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M. Cherif Bassiouni Weighs In on the Amanda Knox Extradition, and Gets It Wrong

by Julian Ku

I have been feeling a little guilty for blogging about the Amanda Knox case since it is more of a People Magazine topic than an Opinio Juris one.  But just today, I realized that even someone as respected in the international law field as M. Cherif Bassiouni has opined on her extraditability in this OUP blog post from last April.  So maybe it’s OK after all, especially since Bassiouni’s view that she is not extraditable is (in my view) flatly wrong.

Bassiouni, a giant in the field of international criminal law and the author of the leading treatise on the international law of extradition, argues that Amanda Knox is not extraditable to Italy because of the admittedly unusual Italian criminal procedure that seems to subject defendants to convictions, acquittals, and then conviction again in violation of the rule of ne bis in idem (double jeopardy).

As I have explained, no US court has held that the double jeopardy protection of the Fifth Amendment would prevent an extradition because no U.S. court has applied that Fifth Amendment protection to actions by a foreign government.  In other words, no U.S. has held that a U.S. citizen can invoke the Fifth Amendment against the prosecution of a foreign government.  It is possible a court might do so, but there has been no signs of that so far.

But what really bothers me is that Bassiouni makes the same mistake that many other (far lesser in stature) legal commentators have made when he suggests that Article VI of the US-Italy Extradition treaty imposes a double-jeopardy requirement on the Italian government.

The 1983 U.S.–Italy Extradition Treaty states in article VI that extradition is not available in cases where the requested person has been acquitted or convicted of the “same acts” (in the English text) and the “same facts” (in the Italian text).

With all due respect to Professor Bassiouni, this is not quite right. I point him and others to my first post on this subject and I re-do the discussion below.   Here is Article VI:

Non Bis in Idem

Extradition shall not be granted when the person sought has been convicted, acquitted or pardoned, or has served the sentence imposed, by the Requested Party for the same acts for which extradition is requested.

(Emphasis added.)

I don’t think it is possible to read this language as imposing a non bis in idem requirement on Italy, since Italy is not the “Requested Party” in the Amanda Knox case.  The only way Amanda Knox could invoke Article VI is if she has been “convicted, acquitted or pardoned,or has served the sentence imposed” by the United States, which is the “Requested Party.”  But Knox has not been charged or punished for this crime in the United States, so she can’t invoke Article VI.

As Bassiouni points out, the complexity of Italy’s criminal procedure could possibly violate the prohibition on non bis in idem contained in the European Convention on Human Rights.  I don’t know enough about Italy’s criminal procedure or the ECHR’s jurisprudence in this area to know if he is right, but I do know that this issue is not something that would be considered in the “extraditability” analysis by a U.S. court.  Knox could (and probably has) raised this argument in Italian courts, or directly before the ECHR. But it should not affect her extraditability.

Because of Bassiouni’s stature, his blogpost will be (and already has been) repeated by media reports for the proposition that Knox has a credible double-jeopardy defense to extradition.  But although they are right to cite Bassiouni as a leading authority on international extradition, he’s wrong on this one.

U.S. Federal Aviation Agency Issues Letter Authorizing(?) Creation of Private Moon Base

by Julian Ku

Glenn Reynolds of Instapundit (and of the University of Tennessee Law School) has a short op-ed in USA Today celebrating the first official US government statement of support for the private exploitation of resources on the moon.  As Reynolds describes it:

Bigelow [a private US company] has decided that it wants to go to the moon, and — here’s the real news — has gotten the Federal Aviation Administration’s space office (Office of the Associate Administrator for Commercial Space Transportation) to give it the go-ahead, and to state that the U.S. government will recognize and protect Bigelow’s right to create a base and to operate exclusively in that base’s vicinity.

The linked report from Reuters elaborates that the FAA is simply using its existing authority to regulate payloads on space launches to authorize activities private companies might use those payloads for on the moon.  In this case, Bigelow is preparing to build an inflatable space habitat, a “moon base”, and would like some statement of US government backing for its project.

According to Reynolds (and many space lawyers), the Outer Space Treaty does not in fact prohibit private exploitation of natural resources on the moon. I am a bit surprised because Article II of that treaty states that:

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

But while national appropriation is prohibited, it appears to Reynolds and others that private appropriation is not prohibited.  This argument takes some interpretive legwork, but it certainly has some historical pedigree, dating back to at least this 1969 essay.

This aggressive reading of Article II is enough to encourage other private space development companies to plan their business models on extracting and then bringing back minerals from the moon. As Moon Express, another company stated:

“The company does not see anything, including the Outer Space Treaty, as being a barrier to our initial operations on the moon,” said Moon Express co-founder and president Bob Richards. That includes “the right to bring stuff off the moon and call it ours.”

