compensation.

2. Each Member shall, in accordance with the basic principles of its legal system, take the necessary measures to ensure that competent authorities are entitled not to prosecute or impose penalties on victims of forced or compulsory labour for their involvement in unlawful activities which they have been compelled to commit as a direct consequence of being subjected to forced or compulsory labour.

I’d be interested in reactions from those who follow the ILO and forced labor subjects more closely. Is this Protocol significant in the ongoing efforts to deal with human trafficking and forced labor? How important is the expansion of the right to relief to include migrants who might otherwise be labeled “illegal” via their immigration status?  And is the “entitlement not to prosecute” that significant a requirement?  It presumably still gives State authorities the ability to prosecute forced labor victims engaged in ‘unlawful’ behavior like sex work or drug offenses even if they were coerced into doing so. Thus, it seems more like an aspirational goal than a provision that will mandate changes in State behavior. Comments most welcome.

A Problematic Study of Drone Strikes in Pakistan (Updated)

by Kevin Jon Heller

Lawfare reports today on a study published in Political Science Quarterly about how ordinary Pakistanis view US drone strikes in their country. According to the post, the study “[c]hallenge[s] the conventional wisdom” that there is “deep opposition” among Pakistanis to drone strikes and that “the associated anger [i]s a major source of the country’s rampant anti-Americanism.”

I don’t have access to the study itself, but the polling questions quoted in the Lawfare post seem seriously flawed. Here are the three primary questions about drone strikes:

How much, if anything, have you heard about the drone attacks that target leaders of extremist groups – a lot, little, or nothing at all?

Please tell me whether you support or oppose the United States conducting drone attacks in conjunction with the Pakistani government against the leaders of extremist groups.

Now I’m going to ask you a list of things that the United States might do to combat extremist groups in Pakistan. For each one, please tell me whether you would support or oppose it. [The respondent is then offered]: Conducting drone attacks in conjunction with the Pakistani government against leaders of extremist groups. 

There are two significant problems with these questions. First, it seems like a major stretch to describe the US drone program in Pakistan as being carried out “in conjunction with the Pakistani government” — a formulation that implies that Pakistan and the US are working together. I accept reports that say Pakistan has tacitly or secretly endorsed the US drone program. But the Pakistani government’s public position has always been that the drone program is being conducted without its consent. The “in conjunction with” language is thus seriously misleading — especially given that the ordinary Pakistani will likely be far more familiar with the government’s public position than with the private one revealed in secret cables. Indeed, the second and third questions could easily be interpreted to be asking a hypothetical question (“would you like drone strikes more if they were conducted in conjunction with your government?”), instead of as an assertion of a past and present state of affairs.

The second problem, however, is even more serious. All three questions assert — and assume — that drone strikes in Pakistan target “leaders of extremist groups.” But that is almost certainly not the case. Here, for example, is what the Stanford/NYU “Living Under Drones” report says:

National security analysts—and the White House itself— have found that the vast majority of those killed in drone strikes in Pakistan have been low-level alleged militants. Based on conversations with unnamed US officials, a Reuters journalist reported in 2010 that of the 500 “militants” the CIA believed it had killed since 2008, only 14 were “top-tier militant targets,” and 25 were “mid-to-high- level organizers” of Al Qaeda, the Taliban, or other hostile groups. His analysis found that “the C.I.A. [had] killed around 12 times more low-level fighters than mid-to-high- level” during that same period. More recently, Peter Bergen and Megan Braun of the New America Foundation reported that fewer than 13% of drone strikes carried out under Obama have killed a “militant leader.” Bergen and Braun also reported that since 2004, some 49 “militant leaders” have been killed in drone strikes, constituting “2% of all drone-related fatalities.”

Unless all of these reports are incorrect, the US drone program in Pakistan has never focused on “leaders of extremist groups.” It is thus extremely misleading for the study to ask ordinary Pakistanis whether they support drones strikes that target such leaders. Would the results be the same if the study had asked participants whether they “supported or opposed the United States conducting drone attacks against low-level fighters believed to be members of extremist groups”? I doubt it.

It is a truism of the polling business that poll results are only as good as the questions participants are asked. In the case of the drone study reported in Lawfare, there is reason to be skeptical of both the questions and the answers.

UPDATE: After an email exchange with one of the authors, I think it’s only fair to acknowledge that the questions were formulated and asked by Pew, not by the research team. That said, I still question how useful the answers are, given the problems discussed above.

Guest Post: Detention in NIACs: A Pledge in Favour of the Application of IHL

by Ezequiel Heffes

[Ezequiel Heffes holds an LL.M., Geneva Academy of International Humanitarian Law and Human Rights and is a lawyer, University of Buenos Aires, School of Law.]

