Last week, a Ceremonial Grand Council was held on Ihanktonwan homelands (located within the boundaries of the U.S. State of South Dakota) which concluded and negotiated the “International Treaty to Protect the Sacred from Tar Sands Projects”.  I can’t find a specific list of participants, but news reports suggest signatories included representatives from an array of U.S native American Tribes and Canadian First Nations.  The treaty (see here for the text) is seven articles long, most of which involve establishing the authority of indigenous peoples’ over their remaining land, including the authority to oppose tar sands oil projects (tar sands are unconventional oil deposits in sand and sandstone that are saturated with a particular form of petroleum; oil is produced from these deposits either by strip mining or using wells that inject steam, solvents and/or hot air into the sand).  The treaty signatories oppose oil work on tar sands for manifold reasons, including their degradation of the “the soil, the waters, the air, sacred sites, and our ways of life”.  In Article VI, the signatories

[A]gree to mutually and collectively, as sovereign nations, call upon the Canadian and United States governments to respect our decision to reject tar sands projects that impact our sacred sites and homelands; to call upon the Canadian and United States governments to immediately halt and deny approval for pending tar sands projects because they threaten the soil, water, air, sacred sites, and our ways of life; and, confirm that any such approval would violate our ancestral laws, rights and responsibilities.

Article VII then goes on to establish a mutual defense commitment of sorts, wherein the signatories

[A]gree to the mutual, collective, and lawful enforcement of our responsibilities to protect our lands, waters, and air by all means necessary, and if called on to do so, we will exercise our peace and friendship by lawfully defending one another’s lands, waters, air, and sacred sites from the threat of tar sands projects, provided that each signatory Indigenous Nation reserves and does not cede their rights to act independently as the tribal governments see fit to protect their respective tribal interests, further provided that each signatory Indigenous Nation reserves its inherent sovereign right to take whatever governmental action and strategy that its governing body sees fit to best protect and advance tribal interests affected by the pipeline project consistent with the agreements made herein and subject to the laws and available resources of each respective nation.

I find this treaty enormously interesting from a constitutional and international law perspective.  Of course, the treaty implicates other issues as well — environmental degradation, indigenous peoples’ rights, Canadian law, etc., but I’m not enough of an expert to opine on such questions.  Whatever its merits, though, I wonder what legal authority U.S. Native American tribes had to consent to conclude this treaty, let alone consent to be bound by it in the future (which the treaty says will occur via ratification by the “governing bodies of the signatory nations”).

[Update: Stephanie Farrior writes in with an important clarification.  Although the United States, Canada, New Zealand and Australia all initially opposed the the UN Declaration on the Rights of Indigenous Peoples, all four states have since formally expressed their support for the Declaration: Australia in 2009, and Canada, New Zealand and the United States in 2010]

Libya has filed a lengthy response to a series of Pre-Trial Chamber questions about the domestic proceedings against Saif. There is much of interest in the motion, but what particularly caught my eye is Libya’s open admission that it has repeatedly interrogated Saif and confronted him with witnesses in the absence of defence counsel. Here are the relevant paragraphs (emphasis mine):

49. In the period since 1 May 2012, testimonies regarding the actions of Saif Al-­Islam Gaddafi have been obtained from individuals who previously operated at the highest civilian and military levels of the Gaddafi regime. These individuals include [Redacted]. Mr. Gaddafi himself has also been interviewed on a number of occasions since 1 May 2012 (the last occasion being on 13 November 2012), and has been confronted with witnesses who have given testimonies in his case during such interviews.

51. The procedure for prosecution team interviews is that a private meeting is scheduled, to be attended by the witness and prosecution lawyers (other people are not permitted to be present at such meetings). The witness is then asked to swear an oath that he or she will tell the truth in answering the questions posed by members of the prosecution team. The questions asked of the witness and the witness’ answers to these questions are then written down, and each page of the witness testimony is sealed by the witness with their signature and/or fingerprint, as well as the signature of the attending representative/s of the prosecution team. The accuracy of witness testimonies which might be contested by the suspect are verified through a process under Libyan law known as confrontation (Article 106 of the Criminal Procedure Code). During this process the accused person in the investigation (i.e. Mr. Gaddafi) is presented with each witness whose account differs from that given by him, and is given the opportunity to refute the testimony of that witness in front of one or more member of the prosecution investigative team.

