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Hostages and Prisoners

by Deborah Pearlstein

I’ve been impressed by the number of questions I’ve fielded in the past few weeks from students, colleagues and media alike about whether the United States can and/or should pay ransoms or exchange prisoners for Americans held by various groups overseas. (I discuss the issue in short clips here and here.) Why did we exchange prisoners to rescue Bowe Bergdahl, but refused to pay ransom for James Foley? Is it illegal to pay ransom to these groups, or just a bad idea? Is it really a bad idea?

In the interest of consolidating some answers on a topic that raises a complex cluster of issues, I thought it worth summarizing some of them here – first on the topic of ransom for hostages taken by terrorist groups, then on the topic of prisoner exchanges more broadly. The upshot: It may well be the right policy decision in an individual case for a government not to pay ransom to a terrorist group, but the broader, categorical statement that “we don’t negotiate with terrorists” is neither historically accurate nor strategically wise. (more…)

Will the U.S. Move to Citizenship-Strip ISIS Fighters?

by Peter Spiro

It’s only a matter of time before we start seeing proposals to take away the citizenship of Americans fighting for ISIS/ISIL forces in Syria and Iraq. They have drawn renewed attention in the wake of James Foley’s beheading (apparently by a British citizen) and the death, reported at length today in the NYT, of American Douglas McCain in Syria. Several hundred individuals with Western citizenships are thought to be fighting with the extreme Sunni group.

A proposal to expatriate terrorists associated with entities hostile to the United States went nowhere in 2010 when Joe Lieberman’s Terrorist Expatriation Act failed to garner so much as a committee hearing. A similar initiative might have more legs today.

The Lieberman effort had the Times Square bombing as a hook, but that just looked like ordinary crime. (There was also the problem of Joe Lieberman.) The face of the ISIL fighters is way more scary and foreign. They make bin Laden look like Jesse James — criminal, but not unrecognizable. (Bin Laden had a brother who went to Harvard Law School.) Al-Qaeda has a lot of blood on its hands, but it doesn’t go around cutting peoples heads off and tweeting the results.

The U.S. would be following the UK and Canada’s lead, both of which have adopted expatriation measures aimed at citizens fighting in Syria. That gives U.S. legislators some cover on the international human rights front. Even human-rights-pure Norway is looking to follow suit.

That doesn’t mean terrorist expatriation would make any more sense now than it did in 2010. Any punitive intent would be clearly unconstitutional under the Supreme Court’s 1958 decision in Trop v. Dulles. The law would pass the Court’s test only if the conduct was taken to reflect an individual’s intent to relinquish citizenship. In other words, the law would have to work from the calculation that fighting for ISIS evidences an individual’s desire to expatriate.

Beyond the constitutional niceties, it’s not clear what expatriation would accomplish. True, ISIS may look to weaponize adherents with premium Western passports and visa-free mobility. But you couldn’t take away someone’s citizenship for being associated with ISIS before you knew that he was associated with ISIS. Once a citizen is identified as an ISIS fighter, you can bet he gets put on a watch list. That minimizes the threat. There’s no case in which citizenship-stripping adds much to the counter-terror toolbox.

That may not stop legislators from adding expatriation to their rallying calls. Chalk it up to counter-terror showboating. But it won’t be any more than that.

Can the U.S. President Enter into a Legally Binding Climate Change Agreement Without Congress?

by Julian Ku

The New York Times is running a big report today on the U.S. plan to sign a “sweeping” climate change agreement without having to go to Congress for approval or ratification.  Instead of a typical treaty requiring ratification by the Senate, the U.S. has a different more creative strategy.

American negotiators are instead homing in on a hybrid agreement — a proposal to blend legally binding conditions from an existing 1992 treaty with new voluntary pledges. The mix would create a deal that would update the treaty, and thus, negotiators say, not require a new vote of ratification.

Countries would be legally required to enact domestic climate change policies — but would voluntarily pledge to specific levels of emissions cuts and to channel money to poor countries to help them adapt to climate change. Countries might then be legally obligated to report their progress toward meeting those pledges at meetings held to identify those nations that did not meet their cuts.