Recently, the High Court of England and Wales delivered a judgement in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) holding, among other things (see here for an explanation of the whole case), that the United Kingdom lacks detention authority under international humanitarian law (IHL) with regard to individuals it captures in the course of the non–international armed conflict (NIAC) in Afghanistan. In the present case, Justice Leggatt held that Common Article 3 (CA3) and/or Additional Protocol II (AP II) do not provide legal power to detain in the context of NIACs.

Much has been written about this in the blogosphere (see here, here, here and here by Gabor Rona a few years ago). From a theoretical perspective, these writings have raised several interesting arguments. This post, however, will focus on certain practical issues.  I will offer four arguments to suggest that it would be simply counter–intuitive not to recognize that IHL already regulates detentions in NIACs, even though it seems to be explicitly silent on this question.

The protection gap argument

The fact that CA3 and AP II neither mention internment nor elaborate grounds of detention has led to different positions on the legal basis for internment in NIACs. International bodies have prohibited such actions in cases other than when it is necessary for reasons related to the conflict. Here, the Inter–American Commission affirmed with regard to detentions carried out by the Colombian AOGs that “international humanitarian law also prohibits the detentions or internment of civilians except where necessary for imperative reasons of security”. The same view was held by the UN Commission of Human Rights (Resolution 1995/77) when it appealed to AOGs to refrain from “arbitrary” detention of civilians. As Zegveld points out, these bodies seem to have derived this prohibition from the IHL applicable to international armed conflicts, in particular Geneva Convention IV (Zegveld, Accountability of Armed Opposition Groups, at 65).

On the other hand, other resolutions by the UN Commission on Human Rights, such as Resolution 1995/74, deny that IHL permits certain civilian detentions on the grounds that human rights law is, in principle, a body of law only addressed to States, and only States have authority to arrest and detain persons. This would mean that, in the present case, IHL is silent while the international human rights law (IHRL) provision on arbitrary detention (Article 5 ECHR) would only be applicable towards the UK. This, however, represents a protection gap for detainees held by AOGs during the NIAC.  If IHL and IHRL do not apply upon them, then AOGs are able to operate within a legal ‘black hole’ and can in principle detain with impunity from an international law perspective (Somer, at 667–668). This necessarily implies that those detained by non–state actors have less protection than those detained by States, a situation that in the context of an armed conflict could not exist since IHL recognizes the principle of the equality of the parties (see the fourth argument by Kubo Mačák).

The judicial guarantees argument

CA3 affirms that “the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people” is prohibited with respect to protected persons. Article 5 of AP II complements this by including several standards based on the more rigorous provisions of GC III and IV.

These provisions and possible detentions in NIACs should be seen through the same prism. Indeed, by granting AOGs the possibility to “regularly” constitute courts and to legislate in order to meet the judicial guarantees component (CA3), States have recognized AOGs’ legal capacity to run a parallel non–state legislative and judicial system outside of State authority (Somer, at 657). If States have accepted this guarantee (and therefore AOGs can declare someone innocent or guilty, or even permitting the person detained to challenge his or her detention), it would be simple logic to accept that they can also detain individuals under the same legal framework. In fact, they are both related since the application of judicial guarantees may serve to prevent indefinite detention in either situation.

The hostage taking argument

Alternatively, if AOGs are not able to detain members of State forces, then there is no practical difference between that situation and hostage taking, which is forbidden by CA3. The 1979 Convention against the Taking of Hostages provides a useful definition: “any person who seizes or detains […] in order to compel a third party, namely, a State […] a natural or juridical person, a group of person, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages […]”. Even though it was not drafted with a NIAC in mind, the definition contained therein could be considered appropriate in times of armed conflicts (Prosecutor v. Sesay, Kallon and Gbao, para 579) and might cover AOG detentions in the absence of authority under IHL.

As Sivakumaran explains, the means by which an individual enters the custody of the hostage–taker may be through lawful and unlawful means (Sivakumaran, The Law of Non–International Armed Conflicts, at 269). Certainly, the “hostage” label would come after the person has been taken away, regardless of how he or she is taken, but having in mind that an AOGs’ detentions will always be illegal under domestic legislation and not regulated as such by international law, the only characterisation that could frame such conduct under the latter regime would be the “hostage–taking” one. If AOGs cannot detain under IHL, then every person under their control against their will would be a hostage and therefore each detention would constitute an automatic violation of international humanitarian law.