I am still not sure about their reading of the treaty’s language.  Did the drafters of the Outer Space Treaty really want to prohibit states from exploiting celestial bodies, but allow any non-state to do so (and without any obvious set of rules to govern those non-states)?  I definitely need to study this question more, but it certainly seems like there will be a dispute on this question someday soon. Any experts out there who wish to comment, please share!

Guest Post: IHL Doesn’t Regulate NIAC Internment–A Drafting History Perspective

by Jonathan Horowitz

[Jonathan Horowitz is writing in his personal capacity. He is a Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program.]

Ryan Goodman argues in a thoughtful new post at Just Security that IHL regulations pertaining to internment in international armed conflict (IAC) should apply to internment in non-international armed conflict (NIAC).

This is a hotly debated issue.

In this post, I look back on the drafting history of Additional Protocol II which, in my view, reveals that 1) IHL was not crafted to provide regulations (neither the grounds nor procedures) for NIAC internment and 2) IHL does not have a structure that permits its IAC internment regulations to apply to NIAC.

That’s not to say States can’t intern; it’s to say that when they do, the sources of internment regulations are found not in IHL but primarily in domestic law and international human rights law.

Lack of internment regulations in the IHL of NIAC is supported by the fact that Common Article 3 and Additional Protocol II, the two main sources of treaty law regulating NIAC, provide no such rules. This absence is both indisputable and in contrast to the Third and Fourth Geneva Conventions, which are replete with regulations on IAC internment. Protocol I also contains internment regulations.

The absence of internment procedures in Additional Protocol II is also in contrast to numerous penal prosecution procedures found in Article 6 of Additional Protocol II and, to a lesser degree, Common Article 3. For these reasons, it’s clear that while the drafters of Protocol II explicitly recognized that parties to a NIAC are permitted to intern, the drafters also chose not to put in place internment regulations.

But why was this the case, and what does it tell us about IHL?

IHL’s relatively sparse rules for NIAC reflect States not wanting to provide legitimacy and legal status to non-state armed groups. This history heavily influenced U.K. High Court Justice Leggatt’s conclusion in ongoing litigation that IHL does not provide an implied power to detain in NIAC. He concluded, in part, that States did not wish to provide detention authority because, if they did, that authority would equally have to apply to rebel armed groups, which would in turn grant them unwelcomed legitimacy and force States into accepting that such groups have a right to “exercise a function which is a core aspect of state sovereignty.” (para. 245.)

While I agree that States did not intend for IHL to grant non-state armed groups an authority to detain, I’d like to dive a bit deeper into a related, but slightly different and broader issue: the impact that sovereignty had on States not wanting IHL to infringe upon their domestic law.

Romania’s delegate to the drafting process of the two Additional Protocols made a general remark that was illustrative of other State interventions, stating “The automatic application to internal conflicts of regulations applicable in international conflicts might have negative results and entail violation of international law and national sovereignty. Any future international regulations relating to non-international armed conflicts must be based on recognition of, and respect for, the sovereign rights of each State within its boundaries.” (p. 103.) Yugoslavia’s delegate similarly remarked, “When preparing the final version of draft Protocol II, account must be taken of the general principles of international law including those of non-interference in the domestic affairs of States and respect of the sovereignty and territorial integrity of States.” (p.105.)

I noted, these were general remarks, not aimed directly at the issue of NIAC internment. Nonetheless, the remarks demonstrated that States sought to protect their sovereignty and their inherent right to manage their citizens as they chose; and this implicitly included applying their domestic laws as they deemed appropriate.  India, for example, made the concise point that proposed rules on penal prosecutions in Protocol II “would be in conflict with his country’s national laws and…would constitute interference in the sovereign right of States.” (p. 359.) Pakistan’s delegate made a similar point. (p. 360.) (more…)

Weekly News Wrap: Monday, February 9, 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

Americas

  • CACI International, a US defence contractor which supplied interrogators accused of involvement in the abuse and torture of detainees at Abu Ghraib prison in Iraq, has sought to have a lawsuit against it dismissed, stating its employees were working under military control during a time of war.
  • Somalia’s prime minister on Sunday appealed to the US government and US banks to resume allowing money transfers to Somalia, a crucial service for many in the war-torn country.

