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

by Kevin Jon Heller

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

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

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

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

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

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

Almost Everyone Agrees that the U.S. Strikes Against Syria are Illegal, Except for Most Governments

by Julian Ku

The blogosphere is now so fast that we can get an enormous sampling of expert opinion in a very short time. So within 24 hours of President Trump’s military strikes on Syria, we have already heard from former Bush State Department Legal Advisor John Bellinger, former Obama State Department Legal Advisors Harold Koh and Brian Egan, former DOJ officials and law profs Jack Goldsmith and Ryan Goodman, as well as numerous law profs and other experts including our very own Deborah Pearlstein and Edward Swaine. The bottom line: Almost everyone (except for Harold Koh) thinks the strikes violate the U.N. Charter and many think it also violates the U.S. Constitution.

Most of what I have to say I said in 2012-13 on this issue, but I am struck by one group of important actors who seem relatively untroubled by the “illegality” of the U.S. strikes under the UN Charter: states.  With the notable exception of the Russian government, very few states have come out to criticize the U.S. strikes as a violation of international law. No one is saying it is illegal, but it is striking how few are willing to say it is illegal.  I’ve gathered a few statements and links below.

China’s Ministry of Foreign Affairs:

Q: Does China consider the missile strike on the Syrian airbase to be within the scope of international law? Or do you think it violates existing rules about intervention in other country’s sovereign territory?

A: The Chinese side has always stood for a political settlement of the Syrian issue. Under the current circumstances, we hope all parties can keep calm, exercise restraint and avoid escalating the tension.

The latest developments in Syria highlight once again the urgency of resolving the Syrian issue through political means. We call on all parties not to walk away from the process of political settlement.

 

France and Germany (President and Chancellor):

The joint statement by Mr Hollande and the German chancellor Angela Merkel said that “President Assad alone carries responsibility for these developments” with his “repeated use of chemical weapons and his crimes against his own people.”

United Kingdom Defence Minister:

The UK says it “fully supports” the US missile strike in Syria and has urged Russia to put more pressure on the Assad regime to end the civil war.

The US targeted an air base it says was responsible for a chemical attack which killed dozens of civilians.

Defence Secretary Michael Fallon said the UK was not asked to take part but backed the “wholly appropriate” strike.

European Union, President of European Council:

“US strikes show needed resolve against barbaric chemical attacks. EU will work with the US to end brutality in Syria.

Turkey, Deputy Foreign Minister:

TURKEY: NATO ally Turkey, which is a key player in the Syria conflict and has endured choppy relations with Washington recently, welcomed the strikes as “positive.” The deputy foreign minister added: “We believe that the Assad regime must be punished completely in the international arena.”

Turkey called for a no-fly zone in Syria in the wake of the US strike.

Japan, Prime Minister

JAPAN: Prime Minister Shinzo Abe said that Japan “supports the US government’s resolve that it will never tolerate the spread and use of chemical weapons.”

This survey is not comprehensive and some large players, like India, have yet to weigh in.  But it seems only Russia and Iran have condemned the strikes vigorously.  The general support for the attacks in Europe, the Middle East, along withChina’s acquiescence, seems to show that many states are not very troubled by the violation of Article 2(4) most scholars think has occurred here.  Is this because it is a one-off attack? Or does it suggest Article 2(4) has very little pull with many foreign governments these days?

On the domestic US law front, FiveThirtyEight has counted 69 senators have already issued statements supporting the Syria Strikes and while there are critics on constitutional grounds, it doesn’t seem like close to a majority in Congress.

Of course, none of this means that the experts are wrong on the law. But it is at least worth noting the limited impact of the law so far on governmental actors, as the debate on the legality of the Syria Strikes continues.

Initial Takes on Syria: International-Domestic Synergies

by Edward Swaine

There are lots of initial takes on the legality of the Syria strike.  (I see, just now, a great compendium of short takes at Just Security.)  Some ask for a legal justification, and other experts are holding (for a bit) until one is proffered.  As the posts below by Deborah Pearlstein and Julian Ku helpfully indicate, one thing to watch for is assumed or disputed equivalencies between the positions of the United States as it contemplated these questions in 2013 and as it now confronts them. Other unfolding differences, naturally, include the reactions of other states and of the U.S. Congress.

