That may seem like a ridiculous question. After all, Libya is doing everything in its power to prosecute Saif domestically — and he is facing a variety of charges that carry the death penalty. But consider the text of Art. 17(2), the “unwillingness” prong of the the admissibility test:

In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable… (a)  The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5.

As I noted in my previous post, Libya has not denied that Saif will be prosecuted in Zintan before (supposedly) being prosecuted in Tripoli; indeed, Taha Baara, the official spokesperson for Libya’s General Prosecutor, specifically told Reuters last month that ”[i]nvestigations for trying him for war crimes are over and he will be put on trial for that at a later time.” That acknowledgment needs to be read in conjunction with a number of statements by Libya.  First, Libya insists that it is responsible for both prosecutions — thereby denying the disquieting possibility that the Zintan case is being prosecuted by a militia over which the Libyan government has no control (para. 6; emphasis mine)…

As I have explained before, Libya’s admissibility challenge must fail if it cannot ensure that the militia in Zintan who have Saif custody will transfer him to the government to stand trial, because Art. 17(3) of the Rome Statute deems a state “unable” to prosecute if, “due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused.” A state’s inability to apply its criminal law to all of its territory is the prototypical example of “unavailability.” Moreover, in a hearing at before the Pre-Trial Chamber last October, the Libyan government admitted on the record that a trial in Zintan on the conduct at issue in the ICC proceedings could not satisfy Art. 17 (pp. 19-20; emphasis mine):

Since the filing of Libya’s 1 May 2012 challenge, the investigation of Mr Gaddafi has continued to progress and other arrangements for his trial have been made by the new government. These arrangements include the building of a courtroom complex and prison facility in Tripoli, which is known as Tajura, and although there’s been some recent contention in the press as to the planned location of any future trial, President el-Magariaf confirmed to the press on 22 September 2012 that there is no prospect of a trial taking place in Zintan due to inadequate courtroom facilities and the other infrastructure that will be needed for a trial.

With each passing day it becomes increasingly clear that Libya has no reasonable prospect of obtaining Saif from the Zintan militia anytime soon. The OTP’s most recent filing makes clear (para. 43) that it is not satisfied that Libya can obtain Saif — skepticism that needs to be taken particularly seriously in light of the OTP’s consistent support for a domestic prosecution. (Which seems to be changing, given the OTP’s most recent filing and a couple previous ones.) And the OPCD’s most recent filing – a withering critique of Libya’s attempts to support its admissibility challenge with anything more than unsubstantiated allegations — provides far more detail concerning  Libya’s lack of control over the Zintan milita holding Saif…

Breaking news:  China has rejected arbitration under Annex VII of the UN Convention on the Law of the Sea with the Philippines, dealing a heavy blow to the future of dispute settlement under UNCLOS (h/t China Law Prof Blog).  According to this China Daily report,

“Chinese Ambassador to the Philippines Ma Keqing had an appointment with officials from the Philippines’ Foreign Ministry on Tuesday and returned a note and related notice after expressing China’s rejection,” spokesman Hong Lei said at a daily press briefing.

“The note and related notice not only violate the consensus enshrined in the Declaration on the Conduct of Parties in the South China Sea (DOC), but are also factually flawed and contain false accusations,” Hong said.

As I have noted here (and as Prof. Clarke notes as well), the Philippines is now within its rights to ask the President of the International Tribunal for the Law of the Sea to appoint all four remaining arbitrators for the Annex VII tribunal.  Once the President of ITLOS has done so, the duly constituted arbitral tribunal may act even without China’s participation.

Upon reflection, I am not really surprised China has decided to walk away from the Annex VII tribunal.  As I noted earlier, such tribunals have tended to combine their considerations of jurisdiction with those of the merits.  They have not generally bifurcated their proceedings, nor do they seem to have any obligation to do so.

This is a problem for China because while their jurisdictional challenge is pretty strong, their argument on the merits is undeveloped and fuzzy.  They have never exactly spelled out what they mean by having “indisputable sovereignty” over the South China Sea.   Do they mean it is a territorial sea? Or that they have general economic rights similar to an Exclusive Economic Zone?