Oceania

UN/World

Events and Announcements: February 8, 2015

by Jessica Dorsey

Events

  • The Centre for International Law of the Vrije Universiteit Brussel has the pleasure of inviting you to a one-day conference: “The South China Sea: An International Law Perspective” on Friday, 6 March 2015 in Brussels, Belgium. Showcasing panels of renowned law of the sea experts, the conference will offer presentations and Q&A sessions centered on the themes of fisheries, navigation, islands and international dispute settlement. Attendance is free, but registration is required, on a first come, first serve basis, by Sunday, 1 March 2015. A walking lunch, coffee breaks and a closing reception will be provided. Please register here. The conference programme may be consulted here.
  • The International Institute of Humanitarian Law, in cooperation with the International Federation of Red Cross and Red Crescent Societies and the International Disaster Law Project and with the support of the Italian Red Cross, will conduct the 2nd International Disaster Law Course from 27 April to 1 May, in Sanremo, Italy. More information can be found here.
  • The 5th Annual “Live from L,” presented by  the Office of the Legal Adviser, U.S. Department of State is taking place this Thursday, February 12th, 2015 12:00 PM – 1:30 PM US Eastern Standard Time. This year’s theme is: “The Role of the Law in the Fight Against ISIL: Use of Force, Sanctions, and Foreign Terrorist Fighters.” The Section of International Law is pleased to announce the fifth annual non-CLE webcast with the Office of the Legal Adviser from the Jacob Burns Moot Courtroom of the George Washington University Law School in Washington, D.C. Cosponsored by the American Society of International Law, the George Washington University Law School, and the Women’s Bar Association of DC International Law Forum Speakers: Mary E. McLeod Acting Legal Adviser, U.S. Department of State Joshua L. Dorosin Assistant Legal Adviser, Office of Political-Military Affairs David M. DeBartolo Attorney Adviser, Office of United Nations Affairs Michael J. Gilles Attorney Adviser, Office of Economic and Business Affairs Samuel W. McDonald Attorney Adviser, Office of Law Enforcement and Intelligence Moderator: Susan L. Karamanian Associate Dean for International and Comparative Legal Studies, George Washington University Law School   Attend the program in person at George Washington University Law School or from the convenience of your desk by webcast or by teleconference. Time permitting, the audience will be given the opportunity to ask questions; those who participate by conference call or by webcast will be provided an email address for questions. Registration: Register to attend in person for FREE Register for the webcast for FREE Register for the teleconference for $15 Click here to register now

Call for Papers

  • Time is an inherent component of many of the most important international law concepts. However, it also fundamentally determines international law as a field. International law has been in constant dynamic change since its inception. Capturing and understanding this change in time is one of the discipline’s fundamental challenges, as is the difficulty of working with the constantly changing materiae of international law in practice. The Graduate Institute Geneva’s International Law Department is opening a call for papers to create an opportunity to reflect and debate about the fundamentals of international law in depth. The conference is open to both junior and senior international law scholars and practitioners. The deadline for abstract submissions is February 15, 2015. The Conference will be held at the Graduate Institute’s Barton site.
  • The second workshop on Sociological Inquiries into International Law will take place at the University of Toronto’s Munk School of Global Affairs on 9-10 October 2015. Scholars and graduate students are invited to submit abstracts by 1 April 2015. For full details, including information about application processes, please see the call for papers.

Announcements

  • Hart Publishing is delighted to announce that the 2nd  issue of the Journal on the Use of Force and International Law (JUFIL) is now available online. The contents include an Introduction by James A Green, Christian Henderson and Tom Ruys; An Editorial Comment on The Use of Force and Islamic State by Christian Henderson; Articles include: The Contemporary Discourse on the Use of Force in the Nineteenth Century: A Diachronic and Critical Analysis by Agatha Verdebout; The Lawfulness of a Use of Force upon Nuclear Facilities in Self-Defence by Arman Sarvarian; Remote Law-Making? American Drone Strikes and the Development of Jus Ad Bellum by Marie Aronsson; Extraterritorial Kidnapping and the Rules on Interstate Force by Helen McDermott; The Digest of State Practice covers the period: 1 January–30 June 2014. Please click here to read the abstracts.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information. 

Weekend Roundup: January 31-February 6, 2015

by An Hertogen

This week on Opinio Juris, Kevin argued that the CIA and Mossad violated the Terrorist Bombing Convention in the 2008 bombing of Imad Mughniyah, Hezbollah’s international operations chief. Kevin also responded to Ryan Goodman’s Just Security post on Serdar Mohammed. A second part of that response is still to come, but Kevin already flagged the ICRC’s November 2014 Opinion Paper on detention in NIAC. Kevin also recommended Jens’ new book, and for the month of February OUP is offering a discount to our readers, so be quick to grab your copy by clicking on the ad on the right.