These uncounseled interrogations and confrontations categorically violate Libyan criminal procedure. (As readers know, I don’t think it’s relevant whether they violate international standards of due process.). Here is what Libya said in its original admissibility challenge…

Nothing in the Human Right’s Council’s report is particularly novel; it’s long been obvious that both the settlements and the transfer of Israeli civilians into the Occupied Palestinian Territories are illegal. Nevertheless, it’s worth noting the report’s most important conclusions:

100. The facts brought to the attention of the Mission indicate that the State of Israel has had full control of the settlements in the OPT since 1967 and continues to promote and sustain them through infrastructure and security measures. The Mission notes that despite all the pertinent United Nations resolutions declaring that the existence of the settlements is illegal and calling for their cessation, the planning and growth of the settlements continues both of existing as well as new structures.

101. The establishment of the settlements in the West Bank including East Jerusalem is a mesh of construction and infrastructure leading to a creeping annexation that prevents the establishment of a contiguous and viable Palestinian State and undermines the right of the Palestinian people to self-determination.

102. The settlements have been established and developed at the expense of violating international human rights laws and international humanitarian law, as applicable in the OPT as notably recognised by the 2004 ICJ Advisory Opinion.

103. The settlements are established for the exclusive benefit of Israeli Jews; settlements are being maintained and developed through a system of total segregation between the settlers and the rest of the population living in the OPT. This system of segregation is supported and facilitated by a strict military and law enforcement control to the detriment of the rights of the Palestinian population.

104. The Mission considers that in relation to the settlements Israel is committing serious breaches of its obligations under the right to self-determination and “certain obligations under international humanitarian law”, including the obligation not to transfer its population into the OPT. The Rome Statute establishes the International Criminal Court’s jurisdiction over the deportation or transfer, directly or indirectly, by the occupying Power of parts of its own population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory. Ratification of the Statute by Palestine may lead to accountability for gross violations of human rights law and serious violations of international humanitarian law and justice for victims.

105. The existence of the settlements has had a heavy toll on the rights of the Palestinians. Their rights to freedom of self-determination, non-discrimination, freedom of movement, equality, due process, fair trial, not to be arbitrarily detained, liberty and security of person, freedom of expression, freedom to access places of worship, education, water, housing, adequate standard of living, property, access to natural resources and effective remedy are being violated consistently and on a daily basis.

Based on those conclusions, the HRC report demands that Israel “cease all settlement activities without preconditions” and “immediately initiate a process of withdrawal of all settlers from the OPT.” Interestingly, the report also encourages both states and corporations to ensure that their business dealings with Israel do not support the settlements — even if that means terminating those dealings…

[Jonathan Hafetz is an Associate Professor of Law at Seton Hall Law School]

A recent Washington Post story posits that the rendition of terrorism suspects has continued under the Obama administration. While the story fails to describe how renditions have changed since the Bush administration, it highlights several areas of concern.

The story focuses on the prosecution of three European men with Somali roots (two Swedes, the third a long-term U.K.-resident) in federal court in Brooklyn for supporting al-Shabab, an Islamist militia in Somalia that the United States considers a terrorist group. Many details about the case have not been made public, but the basic facts are as follows. The men were arrested while passing through Djibouti, under what the story describes as “a murky pretext.” They were held without access to a lawyer or a judge in Djibouti, where they were questioned by U.S. officials. The men were subsequently arrested by the FBI and brought to the United States on charges of providing material support for terrorism.

Plainly, these facts differ from Bush-era “extraordinary renditions.” Bush’s extraordinary rendition program had two main features: prolonged incommunicado detention in secret CIA-run jails (or “black sites”); and transfers to foreign countries for torture and other abusive interrogation practices. In many cases, the same individuals were subjected to both, as they were secretly moved around a global U.S. detention network in a manner that resembled a shell game.

President Obama ended the extraordinary rendition program through his 2009 executive order requiring the closure of “black sites” and banning torture (including by ordering that the interrogation of all individuals in U.S. custody comply with the Army Field Manual on interrogation and Common Article 3). Moreover, by shifting U.S. policy away from torture, he undermined the program’s raison d’être, which was not incapacitating terrorism suspects but exploiting them for intelligence-gathering
purposes.