In addition, watch for explicit or implicit claims about the relationship between international law and U.S. domestic law.  International lawyers are free to ignore the latter.  Thus, for example, Marko Milanovic (via EJIL:Talk!) concludes that the strike was “clearly illegal” under international law, but ventures no particular position on U.S. law.  Whether one agrees or disagrees with the rest of the analysis, focusing on this one question is entirely proper, since a violation of international use of force principles does not depend on whether domestic law is satisfied (and it would be very bad if it did).  Maybe, but only maybe, constitutional lawyers can reciprocate by ignoring international law.  For example, Jack Goldsmith (via Lawfare) largely does, though in his case it could be because he confines himself to looking at the issue of constitutionality through the lens of the Office of Legal Counsel’s 2011 Libya opinion, which did not even use the term “international law” at all.  (It did define promoting the credibility and effectiveness of Security Council resolutions as part of the “national interest” inquiry, but that related only indirectly and partially to international law.)  However, as indicated below, and unlike the international law perspective, this runs the risk of offering an incomplete analysis even as to the domestic law perspective.

For those opining about both international law and U.S. domestic law, the ground is treacherous. The safer course, usually, is simply to assume for purposes of discussion that the legal constraints are independent and potentially sufficient.  Thus, for example, John Bellinger (via Lawfare) states that legality under U.S. law is dependent on the scope of Article II, and that as a matter of international law, the United States was lacking “clear authority.”  In contrast, however, Marty Lederman (via Just Security) concludes that the United States is “probably” violating international law, and “therefore” violating U.S. law.  Both have expertise and views that go far beyond these posts.  But one thing that stands out is how they hedge on legality, relative at least to non-U.S. views.  I don’t think that’s due to nationality.  It also reflects complicating assumptions about the right analytical approach entailed by grappling with the two questions, as might too a more recent post by Harold Koh (via Just Security).

(more…)

The Strike in Syria – Is the International Law Calculation Different Now Than in 2013?

by Deborah Pearlstein

In 2013, there was I think broad agreement that the United States lacked any international law justification for the use of force against Syria following its initial use of chemical weapons: there was no UN Security Council resolution authorizing such force, and no assertion by the United States (or anyone else) that this was an action taken in national self-defense. The closest anyone came to a theory of international law legitimacy then was the UK’s suggestion that a post-chemical weapons attack was ‘illegal but legitimate’ for humanitarian reasons in the same way NATO’s un-authorized use of force had been in Kosovo in the 1990s. I detailed my reasons for concluding that illegal but legitimate argument seemed inapplicable to the proposed U.S. intervention following Syria’s use of chemical weapons in 2013 here.

There are two significant differences I can perceive between the state of affairs on the ground in Syria today and the state of affairs in 2013 that have some bearing on the success of any international law defense in support of the latest attack. The first is worth noting, but I think unpersuasive. The United States today has its own troops on the ground in Syria – troops that were not present in 2013, troops stationed (at least some of them) as close as 50 miles away from the site of the chemical weapons attack. In the abstract, one might imagine this could lead the United States to offer some sort of self-defense justification (in defense of our own nationals). But given our troops are in Syria (to fight ISIS) without Syrian consent, and given Syria’s apparent determination since 2014 to avoid engaging U.S. troops directly despite this state of affairs, there seems little objective grounds for concern that Assad would soon train his chemical weapons on U.S. forces.

The second difference goes to the relative strength of the illegal-but-legitimate theory – the view that the use of force against the territorial integrity of another country is technically illegal, but should be viewed as ‘legitimate’ under certain limited circumstances (a view I could describe at best as a still nascent norm of international law). In 2013, the UK Prime Minister’s Office put it in the following terms. A state could take “exceptional measures in order to alleviate the scale of the overwhelming humanitarian catastrophe in Syria by deterring and disrupting the further use of chemical weapons by the Syrian regime. Such a legal basis is available, under the doctrine of humanitarian intervention, provided” a set of conditions hold. Those conditions: (1) “convincing evidence, generally accepted by the international community as a whole, of extreme humanitarian distress on a large scale, requiring immediate and urgent relief;” (2) it is “objectively clear that there is no practicable alternative to the use of force if lives are to be saved;” (3) the force used is “necessary and proportionate to the aim of relief of humanitarian need…”

There can be little doubt of the horror of the recent chemical attack, albeit on a smaller scale than the attack of 2013. I can imagine few international complaints about the proportionality of a strike targeting only the airfield from which the chemical attack occurred. Where the current administration is in a stronger position than the last is on the question of the objective availability of a practicable alternative to the use of force – thanks to the diplomatic efforts of the past administration, it is far more persuasive now than it was then to argue that the international community has tried through peaceful means and failed to rid Syria of its chemical weapons.

