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The Drafters Knew Best: Corporate Liability and the Alien Tort Statute

by Heather Cohen

[Heather Cohen is a Legal & Policy Associate with the International Corporate Accountability Roundtable (ICAR), which harnesses the collective power of progressive organizations to push governments to create and enforce rules over corporations that promote human rights and reduce inequality.]

Can corporations be held accountable in the United States for violations of international law? This question is back before the Supreme Court of the United States (SCOTUS) this fall. On October 11, 2017, SCOTUS will hear oral arguments in Jesner v. Arab Bank, PLC on the question of whether corporations can be held liable under the Alien Tort Statute (ATS). In the case, the plaintiffs, victims of terrorism in Israel, allege that Arab Bank knowingly and willfully used its U.S. branch to provide financial services to the terrorist organizations that harmed them and their family members.

On August 21, Arab Bank filed its respondent brief in the proceedings, arguing that corporations should not be held liable for violations of international law under the ATS. This argument is inconsistent with the intent of the drafters of the Constitution who enacted the law, as well as with the legal interpretation that has followed.

An analysis of the language and historical context of the ATS demonstrates that the drafters of the Constitution intended for the ATS to be applied broadly to both individuals and legal persons, such as corporations. By placing no categorical limits on who can be sued under the legislation, it is clear that corporations can and should be held liable for violations of international law under the ATS.

The Enactment of the ATS and its Application to Legal Persons

The ATS was passed by the First Congress in 1789 to demonstrate the commitment of the new country to upholding the “law of nations,” thereby granting the United States legitimacy on the world stage. Its enactment was spurred by two incidents of offences against foreign ambassadors, but the law would also provide merchants plagued by piracy with a legal avenue to obtain remedy for the harm and losses suffered.

In passing the ATS, the First Congress chose not to limit who can be sued under the legislation:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

By choosing not to exclude any particular class of defendant, the ATS places no limitation on who can be sued. This is made even more clear by the contrasting restriction on who can sue, i.e. only “aliens.”

Historical context suggests that the First Congress intended the law to hold both legal persons as well as natural ones accountable. Courts have held legal persons liable for their abuses as far back as the 1600s. A number of piracy cases provide a clear example of this. For instance, in 1666, Thomas Skinner sued the East India Company for “robbing him of a ship and goods of great value.” The U.K. House of Lords ruled in favor of Mr. Skinner and held that the company owed him compensation. Even where piracy was not committed by corporations, courts have imputed corporate form to the ships themselves. Similarly, early American courts held that ships, as entities, could be ordered to pay damages for piracy. They reasoned that it made financial sense to direct judgment against a captured ship, which had substantial value, while pirates were unlikely to pay the compensation ordered.

These piracy cases demonstrate that courts during the era of the drafters of the Constitution were not only familiar with the concept of liability for legal persons, but that they regularly imposed it for violations of international law. In light of this familiarity, the fact that the First Congress did not limit the language of the ATS suggests that it intended for legal persons, such as corporations, to be sued under the statute.

A Modern Interpretation of the ATS

This interpretation has been supported by courts in subsequent decisions. For example, the D.C. Court of Appeals, in Doe VIII v. Exxon Mobil Corp., 654 F.3d 11, 48 (D.C. Cir. 2011), vacated on other grounds, 527 F. App’x 7 (D.C. Cir. 2013) held that “[t]he notion that corporations could be held liable for their torts… would NOT have been surprising to the First Congress that enacted the ATS” [emphasis added]. For decades, corporations have been sued under the ATS “without any indication that the issue [of their liability] was in controversy, whether in ruling that ATS cases could proceed or that they could not on other grounds.

Since its passage in 1789, the ATS has remained the law of the United States for more than two hundred years, without ever being limited, narrowed, or amended by Congress. In contrast, Congress has made it abundantly clear when it does mean to exclude a particular class of defendants, namely corporations, from liability. For instance, the Torture Victim Protection Act (TVPA) explicitly excludes suits against corporations. While one can argue that failure to amend the ATS does not necessarily mean acceptance, one cannot negate the fact that both times that the issue of corporate liability under the ATS has come before SCOTUS, the U.S. Government has argued in favor of it. The Government has made it clear that it supports the original words and meaning of the ATS.

Arab Bank’s Interpretation of the ATS

Faced with this evidence of the intent of the drafters of the Constitution, all Arab Bank can do is endeavor to chip away at little pieces of it by attempting to undermine the piracy cases raised by the petitioners and their amici. In Arab Bank’s brief, it attacks the British case by claiming that the East India Company functioned more like a sovereign than a corporation, and that the case was ultimately vacated by King Charles II.