Obama did not end all renditions—a practice which pre-dates the Bush administration. (I define renditions as the transfer of an individual without extradition or some other formal process). Obama, however, has returned the focus of renditions to bringing terrorism suspects to justice through criminal prosecution rather than making them disappear.

Yet, despite these important changes, concerns remain.

First, as the Post story highlights, the United States’ increasing reliance on proxy detention raises due process issues. Proxy detention occurs when one country detains a person within its borders at another country’s direction or behest.

Proxy detention is not necessarily problematic, and its continued use reflects the fact that countries often need the assistance of foreign governments in counter-terrorism operations. It can also facilitate criminal prosecution in the absence of an extradition treaty and thus without a formal mechanism for a suspect’s arrest and transfer. Proxy detention can, however, raise concerns where the foreign government has no independent interest in detaining the person, there is no lawful basis for the detention, and where the detention is used as a means for the foreign government to collect evidence and build a criminal case. In the past, the United States has utilized proxy detention to avoid the limitations of its own laws that would otherwise restrict its ability to detain without prompt access to counsel and judicial process.

Second, proxy detention increases the risk of abusive interrogation. Defense attorneys for the three men arrested in Djibouti have said Djibouti officials treated their clients roughly. I do not know whether these allegations are valid, nor have the attorneys provided much detail. But U.S. officials should not be able to engage foreign proxies to use techniques that those officials are themselves prohibited from using, or turn a blind eye if those techniques are employed. The risk of abuse is heightened by the U.S. government’s position that foreign terrorism suspects overseas are not covered either by the Constitution or international human rights treaty obligations, which it maintains do not apply extraterritorially.

Third, the Post article highlights another issue— one that has less to do with human rights norms than with the substantive reach of U.S. counter-terrorism laws and the material support for terrorism statute in particular. It suggests that discomfort with the Djibouti arrests may have less to do with how the three men were treated in foreign custody than with why they are being prosecuted by the United States in the first place. Their lawyers concede they were combatants who fought on behalf of al-Shabab in Somalia, but deny they ever engaged in any terrorist activity against the United States. The case thus raises larger concerns about the scope of criminal liability under the material support statute—concerns that are magnified by the defendants’ extraterritorial seizure and detention. (For a recent case discussing limitations on the United States’ authority to prosecute piracy absent a direct connection to the United States, see the district court’s decision in United States v. Ali). Their rendition to the United States, in other words, would seem less problematic if they were being prosecuted for terrorist activity aimed at the United States or its nationals.

Labels like “rendition,” which can cover a range of conduct, are not terribly illuminating. More important is the extent to which the United States is utilizing foreign governments to avoid procedural safeguards against arbitrary detention; the increased risk of abusive treatment in proxy detention; and the implications of aggressively using the material support statute without a nexus to the United States. These issues do not trigger the same alarms as the sheer lawlessness that characterized extraordinary rendition, but they are worthy of continuing scrutiny nonetheless.

McClatchy reports that Israel now believes Iran will not be able to produce a nuclear weapon until 2015 or 2016.  That is progress of a sort; Netanyahu had previously been claiming that Iran would have the bomb no later than late summer 2013 — around six months from now.  But Israel is still insisting that Iran is only two or three years away from nuclear capability, so I think it is useful to recall and update the timeline I mentioned early last year of breathless Israeli and Western claims about Iran’s nuclear program:

1984: West German intelligence sources claim that Iran’s production of a bomb “is entering its final stages.” US Senator Alan Cranston claims Iran is seven years away from making a weapon.

1992: Israeli parliamentarian Benjamin Netanyahu tells the Knesset that Iran is 3 to 5 years from being able to produce a nuclear weapon.

1995: The New York Times reports that US and Israeli officials fear “Iran is much closer to producing nuclear weapons than previously thought” – less than five years away.  Netanyahu claims the time frame is three to five years.

1996: Israeli Prime Minister Shimon Peres claims Iran will have nuclear weapons in four years.

1998: Former Secretary of Defense Donald Rumsfeld claims Iran could build an ICBM capable of reaching the US within five years.

1999: An Israeli military official claims that Iran will have a nuclear weapon within five years.