Jack Goldsmith is already out with a typically smart analysis of this approach, and he concludes the new agreement is intended to sound like a big deal, but will be unlikely to commit the U.S. to do anything meaningful.  I think that is probably right, although I can’t really tell based on the incomplete details in this NYT article.  I think there might be a little bit of domestic legal effect, and may also create an important precedent on what the President can do to bind the US on the international level.

Surely, the President can sign a political agreement that pledges voluntary cuts and to channel money to poorer countries. Such an agreement would have no domestic legal effect until Congress acted to implement the legislation.   But can the President bind the U.S. under international law, even if it has no domestic legal effect?

The President can, in limited circumstances, bind the US under international law via a sole executive agreement.  It has done so especially in the areas of post-conflict settlements such as the famous Algiers Accords that released US hostages and also sent seized Iranian and US assets to an international arbitration tribunal.  US courts have given those agreements limited domestic effect.  But the line between what the President can do via a sole executive agreement and what he must do via a treaty is not completely clear (although there is a line!).  Maybe the President is claiming some delegated authority from the original 1992 Framework Convention, which might bolster his ability to bind the U.S. internationally. I don’t see any obvious basis in that treaty for this delegation, but I suppose experts on the Framework Convention might come up with something.

So I think the President might be able to sign the US up to a binding international agreement on climate change, but it would be pretty unprecedented and its legal effect uncertain.  Such an agreement would be unlikely to have domestic legal effect on its own, but the President could cite the agreement as the basis for executive orders he is already implementing on climate change.  I don’t think it would carry the policy much farther than he is already doing under creative interpretations of the Clean Air Act, but it might provide just a little bit more support for his domestic orders.

I think it will be important to look at the details of the proposed agreement, and to ask the US administration to explain its legal authority for the new agreement.  Will it be the 1992 Framework Convention?  Or is it going to be just the President’s general Article II executive power?  If the latter, this may be an important precedent for future sole executive agreements under the US Constitution.  In any event, President Obama is certainly exploring the outer limits of his Article II powers.

A Summer of Shifting Alliances?

by Deborah Pearlstein

Just keeping up with the news on international terrorism/counterterrorism this summer could be a full time job. Among many other potentially significant reports, I wanted to highlight this statement recently released by Al Qaeda in the Arabian Peninsula (AQAP), often described by U.S. officials as the branch of Al Qaeda that currently poses the greatest threat to the United States. The AQAP statement announces the group’s support for the Islamic State (formerly known as ISIS or ISIL).

“We announce solidarity with our Muslim brothers in Iraq against the crusade. Their blood and injuries are ours and we will surely support them…. We assert to the Islamic Nation [all Muslims worldwide] that we stand by the side of our Muslim brothers in Iraq against the American and Iranian conspiracy and their agents of the apostate Gulf rulers.”

The statement goes on to offer various bits of non-rocket-science tactical advice to the Islamic State – watch out for spies, don’t assume electronic communications are unmonitored, digging trenches can help protect against the impact of shelling (thanks General Pershing). While I can’t generally vouch for the journalistic practices of the Yemen Times (on which I’m relying for the AQAP statement), this seems a simple direct quotation.

Why does this matter? A few reasons potentially. First, core Al Qaeda (led by Al Zawahiri) has condemned ISIL/the Islamic State and dissociated itself with the group. It is unclear how core Al Qaeda will take this move by one of its branches to voice its support for ISIL, but if AQAP intends to signal a real move away from core Al Qaeda, it would be another significant weakening of Al Qaeda’s regional and international capabilities (and a significant boost to ISIL). Second, AQAP has long been understood by the United States as a force “associated with” Al Qaeda for purposes of coverage by the statutory AUMF (authorizing the President to use force – targeting, detention, etc. – against those groups that attacked us on 9/11). If AQAP is moving to break its association with core Al Qaeda, the statutory argument that AQAP remains one of groups Congress meant to authorize force against in 2001 becomes much weaker. Given that the United States has reportedly continued to conduct targeting operations against AQAP forces in Yemen, this poses a potentially significant legal wrinkle in administration arguments that it enjoys statutory authorization for those operations. On the other hand, it would strengthen any case the administration might make to Congress for new authority to use force against ISIL and its associates. Will the administration seek such new congressional authority, particularly when the War Powers Act 60-90 day clock runs on current U.S. operations in Iraq (after which the President is required to seek congressional authorization)? Stay tuned.