While it is beyond the scope of this blog to offer an analysis of the differences between the East India Company and the modern day corporation, the broad power and scope of today’s multinational corporations suggest that these differences may be much smaller than they initially appear. For example, one often cited variance is the power the East India Company had to “operate its own courts and establish its own law.” However, modern corporations likewise operate their own courts through grievance mechanisms, such as that offered by Barrick Gold in response to sexual violence at its mine in Papua New Guinea. In any event, what is relevant is that “the East India Company was on any number of occasions judged by English courts to be a legal person subject to both English common and civil law.

Also problematic with Arab Bank’s critique of the British case is the weight that it places on the intervention of the monarchy, namely, the decision by King Charles II to vacate the case. This decision is simply emblematic of the politics and the central role the Monarch played at the time. Using this political dynamic to criticize the case is unpersuasive.

To undermine the American piracy cases, Arab Bank argues that a ship is not a corporation and that holding a ship liable for the acts committed by the people operating it is not equivalent to accepting the concept of corporate liability. However, this argument is purely a matter of semantics and ignores the very basic concept of corporate liability, which is to hold a legal entity liable for the acts of individuals operating within it. This is exactly what the court did when imposing liability on the ships in these piracy cases.

Conclusion

If SCOTUS rules that corporations cannot be held liable under the ATS, it will be overturning hundreds of years of legal tradition, as well as undermining the chosen words and understanding of the drafters of the Constitution. Such a ruling would similarly undercut the legal interpretation adopted by numerous courts and policymakers following the First Congress. Furthermore, Arab Bank’s arguments are not convincing and fail to undermine the evidence that the ATS was intended to apply to both legal and non-legal persons.

Will SCOTUS respect the wishes of the drafters of the Constitution by holding Arab Bank liable for providing financial services to terrorist organizations? Those of us who believe in the underlying principles of this Nation certainly hope so.

UK-Saudi Arabia Arms Trade before the High Court: Questions following the Judgment

by Riccardo Labianco

[Riccardo Labianco is a PhD candidate at SOAS, University of London. His research focuses on state-to-state military assistance in times of conflict.]

On 10th July 2017, the High Court of Justice (HCJ) delivered its decision regarding the choice of the Secretary of State for International Trade not to halt the transfers of arms between the UK and Saudi Arabia (SA). The Campaign Against Arms Trade (CAAT), the claimant, requested judicial review of that choice, in light of the violations of international humanitarian law (IHL) committed by SA in the conflict in Yemen which likely occurred through UK-manufactured arms and weapons. Eventually, the judges accepted the government’s arguments and dismissed the request for judicial review. This decision was based on the fact that the UK government was the only actor able to assess the absence of a clear risk of IHL violations that could be committed with the transferred arms, due to its inside knowledge of the Saudi administration and its engagement with it. As shown below, the absence of a clear risk of IHL violations must be assessed before authorising any arms export.

Two aspects of the judgment are analysed here. First, the HCJ’s interpretation of the “Consolidated Criteria for Arms Export”, a piece of EU legislation incorporated in the UK legal system. Second, the choice to consider the UK’s “privileged position” within the Saudi administration as an essential element for the lawfulness of the arms transfers.

Response from the EIC of the Journal of the History of International Law

by Kevin Jon Heller

[The following is a response from Anne Peters, the Editor-in-Chief of the Journal of the History of International Law]

Dear readers,

The JHIL received this letter and had agreed towards the authors in writing to publish it in the JHIL as soon as possible.

Publication in JHIL does not imply any agreement or endorsement by the editors or by the academic advisory board of the opinions expressed in an article.

The selection of articles for the journal occurs through double blind peer review on the basis of their academic quality. In the case of the article on the Jamestown Massacre, the editors were able to obtain only one peer review report.

The editor-in-chief acknowledges that there were flaws in the review process and apologizes for this.

The JHIL has recently amended the selection and review procedure in order to strengthen the process.

The new authors’ guidelines containing the description of the review process can be found on the Journal’s website.

Anne Peters

Letter to the Editors of the Journal of the History of International Law

by Kevin Jon Heller

[This letter was sent to the editors of the Journal of the History of International Law on 29 August 2017. I am a signatory, not the letter’s author.]

Dear Editors,

We are writing to express our grave concern about the publication of an article entitled ‘The Forgotten Genocide in Colonial America: Reexamining the 1622 Jamestown Massacre within the Framework of the UN Genocide Convention’ in the latest issue of the Journal of the History of International Law. We find the decision to publish this article strange to understand to the extent that it combines dubious anachronisms and legal framings, problematic application of legal doctrine, selective presentation of facts and quotations, and outright contradictions and falsehoods. Notably, it is difficult, if not outright impossible, to reconcile the different parts of the argument with each other as well as with the conclusions of the article. For even if one was to ignore issues of historical accuracy and legal argumentation and accept the author’s arguments, this does not support in any way the conclusion that ‘Jamestown was radically disproportionate to any violence committed by the English, before or after 1622’ (p. 48), or that ‘a sense of self-respect, or at least … a sense of self-preservation’ (ibid) was the core or the motive of settlers’ actions and attitudes post-1622. After all, the article repeatedly emphasises the distinction between (genocidal) intent and motive only to collapse the two when it comes to justifying the acts of English settlers. In other words, this is a piece of work that fails in relation to its own terms as well as in relation to general standards of academic argumentation and rigour.

