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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.)

ECHR Rules Against Poland in CIA Black Sites Case

by Jens David Ohlin

In two decisions (here and here) handed down this morning, the European Court of Human Rights has found that Poland violated its obligations under the European Convention of Human Rights for its complicity in the United States’ running of a CIA black site and high-value detainees program on Polish territory.

One of the cases involved al-Nashiri, who was prosecuted before a U.S. military commission and the subject of protracted habeas litigation in the DC Circuit. He was accused of orchestrating the attack against the USS Cole in 2000. In federal court his lawyers raised the very interesting issue of whether there existed an armed conflict with al-Qaeda at that time (i.e. before 9/11), and whether a military commission could properly assert jurisdiction over a crime that was allegedly committed before (in their view) the commencement of the armed conflict.

Nashiri was captured in Dubai in 2002, transferred to a CIA prison in Afghanistan (called the “Salt Pit”), then to a CIA facility in Bangkok (called “Cat’s Eye”) where detainee Abu Zubaydah (the subject of the other case) also was held. Both were then transferred to the CIA black site in Poland. After his time in Poland, he was transferred briefly to Morocco on his way to Guantanamo Bay, Cuba.

The decision goes into extensive detail of the CIA interrogation program, including a review of internal CIA documents explaining the interrogation methods that officers were authorized to use against detainees, as well as the unauthorized techniques that were sometimes used. The court concluded that (para. 417):

Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that:

(1)  on 5 December 2002 the applicant, together with Mr Abu Zubaydah, arrived in Szymany on board the CIA rendition aircraft N63MU;

(2)  from 5 December 2002 to 6 June 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename “Quartz” and located in Stare Kiejkuty;

(3)  during his detention in Poland under the HVD Programme he was interrogated by the CIA and subjected to EITs and also to unauthorised interrogation techniques as described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report;

4)  on 6 June 2003 the applicant was transferred by the CIA from Poland on the CIA rendition aircraft N379P.

The ECHR then concludes that Poland was aware of (and complicit) in the CIA activities:

442.  Taking into consideration all the material in its possession (see paragraphs 418-439 above), the Court finds that there is abundant and coherent circumstantial evidence, which leads inevitably to the following conclusions:

(a)  that Poland knew of the nature and purposes of the CIA’s activities on its territory at the material time and that, by enabling the CIA to use its airspace and the airport, by its complicity in disguising the movements of rendition aircraft and by its provision of logistics and services, including the special security arrangements, the special procedure for landings, the transportation of the CIA teams with detainees on land, and the securing of the Stare Kiejkuty base for the CIA’s secret detention, Poland cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory;

(b)  that, given that knowledge and the emerging widespread public information about ill-treatment and abuse of detained terrorist suspects in the custody of the US authorities, Poland ought to have known that, by enabling the CIA to detain such persons on its territory, it was exposing them to a serious risk of treatment contrary to the Convention (see also ElMasri, cited above, §§ 217-221).

443.  Consequently, Poland was in a position where its responsibility for securing “to everyone within [its] jurisdiction the rights and freedoms defined …. in [the] Convention” set forth in Article 1 was engaged in respect of the applicant at the material time.

The Court holds that Poland violated Article 3 of the Convention for its failure to adequately investigate the mistreatment, and for failing to ensure that “individuals within its jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including ill-treatment administered by private individuals .”  Again, here is the Court’s holding (para. 517):

Notwithstanding the above Convention obligation, Poland, for all practical purposes, facilitated the whole process, created the conditions for it to happen and made no attempt to prevent it from occurring. As the Court has already held aboveon the basis of their own knowledge of the CIA activities deriving from Poland’s complicity in the HVD Programme and from publicly accessible information on treatment applied in the context of the “war on terror” to terrorist suspects in US custody the authorities – even if they did not witness or participate in the specific acts of ill-treatment and abuse endured by the applicant – must have been aware of the serious risk of treatment contrary to Article 3 occurring on Polish territory.

Accordingly, the Polish State, on account of its “acquiescence and connivance” in the HVD Programme must be regarded as responsible for the violation of the applicant’s rights under Article 3 of the Convention committed on its territory (see paragraph 452 above and El-Masri, cited above, §§ 206 and 211).

The Court also found a violation of the article 5 prohibition against arbitrary detention (para. 532), the article 8 prohibition against interference with family life for holding him incommunicado (para. 540), the article 13 requirement of an effective domestic remedy (para. 551), and the article 6 prohibition against an unfair trial (para. 569).

The last holding on article 6 required the Court to conclude that the petitioner’s trial before a U.S. military commission would be unfair — which is a substantial legal determination. Unfortunately, the Court’s analysis on this point is incredibly thin, and relies mostly on the U.S. Supreme Court’s determination in Hamdan that the creation of the tribunals was procedurally defective and violated Common Article 3 of the Geneva Convention, without much independent analysis. There is no discussion of post-Hamdan military commission reforms.

Finally, the Court concludes that Poland violated its Protocol 6 (abolition of the death penalty) obligations because of the risk that the petitioner would be subject to capital punishment before a U.S. military commission (para. 579).

Control Matters: Ukraine & Russia and the Downing of Flight 17

by Jens David Ohlin

The recent downing of Malaysian Airlines Flight 17, apparently by an anti-aircraft missile fired from within rebel-controlled territory in the Ukraine, has raised the specter that Russia is covertly (or not so covertly) supplying arms and assistance to the pro-Russian separatists operating within eastern Ukraine. Obviously, the facts here are somewhat contested and I have no insider or independent information about the firing of the missiles. What I say here is based on news reports in The New York Times and elsewhere, and our understanding of the situation is rapidly evolving.

