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The Seemingly Inexorable March of “Unwilling or Unable” Through the Academy

by Kevin Jon Heller

How does an international-law doctrine become conventional wisdom without actually having support in the practice of states? It starts with one article asserting the doctrine, but failing to defend it. Then another article makes the same claim, citing only the first article. And then another. And another. And so on — until no one remembers that the first article did not actually identify any state practice at all.

So it is with the “unwilling or unable” test, as indicated by an otherwise quite good new article in the Journal of Conflict & Security Law entitled “Jus ad Bellum and American Targeted Use of Force to Fight Terrorism Around the World.” Consider (p. 228):

With regard to the use of self-defence against private actors located in another state, two consequences flow from the requirement of necessity. First, state practice indicates that the exercise of self-defence against the private actor is conditioned on the inability or unwillingness of the authorities in the host state to stop the private actor’s activities.98 Obviously, if the host state both can and will stop the activities in question, it will not be necessary for the victim state to resort to the use of force.

I’ve left the footnote number in, because it refers to precisely one source: Ashley Deeks’ essay “Unwilling or Unable: Toward an Normative Framework for Extra-Territorial Self-Defense.” An essay in which, as I have pointed out, the author openly admits that she “found no cases in which states clearly assert that they follow the test out of a sense of legal obligation.” (The US and UK have formally endorsed the unwilling or unable test since Deeks’ article was published.)

To be sure, the new article elaborates a bit on the “support” for the unwilling or unable test. But none of that support involves the practice of states — nor does the article acknowledge the inconvenient fact that the Arab League (22 states) has formally rejected the test (post-9/11, even). Instead, it simply says this (p. 229):

The test is widely supported in the literature, and it is also mentioned in two 2013 UN reports by, respectively, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism. It also features among a series of “Principles Relevant to the Scope of a State’s Right of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors” proposed by the former legal adviser of the United Kingdom Foreign & Commonwealth Office, Daniel Bethlehem.

“Instant custom”? How passé. Who needs state practice at all? And please don’t bore us by pointing out contrary practice by a bunch of benighted states in the Global South. All we really need are enough scholars, special rapporteurs, and former legal advisors in the Global North willing and able to endorse a particular doctrine and poof — customary international law.

3.5 Lecturer/Senior Lecturer Positions at SOAS

by Kevin Jon Heller

Here is the advertisement, which I hope will be of interest to Opinio Juris readers:

3 x full-time posts & 1 x part-time (0.5 fte) post

Lecturer: £33,476-£48,088 p.a / pro rata inclusive of London Allowance

Senior Lecturer: £49,462-£56,975 p.a / pro rata inclusive of London Allowance

The SOAS School of Law invites applications for 3 full-time and 1 part-time (0.5) Lectureships/Senior Lectureships in Law tenable from 1 September 2015.  The successful candidates will be expected to have expertise and interest in teaching in at least one of the following areas, at both undergraduate and post graduate level: International Trade Law; Law & Economics; Refugee & Migration Law; Alternative Dispute Resolution; Legal Systems of Africa & Asia; and Property Law (including the English Law of Land & Trusts but ideally encompassing non UK centric areas such as African Land Rights, Cultural Property, Property Theory, Intellectual Property etc). The School of Law is also keen to recruit scholars with additional & specific expertise in the laws of particular countries within Africa or Asia although applicants without such expertise are also encouraged to apply.

Successful candidates will be expected to have research interests relevant to the mission of the School, including a strong interest in issues of particular importance to law in the developing world. These applicants should have (or be nearing completion of) a PhD in Law (or a related discipline) and a strong record of (or potential for) excellence in research and publications appropriate to a research intensive law school that was ranked fifth, by reference to the proportion of world class publications it produced, in the recent REF.

Prospective applicants seeking further information about SOAS or the School of Law may contact the Head of the School of Law, Paul Kohler (pk3 [at] soas [dot] ac [dot] uk).

To apply for this vacancy or download a job description, please visit www.soas.ac.uk/jobs. No agencies.

This is an exciting time to be at SOAS. We ranked 10th in the UK in the 2015 Guardian law table, we’ve made a number of excellent new hires over the past couple of years, and we will be moving into a beautiful new building — a renovated North Block of Senate House — early in 2016.

Any readers serious about applying should feel free to contact me with questions. The closing date for applications is March 19, and interviews will be held in late April.

Weekend Roundup: February 7-20, 2015

by An Hertogen

This fortnight on Opinio Juris, Kevin recommended an article on China’s proposed broad definition of terrorism, argued that there is no practice supporting the “unwilling or unable” test, and was surprised by the news that David Hicks’ conviction for material support for terrorism has been voided.

Julian questioned whether the Outer Space Treaty allows for private exploitation of the Moon’s resources.

Kristen advanced four reasons why the Security Council’s new Terrorist Financing Resolution is significant, and Jens explained why he remains troubled by the draft proposal to authorise the President to wage war against ISIS.