2001: The Israeli Minister of Defence claims that Iran will be ready to launch a nuclear weapon in less than four years.

2002: The CIA warns that the danger of nuclear weapons from Iran is higher than during the Cold War, because its missile capability has grown more quickly than expected since 2000 – putting it on par with North Korea.

2003: A high-ranking Israeli military officer tells the Knesset that Iran will have the bomb by 2005 — 17 months away.

2006: A State Department official claims that Iran may be capable of building a nuclear weapon in 16 days.

2008: An Israeli general tells the Cabinet that Iran is “half-way” to enriching enough uranium to build a nuclear weapon and will have a working weapon no later than the end of 2010.

2009: Israeli Defense Minister Ehud Barak estimates that Iran is 6-18 months away from building an operative nuclear weapon.

2010: Israeli decision-makers believe that Iran is at most 1-3 years away from being able to assemble a nuclear weapon.

2011: An IAEA report indicates that Iran could build a nuclear weapon within months.

2013: Israeli intelligence officials claim that Iran could have the bomb by 2015 or 2016.

The McClatchy articles quotes an Israeli intelligence officer as asking “Did we cry wolf too early?” That’s amusing: Israel (and the West) have been crying wolf over Iran’s nuclear capability for nearly three decades.

David Bosco has an important post at The Multilateralist today reminding people that Palestine does not have to ratify the Rome Statute for the ICC to be able to investigate the situation in the West Bank and Gaza.  As David notes, because Palestine has filed a declaration under Article 12(3) accepting the Court’s jurisdiction on an ad hoc basis, the Prosecutor already has the authority to initiate an investigation, should she so choose.

That said, it still matters — at least formally — whether Palestine takes advantage of its newly-recognized statehood and ratifies the Rome Statute.  The Court’s jurisdiction over a situation can be triggered in three different ways: (1) a referral by a State Party; (2) a referral by the Security Council; and (3) a decision to investigate proprio motu by the Prosecutor.  Procedurally, there is a significant difference between those methods: unlike investigations triggered by a State Party or Security Council referral, the Pre-Trial Chamber has to authorize a proprio motu investigation.  The relevant provision of the Rome Statute is Article 15:

1.         The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.

2.         The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.

3.         If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. Victims may make representations to the Pre-Trial Chamber, in accordance with the Rules of Procedure and Evidence.

4.         If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case.

The Rome Statute’s differential treatment of proprio motu investigations is not an accident.  During the drafting of the Rome Statute, some states wanted the Prosecutor to have unfettered authority to initiate investigations, while others — fearing politically-motivated prosecutions — wanted to limit investigations to referrals by States Parties and the Security Council.  Article 15 reflects the compromise the drafters reached: the Prosecutor would have proprio motu power, but the use of that power would always be subject to judicial review.

Why does this matter for the new state of Palestine? Because an investigation conducted pursuant to an ad hoc declaration like Palestine’s is treated as a proprio motu investigation, so the Prosecutor’s decision to investigate must be confirmed by the Pre-Trial Chamber.  That was the case, for example, in Cote d’Ivoire: once the Prosecutor decided to act on Cote d’Ivoire’s ad hoc acceptance of the Court jurisdiction (retroactive, as I’ve noted before), he submitted a formal request under Article 15 to the Pre-Trial Chamber asking it to authorize the investigation — which it did.

At least procedurally, then, Palestine does indeed have a significant incentive to ratify the Rome Statute.  If it ratifies, a formal referral of the situation in the West Bank and Gaza to the Court would qualify as a State Party referral under Article 14 of the Rome Statute, exempting a decision by the Prosecutor to investigate from Pre-Trial Chamber review,  By contrast, if Palestine does not ratify the Rome Statute and rests on its previous ad hoc declaration, a decision by the Prosecutor to investigate would qualify as a proprio motu investigation that would require the Pre-Trial Chamber’s authorization.

As I have pointed out numerous times before, I find it inconceivable that this Prosecutor will decide to investigate the situation in the West Bank and Gaza.  But if she does, it will be easier for her to open that investigation if Palestine has ratified the Rome Statute.

Pathetic:

Ambassador Susan Rice objected Wednesday to the Palestinians’ latest bid to capitalize on their upgraded UN status when their foreign minister spoke at Security Council while seated behind a nameplate that read “State of Palestine.”