A Tale of Two Baarles: Crazy-Quilt Maps and Sovereignty Over Certain Frontier Land

by Chris Borgen

Map credit: Wikimedia Commons via Radiolab

Map credit: Wikimedia Commons via Radiolab

Radiolab has  posted an informative and entertaining essay entitled “How to Cross 5 International Borders in 1 Minute without Sweating.” It describes the intertwined municipalities of the Dutch town Baarle-Nassau and the Belgian town Baarle-Hertog. Here’s the evocative description by Robert Krulwich of Radiolab:

The hunky yellow bit labeled “H1″ (for Hartog) toward the bottom is mostly the Belgian town. But notice those little white bits inside the yellow — labeled “N1, N2, N3″ — those are little patches of the Dutch town (N for Nassau). The two towns are not geographically separate. Instead, they’re like M&M’s in a candy bowl. There are 22 distinct Belgian bits, and a dozen or so Dutch bits, and they are sprinkled together; so sometimes you’ve got bits of Belgium inside Dutch areas, and sometimes Dutch patches inside Belgian neighborhoods. They vary in size. The largest is 1.54 square kilometers, the smallest, an empty field, is 2,632 square meters.

Krulwich is correct to note that in the Middle Ages “Checkerboard maps were common.” One reason they were common was that feudalism had a different conception of sovereignty than the “modern” conception of sovereignty that became prevalent in the years following the Peace of Westphalia in 1648. Rather than strictly territorial, medieval sovereignty was in part relational, between lords and subjects as well as between and among varying levels of nobility. With an emphasis on personal loyalty and duty, the feudal conception of sovereignty was like a network of individuals with multiple linkages and relationships.  Displaying such relationships as a territorial map with bold-line boundaries results in a crazy quilt that may actually obscure the complex interwoven relationships.

But the Westphalian emphasis on territorial sovereignty called for such bold-line maps. Areas that started as territorial patchworks were usually consolidated and rationalized. Krulwich continues:

But for some reason, writes Alastair Bonnet in his new book, Unruly Places, it didn’t [happen here]. During Napoleon’s time, villages were swept cleanly into one nation or another, the borders tidied up, but apparently — and no one can quite explain why — Baarle-Nassau and Baarle-Hertog escaped the broom. Maybe they were too small, too unimportant, but they made it through, their mosaic-ness intact, becoming, Bonnet says, a “living laboratory of medieval micro-borders.”

For more detail on the land grants, treaties, planning commissions, and other aspects of the history of these two towns, see this website.

This mosaic of sovereignty has led to some incredible results. In a 2008 post on Baarle-Hertog/ Baarle-Nassau,  BLDGBLOG reported that:

Sarah Laitner, at the Financial Times, adds that “women are able to choose the nationality of their child depending on the location of the room in which they give birth.”

For more about the administration of Baarle-Hertog and Baarle-Nassau, see this .pdf.

The contested status of two specific plots created by these micro-borders led to a dispute before the International Court of Justice, Sovereignty over Certain Frontier Land (Belgium/ Netherlands). The ICJ found that the plots in question were under Belgian sovereignty.

While perhaps the most complex territorial enclave, the two Baarles are not the only examples; see  the website European Small Exclaves. You can also see more about Swiss cheese sovereignties and cartographic discrepancies in this post I wrote a while back. (And the part about cartographic discrepencies should really be considered by that guy trying to found a Kingdom of North Sudan for his daughter…)

 

 

Robust Peacekeeping Missions

by Kristen Boon

Peacekeeping missions such as the UN’s intervention brigade in the DRC (established within MONUSCO by Security Council resolution 2098) have important legal implications. In particular, if the Brigade is considered a party to the conflict in the Congo, do peacekeepers become combattants?   Can they be captured and detained? For an overview of the main issues see the ASIL analysis by Bruce Oswald here & the new ICRC review.