But let’s assume, for the sake of argument, that this story (or something similar) turns out to be true. Let’s assume that the “BUK” anti-aircraft missile system was either provided to the Ukrainian rebels by Russian operatives, or that it was stolen by the rebels from the Ukrainian military, and then operated with assistance from Russian operatives and military advisors. It seems more likely that the missile system was provided directly by Russia, but even if the rebels stole it from the Ukrainian military, it seems unlikely that the untrained militia-members would have been capable of deploying it without Russian assistance. (Again, let’s just take this as an assumption, because alternate hypotheses exist, including the contention that the militia members are trained in anti-aircraft missile deployment because they are local defectors from the Ukrainian military).

If this story is true, it reveals how important the debate is, in international jurisprudence, between competing theories of control. This might seem like an obvious point, but the current situation in the Ukraine (vis-à-vis Russian influence) may stand at precisely the fault line between “effective control” and “overall control” – the two competing doctrines of attribution in international law.

As most readers already know, the effective control test was articulated in the ICJ’s Nicaragua judgment and offers a fairly robust set of standards for attributing the actions of an armed group to a particular state, essentially requiring that the armed units are operating on the instruction, or at the direction of, the foreign state. In these circumstances, the actions of the armed group can be attributed to the foreign state.

In contrast, the ICTY in Tadic declined to follow the ICJ’s Effective Control Test, and instead formulated and applied the broader Overall Control Test. The test was originally designed to determine in Tadic whether the armed conflict was an international armed conflict or a non-international armed conflict. If the conduct was attributable to a foreign state, then the armed conflict was international in nature. Subsequently, Cassese argued (correctly) that the test was, in fact, a general test for state responsibility. The test allowed for state responsibility in situations where a foreign power helped to coordinate the actions of an organized and hierarchically structured armed group by equipping, financing, or training the paramilitary force.

The dispute between these two tests is crucial because they really do give different answers in important cases. It seems to me that the Ukrainian situation falls directly on the fault line between the overall and effective control tests. If the Effective Control test applies, then it is not clear whether the shooting down of the airliner can be directly attributed to the Russian government (although that conclusion depends on which facts are unearthed in the investigation). On the other hand, if the Overall Control test applies, then there is a plausible argument that the shooting of Flight 17 can be attributed to Russia because their operatives probably helped train and equip, and coordinate, the activities of the pro-Russian militia. The Overall Control test supports the attribution of responsibility to Russia, while the Effective Control test probably does not.

Either way, one important insight about both tests is their black-and-white nature. Instead of a spectrum of control yielding different degrees of responsibility, the tests act as an on-off switch. Either there is state responsibility or there is not; either the acts are attributed or they are not. There is no sliding scale of responsibility based on the degree of foreign involvement or entanglement in the local affairs of the militia or paramilitary organization.

A final note on a related but distinct topic. It also seems pretty clear that pro-Russian militia were acting incompetently in shooting down the plane, assuming incorrectly that they were shooting down a military aircraft. How should one understand their level of culpability here? Recklessness comes to mind as the appropriate mental state since they probably did not engage in the appropriate due diligence to distinguish between military and civilian aircraft.

Although it is unclear whether this should be treated as an international crime (killing of civilians during an armed conflict) or a domestic crime (murder), I have to say that I have never found international criminal law’s treatment of crimes of recklessness particularly satisfying. Under domestic law, reckless killings are either classified as manslaughter or as the lowest degree of murder (such as depraved indifference to human life) depending on the jurisdiction and depending on the severity of the recklessness. Domestic law therefore produces a grading of the offense based on the lower mental state. In contrast, international criminal law has no lower offense for crimes of recklessness. Unlike the distinction between murder and manslaughter, a defendant is either convicted or acquitted of the war crime of killing civilians (with nothing in between).

Guest Post: The D.C. Circuit’s En Banc Ruling in Al Bahlul: Legal Innovation, Tradition, and America’s Domestic Common Law of War

by Jonathan Hafetz

[Jonathan Hafetz is Associate Professor of Law at Seton Hall Law School.  He has represented several Guantanamo detainees and has filed amicus briefs in previous legal challenges to military commissions.]

On July 14, the en banc U.S. Court of Appeals for the D.C. Circuit issued its long-awaited (and deeply fractured) opinion in Al Bahlul v. United States (.pdf), addressing the scope of military commission jurisdiction over offenses—material support for terrorism, solicitation, and conspiracy—that are not crimes under international law.  In a nutshell, the D.C. Circuit vacated Bahlul’s conviction for material support and solicitation, but affirmed his conviction for conspiracy against an ex post facto challenge.  While the ruling takes material support and solicitation off the table for commission prosecutions (at least for prosecutions of current Guantanamo detainees), it does not resolve the viability of charging conspiracy as a stand-alone offense because the en banc holding is based on the application of plain error review to Bahlul’s case (due to its conclusion that Bahlul failed to preserve his ex post facto challenge below).  The decision thus leaves open the fate of conspiracy under de novo review.  By implication, it also leaves open the viability of the U.S. government’s domestic war crimes theory not only with respect to other commission cases charging conspiracy (including the ongoing prosecution of the 9/11 defendants), but also with respect to Bahlul’s other legal challenges to his conspiracy conviction, which the en banc court remanded to the original D.C. Circuit panel.

This post will examine the multiple opinions in Bahlul addressing the U.S. government’s domestic war crimes theory, which posits that the Military Commissions Act of 2006 (2006 MCA) retroactively authorizes, and that the Constitution allows, the prosecution by military commission of conduct that is not a crime under the international law of war.  (For excellent summaries of the Bahlul decision, see posts at Just Security by Steve Vladeck here and by Steve and Marty Lederman here).  The theory’s viability is central to the retroactivity arguments addressed by the en banc court as well as to the additional arguments under Article I and Article III that will be considered on remand.