Other proposals that caught our attention were a proposal to make it easier for some US citizens overseas to renounce their citizenship without facing a hefty tax penalty and Duncan’s proposal (with Tim Mauer)  for a Red Cross-like movement in Cyberspace.

In guests posts this fortnight, Jonathan Horowitz looked into the drafting history of APII to argue that IHL does not regulate NIAC internment and Charlotte Peevers discussed the Chilcot Inquiry (1, 2)

Finally, Jessica listed events and announcements (1, 2) and wrapped up the international news (1, 2).

Many thanks to our guest contributors and have a nice weekend!

U.S. May Let Go of Accidental Americans (Eliminating Tax Hurdle to Renunciation)

by Peter Spiro

It’s finally seeping into the mainstream consciousness that the U.S. tax system works very aggressively against citizens abroad, even those who are citizens in name only. Boris Johnson, the mayor of London, is renouncing his U.S. citizenship after he had to pay a hefty IRS tab on capital gains on the sale of his London home. Johnson was born in the U.S. and spent some of his toddler-hood here before moving back home, permanently, with his parents to the UK.

In the future, shedding U.S. citizenship may be a lot cheaper for those with similarly thin connections to the United States.

Existing tax law treats renunciation as if it were a liquidation event. If you have more than $2 million in assets, you have to pay capital gains on all of your assets as if they were sold as of the date of expatriation — an exit tax, in effect. Prospective renunciants must also show that they have been tax compliant for the past five years on regular income taxes, which all U.S. citizens must file regardless of residence. External Americans who haven’t been filing have to pay hefty back taxes and penalties on the way out the door (including some under the hated FBAR and FATCA regimes relating to foreign accounts that fall heavily on external citizens). Even so, every quarter now we are hearing that record numbers of individuals are renouncing their U.S. citizenship.

The Obama Administration’s 2016 Green Book  includes a proposal under which an individual would not be subject to the exit tax requirements if the individual:

1. became at birth a citizen of the United States and a citizen of another country,
2. at all times, up to and including the individual’s expatriation date, has been a citizen of a country other than the United States,
3. has not been a resident of the United States (as defined in section 7701(b)) since attaining age 18½,
4. has never held a U.S. passport or has held a U.S. passport for the sole purpose of departing from the United States in compliance with 22 CFR §53.1,
5. relinquishes his or her U.S. citizenship within two years after the later of January 1, 2016, or the date on which the individual learns that he or she is a U.S. citizen, and
6. certifies under penalty of perjury his or her compliance with all U.S. Federal tax obligations that would have applied during the five years preceding the year of expatriation if the individual had been a nonresident alien during that period.

This would exempt those whose citizenship really is nominal (or even unknown to them). It may be the smart U.S. citizen parent outside the U.S. who doesn’t register a child’s birth with a U.S. consulate, a trend that is now being reported.

It would still leave covered a lot of folks whose connections are very tenuous (maybe Boris used a U.S. passport here and there). It’s only a proposal, requesting and requiring congressional action. This very informative post from the Canadian law firm Moodys Gartner explains how the Obama Administration might be able to accomplish the same end through a regulatory backdoor allowing it to backdate the expatriation of birthright dual citizens.

In any case, the proposal does evidence some understanding that the imposition of U.S. taxes on accidental Americans is unsustainable. The Moodys Gartner post plausibly suggests that foreign governments (including Canada) may be pushing for the reform as their constituents get caught in FATCA’s net. This is a continuing story.

CMCR Voids David Hicks’ Conviction for Material Support

by Kevin Jon Heller

Big news — and news I wasn’t expecting:

A former prisoner at the U.S. Navy base at Guantanamo Bay, Cuba, from Australia on Wednesday won a legal challenge to his terrorism conviction before a military court.

The U.S. Court of Military Commission Review struck down the March 2007 conviction of David Hicks in a unanimous ruling that reverses what had been one of the government’s few successes in prosecuting prisoners at Guantanamo.

Attorney Wells Dixon said he immediately called Hicks’ attorney in Australia, where it was the middle of the night, to pass on the news to his client.

“David is aware of the decision and he is thrilled,” Dixon said. “He is free to live his life without this conviction hanging over his head.”

Hicks, 39, pleaded guilty to providing material support to terrorism. It was a plea bargain in which all but nine months of his seven-year sentence was suspended and he was allowed to return home by the end of that year.

In 2014, an appeal’s court ruled that material support was not a legally viable war crime for the special wartime court at Guantanamo known as a military commission. Prosecutors argued his conviction should still stand because he agreed not to appeal as part of the plea deal, an argument rejected by the U.S. Court of Military Commission Review.

Quite a journey for Hicks. When he was first charged, he was one of the most hated men in Australia. By the time the military-commission farce was through with him, he was a national hero.