New peacekeeping missions also raise questions of attribution.   Is the standard of attribution set out in Art. 7 of the Draft Articles on Responsibility of IOs sufficient? How should brigades be considered in relation to the peacekeeping mission as a whole? If wrongdoing occurs, how should responsibility be divided between multiple troop contributing countries and regional forces including NATO and the AU, who may contest any assertion they have international legal personality?

For those interested in this topic, an excellent panel discussion was held at the Irish Mission to the UN this summer.  The panelists, including UN Ambassadors and a retired Force Commander, discuss the “C2” (command and control) structures of peacekeeping missions and their views of future challenges.   The discussion can be viewed here.

In addition, at the upcoming ESIL meeting in Vienna in September, the Amsterdam SHARES project, in conjunction with the ESIL peace and security interest group, has organized a special symposium to tackle some of these issues.  I will be speaking there, and am looking forward to the discussion.

Should the U.S. Government Change Its Approach to Zero-Day Exploits?

by Chris Borgen

Dan Geer, the chief of information security for In-Q-Tel (essentially, the venture capital fund that supports tech innovation for the CIA) gave a wide-ranging keynote speech at Black Hat, a convention of cybersecurity experts.  A video of the speech is available here.

I want to focus on one specific issue among the many he discussed: his call for the US government to publicly disclose the software loopholes and hacks that it purchases.

I have discussed in other posts (1, 2) the market for information regarding security loopholes known as “zero-day exploits.”  The U.S. is already a big player in this market,  purchasing exploits for use by its intelligence and law-enforcement agencies.

Rather than informing producers, purchasers, or users of the software of the flaws, the U.S. government (and other governments that participate in the exploits market) allegedly require non-disclosure agreements from the hackers who sell exploits so that the holes will stay open as long as possible. This has been called a strategy of offense: trying to maximize intelligence gathering capabilities. Geer  paraphrases a former senior NSA official:

If we were to score cybersecurity the way we score soccer, we would be twenty minutes into the game and the score would be 462 to 456. That is to say: all offense.

He further explains: “Offense is where is where the innovations that only states can afford is going on.”

Some have argued that the result is the widespread use of software riven with security flaws that could have been fixed.  Instead, the U.S. should use its market power to make software more secure by purchasing and then disclosing zero-day exploits.  As reported by Wired, Geer argues that by incentivizing disclosure:

the U.S. can drastically lower the impact of international cyberwarfare. [He explains:] “We don’t need intelligence on what weapons our adversaries have if we have something close to a complete inventory of the world’s vulns and have shared that with all the affected software suppliers.”

As far as I understand, proponents of a strategy of maximizing offensive capability assume that computer systems will always have many holes and the U.S. might as well use these flaws to get as much useful intelligence as possible rather than chasing what they view as the illusory promise of real defense.

I do not know enough about the ins-and-outs of computer security architecture to opine as to whether the U.S. should maintain an offensive strategy or move to securing vulnerable systems with a primarily defensive strategy of disclosure. However, I would suggest that a defensive strategy may be strengthened by international coordination.

In any case, if you are interested in issues of cyber-security then Geer’s speech is a must-listen.

[This post has been corrected to fix the misspelling of Dan Geer's name.]

 

The Article II “Humanitarian Intervention” War Power

by Julian Ku

Assuming there really was authorization from the Iraqi government, I don’t have any doubt that the U.S. has the right under the international law to launch new airstrikes in Iraq.  But the domestic authority for the U.S. airstrikes is much more murky, and, as Ilya Somin argues here, Congress might need to authorize continuing military action.

Jack Goldsmith goes through the domestic legal bases for action here: the 2001 AUMF against Al Qaeda, the 2002 AUMF to conduct hostilities in Iraq, and the President’s inherent power under Article II of the U.S. Constitution. I agree with Jack that, for political reasons, the Administration seems to be relying on the President’s inherent powers under Article II of the Constitution rather than on either of the statutory authorizations passed by Congress.  But even under Article II, Presidents have usually cited rationales such as the need to act quickly to protect U.S. citizens and their property or to prevent an imminent attack on the U.S or a treaty ally, or a threat to U.S. national security.