So I am not shocked that China is walking away here. The question for the Philipppines is: what next? Do they continue with the Annex VII arbitration without China? Well, their DFA seems ready to move forward without China.  But would any award issued by this tribunal be pretty meaningless?

I’m not sure. I think that any award there would have little impact on China, but it should be useful in helping rally allies in Southeast Asia, especially within ASEAN.  It is not going to stop China much, but an award that undermines the legality of China’s claims is certainly better to have than not to have. But it is not nearly as much as it would have been if China had played ball (and lost).

China’s statement contains a curious and hard to understand argument.  According to the Chinese foreign ministry, the Philippines arbitration claim “complicates” resolution of conflicts in the South China Sea in violation of the Declaration on Parties’ Conduct in the South China Sea.    Presumably, China is referring to Article 5 of the Declaration:

5. The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.

Does making an arbitration claim under Annex VII “complicate or escalate disputes”?  Given the whole context of Paragraph 5, I am highly doubtful of this argument. One must also note that the previous paragraph instructs all parties to

undertake to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to the threat or use of force, through friendly consultations and negotiations by sovereign states directly concerned, in accordance with universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea;

The explicit reference to UNCLOS (albeit the 1982 version) doesn’t really add much weight to the claim that the the Declaration somehow prohibits parties from resorting to UNCLOS arbitration.  If anything, it goes the other way.  Given that the Declaration is not technically binding under international law anyway, let’s just say this is the weakest of a series of weak arguments trotted out by China in this dispute.

So let’s just call this what it is: China is thumbing its nose at UNCLOS and it has now dealt a  serious, near fatal blow, to the UNCLOS dispute settlement system, at least in its ability to resolve serious disputes involving major powers.  UNCLOS arbitration is not going to restrain China in any significant way. At least, China doesn’t think it will pay any serious costs to walking away, which is why it is willing to accept the equivalent of a default judgment.

From the perspective of the United States, the China-Philippines episode is a cautionary tale. On the one hand, it suggests that those critics of UNCLOS worried about the impact of Annex VII arbitration tribunals need not fear them all that much.  On the other hand, this episode should put an end to the always silly argument that the US needed to join UNCLOS in order to use UNCLOS against China.  That was never really going to work, and we now have ample evidence.

The Australian political world is all abuzz at the prospect of Assange running for the Senate in the upcoming federal election, which will be held on September 14.  It’s not completely clear whom he’ll run against, but he will register as a voter in my home state of Victoria and intends to start a new political party, surprisingly entitled the WikiLeaks Party.  There are some interesting election-law aspects regarding Assange’s plan, such as his ability to register from overseas and take the oath of office, but what I find particularly interesting is his view of what winning (which is by no means inconceivable, particularly if he runs in a liberal state like Victoria) would mean for the ongoing US grand jury investigation of his activities.  From The Guardian (which I’ve just learned, to my great excitement, is planning to start an Australian edition):

The WikiLeaks founder Julian Assange has told an Australian news website that his bid to become an Australian senator will serve as a defence against potential criminal prosecution in the United States and Britain

Assange spoke to the Conversation website at the Ecuadorian embassy in London where he was granted asylum in June to avoid extradition to Sweden on sex crime allegations.

If he were to win a Senate seat at elections on 24 September, Assange told the website, the US department of justice would drop its espionage investigation rather than risk a diplomatic row. The British government would follow suit otherwise “the political costs of the current standoff will be higher still”, Assange said.

Readers know that I have the greatest respect for WikiLeaks’ tireless efforts to promote government transparency — and that I am completely opposed to any attempt to prosecute Assange for espionage.  But I think the idea that holding a seat in the Australian Senate would prevent the US from pursuing charges against him is, well… a tad optimistic.  Has he met the United States lately?  Its current government — run by Democrats — has no problem executing American citizens on the unreviewable whim of a “senior administration official.”  And Assange really thinks that it would hesitate to prosecute a “sitting” Senator from a country that many Americans think is next to Germany?