Kudos to the CMCR for doing the right thing.

A Global Cyber Federation? Envisioning a Red Cross Movement in Cyberspace

by Duncan Hollis

Lately, I’ve spent a lot of time thinking about the future of cyberspace and how to deal with the coordination and collective action problems that are leading to the normalization of cyber insecurity. As I’ve written previously, I’m skeptical that the standard legal regulatory move — proscription — will work at either the individual or the State level.  Thus, I’ve tried to examine ways law can help regulate and promote resilience in cyberspace independent of identifying and punishing bad actors, including an idea for some sort of e-SOS system.  Much of the feedback I received on that idea involved questions on operationalizing any duty to assist.  Certainly, it could be something States (or other actors) adopt unilaterally; or it could be something States might coordinate in some form of international agreement such as a treaty (or more likely these days) some form of political commitment.  There is, however, another option based on one of the most successful humanitarian organizations in history — the Red Cross.  Simply put, why not have a Red Cross-like movement in cyberspace where interested entities (including CERTs) combine to coordinate and offer assistance to victims of severe cyberthreats impartially, neutrally, and independent of governments and their particular interests (e.g., surveillance)?

Together with Tim Mauer of New America, I’ve got a populist call for such a movement in Time today.  To be clear, the idea is not to hand over cyberspace to the Red Cross (even if it may have a clear role to play in future cyber conflicts).  Rather, it’s to see the potential of using the movement’s evolution, its structure and its norms (e.g., neutrality, independence, and impartiality) to improve resilience and cyber security at a global level.  Here’s the opening salvo:

Here’s an understatement: 2014 was a bad year for cybersecurity. The Sony hack was the highest profile hack of the year, a cyber-attack against a German iron plant caused massive physical damage, and the Heartbleed vulnerability was considered “catastrophic” even among experts not known to be alarmist. In the meantime, large-scale data breaches hit household names such as Target, Home Depot and JP Morgan Chase, with new reports emerging almost weekly. In the history of cybersecurity, 2014 marks a new low. As 2015 gets underway, news of the insurance company Anthem being hacked suggests cybersecurity is unlikely to improve anytime soon. That’s why conversations in national capitals, boardrooms, international conferences and on-line discourse feature a growing call to action.

The time is ripe for a bolder approach to cybersecurity, one not beholden to the existing politics of Internet governance nor linked to particular governments or intergovernmental organizations. We believe cyberspace could use a global cyber federation, a federation of non-governmental institutions similar to the role that the Red Cross and Red Crescent movement and humanitarian assistance organizations more broadly have with respect to armed conflicts and natural disasters.

Obviously, there are lots of questions (and details) that require elaboration. For now, however, I’m going to push this idea and see whether it might get traction among those who would be in a position to actually participate in such a movement.  After all, if a few committed individuals like Henry Dunant could create the Red Cross, what’s to stop a similar idea from taking hold in cyberspace?

Guest Post Part II: The Chilcot Inquiry–The Publication Saga of an Official History

by Charlotte Peevers

[Charlotte Peevers is a Lecturer in Law at the University of Technology, Sydney and author of ‘The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law‘ (Oxford University Press: 2013). Part one of this guest post can be found here.]

Legal-Political Authority and International Law

Any review of the inquiry hearings would be incomplete without a word from Tony Blair. In this extract from his so-called ‘recall’ to the inquiry on 21 January 2011 Sir Roderick Lyne asks him about his statement to the House of Commons in February 2003. The statement referred to the apparent exercise of an “unreasonable veto” in relation to a second resolution – that is, beyond 1441 – a subject upon which Lord Goldsmith had already advised was not a justifiable legal position to take against the French or Russian postures within the Security Council.

Video clip begins at 109.26 and ends at 116.05

Transcript (line 11 page 71 – line 6 page 75)

In this extract, Blair’s rather tortured distinction between legal and political arguments highlights a particularly interesting aspect of the relationship between international law and politics. His is an attempt to parse political and legal authority, to justify his deployment of legalistic language as a pure political exercise that was not only permissible, but that his audience would have appreciated and known was not premised upon legal authority. This parsing of authority highlights the difficulty faced by those who might oppose government policy or at least question its bases: without the contemporary knowledge as to the legal advice proffered by government experts, there is no way of holding statements such as Blair’s to account. The ambiguity of his articulation – that encompasses the possibility of legal justification, but not necessarily being explicit about it – leaves him able to claim ex post facto that he was merely making a political point. If this was interpreted the ‘wrong way’ by his audience, or indeed by Sir Roderick Lyne in his questioning, that that was not his fault, nor was it his intention.