Since the said article is of considerable length and there are significant problems on virtually every page, we will only focus on a limited number of issues while emphasising that our enumeration is not exhaustive. To begin with, it is notable that even though the author argues that the Powhatan targeted the settlers indiscriminately and without respect for the distinction between ‘combatants and non-combatants’ (p.1), he also goes to great lengths to argue that no armed conflict (or ‘war’ in his own words) was taking place anyway. In any event, the existence, or not, of an armed conflict is doctrinally irrelevant for the finding of the crime of genocide. A review process exhibiting minimal familiarity both with international humanitarian law and the law of genocide would have pointed out these argumentative discontinuities. We find it impossible to find an explanation of what brings together combatants, the absence of armed conflict and the potential perpetration of genocide, since legal doctrine does not. We suspect that the author’s intention to portray the Powhatan as barbarians who embarked on senseless violence out of the blue might shed light on the structure of the article to the extent that international law fails to do so.

Moreover, we are surprised that the peer review process did not challenge the fact that at least the first part of the article is grounded on the argument that no other ‘single massacre’ (p. 5) claimed so many lives as the events in Jamestown. Since the ‘ratio of deaths per incident’ is a criterion as such unknown to international law, and hardly defensible from a moral or political perspective, this is an argumentative move worthy of serious scrutiny. The fact that this arbitrary criterion is clearly linked to an effort to ignore, underplay and eventually justify the prolonged, systematic and (alas) mostly successful process of exterminating Native Americans, dispossessing them of their land, and destroying their society and culture, should have raised even more questions. Indeed, even though Bennett focuses on English settlers, he fails to situate the events within a broader historical context of empire and colonisation as a process that did not simply encompass occasional, unconnected outbreaks of mass violence, but was specifically premised on continuous expansionism to the detriment of the existing occupiers of the land that culminated in their dispossession. The word ‘empire’ does appear twice in the article, but only in order to describe the political relations between the Powhatan and other Native Americans (p. 14, p. 17). Even if one disagrees with our assessment of imperialism and colonisation as articulated above, it would still be difficult to contest the prima facie relevance of this historical context to the discussed topic…

Open Consultation on UN GGE Recommendations on Responsible State Behavior in Cyberspace

by Jessica Dorsey

Leiden University’s The Hague Program for Cyber Norms is inviting an open consultation on how to best implement the UN Group of Governmental Experts’ (UN GGE) recommendations on responsible State behavior in cyberspace. Partner in these consultations is the ICT4Peace Foundation. The Call for commentary and implementation guidelines can be found here.

To participate, please send your questions, comments, recommendations to Mr. Walle Bos.

Background

The UN GGE’s 2015 report (U.N. Doc. A/70/174, July 22, 2015) proposed 11 voluntary, non-binding norms on cooperation, mutual assistance, information exchange, respect for Human Rights, integrity of the supply chain, and critical infrastructure protection. Since then, there has been little public debate on these norms.

In June of this year, the fifth consecutive UN GGE concluded its negotiations without producing a consensus report. In the absence of such a report to offer guidelines on the implementation of the proposed norms contained in the 2015 report, this project aims to support the UN GGE’s work by conducting open consultations in order to produce a commentary with implementation guidelines that includes a wide variety of relevant views.

MH17 Downing Suspects to be Prosecuted Before Dutch Domestic Courts – An Obstacle or an Advantage for International Justice?

by Aaron Matta

[Dr. Aaron Matta is an expert in international law with working experience at International Courts. He also recently co-founded The Hague Council on Advancing International Justice, a network for and with practitioners, academics, and policymakers in the area of international justice. I would like to thank Dr. Philip Ambach and Anda Scarlat for their feedback on earlier drafts of this commentary.The views expressed here are of the authors alone]

After nearly three years since the downing of the Malaysia Airlines MH17 flight, the countries comprising the Joint Investigation Team (JIT) – namely Australia, Belgium, Malaysia, the Netherlands and Ukraine – announced on 5 July their decision to initiate domestic investigations and prosecutions in the Netherlands in relation to the incident. To facilitate these procedures, a bilateral treaty on international legal cooperation between Ukraine and the Netherlands was signed on July 7. The treaty provides that those suspected of downing flight MH17 can be prosecuted in the Netherlands in respect of all 298 victims, which originate from 17 different countries. This means that all next of kin will have the same rights in the Dutch criminal proceedings regardless of their nationality.