Color me unconvinced.  But I’d still vote for him, if I could.

PS. It goes without saying — I hope — that being elected to the Senate would not provide Assange with any kind of immunity, especially not the kind of immunity that would require the Brits to let him leave the Ecuadorian embassy.

My friend Jens Ohlin (Cornell) has just posted a very important article on SSRN entitled “Targeting and the Concept of Intent.”  Here is the abstract:

International law generally prohibits military forces from intentionally targeting civilians; this is the principle of distinction. In contrast, unintended collateral damage is permissible unless the anticipated civilian deaths outweigh the expected military advantage of the strike; this is the principle of proportionality. These cardinal targeting rules of international humanitarian law are generally assumed by military lawyers to be relatively well settled. However, recent international tribunals applying this law in a string of little-noticed decisions have completely upended this understanding. Armed with criminal law principles from their own domestic systems, often civil law jurisdictions, prosecutors, judges and even scholars have progressively redefined what it means to “intentionally” target a civilian population. In particular, these accounts rely on the civil law notion of dolus eventualis, a mental state akin to common law recklessness that differs in at least one crucial respect: it classifies risk-taking behavior as a species of intent.

This problem represents a clash of legal cultures. International lawyers trained in civil law jurisdictions are nonplussed by this development, while the Anglo-American literature on targeting has all-but-ignored this conflict. But when told of these decisions, U.S. military lawyers view this “reinterpretation” of intent as conflating the principles of distinction and proportionality. If a military commander anticipates that attacking a building may result in civilian casualties, why bother analyzing whether the collateral damage is proportional? Under the dolus eventualis view, the commander is already guilty of violating the principle of distinction. The following Article voices skepticism about this vanguard application of dolus eventualis to the law of targeting, in particular by noting that dolus eventualis was excluded by the framers of the Rome Statute and was nowhere considered by negotiators of Additional Protocol I of the Geneva Convention. Finally and most importantly, a dolus eventualis-inspired law of targeting undermines the Doctrine of Double Effect, the principle of moral theology on which the collateral damage rule rests. At stake is nothing less than the moral and legal distinction between terrorists who deliberately kill civilians and lawful combatants who foresee collateral damage.

I am completely in agreement with Jens concerning recklessness/dolus eventualis.  The more difficult issue, which the essay touches on, is whether knowledge/dolus indirectus qualifies as intent in the targeting context. I believe it does, for all the reasons I’ve previously discussed on Opinio Juris. (See here and here, for example.)  Jens is more agnostic, at least for now.

As Larry Solum would say, read Ohlin!

Last May, I offered some critical thoughts on Opinio Juris about Charles Taylor’s 50-year sentence at the Special Court for Sierra Leone.  I have just finished a short essay (8,000 words) on Taylor’s sentence that will appear in an upcoming issue of the Journal of International Criminal Justice; you can find the essay on SSRN. Here is the introduction:

On 30 May 2012, despite concluding that he was liable for crimes committed in Sierra Leone only as an accessory, Trial Chamber II of the Special Court for Sierra Leone (SCSL) sentenced Charles Taylor to 50 years imprisonment – the second longest sentence in the Tribunal’s history. This article provides a critical analysis of Taylor’s sentence, asking whether it comports with the principle – widely accepted by international tribunals – that a sentence must not be ‘out of reasonable proportion with a line of sentences passed in similar circumstances for the same offences’. The article concludes that Taylor’s sentence is, in fact disproportionate in comparison to other sentences imposed by the SCSL – Augustine Gbao’s 25-year sentence in particular.