In addition, this parsing can be seen as an attempt at making a representation of legal authority in the absence of having political authority. In other words, in the absence of majority public support – a democratic mandate – for using force without UN backing. And this is particularly problematic when, as Roderick Lyne seeks to point out, the government had been advised explicitly that there was no legal authority for such a claim. Blair’s evidence therefore seeks to claim an excessive sovereign right to wage war on the premise of an internationalized legal authority, avoiding the strictures of democratic mandates, or indeed international authority vested in the UN Security Council’s authorization of force. The boundaries of that legal authority were, at the time, entirely subject to secrecy and could therefore be publicly represented in any way deemed justifiable by the government; and then later as merely a political argument that did not in fact rely upon legal authority!

The Chilcot Inquiry as International Legal Archive

These two brief extracts from the present Chilcot Inquiry archive illustrate the wealth of material that can be analysed now, regardless of when the final report will be published together with the promised publication alongside it of 1,500 or so declassified documents. (See the video of Sir John Chilcot’s evidence before the Foreign Affairs Committee on 4 February 2015 at 27.05 where he discusses the publication of declassified material alongside the final report, available here.) Perhaps the most important thing we have learnt is that there is still a huge amount to learn from secrecy. Secrecy as a structural, structuring force on the generation of public policy and the place of law – not just international law – in the exercise of sovereign power.

In addition, we have learnt more of the ‘inner life’ of international law – how international law actually works in policy-making. It exists not just in formal sources, or texts, but behind closed doors, in corridors of extreme power. It is given life in memoranda, letters and meeting records. In order to understand how international law works, we need to consider the processes of advice-giving, the means by which decisions are taken in government – sofa government, ad hocism, inner war cabinets, limited disclosures to Cabinet and to Parliament, and the like – and the production of a government archive.

The archive disclosed through the Chilcot Inquiry, like any archive, is already constructed, is incomplete and partial. Reflecting, by way of comparison, on the Suez Crisis archive is particularly instructive (see Charlotte Peevers The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law (OUP: 2013): despite the existence of an Israeli copy of the Protocol of Sèvres – the document proving collusion and that the Anglo-French occupation of the Suez Canal in late October 1956 was a pretext for invading Egypt following the nationalization of the Suez Canal Company – it has never surfaced in the British archive, in any form. Collusion was suspected for many years before the Israeli copy finally surfaced, but was always denied by the British government and no amount of archival material could have resolved the question of collusion one way or another – evidence had been destroyed and all reference to it expunged from the records (including presumably the direction that all reference be expunged!).

Despite the ‘constructedness’ of any archive, the ability to rake back over documents and oral evidence in relation to the Iraq War ought to be considered a hugely rich potential source for us as international lawyers, and of course as historians and political scientists. The danger with the saga generated over the publication of the Chilcot Inquiry report is that in all the dramatic distraction we miss the opportunity for reading the current archive for ourselves. An official history, however critical or otherwise, will act as the final word over the Iraq Affair, framing our future treatment of the archive and guiding our interpretations of it, whether in opposition or affirmation of the Inquiry’s final conclusions.

Again, the Suez Affair gives pause for thought. There was never an official inquiry into or official history of the Suez Crisis, its scandalous nature rumbling on in Parliament, behind-closed-doors in Whitehall, and in the public imagination without any final word being drafted. Whilst the absence of any holding to account of Anthony Eden’s government is not necessarily something to celebrate, one lesson that might be learned is this: an official history would not have been able to substantiate collusion – which went to the very heart of the question of accountability. In the absence of an official accounting, Suez has become the mythologized nail in the coffin of the British Empire, a supreme act of folly that was, unquestionably, illegal. We can continue to discover the lessons to be learned from Suez, particularly in relation to how international law was used to justify military action, by reading the archive for ourselves. I hope we will continue to quarry the mine of material produced by the Inquiry process, going beyond the limiting – and limited – question of whether the Iraq War was legal or illegal, instead proposing unofficial histories of the place of international law in domestic and international politics.

The Absence of Practice Supporting the “Unwilling or Unable” Test

by Kevin Jon Heller

Regular readers of the blog know that one of my hobbyhorses is the “unwilling or unable” test for self-defense against non-state actors. As I have often pointed out, scholars seem much more enamored with the test than states. The newest (regrettable) case in point: my friend Claus Kress, who is one of the world’s best international-law scholars. Here is what he writes in an otherwise-excellent contribution to Just Security about the use of force against ISIL in Syria (emphasis mine):

It therefore follows not only from the right of self-defense’s general requirement of necessity, but primarily from the respect for the sovereignty of the territorial State that the right of self-defense in case of a non-State armed attack is of a subsidiary nature. It presupposes that the territorial State is either unwilling or unable to end the non-State armed attack – or, as it should be added for the sake of completeness, fails to exercise due diligence to that effect. State practice is remarkably consistent with these principles. As Professor Ashley Deeks has demonstrated in a formidable article, the legal claims to a right of collective self-defense in cases of non-State armed attacks have generally included the statement that the territorial State is unwilling or unable to deal with the non-State threat.