It was the first Palestinian address to the Security Council since the UN General Assembly voted overwhelmingly on November 29 to upgrade the Palestinians from UN observer to non-voting member state.

Rice said that the United States does not recognize the General Assembly vote in November “as bestowing Palestinian ‘statehood’ or recognition.”

“Only direct negotiations to settle final status issues will lead to this outcome,” Rice said.

“Therefore, in our view, any reference to the ‘State of Palestine’ in the United Nations, including the use of the term ‘State of Palestine’ on the placard in the Security Council or the use of the term ‘State of Palestine’ in the invitation to this meeting or other arrangements for participation in this meeting, do not reflect acquiescence that ‘Palestine’ is a state,” she added.

Fortunately — though I know this comes as a shock to the US, which likes to pretend that it is primus inter pares — the US doesn’t get to unilaterally determine whether Palestine is a state. Nor does Israel (and note that that Rice’s “direct negotiations” lament is simply designed to give Israel a veto over Palestinian statehood by continuing to avoid negotiating in good faith).

My suggestion: at all future UN meetings, Rice should avoid turning her head toward the seat with the State of Palestine placard.  That will make it much easier for her to pretend that more than 70% of the world’s states didn’t recently vote to recognize Palestinian statehood.

The indefatigable Glenn Greenwald has unearthed an even more appalling appropriation of Dr. King by the military — a Department of Defense news article entitled “King Might Understand Today’s Wars, Pentagon Lawyer Says.”  The lawyer in question is none other than Jeh Johnson, former DoD General Counsel.  Here is what he says:

In the final year of his life, King became an outspoken opponent of the Vietnam War, Johnson told a packed auditorium. However, he added, today’s wars are not out of line with the iconic Nobel Peace Prize winner’s teachings.

“I believe that if Dr. King were alive today, he would recognize that we live in a complicated world, and that our nation’s military should not and cannot lay down its arms and leave the American people vulnerable to terrorist attack,” he said.

This is a stunning example of the myth I mentioned in my previous post — that US violence is always used for noble purposes and always promotes peace.  Nearly everything that Dr. King said about Vietnam applies with equal force to the war on terrorism; now as then, instead of trying to understand the complicated relationship between the US and its supposed enemies, the US simply assumes it can kill its way to peace and security.  Not to put too fine a point on it, but the idea that Dr. King would support the US drone program and the war in Afghanistan (to say nothing of the war in Iraq) is both completely absurd and an insult to his memory.

I am very rarely rendered speechless, but this appropriation of Martin Luther King by the Air Force Global Strike Command Programming Division (nearly) did the trick:

The Department of Defense is a leader in equal opportunity for all patriots seeking to serve this great nation. . . The vigilant warriors in AFGSC understand they are all equal and unified in purpose to provide a safe, secure and effective deterrent force for the United States. . .

Dr. King would be proud to see our Global Strike team – comprised of Airmen, civilians and contractors from every race, creed, background and religion – standing side-by-side ensuring the most powerful weapons in the U.S. arsenal remain the credible bedrock of our national defense. . . Our team must overlook our differences to ensure perfection as we maintain and operate our weapon systems. . . Maintaining our commitment to our Global Strike team, our families and our nation is a fitting tribute to Dr. King as we celebrate his legacy.

It is a wonderful thing that the US military is desegregated.  And the military deserves credit for so rapidly adjusting to the end of “Don’t Ask, Don’t Tell.”  But to say that maintaining the strength of the US military is a “fitting tribute” to Dr. King is simply perverse. I can’t do better than Glenn Greenwald, who wrote a great post yesterday about the phenomenal speech Dr. King gave at Riverside Church in NYC on 4 April 1967 condemning US militarism and advocating refusal to serve in the military.  I’ll simply offer a few paragraphs from the speech about the US’s “liberation” of Vietnam…

A few days ago, I criticized Judge Pohl’s rejection of al-Nashiri’s claim that there was no armed conflict between the US and al-Qaeda at the time of the acts alleged in his indictment — such as the attack on the USS Cole in 2000 – thereby depriving the military commission of jurisdiction over those acts.  Judge Pohl’s decision relied almost exclusively on two facts: (1) Congress enacted, and Obama signed, the Military Commissions Act of 2009, which gave the commissions jurisdiction over acts committed prior to 9/11; and (2) the government referred charges against al-Nashiri knowing full well that the acts in question took place prior to 9/11.  Those facts, according to Judge Pohl, suffice to establish that there was an armed conflict between al-Qaeda and the US at the time of al-Nashiri’s acts.