That said, there are at least three factors that persuade me against embracing the proposition that this exercise should be seen as akin to the Kosovo intervention in its relative international law ‘legitimacy.’ First, it was done with no apparent international support – neither from our allies, nor from other countries in the region. The response of foreign nations over the next few days will be significant and could change this calculus but for now, it is a glaring distinction from Kosovo. Second, precisely for the reason President Obama regularly cited against more aggressive U.S. intervention in Syria repeatedly during his administration, it is deeply unclear whether this highly limited attack will have any impact on the humanitarian situation on the ground. Finally, there is the explanation the President himself offered for why the United States undertook the action it did tonight. His reasons were threefold: (1) “It is in this vital national security interest of the United States to prevent and deter the spread and use of deadly chemical weapons.” (2) “Syria used banned chemical weapons, violated its obligations under the Chemical Weapons Convention and ignored the urging of the UN Security Council.” (3) “The refugee crisis continues to deepen and the region continues to destabilize, threatening the United States and its allies.” I expect we will talk at length in the days ahead about each of these justifications. But while the speech was framed by the President’s own horror at the nature of the attack, none of the reasons given for the action bore any relation to speeding humanitarian relief to the people of Syria themselves.

The Syria Attacks: Haven’t We Had These Debates Already?

by Julian Ku

Reports of another horrific use of chemical weapons against civilians in Syria seems to have affected President Trump. In comments today, President Trump said the chemical attacks against civilians “crossed a lot of lines for me” and changed the way he views Syria and leader Bashar al-Assad. Although it is always hard to interpret the President’s comments, he did cite his “flexibility” to change his policies. One might interpret this to mean that the U.S. my change course and directly use military force against the Assad government in Syria.

As tragic as this latest attack is, I also feel like I am in a time-warp that has sent me back to 2012-13 when similar chemical weapons attacks led to similar global outrage which led to an American debate about whether to launch military attacks on Syria.  President Obama famously decided to launch such strikes (without Congress or the UN) and then changed his mind and sought congressional consent.  He never got that, but he did work out an agreement with Russia and the Assad government to remove Syria’s chemical weapons capability.  That didn’t work out as well as he hoped (to use a tragic understatement).  But the factual and legal issues are almost identical today.

So as a service to readers, let me just link to some of the legal analysis we posted back then, much of which still applies today. Updates of course will be necessary, but this is the right place to start.

I argued in 2012 that a strict reading of the U.N. Charter prohibited any U.S. strike on the Syrian government without consent from the U.N. Security Council.  This would be the case even if the Syrian government used chemical weapons against civilians during its civil war.  Former top UK legal adviser Daniel Bethlehem took issue with my formalist reading of the U.N. Charter.

Kevin wondered why the use of chemical weapons itself was so significant as opposed to the civilian deaths it caused.  Put another way, he pointed out that the use of chemical weapons, however horrible, was not necessarily any more of a war crime for legal purposes that the use of non-chemical weapons against civilians and non-combatants.  He also points out in a later post that the Rome Statute does not single out chemical weapons use alone as a crime, despite an initial proposal by drafters to do so.

Finally, we held an “insta-symposium” on Syria with many great contributions from scholars, legal and non-legal, on the difficult questions raised by the Syria conflict.  A list of those posts can be found here at the bottom of the first post in that symposium, from Stephanie Carvin.

Hopefully, this will help all of us refresh ourselves for the great Syria intervention debate, Round II (Donald J. Trump edition).

Can’t Britain Exit Brexit (Redux)?

by Edward Swaine

My earlier Brexit post noted the emerging rigidity of the United Kingdom’s position that its Article 50 notice was irrevocable – not just politically, but to all appearances, also legally.  As the post noted, that evolution has taken place notwithstanding indications that the UK once perceived itself to have the liberty to withdraw that notice.  There are downsides to this new position, particularly if one thinks that Brexit is a bad idea and that history (and the British public) will come to judge it a mistake.  It has also not been well explained, and coverage of the decision has obscured whether the UK is politically or legally committed to this course. Still, the psychology is one familiar to international lawyers, in that the UK is asserting its sovereign authority to bind itself to the mast . . . just in this case, the mast may not be one sailing past a dangerous island and into oceans of multilateral commitment, but rather one that the UK is busy scuttling and directing toward Davy Jones’ locker.

The EU, however, is joining the UK in obscurity.  In a recent press release, the Commission asked and answered the question:

Once triggered, can Article 50 be revoked?

It is up to the United Kingdom to trigger Article 50. But once triggered, it cannot be unilaterally reversed. Notification is a point of no return. Article 50 does not provide for the unilateral withdrawal of notification.