In terms of what the “unable or unwilling” test might look like if it represented customary international law, Deeks’s article is indeed excellent. But the article is anything but “formidable” in terms of state practice that supports the test. Indeed, the non-state actor section of the article spans all of two pages (pp. 501-03) — and cites precisely two states that officially endorse “unwilling or unable”: the United Kingdom and the United States. That’s it. And those are the same two states that Claus discusses in his post.

Simply put, there is simply no “consistent practice” that supports the “unwilling or unable” test, and scholars need to be careful not to put states in the “unwilling or unable” camp simply because they are willing to use armed force against a non-state actor. Deeks has been particularly prone to this kind of overinclusiveness, most recently arguing that Jordan, Bahrain, Qatar, the UAE, and Iraq support the “unwilling or unable” test because they have attacked ISIL in Syria — this despite the fact that all five states are members of the Arab League, which has specifically rejected the test in the context of Israel’s attacks on Hezbollah in Lebanon. (Actual opinio juris.)

I have the utmost respect for Claus, and I have no desire to pick on Deeks. But methodological rigor is particularly critical when it comes to doctrines like “unwilling or unable,” because its actual adoption by states would open the floodgates to the extraterritorial (ie, sovereignty-infringing) use of force against non-state actors. There may well come a time when the “unwilling or unable” test reflects customary international law, but that time is not now. Two states do not a customary rule make, however powerful those states may be. And we cannot simply ignore the states in the Global South, however inconvenient powerful states in the Global North may find their views.

Guest Post Part I: The Chilcot Inquiry–The Publication Saga of an Official History

by Charlotte Peevers

[Charlotte Peevers is a Lecturer in Law at the University of Technology, Sydney and author of ‘The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law‘ (Oxford University Press: 2013).] 

In the past few weeks we have learned, though we have suspected for quite some time, that the Chilcot Inquiry will not be in a position to publish its final, wide-ranging, ‘lessons learned’ report until after the next General Election, in June 2015. Media commentators and numerous Members of Parliament have decried the “scandalous” delays that have plagued publication, blaming at turns the civil service, Tony Blair, and/or the American Administration.

But this drama over publication delay – the latest in the saga of producing an official history of the Iraq War that has played out in the media – is something of a distraction from the real value of the Chilcot Inquiry, at least for scholars and students of international law. I argue that through its process of declassifying previously secret documents, holding public, oral hearings and receiving written testimony, the Inquiry has already informed our understanding of the operation of international law in the justification to use force.

During the course of oral evidence between 2009 and 2011 we heard more international legal debate than ever before, certainly than during the original debates of 2002/2003. We also heard about what I have come to think of as the ‘inner life’ of international law: revelations of back room disagreements – jousting, even – between figures such as Sir Michael Wood, then Senior Legal Adviser at the Foreign & Commonwealth Office and Jack Straw, then Foreign Secretary, over the “vagueness” and consequent interpretive latitude of international law. We also saw the careful, self-conscious production of numerous memos between the Foreign Office, Attorney General’s Office, Ministry of Defence and No 10. And of course memos within those departments, documenting and recording for history the disagreements amongst officials and politicians. In addition we saw how law, evidence and intelligence related to policy demands.

The production and accessibility of this rich textual and testimonial archive has already generated a map for us to navigate how international law and its users – including advisers, government policy-makers, and politicians – actually work. How did people such as Sir Michael Wood conceive of their role as expert authority on the interpretation of the prohibition on the use of force? How did politicians such as Jack Straw or Tony Blair view and use international law as a body of rules to justify their commitment to military action? And how did these politicians and their policy officials interact with in-house experts such as Wood, or his deputy Elizabeth Wilmshurst, not to mention the government’s chief legal adviser, the Attorney General ,Lord Goldsmith?

The rich archive – all available at http://www.iraqinquiry.org.uk/ – fleshes out a detailed map of how international legal rules are navigated, are traced into routes for action or inaction, or demarcate the boundaries of certain policy decisions. This map allows us to traverse beyond the restrictive self-imposed boundaries of strict doctrine or bare textual analysis of the prohibition on the use of force, and instead navigate the extent of international law’s scope, impact on and relationship with domestic and international politics.

As scholars and students of international law we ought not be deterred from engaging with an already rich archive created by the Inquiry simply because there will be yet more delay in the publication of the final report.   Indeed, we ought to revel in the exploratory freedom that delay provides: there is yet to be a final word on the Iraq War, evidence is yet to be marshaled to support the drawing of particular conclusions or interpretations. This continued delay is, therefore, a prime opportunity to read and digest the current raw material produced through the inquiry process. Two examples from the oral and documentary evidence illustrate the richness of the existing archive.