In reaching that conclusion, the article is mindful of how difficult it is to reliably compare sentences. Sentencing is highly discretionary, and no two cases are ever completely alike. Moreover, sentencing judgments rarely explain in a systematic way how the judges have decided upon a particular sentence; as Boas et al. have noted, ‘it often seems as though the trial chamber has simply pulled the number out of the air’. The Taylor Sentencing Judgment, unfortunately, is no exception. A mere 40 pages long – in contrast to the 2,499-page Trial Judgment – it discusses the gravity of Taylor’s offences, his individual circumstances, and the relevant aggravating and mitigating factors, but makes little attempt to explain why those factors require a 50-year sentence.

The article itself is divided into four sections. Section 1 provides a brief summary of the Sentencing Judgment. Section 2 explains why the Trial Chamber has overestimated the gravity of Taylor’s offenses. Section 3 argues that the Trial Chamber misapplied a number of aggravating factors and impermissibly double-counted others. Finally, Section 4 criticizes the Trial Chamber’s refusal to consider Taylor’s contributions to the Sierra Leone peace process as a mitigating factor.

Comments and criticisms welcome!

Secretary of State John Kerry made a few opening remarks (video here) yesterday at the State Department that are worth quoting.

“So here’s the big question before the country and the world and the State Department after the last eight years: Can a man actually run the State Department? (Laughter) I don’t know. (Applause) As the saying goes, I have big heels to fill. (Laughter)”

He then presents a poignant historical account of his childhood memories as a diplomat’s son in Berlin:

“I was back in Boston two weeks ago and I was rummaging through some old stuff and I found the first evidence of my connection to this great diplomatic enterprise – my first diplomatic passport. (Applause.) There it is. Number 2927 – there weren’t a lot of people then. (Laughter.) And if you open it up, there’s a picture of a little 11-year-old John Kerry and no, you will not get to see it. (Laughter.) And then in the description it says, “Height: 4-foot-3.” (Laughter.) “Hair: Brown.” So as you can see, the only thing that’s changed is the height. (Laughter.)

And the first stamp in it, the first arrival, was 1954 in Le Havre. And back then the State Department, we went over – we spent six days at sea on the S.S. America and the State Department and the United States Government sent us over, the entire family, first class. Don’t get any ideas. (Laughter.) Anyway, I – we went to Berlin, and this was not too long after the war, and I used to ride my bicycle around Berlin, it was my pastime, my passion, and rode everywhere, the Grunewald, around the lakes, up and down the Kurfurstendamm, the church where the steeple burned down, past the Reichstag, burned out, past Brandenburg Gate, past Hitler’s tomb with these amazing, huge concrete slabs blown up. And I just roamed around. It was stunning how little control there was.”

And one day – in my sense of 12-year-old adventure, I think it was then – I used this very passport to pass through into the East Sector, the Russian sector, and I bicycled around, and I’ll tell you, as a 12-year-old kid, I really did notice the starkness, the desolation. In fact, I was thinking about it the other day. If the tabloids today knew I had done that, I can see the headlines that say, “Kerry’s Early Communist Connections,” something like that. (Laughter.) That’s the world we live in, folks.

But I would reassure them by saying I really noticed the difference between the east and west. There were very few people. They were dressed in dark clothing. They kind of held their heads down. I noticed all this. There was no joy in those streets. And when I came back, I felt this remarkable sense of relief and a great lesson about the virtue of freedom and the virtue of the principles and ideals that we live by and that drive us.”

He then makes the case for the virtues of working for the State Department:

“We get to do great things here. This is a remarkable place. And I’m here today to ask you, on behalf of the country, I need your help. President Obama needs your help, to help us to do everything we can to strengthen our nation and to carry those ideals out into the world.

Here, we can do the best of things that you can do in government. That’s what excites me. We get to try to make our nation safer. We get to try to make peace in the world, a world where there is far too much conflict and far too much killing. There are alternatives. We get to lift people out of poverty. We get to try to cure disease. We get to try to empower people with human rights. We get to speak to those who have no voice. We get to talk about empowering people through our ideals, and through those ideals hopefully they can change their lives. That’s what’s happening in the world today. We get to live the ideals of our nation and in doing so I think we can make our country stronger and we can actually make the world more peaceful…. That’s as good as it gets. And I’m proud to be part of it with you. So now let’s get to work.”