These new developments are not surprising given that most of the victims were Dutch and the Netherlands has led the investigation and coordinated the international team of investigators thus far. This move also shows the determination of the JIT states to bring to justice those responsible, particularly after failed attempts to establish an ad hoc international MH17 Court had failed due to Russia’s veto in the United Nations Security Council. However, the recent decision to prosecute suspects in a Dutch domestic court raises challenges, particularly in view of the ongoing preliminary examination in Ukraine by the Prosecutor of the International Criminal Court (ICC). While international law provides several legal avenues for redress for this incident, in both criminal and civil proceedings, – which I extensively analyzed in an earlier blog post – the avenues analyzed here fall under the category of individual criminal responsibility.

So why can the Netherlands exercise its criminal jurisdiction in this case, if the incident occurred in Ukraine? In principle, Ukraine would retain the primary right to investigate and prosecute those responsible according to the legal principle of territorial jurisdiction – based on where the crime was committed. The Ukrainian leadership determined, however, that it would be very difficult to carry out the investigations and prosecutions due to the ongoing conflict in the Donbass region, where the MH17 incident took place. As a result, Ukraine triggered the ICC’s jurisdiction over crimes allegedly committed on its territory from 20 February 2014 onwards via two declarations under the ICC Statute, requesting the ICC Prosecutor to investigate the matter. Currently, following these requests, the ICC Prosecutor is undertaking a preliminary examination that could lead to the opening of a criminal investigation. Such investigation could potentially include the downing of the MH17 flight as an alleged war crime.

Nonetheless, the other JIT states, including the Netherlands, can also assert their domestic jurisdictions over this matter based on the legal principle of passive personality jurisdiction, due to the fact that their citizens were killed in this incident. In light of last week’s decision, the Dutch domestic criminal specialized courts will now be able to investigate and prosecute those responsible for the downing of MH17 on the basis of four main legal sources: first, as domestic crimes under the Dutch penal code, such as murder or manslaughter; second, as an international crime under the Dutch International Crimes Act of 2003; thirdly, as a crime on the basis of the 1971 Montreal Convention, which allows the domestic prosecution of any person committing unlawful acts against the safety of civil aviation; and finally, the bilateral judicial cooperation agreement recently signed with Ukraine.

However, the concurrent use of multiple criminal prosecution mechanisms, namely the Dutch domestic courts and the ICC, may cause difficulties. First, issues may arise under the basic principle of ‘ne bis in idem’, which states that no person can be tried twice for the same crime. Thus, if a Dutch court prosecutes an individual, this may prevent the ICC from prosecuting the same individual for the same crime. It is therefore essential for the JIT states to coordinate and cooperate with each other, and more importantly with the ICC, when it comes to gathering evidence, selection of suspects and conducting fair trials, to avoid duplication and wasting resources.

In addition, an investigation by the Dutch national authorities will most likely block any investigation by the ICC by virtue of the latter’s complementarity to national courts of its States Parties. According to this principle, states are primarily responsible for investigating and prosecuting international crimes. The ICC only intervenes if states parties to the Rome Statute of the ICC are unable or unwilling to prosecute individuals’ suspected/accused of the most serious crimes of concern to the international community. With this in mind, a division of labor between the different jurisdictions, and among the different actors involved, could be arranged. For example, the Netherlands could focus in prosecuting those most responsible for the MH17 incident, while the ICC concentrates its efforts and limited resources to investigating other crimes committed in the Ukrainian territory.

Other challenges that will be faced by all of the jurisdictions involved are, for example, meeting the high standards of proof required for establishing the suspects’ guilt beyond reasonable doubt. This includes notably the requirement to prove the alleged perpetrator’s ‘knowledge and intent’ to commit a war crime. Additionally, there will be several procedural obstacles when it comes to judicial cooperation and the sharing of crucial potential evidence. Clear examples of this are the thousands of intercepted telephone calls gathered by Ukrainian law enforcement and intelligence agencies. While some of this evidence can easily be shared with the JIT investigators, as well as with the Dutch and ICC prosecutors, in several instances much of this data cannot be shared due to some restrictions in the Ukrainian legal system. This is the case, for example, with evidence that may have been acquired or intercepted following special legal procedures into the downing of the MH17, such as investigations carried out in the interest of state security and the fight against terrorism.

The bilateral agreement between the Netherlands and Ukraine addresses some of these issues by reducing or simplifying some procedural hurdles. For example, the agreement tackles the issue of examination of Ukrainian defendants via video link or the transferring of enforcement of prison sentences that may be imposed, due to extradition restrictions in the Ukrainian legal system.

Finally, a major obstacle will prove to be obtaining custody of the potential suspects, particularly if they are Russian nationals and/or located on Russian territory. The Russian Federation will most likely not be willing to extradite potential Russian suspects, in spite of international pressure, in light of the current geopolitical tensions prevailing in the region. In this respect, trials in absentia (where the suspect is absent from the legal proceedings), which are provided for in the Dutch criminal code could prove to be a limited yet practical solution.

Regardless of these numerous challenges, the decision to initiate judicial proceedings in the Netherlands providing a solid avenue for legal redress for the incident should be welcomed. Such an initiative would further show that the JIT states are serious about seeking justice for the victims of this tragic incident and their relatives.