I do not think the irrevocability position is right, for reasons alluded to very briefly in the prior post, and persuasively elaborated in a timely paper by Aurel Sari that has since been brought to my attention. I want here to discuss narrower questions.  First, as with the UK, the EU’s present view is not necessarily the one it has previously had; second, however restrictive both their understandings, there is a potential, meaningful difference, since the EU view is not exactly one of irrevocability. (more…)

Symposium on the Nuremberg Trials

by Kevin Jon Heller

The Loyola of Los Angeles International and Comparative Law Review has just published a special issue on the Nuremberg trials. It contains many excellent contributions, including articles by Hilary Earl, David Fraser, Greg Gordon, and Jonathan Bush. I have also contributed a short chapter, entitled “Taking a Consenting Part: The Lost Mode of Participation,” which discusses a mode of participation developed by the NMTs and then promptly forgotten — for better or for worse — by international criminal law.

All of the articles in the special issue are free to download here.

Remembering Martin Luther King, Jr. in the Age of “America First”

by Chris Borgen

Today, April 4, is the anniversary of the 1968 assassination of Dr. Martin Luther King, Jr. It is also the 50th anniversary of his speech “Beyond Vietnam,” delivered at Riverside Church in New York City on April 4, 1967.

I wrote a piece about Dr. King and international law over a decade ago on Opinio Juris.  I thought it would be interesting to revise and expand that earlier post and consider MLK’s views about world order once again, but now in the era of the Trump Administration (as well as the rise of nationalistic popular movements in many countries). What to make of “Beyond Vietnam” in the age of “America First?”

King’s voice was not the voice of an international lawyer, but of a pastor. He didn’t parse treaties; he invoked morality. Nonetheless, there is something in Dr. King’s rhetoric and in his argument that can inform and engage the work of international lawyers. This is not to fall into Utopianism but to see how moral and political rhetoric interacts with our practice.

Of course, part of the contrast is that President Trump tries to make everything sound like a real estate deal while Dr. King spoke with the voice of a pastor, which some would dismiss as prophetic rather than pragmatic. But this would miss, I think, how MLK’s words from fifty years ago apply to the challenges we have before us today.

Martin Luther King put himself in the shoes of others and spoke eloquently about their claims for justice.  This technique of looking at the world from the standpoint of others is all the more vital when we are discussing laws or norms that we claim should be applied across national and cultural borders. It is absolutely fundamental in any attempt to resolve a sectarian conflicts in the struggle to support human rights of under-represented communities around the world. Consider, for example, how Dr. King referred to the people of Vietnam in his “Beyond Vietnam” speech delivered on April 4th, 1967:

And as I ponder the madness of Vietnam and search within myself for ways to understand and respond in compassion, my mind goes constantly to the people of that peninsula. I speak now not of the soldiers of each side, not of the ideologoies of the Liberation Front, not of the junta in Saigon, but simply of the people who have been living under the curse of war for almost three continuous decades now. I think of them, too, because it is clear to me that there will be no meaningful solution there until some attempt is made to know them and hear their broken cries.

Not so much a battle for the hearts and minds, but an attempt to understand hearts and minds. He asks us to “appreciate the reciprocal”: think of how the world would look from the standpoint of the average man or woman living in Vietnam. Rather than demonizing the other, take time to understand why they do what they do. And that “why” is not answered by a  simple “they hate us,” but digging deeper, understanding motivations, and responding effectively. That is the real art of the deal.

Towards the end of his speech, Dr. King expands from the concerns of U.S. policy in Vietnam to the challenge of building not so much a “New World Order,” but a “Just World Order.” He argues that truly appreciating the reciprocal, this radical compassion on the individual level, leads to institutional transformation:

A true revolution of values will soon cause us to question the fairness and justice of many of our past and present policies. On the one hand we are called to play the good Samaritan on life’s roadside; but that will be only an initial act. One day we must come to see that the whole Jericho road must be transformed so that men and women will not be constantly beaten and robbed as they make their journey on life’s highway. True compassion is more than flinging a coin to a beggar; it is not haphazard and superficial. It comes to see that an edifice which produces beggars needs restructuring.

A true revolution of values will soon look uneasily on the glaring contrast of poverty and wealth. With righteous indignation, it will look across the seas and see individual capitalists of the West investing huge sums of money in Asia, Africa and South America, only to take the profits out with no concern for the social betterment of the countries, and say: “This is not just.” It will look at our alliance with the landed gentry of Latin America and say: “This is not just.” The Western arrogance of feeling that it has everything to teach others and nothing to learn from them is not just.

A true revolution of values will lay hands on the world order and say of war: “This way of settling differences is not just.” This business of burning human beings with napalm, of filling our nation’s homes with orphans and widows, of injecting poisonous drugs of hate into veins of people normally humane, of sending men home from dark and bloody battlefields physically handicapped and psychologically deranged, cannot be reconciled with wisdom, justice and love. A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.