But President Obama does not cite any of these reasons in his explanation of why he is authorizing airstrikes to prevent the deaths of the Iraqi civilians trapped in a mountain region.  Instead, he cited the need to “prevent a potential act of genocide” in his remarks yesterday. So it turns out that Article II also can be invoked for a purely humanitarian intervention where no U.S. citizens or property are threatened, and the national security interest is not cited.  While I do think there is a very plausible national security rationale for these airstrikes, it is worth noting that President Obama does not cite national security directly in his remarks.  When one looks back at his similar rationale for Article II-based airstrikes in Libya, I think one of President Obama’s legacies will be a new reading of Article II that will allow future presidents to use military force for humanitarian reasons without the authorization of Congress.

“A Song of Good and Evil” and Telling International Law’s Story to a Broader Audience

by Chris Borgen

Philippe Sands is well-known as a scholar and as a practicing attorney. Now let’s add spoken word artist:

October 1946, Nuremberg.

Human rights lawyer Philippe Sands narrates an original piece that offers new insights into the lives of three men at the heart of the trial, with the music that crossed the courtroom to connect prosecutor and defendant.

A personal exploration of the origins of modern justice and the fate of individuals and groups, in images, words and music.

Bach, Beethoven, Rachmaninov, Aragon, Mizraki and Leonard Cohen, performed by acclaimed bass-baritone Laurent Naouri and renowned jazz pianist Guillaume de Chassy.

The piece is called “A Song of Good and Evil” and it will have its premiere in London on November 29th.

Engaging and educating as broad a public as possible about international law is no easy feat. For example, there have been depictions of international law and international legal themes in film, in television, and in fiction.  While at times the authors of such works may want to say something about international law or international institutions, such works have varying degrees of accuracy and educational value.  More often than not, “international law” or “the World Court” or “the UN” are just plot devices with very little consideration as to how any of these things actually work (or even what they are).  And I don’t know of many (actually, any other) international lawyers actively writing and performing theater pieces with legal themes.  (If there are, please let me know!)

Every work of art that depicts international law and international institutions affects the perception of some segment of the public about international law. Some of these books and films are produced in ignorance and stoke paranoia or the worst form of cynicism.  However, because so many of the stories of international law are profoundly human stories, they can also be the stuff of great art. Or the stuff of entertainment that also enlightens.

So, break a leg Philippe Sands! (And please have a performance in New York.)

Hat tip: John Louth for having mentioned this event.

When Does the Combatant’s Privilege Apply?

by Jens David Ohlin

Under any view, the privilege of combatancy is key to the basic architecture of the law of war. It stands at the fault line between domestic criminal law and International Humanitarian Law, between impermissible killing and lawful belligerency. Simply put, the privilege of combatancy transforms, almost magically, what would otherwise be an unlawful act of murder into a lawful killing consistent with jus in bello. How does this transformation happen? However it happens, it is a powerful legal mechanism, and one whose exact contours demand definition and clarity.

The privilege has recently taken center stage in debates about targeted killing, and it featured prominently in the background of the debate over the killing of U.S. citizen Anwar al-Awlaki, and the associated drone memo drafted by the Justice Department’s Office of Legal Counsel. In particular, that memo examined the foreign murder statute and concluded that the statute incorporated the standard homicide justifications, including the public authority justification, which arguably includes acts of privileged combatancy consistent with the laws of war.  At issue here is whether CIA officers—who do not wear uniforms or carry arms openly—are eligible for the privilege of combatancy.

For some, the entire discussion of the privilege of combatancy is misplaced because the privilege only applies in international armed conflicts (IAC), and never in non-international armed conflicts (NIAC). Under this well-known view, the concept of “combatant” is an element of the legal structure of IAC, and has no place in NIAC, which includes government forces and rebels.  Allegedly, to talk of privileged or unprivileged combatants in NIAC is to make a category mistake.