Amicus Brief in Al Bahlul Military Commission Case

by Jens David Ohlin

I have filed an amicus brief in the Al Bahlul case.  Al Bahlul was charged and convicted before a military commission for multiple offenses including conspiracy. On appeal, several of the charges were thrown out, but the conspiracy conviction remains and is the subject of his cert petition before the U.S. Supreme Court. Although the government once held the position that conspiracy is an offense under the international law of war, the government eventually switched legal theories and argued that conspiracy is a domestic law offense triable before a military commission. As should be clear from the excerpt below, my own view is that the jurisdiction of military commissions is limited to international offenses under the law of war.

Here is a summary of the brief’s argument:

In this case, petitioner Al Bahlul was convicted of multiple offenses before a military commission, including conspiracy, solicitation, and material support for terrorism. See United States v. Al Bahlul, 820 F. Supp. 2d 1141, 1167, 1183 (U.S.C.M.C.R. 2011). On appeal, the U.S. Court of Appeals for the D.C. Circuit vacated the convictions for solicitation and material support. Al Bahlul v. United States, 767 F.3d 1, 5 (D.C. Cir. 2014). The sole remaining charge at issue in this litigation is Bahlul’s conviction for conspiracy.

In Hamdan, Justice Stevens’s four-vote plurality opinion concluded that a stand-alone conspiracy charge was not prosecutable at a military commission because it was not a violation of international law. Hamdan v. Rumsfeld, 548 U.S. 557, 604 (2006). In this case, however, the U.S. government has not relied on the classification of conspiracy as an international law offense. Instead, the government maintains that military commissions have jurisdiction to adjudicate the charge of inchoate conspiracy, despite the incongruity between that criminal offense and international law.

In proceedings below, counsel for the U.S. government has advanced various arguments for why military commissions have jurisdiction to try conspiracy – a domestic offense – even though the Supreme Court has made clear in prior decisions that the jurisdiction of military commissions is limited to the adjudication of violations of the law of war. These arguments all rely on the implausible suggestion that the “law of war” straddles the divide between international and domestic law, and that there exists a little-known domestic body of law called the American common law of war. According to the government, conspiracy is consistent with this newly re-discovered American law of war because the offence is entrenched in the common law, the legal culture of the United States, and Civil War commission practice.

This domestic “law of war” argument is problematic for multiple reasons. Although prior cases in this Court and elsewhere include references to something called the “common law of war,” see, e.g., Quirin, 317 U.S. 1, at 34, it would be legally and historically inaccurate to conclude that this phrase refers to a domestic body of law. Rather, an analysis of every mention of this phrase over the last 200 years demonstrates that the “common law of war” refers to international law – a law “common” to all mankind.

Determining the proper scope of the “law of war” in this context – i.e., whether it is international or domestic – has large implications for establishing the outer contours of the jurisdiction of military commissions. Given that military commissions operate outside of Article III, without the right to a jury trial protected by the Fifth and Sixth Amendments, the resolution of this case is essential for demarcating the proper boundaries between a civilian system of criminal justice and a military system for prosecuting detainees captured pursuant to the laws of war. For these reasons, it is imperative for this Court to grant certiorari to resolve this fundamental federal question pursuant to Rule 10(c).

The full amicus brief can be found here.

UN faces a second Cholera Challenge in New York Courts

by Kristen Boon

Waiver of immunity is at the center of another cholera case against the UN, this time in the Eastern District of New York.  In LaVenture et al v. United Nations, the plaintiffs argue that they have two distinct questions on waiver that distinguish this litigation from the recent decision upholding the UN’s absolute immunity in Georges et al.  The questions for the court in this new case revolve around waiver, and specifically:

whether the fact that the UN has stated, repeatedly and unambiguously, that they would accept liability for damages caused by UN peacekeeping forces not in the service of operational necessity is an express waiver of immunity from legal process as required by Article II, Section 2 (“Section 2”) of the U.N. Convention on the Privileges and Immunities of the United Nations (“CPIUN”). Flowing from this is a second, related question: whether, under Section 2 of the CPIUN, an express waiver of immunity is only effective if given in each single, individual claim, at the time such claim is presented before a court.

 

The Plaintiff’s most recent filing is available here LaVenture et al v United Nation[recent].

The facts of the Haiti cholera litigation are well known:  Multinational peacekeepers, members of the United Nations Stabilization Mission in Haiti (“MINUSTAH”), have been stationed in Haiti since 2004.  Their ranks swelled significantly in the aftermath of the deadly earthquake of 2010.  Some of these peacekeepers were from Nepal, a country which has endured an outbreak of Cholera.  While stationed in their barracks, human waste from the latrines from the MINUSTAH peacekeepers seeped directly into the groundwater and the Artibonite River — a lifeline for tens of thousands of local residents, many of whom are reliant on the river for drinking water. Shortly thereafter, a significant cholera epidemic emerged among the Haitian population.