The realistic argument

If none of the abovementioned arguments are enough, then we should just move towards a more realistic approach. This alternative proposes that it is simply unreasonable to consider that AOGs cannot detain individuals from an IHL perspective. As Sassòli (at p. 19) correctly suggests, “[p]arties to armed conflicts intern persons, hindering them from continuing to bear arms, as to gain a military advantage. If the non–state actor cannot legally intern members of government forces it is left with no option but either to release the captured enemy fighters or to kill them”. This implies that AOGs’ members might attack government soldiers instead of trying to legally arrest them. Even if under domestic law the killing of State forces is inherently illegal, no one says that it is prohibited per se under IHL. Yet, according to Sassòli’s argument, we could simply analyse possible detentions by AOGs from a “military advantage” perspective.

To conclude

This post has attempted to demonstrate some possible arguments as to why detentions in NIACs should be logically framed under IHL having in mind the recent decision in Mohammed of the High Court of England and Wales, which held the IHL to authorize such detentions. Certainly, these arguments do not solve all the issues raised in the context of NIAC detentions, but there can (and should be) room for new paradigms, particularly in light of how NIACs operate in the real world and the practical protection concerns that arise if the law were to remain truly silent.

Did You Know Hazarding a Vessel Was a War Crime? Me Neither.

by Kevin Jon Heller

We have a new challenger in the competition for worst decision by a military commission ever! Judge Pohl has now issued an order in al-Nashiri concluding that Charge IX, Hijacking or Hazarding a Vessel or Aircraft, states a violation of the international laws of war. Here is the definition of that “war crime,” 10 U.S.C. § 950t(23):

(23) Hijacking or hazarding a vessel or aircraft.— Any person subject to this chapter who intentionally seizes, exercises unauthorized control over, or endangers the safe navigation of a vessel or aircraft that is not a legitimate military objective shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

Hijacking or hazarding a vessel is not a grave breach of either the Geneva Conventions or the First Additional Protocol. The Rome Statute does not criminalise hijacking or hazarding a vessel. No international tribunal has ever prosecuted the hijacking or hazarding a vessel as a war crime — not the IMT, not the ad hocs, not the ICC. The ICRC’s study of customary IHL does not mention hijacking or hazarding a vessel — although it does note that both the US Naval Handbook (Vol. II, p. 3893)  and The Restatement (Third) of the Foreign Relations Law of the United States (Vol. II, p. 3938) specifically distinguish between hijacking and war crimes. And so on.

How, then, does Judge Pohl somehow conclude that hijacking or hazarding a vessel is a war crime — as opposed to attacking civilians or civilian objects, both of which are war crimes and are both of which are also detailed in al-Nashiri’s charge sheet? By citing the widespread ratification of the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation.

Seriously. By citing the widespread ratification of the Convention for the Suppression of Unlawful Acts of Violence Against the Safety of Maritime Navigation.

Here is what Judge Pohl says (emphasis mine):

The M.C.A. prohibits conduct that “endangers the safe navigation of a vessel.” The similarity between the M.C.A. and the SUA Convention is plain and unambiguous. The SUA Convention proscribes the same conduct the M.C.A. proscribes and of which the Accused is charged… The Commission finds by a preponderance of the evidence the Prosecution has demonstrated the crime of Hijacking or Hazarding a Vessel or Aircraft is based on norms firmly grounded in international law and can be plainly drawn from established precedent. Therefore, the Commission concludes the offense of Hijacking or Hazarding a Vessel or Aircraft was an international law of war crime at the time the Accused allegedly engaged in the conduct, thus conferring jurisdiction over the offense.

That’s it. That’s Judge Pohl’s entire argument. Never mind that the SUA Convention says nothing about the laws of war, applying equally in armed conflict and peacetime. Never mind that the SUA Convention does not even purport to create an international crime — it is, of course, a suppression convention that simply obligates States Parties to domestically criminalise certain acts. Never mind that, even if it is possible to argue that the widespread ratification of the SUA Convention somehow creates a customary rule prohibiting hijacking or hazarding a vessel (difficult in itself), such a customary rule would still not create “an international law of war crime.”

I hope I don’t need to explain in more detail why the widespread ratification of a suppression convention doesn’t create a war crime. But let’s take Judge Pohl’s methodology seriously. Want to know what other kinds of acts are also war crimes prosecutable in a military commission?