America, the richest and most powerful nation in the world, can well lead the way in this revolution of values…

This kind of positive revolution of values is our best defense against communism. War is not the answer. Communism will never be defeated by the use of atomic bombs or nuclear weapons. Let us not join those who shout war and, through their misguided passions, urge the United States to relinquish its participation in the United Nations. These are days which demand wise restraint and calm reasonableness. We must not call everyone a Communist or an appeaser who advocates the seating of Red China in the United Nations and who recognizes that hate and hysteria are not the final answers to the problem of these turbulent days. We must not engage in a negative anti-communism, but rather in a positive thrust for democracy, realizing that our greatest defense against communism is to take offensive action in behalf of justice. We must with positive action seek to remove those conditions of poverty, insecurity and injustice which are the fertile soil in which the seed of communism grows and develops.

While full of references to the problems of the day (the Communist threat; whether to seat “Red China” in the U.N.), Dr. King still gives us a lesson for our day. Keep in mind that he had spoken these words after the demise the previous “America First” movement. He argued that we should see ourselves in the other and that many rights are universal and not the preserve of Western societies. But, at the same time, he counseled humility in international discourse and an openness to learning from others, rather than on insisting that we in “the West” can only be teachers. He emphasized showing what a rights-based view of humanity had to offer, rather than simply criticizing the world-view of others.  While Trump’s rhetoric is that the world is a zero-sum game and we are losing, King framed interactions  across cultures as the possibility of using discussion as a way to enhance mutual understanding, transform relationships, and build norms.

Dr. King spoke in the voice of a preacher. There’s much good in what he said and some that may not seem practical to us today. But, at the very least, he provided a coherent world view that wasn’t so much within international law as encompassing it. And, ahem, MLK had the best words.

A genuine revolution of values means in the final analysis that our loyalties must become ecumenical rather than sectional. Every nation must now develop an overriding loyalty to mankind as a whole in order to preserve the best in their individual societies.

This call for a worldwide fellowship that lifts neighborly concern beyond one’s tribe, race, class, and nation is in reality a call for an all-embracing and unconditional love for all mankind. This oft misunderstood, this oft misinterpreted concept, so readily dismissed by the Nietzsches of the world as a weak and cowardly force, has now become an absolute necessity for the survival of man.

As an international lawyer, I read the words of Martin Luther King, Jr. in “Beyond Vietnam” and think not only about how far we’ve come, but about how far we have to go.

The Unattractive Question is Back: SCOTUS (Again) Considers Corporate Liability Under the Alien Tort Statute

by Julian Ku

Today, the U.S. Supreme Court agreed to hear the case of Jesner v. Arab Bank in order to resolve a single issue: “[w]hether the Alien Tort Statute, 28 U.S.C. § 1350, categorically forecloses corporate liability.” This post will briefly review the case and offer a quick assessment of the ATS corporate liability issue.  Longtime readers will not be surprised to read that I side with the Defendants on this issue, although I will also add that I think my side on this case will have an uphill battle to prevail in the high court. 

Should the Court have agreed to hear the case?

The Court’s decision to hear the case is a bit surprising given that it had refused to hear at least two cases raising the same issue in the previous two terms.  On the other hand, the Court’s decision to hear the case is also quite understandable given the fairly sharp split between lower circuit courts on the question. Such an enduring split among the opinions of lower courts is always an important factor for the Court in deciding whether to hear a case. The rather dramatic divisions among judges on the Second Circuit Court of Appeals on this issue probably caught the Court’s attention as well.

Still, it is also worth noting that the Court granted cert on this exact same issue not six years ago when it first agreed to hear Kiobel v. Royal Dutch Petroleum in the fall of 2011.  The parties submitted briefs and held oral arguments on the corporate liability issue itself.  But during argument, the Court decided that the question of whether the Alien Tort Statute has extraterritorial reach needed to be resolved first, and sent the case back for re-argument the next term.  That re-argued case eventually became the 2013 Kiobel decision sharply limiting the extraterritorial scope of lawsuits brought under the ATS to cases that “touch and concern” the territory of the U.S.  The corporate liability issue was left fully argued and untouched.

To be sure, since 2013, several other circuit courts have issued opinions on the corporate liability issue and all have split from the original Second Circuit Kiobel decision denying corporate liability under the ATS. And the Court may have a new member by the time Jesner v. Arab Bank is decided.  So while that is a possible reason for reversing course and granting cert, it is still unusual for a Court to hear a case on the exact same issue it already heard in argument a few years ago.

What Law Should Determine Whether Corporations Should Be Liable Under the Alien Tort Statute?