Several suits stemming from the Cholera epidemic were filed in United States Federal Courts — originating from affected parties who reside in both Haiti and the United States.  Some blogs and reporting on the Georges et al case are here, here and here.  A complete set of legal documents regarding Georges et al is available on the website of the IIDH.

Currently, the Eastern District of New York is considering an almost-identical case in LaVenture v. United Nations. In light of the ruling in Georges, the Court asked the Plaintiffs to provide a reason why the case should go on, in spite of the Second Circuit precedent. They did so on March 30, 2017, asserting that the case is not moot and can be distinguished from Georges because the United Nations allegedly waived its immunity when the General Assembly passed a resolution promising payment for injuries and deaths caused by peacekeepers in 1998.   That resolution, A/RES/52/247, established that the United Nations will pay no more than $50,000 per person in damages for personal injuries or deaths, provided the complaint is filed within six months of the occurrence or its discovery. The standard for waiver as defined in the CPIUN requires “express” action by the Secretary-General in most circumstances. According to August Reinisch in The Conventions on the Privileges and Immunities of the United Nations and its Specialized Agencies: A Commentary, the wording “in any particular case” implies that advance waiver is generally impossible, and waiver by the executive must be in response to a case at hand.  If the court adopts this interpretation, the Plaintiffs’ argument  that a resolution passed more than a decade before the epidemic began can affirmatively waive immunity  is unlikely to succeed.

The United States submitted a statement of interest before the Court on May 24, 2017, arguing  the case should be dismissed. Although the Plaintiffs proposed an extensive scheduling order, the response of the Court, dated June 12, 2017, questioned the Plaintiffs’ legal reasoning and significantly limited the scope and time granted to the Plaintiffs to reply to the United States’ statement.  The documents filed are available here: LaVenture et al v United Nation~LaVenture_et_al_v._United_Nati_25LaVenture_et_al_v._United_Nati_24.

Thanks to my RA Chris Mrakovcic for his assistance with this blog post.

That Syria War Power Debate, Continued

by Deborah Pearlstein

Cross-posted at Balkinization

If, as I argued earlier this week, the 2001 AUMF passed by Congress cannot be read to authorize the growing set of U.S. military actions against Syrian and Iranian forces in Syria, does the President’s Article II power standing alone support these strikes? The best articulated argument I’ve seen that the President has the Article II power to attack Syrian aircraft (or Iranian drones or any non-ISIS force in Syria) in the interest of defending U.S.-allied Syrian government rebels goes something like this. The President surely has Article II authority to act in defense of U.S. facilities and troops overseas without first waiting for congressional authorization, a necessary extension of the President’s power (on which there is near uniform agreement) to “repel sudden attacks.” As relevant here, this authority should be understood to extend to the defense of certain organized third parties (whether a state like Britain or our allied non-state Syrian Democratic Forces) operating (as Bobby Chesney puts it) “in close coordination with the U.S. military in a combat setting.” In such a situation, I take the idea to be, our interests are closely enough aligned and our military forces closely enough entangled, that an attack (or threatened attack) on a third party ally is effectively the same as an attack on us.

This ‘third party self-defense’ theory of the scope of Article II power is in one sense quite a bit narrower the currently prevailing position of the Justice Department Office of Legal Counsel – which, under President Obama, took the view that the President has constitutional authority to use military force on his own so long as an important U.S. interest was at stake, and so long as the quantum or nature of contemplated force didn’t actually amount to “war” within the meaning of the Constitution’s “declare war” clause. Under this OLC view – based in part on OLC’s assessment of post-World War II presidential practice – one need not develop any specialized theory of third party self-defense to justify the use of executive power here; the current President could surely assert one of several U.S. concerns in Syria as the important interest at stake (say, protecting the interest of regional stability), and so long as the strikes were limited in scope and duration (i.e. less than “war”), all of these actions could be said to fall within the scope of Article II, whether defense of battlefield allies was among the expressly named interests or not.

Yet there are at least three ways in which this ‘third party defense’ notion may be said to go beyond even the broad 2011 OLC conception of presidential power: (1) I am not aware of any previous practice in which the President has asserted the particular national interest of defending battlefield allies as such as a justification for authorizing the use of force abroad. Now it is surely one of the difficulties with the 2011 OLC opinion that it leaves so open-ended the question of what counts as an national interest sufficiently important for the President to use force, but if we are to take seriously the notion that past practice matters here, it would seem important to identify some at least analogous illustration on which to rely. (2) To the extent past examples of “important” national interests matter, the case for using force to protect a zone in a foreign country within which our own military might train opposition forces strikes me as vastly less impressive than the interest in, say, ridding the world of the scourge of chemical weapons. Indeed, the “de-confliction” zone we are now using force to protect is geographically just over the border from a country (Iraq) in which we have every right (thanks to that nation’s consent) to be operating militarily and, presumably, training anti-ISIL forces all we like. Above all, (3) in the 2011 Libya strike (and almost all previous post-World War II operations), unilateral executive uses of force abroad were taken in concert with UN authorities. For reasons I alluded to briefly in my previous post, both our downing of the Syrian jet and the recent U.S. strikes to preserve its non-state allies’ right to operate in the “de-confliction” zone appear to be in violation of the UN Charter (a treaty we are obligated to observe as supreme law of the land under our own Constitution’s Article VI). Whether one considers that an Article II problem, an Article VI problem, or simply a violation of international law – the United States’ legal position here is as precarious as it gets.