In a new draft article I reject this orthodox position, and I conclude that in some situations the privilege of combatancy might apply in NIAC.  In particular, the 19th Century view of the subject was far more complex; scholars believed that NIACs that shared the functional characteristics of international conflicts should be treated in the same manner.  I argue that this sophisticated view carried over into the 20th Century and was preserved in Common Article 3 of the Geneva Convention, though it got misplaced in overly simplistic textbook definitions of the privilege of combatancy.

What about the right of the government to prosecute rebels in a NIAC?  If the privilege applies, such prosecutions would arguably be illegitimate. First, I argue that 19th Century scholars concluded that both sides in such conflicts were moral and legal equivalents, and therefore prosecutions during the war were inadvisable or even impermissible. However, at the conclusion of the conflict, a victorious government was permitted to prosecute defeated rebels for their decision to take up arms against their government. However, the best reading of this rationale is that prosecutions for treason were appropriate because rebels had violated a duty of loyalty to their own government, but prosecutions for murder were inappropriate because they suggested that rebels were not professional soldiers.  What was criminal about a rebel was his or her decision to violate a duty of loyalty to the sovereign.

This suggests to me that the literature has over-simplified the relevant law regarding NIAC and the privilege of combatancy. The two concepts are not mutually exclusive. Therefore, it makes sense to ask whether government forces in the armed conflict against al-Qaeda are privileged or not.  Terrorists in general don’t qualify for the privilege because they don’t wear uniforms or carry their arms openly, but in theory one could imagine a non-state actor that meets the functional requirements of belligerency.  Whether government personnel qualify for the privilege is another question entirely.

The standard answer is that CIA personnel involved in drone strikes are not eligible for the privilege because they don’t wear uniforms or carry arms openly – I think this is absolutely correct.  However, I also think there has been insufficient attention paid to uniformed soldiers deployed during covert actions under Title 10. As most readers of OJ know, covert action isn’t simply the purview of the CIA anymore. Military deployments by JSOC (Joint Special Operations Command) remain officially unacknowledged for various complex reasons.  In some case the territorial government is unwilling to acknowledge U.S. military presence on their territory and therefore conditions their consent on the covert nature of U.S. conduct. In other cases, a state may wish to proceed covertly, even with uniformed military troops, because they believe their actions might violate jus ad bellum.

I believe that these covert deployments of uniformed military personnel are deeply problematic from the perspective of the privilege of combatancy. Despite what some others have written regarding the Geneva Conventions, I believe that by custom even regular armed forces are required under the law of war to meet the standard criteria for belligerency: a responsible command, uniform or emblem, carrying of open arms, respect for customs of warfare. This point is almost definitional.  These criteria define what it means to be a regular armed force, since almost all armies in the world fulfill these requirements. The point of the Geneva Convention was to extend privileged belligerency to other non-standard militias that are functional equivalents to regular armed forces. This doesn’t mean that regular armed forces are exempt from those requirements; it simply means that regular armed forces are assumed to meet the criteria based on universal custom. It would be very odd to say that a fighting group that meets none of the criteria would be entitled to the privilege just because they are called a regular army.

I make two related arguments in my Article. First, the privilege is collective in nature and attaches to a collective unit that meets the functional requirements of belligerency—the group as a whole must carry arms openly, wearing a fixed emblem or uniform, etc. There is no such thing as a purely individual privileged soldier. In short, the privilege of combatancy is a collective privilege that the political entity asserts on behalf of the individual soldier – a process that is logically impossible if the state denies that it used force in the first place. In order to assert the privilege of combatancy, a state must always acknowledge that the forces were operating on its behalf – precisely what covert action denies.