One of the more annoying hard-to-explain legal issues in ATS cases is also one of my favorite law-nerd issues: what law should govern?  On its face, the ATS calls for the application of “the law of nations” but courts have long disagreed about whether international law also applies to questions such as standards for aiding and abetting liability and whether a corporation can be liable.  ATS plaintiffs have typically argued that these questions should be governed by domestic law, that is to say, federal common law. Under federal common law, corporations are typically liable for torts and application of this law would almost certainly favor the plaintiffs on this question.

But the Court has never fully resolved this issue.  To me, it has always seemed that any questions affecting the substance of a case against an ATS defendants should be governed by international law, as the ATS’ text seems to demand.  The temptation to fill in the many gaps left by international law with U.S. common law is strong, but the ATS clearly sought to ask US courts to apply international law.  Getting past that textual directive will be difficult for me, and I suspect the textualist-oriented justices on the Court.

Will Justice(?) Gorsuch’s Vote Matter?

The circumstances of this grant for cert, which occurred after several prior opportunities were rejected, does not bode well for respondents.  Nor is the fact that the cert grant adopts the petitioners’ phrasing of the issue word-for-word.  I would be particularly troubled by the Court’s decision to phrase the question as whether the ATS “categorically” forecloses corporate liability. This is plainly language structured to favor the plaintiffs’ case.

My views on the ATS corporate liability question should be well known to most OJ readers.  I think the issue of corporate liability should be governed by international law and that the strict standards for recognizing an actionable norm under the Court’s prior decision in Sosa precludes recognizing an ATS cause of action against corporations.  I joined a great amicus brief saying basically that in the original Kiobel case back in 2012.

I have also recognized, however, that this is pretty formalistic argument that is unusually unattractive to most observers. Still, the international norms haven’t really changed since 2012.  Plaintiffs will not be able to cite to many (or any) sources that hold corporations liable for violations of international law norms.  But they can still pound the table and simply say it is ridiculous to “immunize” corporations for torts, which I think still has quite a bit of force.  The response has got to be that corporations are often liable for torts, but not always.  Even under domestic law, the U.S. Supreme Court has foreclosed corporate liability for certain statutes (like the Torture Victim Protection Act) or for constitutional norms in the context of Bivens actions).

This leads me to Judge/Justice Gorsuch.  Since the case will be heard next term, Judge Gorsuch will have a chance to rule on the case if he is confirmed.  Will he be willing to sign on to a formalistic/textualist interpretation that is extremely normatively unattractive?  I don’t know enough about Judge Gorsuch to know, but I am not sure this will matter. My guess is that Justices Roberts and Kennedy were sufficiently repulsed by the idea of ruling against ATS corporate liability back in 2012 that they sought (and found) a different way of resolving the case.  I suspect (without having any inside information) that they would like to find an out again.  If they can’t, I can see a 6-3 opinion for the plaintiffs, with Chief Justice Roberts writing an opinion that he tries to make as narrow as possible.

So that’s my first take on Jesner v. Arab Bank.  I will no doubt be back for more. Stay tuned!

Examining Detention Authority in NIAC: A Response to Heller

by Daragh Murray

[Daragh Murray is a Lecturer at the University of Essex School of Law and Human Rights Centre.]

Thanks to Kevin for his post engaging with some of the issues discussed in my recent article on detention authority in non-international armed conflict. I would like to take this opportunity to provide a quick overview of my argument as relevant to this post, to discuss Kevin’s prohibition v. regulation argument and some of the other points he raised, and to highlight a key proposal developed in the article but not included in the original post.

Detention is a core activity in armed conflict, and one central to the conduct of military operations. The law of NIAC applicable to armed groups regulates detention when it occurs, but it does not establish an explicit legal basis for that detention. However, in the article I suggest that the fact that the law of armed conflict/international humanitarian law regulates detention means that it must be interpreted as establishing implicit detention authority.

This is because the prohibition of arbitrary detention is absolute, and this absolute prohibition remains applicable during non-international armed conflict. The right to liberty and security establishes that, to protect against arbitrariness, all detention must, amongst other requirements, have a legal basis. Accordingly, if IHL does not establish an implicit legal basis, then all detention by armed groups will be arbitrary and therefore prohibited, there being no other existing legal basis available to armed groups (see below). The law of treaty interpretation precludes this conclusion: it cannot be assumed that States intended to regulate that which is absolutely prohibited (arbitrary detention) as this would constitute an exercise in futility. CA3 must therefore be interpreted as establishing an implicit legal basis.

Importantly, if international law does not establish an implicit legal basis – and therefore prohibits all instances of armed group detention as arbitrary – international law will be of little relevance to armed groups, given the reality in which they exist. This will have significant practical consequences, and so clarity on this issue is essential.