  • Nuclear proliferation (NPT — 190 ratifications)
  • Threatening civilian aviation (Safety of Civilian Aviation Convention – 188 ratifications)
  • Drug trafficking (Illicit Traffic in Narcotics Convention – 188 ratifications)
  • Manufacturing hallucinogenic drugs (Psychotropic Substances Convention – 182 ratifications)
  • Using child labor (Worst Forms of Child Labor Convention – 177 ratifications)
  • Transnational organised crime (Transnational Organized Crime Convention – 176 ratifications)
  • Kidnapping diplomats (Internationally Protected Persons Convention – 176 ratifications)
  • Corruption (Anti-Corruption Convention – 167 ratifications)
All of those conventions are suppression conventions — and each has been much more widely ratified than the SUA Convention. According to Judge Pohl’s logic, therefore, all of those acts are also violations of the international laws of war.In the off chance you needed additional proof that the military commissions are a joke, Judge Pohl’s decision is Exhibit A.

No, the Attack on the USS Cole Did Not Take Place in Armed Conflict

by Kevin Jon Heller

I argued more than three years ago that the US decision to prosecute Abd al-Rahim Abdul al-Nashiri in a military commission was illegitimate, because the attack on the USS Cole did not take place during an armed conflict. (I also pointed out that al-Nashiri was systematically tortured, including through the use of mock executions and waterboarding.) Peter Margulies takes a whack at the contrary position today at Lawfare, and the results aren’t pretty. Here, for example, is what he says about the Tadic test:

Under international law, the existence of a noninternational armed conflict depends on the intensity and duration of violence and the existence of an organized armed group (OAG) responsible for the violence. The OAG criterion is readily met: “core” Al Qaeda ordered the Cole attack and used it as a basis for recruiting more terrorists. The geographic distance between Yemen and Afghanistan is irrelevant given the centrality of Al Qaeda’s planning, which placed Osama bin Laden and Al-Nashiri in the same OAG.

The duration and hostility factors also break against Al-Nashiri. In the MCA, Congress gave military commissions jurisdiction over acts committed before September 11, recognizing that Al Qaeda’s military efforts against the US predated that event. The conduct of the US prior to the Cole bombing buttresses Congress’s finding. In August, 1998, President Clinton responded to the Al Qaeda-planned East African Embassy bombings, which killed over 250 persons, with a wave of Cruise missile strikes in Afghanistan and Sudan. That sounds pretty intense to me, although the intensity seems lost on Al-Nashiri’s advocates.

Margulies gets the NIAC test right, and he is even likely right that al-Nashiri was part of “core” al-Qaeda at the time of the attack on the USS Cole. But his discussion of the duration and intensity factors is deeply flawed. To begin with, as I have pointed out before (numerous times), the existence of a NIAC is a purely objective question, one determined by the facts on the ground, irrespective of the subjective perception of the parties to the hostilities. The MCA’s jurisdictional provisions are thus irrelevant to whether the US was involved in a NIAC with core al-Qaeda when the USS Cole was attacked.

More importantly, it is clear that no such NIAC existed at the time of the attack…

NETmundial, Borders in Cyberspace, and a Duty to Hack

by Duncan Hollis

Last week’s NETmundial conference serves as a reminder of just how much the nature of cyberspace remains (at least theoretically) undetermined.  We still can’t agree on what kind of resource cyberspace “is”:  Is it a global public good as Sir Tim Berners Lee proclaimed (i.e., a res communis) or just a collection of technology subject to sovereignty regulation like so many other resources?  This theoretical divide may help explain the continuing back and forth between multi-stakeholder governance (which includes, but does not privilege, a role for States) versus the multilateral governance project (which most certainly does).  NETmundial may have been a net plus for multi-stakeholder proponents, but I’m much less sanguine that it represents an end to claims that cyberspace can — and should — be regulated primarily by government controls over internet resources (for more on the details of NETmundial and its final statement see Milton Mueller’s take-away here).

My skepticism about how international law will draw borders for cyberspace governance leads me to think about other roles borders can play in cyberspace — that is, using international law to draw lines separating acceptable from unacceptable behavior, permitted conduct from required conduct, etc.  I’ve drafted a new chapter that, in the context of cyber war, examines both the ways we draw law from borders and borders from law in cyberspace.  I critique the status quo on both theoretical and functional grounds, concluding that we should seek to start a new process not just for constructing governance regimes, but normative ones as well.  Consistent with the book’s central focus on cyber war, I proffer a case-study for such an approach with respect to armed conflicts, arguing international humanitarian law should adopt a Duty to Hack.  My idea is that, even though it does so only occasionally now, international law should regularly require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives.  You can download a copy of the paper here on SSRN.