Not a bad start.

According to the White Paper (p. 6), a US citizen “who is located outside the United States and is an operational leader continually planning attacks against US persons or interests” cannot lawfully be killed unless, inter alia, “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of attack against the United States.” Early criticism of the White Paper has focused on how it defines imminence. The ACLU’s Jameel Jaffer, for example, says that it “redefines the word imminence in a way that deprives the word of its ordinary meaning.” That’s actually something of an understatement; as I’ll discuss in this post, the White Paper’s entire approach to the concept of imminence is deeply confused — and deeply problematic from the standpoint of international law.

The first thing to note is that it’s not clear why the White Paper even discusses imminence. As I noted in my previous post, the White Paper’s central premise is that all targeted killings of “senior operational leaders” in “al-Qa’ida or its associated forces” take place in the context of a global non-international armed conflict (NIAC) and are thus all subject to the laws of war (IHL). The White Paper also takes the position that the laws of war apply to a U.S. citizen in the same way that they apply to a non-citizen; it specifically argues (p. 3) that because ”the military may constitutionally use force against a US citizen who is part of enemy forces,” the DoJ “does not believe that US citizenship would immunize a senior operational leader of al-Qa’ida or its associated forces from a use of force abroad.”

Although I reject the White Paper’s claim that the US is engaged in a global NIAC with “al-Qa’ida and its associated forces,” I have no problem with the idea that US citizenship does not affect the targetability of an individual who is otherwise a legitimate target under IHL. But why, then, discuss imminence at all? It is black-letter IHL that a legitimate target can be targeted at any time; it is not necessary to show that the target is an imminent threat, regardless of how imminence is defined. Given that the White Paper assumes both that all targeted killings of US citizens take place in armed conflict and that US citizenship does not affect targetability under IHL, it should consider whether a US citizen poses “an imminent threat of attack against the United States” — or against anything else — to be completely irrelevant.

So why does the White Paper graft an imminence requirement onto IHL?  There are two possible explanations…

There is much to say about the DoJ White Paper on the targeted killing of US citizens, which reflects the US’s idiosyncratic interpretation of international law. In this post I want to focus on the White Paper’s primary — and in my view fatal — flaw: its complete failure to address the relationship between the organized armed groups that it considers to be engaged in a single non-international armed conflict (NIAC) with the US.

The White Paper begins with the standard premise that “[t]he United States is in an armed conflict with al-Qa’ida and its associated forces” (p. 2). It then claims that the armed conflict in question is a global NIAC that extends to any member of “al-Qai’da and its associated forces” anywhere in the world (p. 3; citations omitted; emphasis mine):

[T]he United States retains its authority to use force against al-Qa’ida and associated forces outside the area of hostilities that targets a senior operational leader of the enemy forces who is actively engaged in planning operations to kill Americans. The United States is currently in a non-international armed conflict with al-Qa’ida and its associated forces. Any U.S. operation would be part of this non-international armed conflict, even if it were to take place away from the zone of active hostilities.

After making that claim, the White Paper does something interesting: it explicitly addresses the argument that the existence of a NIAC between the US and al-Qaida must be determined according to the test established by the ICTY in Tadic – the test adopted by the ICRC, by the ICC, and by nearly all international law scholars. Here is what it says (pp. 3-4; some citations omitted)…

Michael Isikoff has obtained the 16-page memo.  It is available here.

Analysis later!

H/T — Lawfare.

Here’s a gem from Libya’s latest submission in its challenge to the admissibility of the case against al-Senussi (emphasis mine):

The Libyan Government observes that there has been a recent increase in filings in this case, no doubt due to the retention of new counsel for Mr Al-Senussi. Libya of course understands that counsel for Mr Al-Senussi will rightly want to explore all avenues of recourse for his client. However, it is hoped that in the future the Defence for Mr Al-Senussi will not file unfounded and repetitive applications before the Court containing serious allegations against the Libyan Government which are premised solely on inaccurate media reports. It is an unfortunate fact that inaccurate media reporting is frequent and inevitable and it is for this reason counsel are encouraged to properly substantiate all future allegations made to the Court, the Security Council, the UN Assistant SecretaryGeneral for Human Rights and the UN High Commissioner for Human Rights.