Regulation v. prohibition

In his reply, Kevin raises an interesting question as to whether CA3 (etc.) regulates detention, or merely prohibits certain activities. In my view, NIAC’s detention-related provisions extend beyond mere negative prohibitions. The content of the obligations imposed require active (positive) measures. For instance, in order to fulfil the requirement that detainees ‘in all circumstances be treated humanely’, detaining authorities will be required not only to refrain from ill-treating detainees (i.e. through physical abuse) but also to actively address: conditions of detention, including quarters; provision of food, water, medicine; access to appropriate medical care; exercise, and so on. In my opinion, this active involvement indicates regulation, not just the imposition of prohibitions.

Different forms of regulation

The article discusses why international law cannot regulate that which is absolutely prohibited and I don’t want to repeat those arguments here. However, picking up on Kevin’s point regarding the regulation of torture, and the possibility of regulating impermissible activity, it is perhaps appropriate to make a distinction between two forms of regulation:

(A) regulations established to ensure compliance with an absolute prohibition, and

(B) regulations governing conduct that is absolutely prohibited.

(A)-type regulations are, of course, necessary. Indeed, this is exactly what UNCAT does. (B)-type regulation is, in my opinion, impermissible. Accordingly, while you may regulate the prohibition of torture (A), you cannot regulate torture itself (B). This was clearly stated by the ICTY in Furundzija (para 155). As such, international law would prohibit a doctor’s involvement in torture, as torture. This is distinct from the requirement that medical attention be given to detainees, irrespective of the cause of the harm. Returning to detention, international law clearly and absolutely prohibits arbitrary detention. It cannot therefore be assumed that States established rules to regulate detention by armed groups knowing that all instances of armed group detention will be arbitrary and therefore prohibited.

A legal basis for armed group detention could be established outside international law

 As Kevin notes, States may provide a domestic legal basis for armed group detention, although they do not typically do so. However, in creating CA3 (etc.) States chose to regulate armed group detention. This act of regulation necessitates the establishment of a legal basis in order to ensure consistency with the prohibition of arbitrary detention. As States have not provided a legal basis under domestic law, the required legal basis must be regarded as implicitly established under IHL.

Consequences of armed group detention authority

If armed groups party to a NIAC are recognised as having authority to detain, this does not suggest that all armed group detention is permissible. The scope of detention authority must be determined, and established procedures (such as judicial supervision) must be adhered to; this is something I have examined elsewhere (chapter 7). Issues also arise with respect to State sovereignty. However, it should be recalled that the authority under discussion is restricted to armed groups party to a NIAC, and is circumscribed by the law applicable in NIAC. That is, it applies only in exceptional situations, where State authority has been displaced. In such volatile situations, it is important that law applies, and that this law is appropriate to the situation. If we accept that detention is a necessary activity during armed conflict, then recognising, regulating and circumscribing the scope of that activity is arguably appropriate. Importantly, this also provides an opportunity to engage with armed groups in an effort to encourage legal compliance. At the same time, States can continue to criminalise armed group activity, from membership related offences, to violations of international law.

Moving forward

Acceptance of armed groups’ authority to detain will raise a number of legitimate concerns. Nonetheless, I do believe that this is an accurate reflection of the law as it stands. That is not to say, however, that this is necessarily ideal or the end of the story. The conclusion that IHL must be interpreted as establishing an implicit legal basis for detention is based on the application of the prohibition of arbitrary detention, as that prohibition applies to States. Understood in the State context, human rights law’s protection against arbitrariness requires a legal basis. It is possible, however, that the content of this prohibition as applied to armed groups might need to be re-evaluated.

Given the non-State status of armed groups, and the consequent difficulties vis-à-vis the creation of law, perhaps other protections against arbitrariness should be prioritised ahead of the legal basis criterion. Human rights law establishes a number of requirements in this regard, and these – and the possible re-consideration of the content of the prohibition of arbitrary detention – are discussed in greater detail in the article. Focusing on the ‘essence’ of human rights protections in this manner could be a possible ‘way forward’ both in relation to the specific issue of detention in NIAC, and to legal engagement with armed groups and other non-State actors more generally. This would facilitate coherence within international law, without necessitating that international law authorise elements of armed group activity.