Lawyers and International Law

To give a fuller sense of some of the rich detail of the ‘inner life’ of international law the following links detail an extract from Sir Michael Wood’s evidence to the Inquiry:

Video clip (begins at 53.10 and ends at 62.35)

Transcript (line 16 p28 – line 20 p.34)

First off, Wood’s comments are so interesting for a range of reasons which are not necessarily limited to international law. For instance, the comment that Jack Straw was used to pushing the boundaries of law whilst at the Home Office, even when faced with clear legal advice that what he was doing went against existing legal opinion and precedent domestically, tells an intriguing, partial tale of the political relationship to law, to courts and to cases more generally. This tells us something incredibly rich and perhaps disturbing about the way law works, stripping away the mythologised notion of a separation of powers, and making us think more about the institutional deference manifest in courts faced with government policies and actions that run counter to existing law. And that is just an example from the domestic realm.

For scholars and students of international law, Wood’s comments are particularly revealing when we consider the role of a government legal adviser – acting much in the way that Harold Koh and the transnational legal process school might envisage – as a benign (or enlightened) adviser to princes. Wood considers his overriding duty to international law in the absence of a court. Wood expresses a deep commitment to international law precisely because of its horizontal interpretive nature; it is for government legal advisers to demarcate the acceptable boundaries of policy versus international law, providing apparent ‘clear bright lines’ beyond which policy cannot traverse without incurring international illegality.

Not so, according to the government, if instructing Independent Counsel. In a document declassified and released by the Attorney General’s Office dated 13 March 2003 (ie on the eve of formal invasion) the legal secretary to the Attorney General, David Brummell, considered the difficulty with the government’s legal position – in particular highlighting the position vis à vis revival in the absence of a further resolution and therefore on the sole basis of Security Council Resolution 1441 – and advised that the position would have to be bolstered by obtaining formal legal opinion of Christopher Greenwood, David (he meant Daniel) Bethlehem, and Sam Wordsworth – three of the leading international lawyers at the English bar. (Bethlehem was to go on to be Wood’s successor at the FCO.) It seems that faced with intransigence from in-house Counsel, the government wanted to turn to the independence of senior international lawyers who they felt, given their lack of ties to government policy-making, might have been more able to express an opinion, if asked, in support of the government legal position (in the event none of the three were in fact approached to provide a legal opinion).

In these contrasting roles we see the distinction between advisory capacities and advocating positions: Wood was clearly deeply uncomfortable with the prospect of advocating on behalf of government in relation to a legal position he could not support, because he held a special position as expert adviser to government, acutely aware of the need to police the boundary of forceful intervention. Whereas independent Counsel could more freely take on the role of advocate for government as would be taken on for any other client looking for a legal position to support its policy choices.

Interestingly, we also learn from Wood’s evidence that the Attorney General appeared to take on both of these distinct roles at different times: he adopted an advisory role very early, though was careful to avoid documenting this in the immediate run up to war in the Autumn of 2002 (presumably to avoid hamstringing any later need to justify government policy in legal terms); but when war became inevitable, in around February 2003, he moved to advocate’s role, documenting the possible legal justifications that could be made in support of the government’s use of force.

In addition, the disagreement evidenced in the oral testimony between Sir Michael Wood and Jack Straw is particularly enlightening for us if we are to try to interpret an archive that is already self-consciously (re)constructed. We learn from Wood that Straw was careful to document his insistence on the ambiguity of international law and that reasonable difference of opinion could be had on the issue of the using force, even where opinion emanated from the apparent government expert, the Senior Legal Adviser’s office in the FCO. This recording of, and thereby justification of, an opposing legal view is significant from at least two perspectives.

The first is as an articulated understanding of what international law means to a politician in government such as Jack Straw. We learn that there is a high degree of self-awareness as to the power – and latitude – afforded to state actors in international legal doctrine. This self-awareness appears to translate as authority to speak to what international law actually is, or could be as interpreted by such a state actor. In a sense, this gives a behind-the-scenes affirmation of what scholars and students of international law already superficially recognize as ‘custom’ formation. Here, we learn that state actors know the force they command over international law, even in an area that is apparently so black and white: the prohibition on the use of force.

Secondly, we see the self-conscious fashioning of an archive; the production of official documentation that will, it is known by its author(s), represent government decision-making once it is categorized into the various filing systems of the National Archives (filed under ‘Iraq War’ within the FCO Ministerial and Legal Adviser’s records as sender and recipient respectively).

Important New Terrorist Financing Resolution Passed by Security Council

by Kristen Boon

On February 12, the UN Security Council unanimously passed an important new Chapter VII resolution – Resolution 2199 – to respond to terrorist groups in Iraq and Syria.

This resolution is significant for four reasons.   First, the resolution specifically targets the supply of oil. In other words, it attempts to degrade the supply chain and the support networks.  The preamble refers to oilfields and their related infrastructure, as well as other infrastructure such as dams and power plants.  The operative paragraph states the Council:

“Condemns any engagement in direct or indirect trade, in particular of oil and oil products, and modular refineries and related material, with ISIL, ANF and any other individuals, groups, undertakings and entities designated as associated with Al-Qaida by the Committee pursuant to resolutions 1267 (1999) and 1989 (2011), and reiterates that such engagement would constitute support for such individuals, groups, undertakings and entities and may lead to further listings by the Committee;and attempts to target companies and activities that contribute to terrorist activities.”