Second, I’m not sure that covert action is consistent with the requirement of carrying arms openly. Generally, the commentaries discuss that requirement in the context of rifles and grenades and the phrase is given a physical description. I think it requires a more conceptual understanding. Carrying arms openly is related to the requirements of distinction, which means more than just separating civilians from combatants. It also requires separating friendly forces from enemy combatants – a process which is totally obscured when a state refuses to acknowledge the use of force.  I therefore question whether a covert deployment is a form of “open” warfare consistent with the laws of war and the privilege of combatancy.  If this is correct, then for the privilege it doesn’t matter whether drones are deployed by CIA or uniformed personnel – both are unprivileged insofar as the deployment remains unacknowledged.

This departs significantly from the traditional analysis of covert action, and suggests to me that we need more research into how basic principles of jus in bello apply in the covert context.

What is The Common Law of War?  

by Jens David Ohlin

Since the recent al Bahlul en banc decision before the D.C. Circuit, I have been thinking a lot about the Common Law of War. As others have already analyzed in detail (Steve, Peter, JonathanMarty & Steve), the D.C. Circuit upheld Bahlul’s conviction for conspiracy but threw out his conviction for material support for terrorism and solicitation. Material support and solicitation are unavailable for pre-2006 conduct because they are neither international crimes nor historically charged before military commissions. Conspiracy, on the other hand, is a different story. While it seems pretty clear that conspiracy is not a stand-alone offense under international law, the government has relied on the argument that conspiracy is historically chargeable before a military commission as part of the “common law of war.”

The exact status of the common law of war theory remains unknown because the court’s majority applied “plain error” review and not de novo review on the merits. Some judges concluded that Bahlul waived his objections by not raising them at trial (when Bahlul was declining legal assistance). For his part, Judge Kavanaugh appeared sympathetic to the common law of war argument, which arguably departs from his previous notes of skepticism regarding the theory in Hamdan II.

Since the common law of war idea is still wide open, I’ve been trying to come to terms with it and articulate precisely why I’ve been uncomfortable with it in the past. Indeed, when I first heard the government’s assertion of this theory, I was deeply skeptical and found it almost outrageous. The law of war is international by definition—it is the same for everyone and that’s the whole point of it. The law of war is based on reciprocity and it makes no sense to think of it as a creature of domestic law.

That being said, I think the issue is more complicated than I initially assumed.  In particular, it is important to note that Lieber himself makes reference to the common law of war in article 13 of the Lieber Code. Also, Richard Baxter, in his famous article on spies and unprivileged belligerency, concludes that acts of belligerency by an unprivileged belligerent simply aren’t violations of international law at all – they are violations of domestic criminal law. That’s absolutely correct. The absence of the privilege means that the unprivileged belligerent cannot exempt himself from the demands of domestic law. That’s something far different from an international crime. Unfortunately, Baxter also says in the preceding sentence that the saboteurs in Ex Parte Quirin were “no doubt” triable under the statutes and “military common law of the captors” – though he never explains what he means by this. Presumably he felt that the saboteurs in Quirin were subject to military commission jurisdiction despite the fact that their crimes were domestic violations, though he never articulates his reasoning. Of course, I don’t want to parse Baxter’s article like it’s gospel; I find there’s too much of that already with people treating semi-authoritative Commentaries like treaties. But I still find it interesting that both Baxter and Lieber used the phrase or something close to it.

So why is it so difficult to understand the common law of war? Here are four possible reasons:

1. We no longer live a common law world. Well not exactly. The U.S. is still part of the common law, in the historical sense, but really the common law doesn’t play the role it once did. It has substantially evolved. Statutes and regulations play a much larger role now – and this applies in almost every field of law. This certainly applies in the criminal law, where even the idea of a common law crime sounds just bizarre to today’s students. It’s just so far removed from how the law operates today.

2. Although state courts in the U.S. continue to evolve the common law in each jurisdiction in subject areas that are not covered by a particular statute (say tort law), this endeavor is temporally removed from its historical roots in common law England. Although the law in each jurisdiction can all be traced back to a common source, the doctrines have been developed in unique and different ways in each court. The common law – as something truly common across jurisdictions – has receded into history.