As I explained in the post, Judge Pohl’s argument doesn’t make sense on its own terms.  But I think there is an even deeper problem with the decision: it conflicts with Hamdan II, in which the D.C. Circuit rejected the government’s claim that material support for terrorism (MST) was a war crime.  Central to that decision was the D.C. Circuit’s insistence that the military commissions can only prosecute acts that qualify as war crimes under the international law of war; whether they are war crimes under the so-called “U.S. common law of war” is irrelevant:

Third, and perhaps most to the point, [the Government's] cases do not establish that material support for terrorism was a war crime recognized under international law as of 1996 to 2001 when Hamdan committed his conduct, which is the relevant inquiry under 10 U.S.C. § 821. The Government contends that those Civil War precedents illuminate what it calls the “U.S. common law of war” – not the international law of war. But the statutory constraint here imposed by 10 U.S.C. § 821 is the international law of war. As the Government told the Supreme Court in Quirin, “This ‘common law of war’ is a centuries-old body of largely unwritten rules and principles of international law which governs the behavior of both soldiers and civilians during time of war.” Brief for the United States at 29, in Quirin, 317 U.S. 1 (emphasis added) (citation omitted). To be sure, U.S.precedents may inform the content of international law. But those Civil War precedents fail to establish material support for terrorism as a war crime under the international law of war as of 1996 to 2001. And even the Government admits that material support for terrorism was not an international-law war crime as of 1996 to 2001.

In short, material support for terrorism was not an international-law war crime under 10 U.S.C. § 821 at the time Hamdan engaged in the relevant conduct.

Here is my question: doesn’t the D.C. Circuit’s insistence in Hamdan II that the criminality of conduct must be determined according to the international law of war contradict Judge Pohl’s conclusion in al-Nashiri that Congress and the President have the authority to determine the existence of armed conflict?  The idea that the existence of armed conflict is determined by the subjective perceptions of the fighting parties is foreign to IHL; indeed, the modern view — encapsulated in the ICTY’s seminal decision in Tadic – is predicated on the idea that the existence of armed conflict is a purely objective question, one determined by the facts on the ground, irrespective of the subjective perception of the parties to the hostilities.  Under the international law of war, in other words, states and non-state actors don’t decide when they are engaged in an armed conflict; the hostilities themselves make that decision for them.

Given Hamdan II, I don’t see how Judge Pohl’s decision in al-Nashiri can be sustained.  The existence of armed conflict is an essential element of every war crime; an act that takes place outside of armed conflict may violate a state’s domestic criminal law, but it does not violate IHL. So if the military commissions have jurisdiction only over acts that violate “the international law of war,” they do not have jurisdiction over acts that took place during hostilities that do not satisfy the Tadic test.  And that is true regardless of the US’s subjective perceptions of its “armed conflict” with al-Qaeda.

I have no idea whether the DC Circuit, if presented with the question, would be true to its own principles and apply Hamdan II to al-Nashiri.  I am also far from confident that the DC Circuit would apply Tadic correctly and conclude that there was no armed conflict between the US and al-Qaeda at the time of al-Nashiri’s acts.  But if I were al-Nashiri’s lawyers, I’d raise the issue as soon as I could.

Okay, I’m exaggerating.  But only slightly.  As Wells Bennett notes today at Lawfare, Judge Pohl has rejected al-Nashiri’s contention that the US and al-Qaeda were not engaged in hostilities (an armed conflict in IHL terms) at the time of the acts alleged in his indictment — primarily the attack on the USS Cole in 2000 – thereby depriving the military commission of jurisdiction over those acts. I have explained before (see here and here) why al-Nashiri’s argument is correct. Unfortunately, but completely unsurprisingly, Judge Pohl disagrees.  It is worth examining his four-page decision in detail, because it illustrates why the military commissions are so deeply and irremediably flawed.