This effort by the Council condemns direct and indirect trade in oil and oil products, and emphasizes that all states must freeze assets of the targeted groups, as well as their agents, intermediaries and middlemen, including oil producers.  In another paragraph, the Council also expresses concern that vehicles coming from certain areas could be carrying oil, minerals, livestock and other materials to barter.

Second, the resolution prohibits trade in cultural artifacts. Terrorist groups in these countries are known to be profiting from the looting of antiquities, and this resolution seeks to prevent the trade in items of cultural, scientific and religious importance.   It notes that terrorist groups are generating income from illegally removing artifacts from both countries during periods of conflict.  The resolution reaffirms an existing ban on antiquities from Iraq, and imposes a new ban on antiquities from Syria.  It also sets the basis for cooperation with INTERPOL and UNESCO.

Third, the resolution bans the payment of ransom, regardless of how or by whom the ransom is paid. It further “Reiterates its call upon all Member States to prevent terrorists from benefiting directly or indirectly from ransom payments or from political concessions and to secure the safe release of hostages, and reaffirms the need for all Member States to cooperate closely during incidents of kidnapping and hostage-taking committed by terrorist groups.”  In so doing, it attempts to cut off funds derived from ransom, and reaffirms that UN sanctions prohibit ransom payments to UN listed groups.

Fourth, the resolution was drafted by Russia.  While Russia’s opposition to intervention in Syria and  is well known, this is an example of positive engagement with the situation in Syria.  Although the resolution does not authorize intervention, it makes creative use of the Security Council’s sanctions power and is indicative of creative new approaches to targeting.

The Council’s efforts to prevent direct and indirect trade in oil products are illustrative of the Council’s regulatory activities in the economic sphere. An article I published in the Vanderbilt Journal of Transnational Law in 2008 provides some background on the topic of the Security Council as norm setter in the international economic sphere.

Weekly News Wrap: Monday, February 16, 2015

by Jessica Dorsey

Your weekly selection of international law and international relations headlines from around the world:

Africa

Middle East and Northern Africa

Asia

Europe

  • A suspected gunman in two shootings on Saturday and Sunday in Copenhagen, in which two were killed and several injured, has been killed by police; the first shooting occurred at a freedom of speech event with Swedish cartoonist Lars Vilks, and second happened outside a synagogue in the city.
  • After the deadly shooting at a Denmark synagogue, Israeli Prime Minister Benjamin Netanyahu said on Sunday such attacks will likely continue and Israel would welcome European Jews who choose to move there.
  • The Italian coast guard has rescued more than 2,100 migrants in a major rescue operation in the sea between Europe and North Africa.
  • Italy closed its embassy in Libya on Sunday and stepped up its call for a U.N. mission to calm the worsening conflict there as thousands of migrants approached Italy by boat from North Africa.
  • Ukraine’s rebels disavowed a new truce on Sunday hours after it took effect, saying it did not apply to the town where most fighting has taken place in recent weeks.
  • Greece and its international creditors started talks on Friday on reforms needed to keep the country financed, increasing the possibility of a interim compromise deal between the euro zone and Athens at a ministerial meeting on Monday.

Americas

Oceania

UN/World

How to Authorize War

by Jens David Ohlin

The White House has proposed a draft resolution authorizing the President to use military force against ISIL (also know as “ISIS” or simply the “Islamic State”). While it is laudable that the president is asking for specific congressional authorization for military strikes against ISIL, I remain troubled by several aspects of the proposal.

First, the passage of the proposed resolution would replace the existing patchwork of justifications for the current military operations, including the Constitution’s Article II commander-in-chief power, the 2001 AUMF (the so-called “9/11 AUMF”), and the 2002 Iraq AUMF. Regardless of the current administration’s position regarding the lawfulness of military force in Iraq and Syria in the absence of a new AUMF, all three of the prior foundations remain available–at least in theory–as justifications for military action against ISIL. The only way around this is to repeal the 2001 and 2002 AUMFs or to explicitly state in the new AUMF that it, in some way, supersedes them. This is crucially important.

If the prior AUMFs remain on the books and the administration continues to maintain that they are sufficient to justify the current level of military force against ISIL, then it is not clear what the new AUMF is actually accomplished. In particular, as many others have noted, the constraints and limitations in the new AUMF become effectively meaningless because the administration could always rely on the unrestricted and unconstrained authorizations already on the book and still valid. This problem is created by the absurdity of having overlapping statutory authorizations for a military campaign, creating a pick-and-choose menu for this (or future) administration to use when justifying its military deployments. This isn’t a restaurant; this is war. There are too many menu options.