3. The law of war in general, and the jurisdiction of military commissions in particular, were woefully under-theorized in previous generations. This was certainly true in the Civil War, when other than Ex Parte Milligan as an enduring constraint on military jurisdiction, there was insufficient attention paid to developing a deep theory of military jurisdiction. Famously, Ex Parte Quirin was a rush decision, arguably fast-tracked because the Supreme Court was concerned that the administration might execute the prisoners before a decision was reached – which would have dealt a near-fatal blow to the Supreme Court’s institutional legitimacy and its self-asserted purview, announced in Madison v. Marbury, to say what the law is. It is no surprise that we now look back on Quirin as “not this Court’s finest hour” (Hamdi v. Rumsfeld, Scalia J. dissenting). One way of putting the point is to follow Steve Vladeck and say that the Court has never fully rationalized why military commissions are exempt from the Article III requirement of trial before a regular court. Another way of putting the point is that during the Civil War the concept of military jurisdiction was under-theorized and we are only now playing catch-up.

4. There is something that unites our use of the terms “international law” today with how the term “common law” might have been used in previous generations. This might help explain why there is an international law of war today and a common law of war in the past.  Although they are different, what unites them is a shared participation in a larger legal culture. For international law, the larger legal culture is the international order, with its unique sources for lawmaking (treaties, custom, etc.) and international organizations. For the common law, the larger legal culture is the law that is “common” to many jurisdictions who are all participating in a common legal culture and apply its law together – the “common law.” Although the common law is not the same as international law, it is something larger than pure domestic law, and as such it could, in theory, and historically as well, fulfill some of the demands of reciprocity that the laws of war demand. The problem, of course, is that the common law doesn’t function that way in today’s world. The whole point of the law of war is that it has to be bigger than just domestic law. And maybe the common law in the past was just big enough to support the law of war in some limited sense. Whether that’s enough in today’s world, I really don’t know.

Jurisdictional Overlap: Security Council Sanctions and the ICC

by Kristen Boon

A background paper for a High Level Review of Sanctions currently underway at the UN raises some important and interesting questions about the increasing “jurisdictional overlap” between individuals designated on targeted sanctions lists and international criminal courts.   In relevant part, the paper states:

Increasingly, the reach of sanctions has gone beyond those responsible for initiating and supporting threats to, or breaches of, international peace and security, to include perpetrators of conduct that could be crimes within the jurisdiction of the ICC (especially violations of international humanitarian law, human rights, attacks against civilians, recruitment of child soldiers, sexual and gender based violence), thus increasing the overlap. Inevitably, in some cases the same individuals are or could be subject to both ICC proceedings and to UNSC targeted sanctions.

Even where their “jurisdiction” overlaps, sanctions and the ICC have different objectives (and evidentiary standards): sanctions applied to a particular individual seek to protect “the peace” or, more concretely, civilians, from future actions of the individual, by constraining the individual’s ability to act; an ICC proceeding seeks to determine the accountability of that individual for past actions.

 

This overlap is significant for a number of reasons.  First, it shows an important evolution in sanctions design, from comprehensive sanctions, to targeted measures against specific individuals which run the risk “criminalizing” certain behaviors without a judicial process.   I should be clear that from the work I have seen of sanctions committees, restraint rather than overstepping has been the norm.  Nonetheless, it does present issues of “individualization” (which have been analyzed by Larissa van den Herik in the context of human rights and the Kadi and Nada cases in Europe).  Second, it raises issues of how the ICC and Security Council and its subsidiary bodies cooperate.  The ICC – UN Relationship agreement is a framing instrument here, as is Part IX of the ICC statute on cooperation.  That said, the absence of a general policy at the UN to designate individuals on sanctions lists (where a relevant sanctions regime exists) is striking.  The most high profile (read: political) example of that involves Omar Al-Bashir – despite an outstanding ICC arrest warrant against him, ongoing sanctions regime against the situation in Sudan, and a Security Council referral of the situation to the ICC, Bashir has never been designated under the sanctions regime.  As I argued in this post last year, a travel ban would have been one way to restrict his efforts to attend the General Assembly meetings in New York in 2013.  Finally, write large, it presents the old “peace versus justice” debate because of the different goals of sanctions (conflict management) and criminal prosecutions (atrocity for past acts.)