Here is the first substantive paragraph:

Whether hostilities existed on the date  of the acts alleged to have been committed by the accused is as much a function of the nature of hostilities as any particular legally significant act by either the legislative or executive branches of government. Whether hostilities existed on the dates of the charged offenses necessarily is a fact-bound determination; moreover, whether a state of hostilities existed is as much a function of the will of the organization to which the accused is alleged to belong to as the U.S. government. In determining whether hostilities exist or do not exist, the enemy gets a vote.[1] Whether Al Qaeda, the organization of unprivileged enemy belligerents to which the accused is alleged to be a member, considered itself to be at war with the United States on the date of the alleged law of war violations is a factor among many to be considered by the trier of fact and is as relevant as any judgments made or withheld by the President or the Congress.

This is patently incorrect.  Whether a state is engaged in an armed conflict with a non-state actor is a purely factual determination, one that depends (sound familiar?) on the organization of the non-state actor and the intensity of hostilities between the non-state actor and the state.  Full stop. Whether a non-state actor believes it is “at war” with a state is irrelevant to that determination; it is not “a factor among many.”

But perhaps Judge Pohl is aware of legal precedent that I’m not.  After all, he footnotes his claim! So let’s see what the footnote says (emphasis mine):

“In connection with the plan of a campaign we shall hereafter examine more closely into the meaning of disarming a nation, but here we must at once draw a distinction between three things, which as three general objects comprise  everything else within them. They are the military power, the country, and the will of the enemy. The military power must be destroyed, that is, reduced to such a state as not to be able to prosecute the war. This is the sense in which we wish to be understood hereafter, whenever we use the expression “destruction of the enemy’s military power.” The country must be conquered, for out of the country a new military force may be formed. But if even both these things are done, still the war, that is, the hostile feeling and action of hostile agencies, cannot be considered as at an end as long as the will of the enemy is not subdued also…” Carl von Clausewitz, On War Book I Chapter 2 (1832) (emphasis added). In other words, whether the enemy has the will to make war is determinative of whether hostilities begin to exist, continue to exist, or have been terminated.

Yes, indeed: Judge Pohl’s only citation for the idea that a non-state actor can declare war against a state is an 1832 quote from Clausewitz about conflicts between states.  Had he chosen to do so, of course, Judge Pohl could have provided a slightly more relevant — and slightly more recent — citation, such as Quincy Wright’s widely-accepted conclusion that insurgents, “not being recognized states, have no power to convert a state of peace into a state of war.  So their declaration or recognition of war would have no legal effect.”  Judge Pohl must have missed that one.

Onward to the next paragraph…

[Peter Margulies is a Professor of Law at the Roger Williams University School of Law focusing on the balance of liberty, equality and security in counter-terrorism, and author of Law's Detour: Justice Displaced in the Bush Administration (NYU Press 2010).]

The days of Donald Rumsfeld chiding “Old Europe” are gone, but targeted killing has renewed debate on counter-terrorism strategies between the US and Europe.  Boundaries of the Battlefield, a symposium sponsored last week by The Hague’s Asser Institute and coordinated by Asser researcher and Opinio Juris contributor Jessica Dorsey, offered an opportunity to explore those differences and find common ground.  The symposium, co-sponsored by the International Centre for Counter-Terrorism, IHCL Platform, Konrad Adenauer Foundation, City of The Hague, and the Dutch Foreign Ministry, was especially valuable against the backdrop of former UK Legal Adviser Daniel Bethlehem’s new AJIL piece (see Ashley’s discussion here) on self-defense against non-state actors.  This first post will flag the debate at the conference on targeted killing and what Ken Anderson has called “naked self-defense.” A second post will analyze another issue that has roiled relations between the US and its allies: the clash between the law of armed conflict (LOAC) and international human rights law (IHRL).

The targeted killing debate started with law on the initiation of hostilities, aka the jus ad bellum.  In Daniel Webster’s 1841 Caroline formulation, the use of force in self-defense requires an imminent threat.  A number of conference participants, supporting the position taken by Bethlehem, favored a broad view of imminence.  I argued that the agility and clandestine nature of terrorist groups precluded waiting until the precise moment before an expected attack.  Rather, responses to violent non-state actors may appropriately trade off imminence and probability, intervening at an earlier stage to address what Chris Slobogin has called the…