I wonder if there is a middle ground to solve this problem without explicitly repealing prior AUMFs. For example, could the new AUMF simply be amended to state that the president cannot rely on prior AUMFs as authorizations against ISIL? This would allow the prior AUMFs to stay on the books (which plenty of congressional leaders will be unwilling to repeal anyway) while still limiting their applicability with regard to ISIL. It would make the new AUMF the one and only AUMF applicable to ISIL targets. One could describe this as a “partial repeal” or “partial de facto repeal” of the prior AUMF, or you could describe it simply as making the new AUMF a superseding AUMF with regard to ISIL. This would clarify that the constraints in the new AUMF are meant to apply and that the older unconstrained AUMFs cannot be used as an authorization against ISIL.

The next issue is the use of the phrase “associated forces” in the draft AUMF. The phrase “associated forces” has been used before, most notably in the Detainee Treatment Acts as well as in the federal government’s briefs in Guantanamo Bay habeas litigation before the D.C. Circuit. That being said, the phrase never appeared in the 2001 AUMF and Congress never before authorized the use of force against associated forces of al-Qaeda. What’s different now is that the proposed new AUMF includes a very broad definition of associated forces that is arguably much wider than the concept of co-belligerency from which the term “associated forces” gains whatever legitimacy and reflective glory it has. The new definition of associated forces also includes successor entities that are sufficiently related to the original group. Here is the language:

SEC. 5. ASSOCIATED PERSONS OR FORCES DEFINED.
In this joint resolution, the term ‘‘associated persons or forces’’ means individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.

Apparently the Administration is concerned that ISIL will collapse and might be replaced by an equally dangerous jihadist entity, with new leadership, but exhibiting the same level of dangerous. The administration wants the AUMF to apply to those groups as well, even if they are not, properly speaking, a part of ISIL. (Incidentally, the notion of “closely related successor entity” reminds one of Robert Nozick’s closest continuer theory of personal identity.)

But there are deeper problems to the use of “associated forces” concept beyond the broad definition offered in the draft AUMF. The whole idea of using “associated forces” in an AUMF is problematic. In order to understand why, it is important to remember the role that military authorizations play within our modern constitutional order. Congress no longer declares war, although it retains the constitutional authority to do so. Pursuant to its constitutionally mandated role in war making (and as articulated in the War Powers Resolution), Congress has the power to authorize the president to deploy military force—a necessary step whenever the President’s Article II authority runs out. There are many disputes about the nature and scope of the Article II power, but unless you believe in an unlimited Article II power, you must recognize that Article II has an outer limit, at which point Congressional authorization is required. That process is essential for multiple reasons.

First, the involvement of Congress provides for an open, transparent, and deliberative assessment of the wisdom of deploying force. “Wisdom” here includes questions of law, morality, and the burden that will be placed on the nation’s shoulders to execute the action. Although the executive branch engages in deliberation, it is neither open nor transparent; it is secretive and insular. Only in the legislative branch do these issues get aired with the appropriate amount of light. At the end of the conclusion of this process, the public knows who we are fighting, and why.

Second, the AUMF announces to the world community the nature of our armed conflict. It sends a signal to the world community regarding the nature of the conflict and the underlying legal and moral rationale for its commencement. All of this is essential for the world community’s assessment of jus ad bellum and its proportionality constraints. Only if they know who and why we are fighting will they be able to decide whether our actions comply with basic principles of international law. The use of the “associated forces” concept in the new AUMF frustrates both of these goals. In order to fulfill its communicative obligation, both to the American people and to the world community, Congress needs to identify—by name—the organizations that we are fighting. Is it too much to ask that we identify, with specificity, the other party to our armed conflict? This is war; the identity of the belligerents isn’t peripheral to the event, its absolutely central and arguably a sine qua non. No belligerents, no armed conflict.

Why would I suggest that Congress owes a communicative obligation to the world community? Usually we don’t talk of Congress owing supra-national obligations to foreign people. But this note of skepticism misconstrues the nature of the communicative obligation. Congress owes the American people an obligation that it communicate to the world community the nature of our armed conflict. Why? Because the military force is being deployed on behalf of the American people, and its lethality, justified or not, will ultimately be attributed to the American nation. In that context, the announcement of military force, in a public and open fashion to the world community, is essential so that the world community knows why the “American people” is engaged in lethal force.

The default presumption in international law is that lethal force is unlawful unless justified by self-defense or Security Council authorization. While in this case I believe that force against ISIL is justified under international law, this is only the first step. The second step is that this justification must be communicated to the world, and Congress owes it to the American people that this communication be clear and successful. Failure to identify the enemy belligerent by name frustrates this communicative obligation.

The Administration might argue that ISIL could collapse in the future and be replaced by a successor organization with a different identity, new leadership, and a different name. What then? The answer is simple: pass a new AUMF.