OJ Bloggers in Salim v Mitchell

by Kevin Jon Heller

As many readers are probably aware, the ACLU is currently bringing an ATS action against the two psychologists, James Mitchell and John Jessen, who allegedly designed and administered the CIA’s torture program. Here is the ACLU’s summary of the case, Salim v. Mitchell:

The CIA paid the two men and the company they later formed tens of millions of dollars over the next eight years [since 2002] to implement and refine the resulting program. Mitchell and Jessen designed the abusive procedures, conditions, and cruel treatment imposed on captives during their rendition and subsequent detention, devised the torture instruments and protocols, personally tortured detainees, and trained CIA personnel in administering torture techniques. In a clear conflict of interest later acknowledged by the CIA, the two men were also tasked with evaluating the “effectiveness” of the program from which they reaped enormous profits.

The plaintiffs in the case are Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and the estate of the late Gul Rahman, who died as a result of his torture. They are three of 119 victims and survivors of the CIA program named in the Senate torture report. All three were experimented on and tortured in accordance with Mitchell and Jessen’s specifications. All were subjected to severe physical and psychological abuse including prolonged sleep deprivation and nudity, starvation, beating, water dousing, and extreme forms of sensory deprivation – methodically administered with the aim of psychologically breaking their will.

The plaintiffs are suing Mitchell and Jessen under the Alien Tort Statute for their commission of torture; cruel, inhuman, and degrading treatment; non-consensual human experimentation; and war crimes.

I am not going to comment on the merits of the case. Instead, I want to let readers know that Opinio Juris bloggers are involved on both sides of it. I am the expert witness for the plaintiffs concerning the human-experimentation claim; Julian is the expert witness for the defendants on both the human-experimentation claim and the torture claim. You can find my declaration here, and Julian’s response here. We have also each submitted rebuttal declarations. Mine is here (scroll down to p. 48); Julian’s is here.

The New York Times published a long article about the case last weekend. It’s well worth a read.

Is Now a Good Time to Go Back to that U.S. War Power Debate?

by Deborah Pearlstein

Cross-posted at Balkinization

Because it’s too easy for our growing war in Syria to get lost amidst other also-pressing news, I want to be sure to note that last week ended with the Senate Foreign Relations Committee formally requesting the Trump Administration’s legal justification for a growing set of clashes between the U.S. military and armed forces allied with Syrian President Bashar Assad. The U.S. military has of course been engaged in anti-ISIL operations in Syria since 2014. But this recent violence – including the incident last week in which the U.S. military shot down a Syrian jet it said was firing on U.S.-allied non-state forces on the ground, as well as multiple U.S. efforts to defend its creation of a “de-confliction zone,” an area in Syria surrounding a garrison used by U.S. Special Forces to train partner forces there – involves the United States far more directly in state-to-state conflict with Syria (and its allies, Iran and Russia) than we have previously undertaken. Apart from the mammoth policy implications of this kind of escalation, it is far from clear what domestic legal authority supports it. In this post, I’ll address the notion that an existing statute authorizes these operations. In a later post, I’ll take up the suggestion the President’s inherent power under Article II of the Constitution does the job.

One possibility the Administration has advanced to justify its recent conduct is that the anti-Syria actions are (at least implicitly) authorized by the 2001 authorization for the use of military force (AUMF), which gave the President the power to use “all necessary and appropriate force” against those nations, organizations or persons he determines were responsible for the attacks of September 11. The Obama Administration indeed relied on the 2001 AUMF for its operations against ISIL in Syria. And while many of us have written critically (e.g. here) about the plausibility of relying on a 2001 AUMF to attack a group that did not come into existence until years after 2001 (and is indeed today the sworn enemy of the group, Al Qaeda, that all agree was responsible for the attacks of 2001), we might just for a moment set those arguments aside to consider the new claim on its own. The new claim is that to the extent the AUMF supports U.S. operations in Syria at all, it surely also must include the implied authority to defend U.S. forces operating there against whomever might subject them to attack.