Yes, you read that right: the Libyan government, which has spent the past year baselessly impugning the integrity of the OPCD, now has the temerity to accuse al-Senussi’s lawyer, Ben Emmerson QC, of filing “unfounded and repetitive” applications with the Court based on unsubstantiated allegations. Ben Emmerson QC, who currently serves as the UN’s Special Rapporteur on Counter-Terrorism and Human Rights and as the British judge on the ICTY’s Residual Mechanism; who has been a special advisor to the ICC Prosecutor and to the judges at the ECCC; and who has literally decades of experience litigating cases at international courts and tribunals.

And what are the unsubstantiated allegations Emmerson has supposedly made on the basis of “inaccurate media reports”? There are only two such allegations mentioned in the motion that so aroused Libya’s ire: (1) that Libya intended to put al-Senussi on trial in a month (para. 2); and (2) that Libya paid Mauritania $200,000,000 to extradite al-Senussi (para. 29). The first allegation did indeed prove to be inaccurate, but Emmerson can hardly be blamed for making it — the news article in question simply quoted Taha Bara, the official spokesperson for Libya’s Prosecutor General, to that effect. If the spokesperson was somehow misquoted, Libya made no attempt to correct the record. As for the second allegation — well, I’ve dealt with the persuasiveness of Libya’s response to that one before. I’ll simply note here that Libya’s response (para. 18) to Emmerson’s “unsubstantiated allegation” relied solely on the unsubstantiated allegation of the former Libyan Deputy Prime Minister, as quoted in a news article.

Pot, meet Kettle.  I’m sure you’ll be fine friends.

We know what is stake at in Libya’s admissibility challenge regarding Saif Gaddafi: either a fair trial at the ICC that will likely result in a lengthy prison sentence or an unfair trial in Libya that will almost certainly result in execution. Libya has done nothing to disguise the unfairness of its national proceedings, but it has generally pretended to be concerned with Saif’s right to a fair trial in its many filings at the ICC. So I was very surprised to find Libya argue in its most recent motion that Saif’s lawyers, the Office of Public Counsel for the Defence (OPCD), should not even be allowed to see the evidence it provides the Pre-Trial Chamber in support of its admissibility challenge:

29. In its 7 December 2012 Decision concerning Mr. Gaddafi the Pre-Trial Chamber requested Libya to make available sample investigative materials. Libya has made such samples available (as set out in Annexes 4 to 7 and 15 to 17), prior to the accusatory phase of proceedings on an exceptional basis as a demonstration of its genuine commitment to fully cooperate with the Court in these admissibility proceedings. Libya requests however that this material be treated as being submitted to the Chamber on an ex parte basis. This is necessitated by the strict non-disclosure requirements of investigative material prior to the accusatory phase of proceedings under Article 59 of the Libyan Code of Criminal Procedure (as set forth in the Application of Libya), and for
obvious reasons of confidentiality.

30. Article 59 requires non-disclosure of investigative material under threat of criminal punishment. It provides that:

Investigation procedures and their results shall be considered confidential.
Investigators, prosecution members and their assistants of clerks and experts who are related to the investigation or attend to their profession or post shall undertake not to disclose same. Anyone who breaches this provision shall be punished in accordance with Article 236 of the Penal Code.

The unfairness of Libya’s ex parte request is obvious — the OPCD can hardly challenge Libya’s claim that the national proceedings against Saif satisfy the principle of complementarity if they don’t have access to the supporting evidence. Which is, of course, precisely the point of the request.

To be sure, Libya doesn’t acknowledge the real reason it doesn’t want the OPCD to see its evidence. Instead, it chooses to once again attack the integrity of the OPCD’s lawyers…