For those looking for more details, here’s the abstract:

Warfare and boundaries have a symbiotic relationship. Whether as its cause or effect, States historically used war to delineate the borders that divided them. Laws and borders have a similar relationship. Sometimes laws are the product of borders as when national boundaries delineate the reach of States’ authorities. But borders may also be the product of law; laws regularly draw lines between permitted and prohibited conduct or bound off required acts from permissible ones. Both logics are on display in debates over international law in cyberspace. Some characterize cyberspace as a unique, self-governing ‘space’ that requires its own borders and the drawing of tailor-made rules therein. For others, cyberspace is merely a technological medium that States can govern via traditional territorial borders with rules drawn ‘by analogy’ from pre-existing legal regimes.

This chapter critiques current formulations drawing law from boundaries and boundaries from law in cyberspace with respect to (a) its governance; (b) the use of force; and (c) international humanitarian law (IHL). In each area, I identify theoretical problems that exist in the absence of any uniform theory for why cyberspace needs boundaries. At the same time, I elaborate functional problems with existing boundary claims – particularly by analogy – in terms of their (i) accuracy, (ii) effectiveness and (iii) completeness. These prevailing difficulties on whether, where, and why borders are needed in cyberspace suggests the time is ripe for re-appraising the landscape.

This chapter seeks to launch such a re-thinking project by proposing a new rule of IHL – a Duty to Hack. The Duty to Hack would require States to use cyber-operations in their military operations whenever they are the least harmful means available for achieving military objectives. Thus, if a State can achieve the same military objective by bombing a factory or using a cyber-operation to take it off-line temporarily, the Duty to Hack requires that State to pursue the latter course. Although novel, I submit the Duty to Hack more accurately and effectively accounts for IHL’s fundamental principles and cyberspace’s unique attributes than existing efforts to foist legal boundaries upon State cyber-operations by analogy. Moreover, adopting the Duty to Hack could constitute a necessary first step to resolving the larger theoretical and functional challenges currently associated with law’s boundaries in cyberspace.

 

From Intervention to Recognition: Russia, Crimea, and Arguments over Recognizing Secessionist Entities

by Chris Borgen

In a matter of days, we have gone from talking about the illegality of Russia’s military intervention, to issues of the Crimean referendum, to Russia’s recognition of Crimea as a new state. While these events have moved quite rapidly, they are not really surprising: arguments over attempted secessions often shift from the question of the legality of the secession itself (about which, as discussed in a previous post, international law is largely silent; although it is generally understood that secession is not a right), to the question of the legality of the recognition of the secession. That is a subtly different question.

By recognizing Crimea, Russia is attempting to shift the discussion off of the issue of military intervention and also, by its recognition, “create facts on the ground” that will at least help Russia;s own negotiating position, if not lay the groundwork for Russia annexing Crimea (by having a Crimean “sovereign state” ask to join Russia). To assess how Russia is doing this, this post will consider the law of recognition and the following post will consider how Russia has used arguments about recognition in relation to Kosovo and South Ossetia in comparison to what it is doing today regarding Crimea.

For this post, the underlying question is whether Russia’s recognition of Crimea was possibly an illegal act.

First of all, what is “recognition?” There are actually different types of recognition: recognition of statehood, recognition of a government, and recognition of a belligerency, recognition of territorial change. For the moment, we are talking about whether Crimea can and should be recognized as a state. In the days to come, we may be talking about issues of recognizing territorial change, if Russia attempts to annex Crimea.

States tend to view the decision to recognize or not recognize an entity as a state as a political decision, albeit one that exists within an international legal framework. That legal framework is in part the rules of statehood. The standard view in international law is that a state must have (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter relations with other states.

While entities that claim statehood often try to do a quick “check the box” summary of these criteria and claim they have all the requirements of statehood, the actual assessment is meant to be more rigorous than a soundbite. For Crimea, the problems include that its territory is completely contested—this isn’t an issue of where the border between Crimea and Ukraine should be, this is a dispute over the whole of the territory of Crimea. Moreover, whether Crimea has a functional government or the capacity to enter into international relations are both very much in doubt: Crimea as a supposedly independent entity would not exist but for Russian military intervention. The control of Crimean territory seems to be more under the command of the Russian President than the Crimean authorities. If you don’t believe me, ask yourself what would happen if the Crimean “president” said he wanted all roads to Ukraine reopened and the Russian barriers taken down. Would his command be decisive? Or President Putin’s?

These criteria are meant to reflect the nuts and bolts of sovereignty: an ability to stand on your own feet, make decisions for yourself, and undertake international relations. Crimea seems less like a sovereign than a hothouse flower: alive due to extraordinary intervention, surviving due to conditions carefully controlled by others, and with little real say in its destiny.

What does the law of recognition have to say about such a case, when it is doubtful that Crimea even meets the basic requirements of statehood? Can Russia just recognize it anyway?…         (Continue Reading)