The notion that the AUMF contains some implied authority for U.S. troops engaged in operations under its auspices to defend themselves against foreign attack is in one sense entirely plausible. If, as the Supreme Court held in 2004’s Hamdi v. Rumsfeld, the AUMF contains the implied authority to detain war prisoners under its auspices because such detention was a recognized incident of the use of force under international law, then surely self-defense of one’s own forces (at least to the extent permitted by international law) should also be within the realm of implied statutory authority. The problem is, U.S. self-defense is not what most (or maybe all) of these recent incidents have involved. (For a nice list of recent actions in Syria, see here.) By the United States’ own account, the Syrian SU-22 we shot down last week was firing on local anti-Assad fighters the United States supports, but there was no indication U.S. forces themselves were remotely at risk. CENTCOM rather explained that the move was in “collective self-defense” of coalition-partnered forces – a concept that appears pulled from Article 51 of the UN Charter (to which the United States is of course party) providing in relevant part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” Even if one were to assume the text of the AUMF should be interpreted with guidance from relevant international law, Article 51 by its terms limits the right of “collective” self-defense to UN member states. Local anti-Assad forces, whatever their merits, aren’t states. More, especially to the extent that what we are doing in establishing our “de-confliction zone” is effectively seizing an area inside Syrian territory for our use and defending it from incursion by Syrian or other forces, we are not engaging in defense (self or otherwise) at all, but rather in the partial armed occupation of another country – which is, without putting too fine a point on it here, the opposite of a recognized incident of force under international law.

So what about finding a relevant implied authority in the AUMF under other principles of statutory interpretation? Ignore international law for a moment – could the AUMF be read based on its text, context or legislative history to authorize the military operations we’ve carried out against Syria and Iran on behalf of anti-ISIL allies here? To pursue this theory, it is impossible to look just at the Administration’s latest interpretive move, but rather at the set of inferences one would have to draw from the AUMF itself. For buying the notion that the 2001 AUMF authorizes U.S. bombing of Syrian aircraft or Syrian-allied forces in Syria in all the circumstances we have in recent weeks requires us to embrace not just one dicey inference, but three: (1) that a statute limited by its text to authorizing force against the groups that attacked us in 2001 extends to a group that did not exist in 2001 (and is itself at war with the group that did attack us in 2001); (2) that the statute includes some implied authority to defend our own forces from attack not only against those nations and organizations the statute authorizes us to fight, but as against any nations and organizations anywhere worldwide our AUMF operations, whether or not our assertion of self-defense complies with international law; and (3) that statute further authorizes us to “defend” any local group with which we might ally in the course of global AUMF operations – up to and including apparently excluding a sovereign state from its own territory for the purpose of carving out some training space for the local group.

It is, to put it mildly, implausible that the Congress that passed the 2001 AUMF thought it was authorizing all this. The textual limitation of the 2001 AUMF to the groups responsible for the attacks of 9/11; the Charming Betsy canon of interpretation and others that would favor reading a statute to accord with our binding treaty obligations where possible; and the total absence in legislative history of any intention to authorize force against Syria and Iran – all weigh against any such construction. Which leaves us, alas, with the President’s power under Article II of the Constitution. I’ll pick up in a future post there.

William Bradford Fails Upward — and Is Still Lying About His Credentials

by Kevin Jon Heller

When last we met William Bradford, he had just published an article in the National Security Law Journal (NSLJ) accusing centrist national-security-law professors of treason and advocating prosecuting them for providing material support to terrorists. After many scholars, including me, pointed out that the article was both absurd and deeply offensive, the NSLJ repudiated the article. (Alas, the journal has since scrubbed the repudiation from its website.)

Bradford’s article was not his first brush with controversy He was forced to resign from Indiana University at Indianapolis after Inside Higher Education revealed that he had lied about his military service, falsely claiming, inter alia, that he had fought in Desert Storm and Bosnia and had won a Silver Star. Bradford then later resigned from West Point — whose decision to hire him still boggles the mind — after it came to light that he had falsely claimed that he had been an assistant professor at the National Defense University (NDU), run by the Department of Defense. According to the NDU, to quote the Guardian, “he was not a professor there, nor even a staff employee…. He is said to have worked for a Waynesboro, Virginia-based translations and business consultant, Translang, which had a contract with the university.”

You would be forgiven for thinking that someone who has accused respected law professors of committing treason and who was forced to resign from two academic institutions for lying about his credentials might have a difficult time finding a new — and more important — position. But if you do think that, you have never met Donald J. Trump, for whom no one is too dishonest or too incompetent to hire. Because Trump has recently appointed Bradford to the be the Director of the Office of Indian Energy at the Department of Energy (DoE).

That’s appalling in and of itself. But the awfulness doesn’t end there, because Bradford is still lying about his credentials. Here is a screenshot of Bradford’s bio on the DoE website (in case the DoE reads this and decides to scrub it):

Notice the text inside the red rectangle: Bradford is still claiming to have been a faculty member at the NDU — the same claim that led to his resignation from West Point.

In any sane administration, Bradford would be fired in the next 48 hours. But this is the Trump administration, so I’m not holding my breath.