Events and Announcements: April 2, 2017

by Jessica Dorsey

Sponsored Announcement

  • The Academy on Human Rights and Humanitarian Law is pleased to share with you today the newly released brochure for the 2017 Program of Advanced Studies on Human Rights and Humanitarian Law. The Program will take place from May 30 to June 16, 2017 and offers 20 courses in English and Spanish taught by more than 40 world-renowned scholars in the field of human rights and humanitarian law. Professors include Special Rapporteurs from the United Nations, Commissioners, Judges and other members of the Inter-American Commission and Court of Human Rights, Judges from International Tribunals like the ICC, ICJ and ICTY and professors from all over the world. The program provides a unique opportunity to interact directly with these high profile officials who are rarely available in such a personal setting. We also welcome over 150 participants from more than 25 countries around the world, all with varying levels and areas of professional experience in human rights, providing an excellent networking opportunity. The application can be found here: https://goo.gl/WcRh0J, and the deadline to apply is May 1. We would be happy to speak to anyone who may be interested in attending the Program at our new Tenley Campus by email at hracademy [at] wcl [dot] american [dot] edu or by phone at 202-274-4295.

Announcements

  • Duke Law seeks to fill a Clinical Fellow/Supervising Attorney position in its International Human Rights Clinic beginning in the Summer of 2017. The Clinical Fellow/Supervising Attorney will work closely with the Director of the International Human Rights Clinic. She or he will primarily help supervise student fieldwork in Clinic projects and participate in the planning and teaching of the Clinic advocacy seminar. The Clinical Fellow/Supervising Attorney will also work closely with the Director and other faculty to expand Duke Law’s experiential learning opportunities in international law, including through student placements in competitive summer and semester fellowships and externships in human rights and related fields. The individual appointed to the position will receive mentorship in teaching, scholarship, and human rights lawyering and will have an opportunity to work with the faculty affiliated with the Center for International and Comparative Law. Applicants should have a minimum of two to five years of relevant experience. In addition to a record of, or demonstrated potential for, clinical teaching, advocacy, and intellectual engagement, the ideal candidate will have experience: as practicing lawyers or human rights advocates, developing practice- oriented courses, supervising students in fellowships or externships, working collaboratively with faculty, and other evidence of in-depth knowledge of and practical engagement in international human rights law and mechanisms. The initial term of the appointment is expected to be two years. Salary and benefits will be commensurate with experience and competitive with similar fellowship positions at other top U.S. law schools. Applicants should send a statement of interest and CV to Ali Prince at ali [dot] prince [at] law [dot] duke [dot] edu by April 16, 2017. For more information, see here.

Bad Criminal Law in the Alexander Blackman Case (With Addendum)

by Kevin Jon Heller

In September 2011, Alexander Blackman, a Sergeant in the Royal Marines serving in Afghanistan, executed a Taliban fighter who had been incapacitated by his wounds.This was no spur-of-the-moment killing, as video recovered one year later makes clear. Here is the Court Martial’s summary of Blackman’s actions, as shown on the video:

[The insurgent] had been seriously wounded having been engaged lawfully by an Apache helicopter and when [Blackman] found him he was no longer a threat. Having removed his AK47, magazines and a grenade, [Blackman] caused him to be moved [because Blackman] wanted to be out of sight of [the] operational headquarters at Shahzad so that, to quote what [Blackman] said: ‘PGSS can’t see what we are doing to him.

He was handled in a robust manner by those under [Blackman’s] command clearly causing him additional pain and [Blackman] did nothing to stop them from treating him in that way. When out of view of the PGSS [Blackman] failed to ensure he was given appropriate medical treatment quickly and then ordered those giving him some first aid to stop.

When [Blackman was] sure the Apache helicopter was out of sight, [Blackman] calmly discharged a nine millimetre round into his chest from close range. [Blackman’s] suggestion that [he] thought the insurgent was dead when [he] discharged the firearms lacks any credibility and was clearly made up after [he] had been charged with murder in an effort to concoct a defence. It was rejected by the Board.

Although the insurgent may have died from his wounds sustained in the engagement by the Apache [Blackman] gave him no chance of survival. [Blackman] intended to kill him and that shot certainly hastened his death.

[Blackman] then told [his] patrol they were not to say anything about what had just happened and [Blackman] acknowledged what [he] had done by saying [he] had just broken the Geneva Convention. The tone of calmness of [his] voice as [he] commented after [he] had shot him were matter of fact and in that respect they were chilling.”

Not surprisingly, the Court Martial convicted Blackman of murder and sentenced him to life imprisonment. All of his fellow soldiers were acquitted.

Fast forward to last week — when the Court Martial Appeal Court (CMAC) allowed Blackman’s appeal, substituted a verdict of manslaughter for murder on the ground of diminished responsibility, and reduced his sentence to seven years imprisonment. Blackman will be a free man, with an honourable discharge from the Royal Marines, in a couple of weeks.

From a criminal law perspective, I find CMAC’s judgment profoundly unconvincing. I will explain why in this post.

CMAC’s reasoning proceeded in three steps. First, it found that Blackman had suffered from an “adjustment disorder” at the time of the killing…