Kristen wrote about the aims of the new ILA Study Group on Sanctions of which she is a part, and Bill Dodge wrote a guest post about the Solicitor General’s views in Samantar.

Finally, Jessica wrapped up the international news headlines and I listed the events and announcements.

Have a nice weekend!

What Exactly Is the ICRC’s Position on Detention in NIAC?

by Kevin Jon Heller

I still need to write Part 2 of my response to Ryan Goodman, but it’s worth noting that he and I actually agree about detention in NIAC much more than we disagree. We both agree that IHL itself does not authorize such detention. We both agree that the standard governing detention in NIAC is that it must be non-arbitrary. We both agree that, in practice, it is non-arbitrary to detain individuals in NIAC for (something like) imperative reasons of security. So we seem to disagree only on one substantive point: where the requirement of non-arbitrariness comes from. Ryan says it comes from IHL itself. I argue that it comes from IHRL.

In my previous post, I took issue with Ryan’s claim that an ICRC Background Paper and Rule 99 of the ICRC’s study of customary law supported his position. I argued that neither clearly supports the idea that IHL requires detention in NIAC to be non-arbitrary, because both the Paper and the Rule rely on both IHL and IHRL for the substantive detention rules they endorse — and do not adequately disentangle the two legal strands. In response, Ryan accused me on Twitter – in a friendly manner — of arguing that he and the ICRC don’t understand the law of war.

Ryan and I obviously do disagree about whether IHL itself requires detention in NIAC to be non-arbitrary or whether its silence on that issue means IHRL’s requirement of non-arbitrariness applies as lex specialis. But I was not trying to claim that the ICRC was wrong, because I did not believe that Ryan was accurately characterizing its position. So I spent more time than than I expected after our exchange combing through the ICRC’s statements on the arbitrariness issue. I won’t bore readers with the twists and turns, but I do want to flag the ICRC’s most recent statement, an Opinion Paper dated November 2014. If the Opinion Paper does indeed reflect the ICRC’s current position on detention in NIAC, it turns out that  the ICRC disagrees with both me and Ryan, as well as with Dapo Akande and Lawrence Cawthorne-Hill at EJIL: Talk!, because it believes that IHL does, in fact, authorize detention in one kind of NIAC — extraterritorial NIAC. Here is what the ICRC says (p. 7):

In a “traditional” NIAC occurring in the territory of a State between government armed forces and one or more non-State armed groups, domestic law, informed by the State’s human rights obligations, and IHL, constitutes the legal framework for the possible internment by States of persons whose activity is deemed to pose a serious security threat. A careful examination of the interplay between national law and the applicable international legal regimes will be necessary. The right to judicial review of detention under human rights law will, of course, continue to apply; there are, however, differing views on whether this obligation may be derogated from.

Identifying the legal framework governing internment becomes particularly complicated in NIACs with an extraterritorial element, i.e. those in which the armed forces of one or more State, or of an international or regional organization, fight alongside the armed forces of a host State, in its territory, against one or more organized non-State armed groups.

The fact that Article 3 common to the Geneva Conventions neither expressly mentions internment, nor elaborates on permissible grounds or process, has become a source of different positions on the legal basis for internment by States in an extraterritorial NIAC. One view is that a legal basis for internment would have to be explicit, as it is in the Fourth Geneva Convention; in the absence of such a rule, IHL cannot provide it implicitly. Another view, shared by the ICRC, is that both customary and treaty IHL contain an inherent power to intern and may in this respect be said to provide a legal basis for internment in NIAC. This position is based on the fact that internment is a form of deprivation of liberty which is a common occurrence in armed conflict, not prohibited by Common Article 3, and that Additional Protocol II – which has been ratified by 167 States – refers explicitly to internment.

In short, according to the ICRC, IHL does not authorize detention in “traditional” NIACs, those fought solely on the territory of one state, but does authorize detention in extraterritorial NIACs. Indeed, the Opinion Paper specifically cites Serdar Mohammed as an example of the first view of extraterritorial NIAC — the one that the ICRC rejects. The ICRC’s position thus seems to be closest to Aurel Sari in the comments to my previous post, as well as to Kubo Mačák at EJIL: Talk!. Then again, the ICRC doesn’t completely agree with them, either, because the Opinion Paper quite specifically limits IHL’s inherent power to detain to extraterritorial NIAC — thus seeming to agree with me, Ryan, Dapo, and Lawrence that the authority to detain in at least traditional one-state NIACs comes from domestic law, not from IHL itself.

I confess that I find the ICRC’s traditional/extraterritorial distinction rather confusing. I don’t understand how the conventional and customary IHL of NIAC could contain “an inherent power to intern” in extraterritorial NIAC but not in traditional NIAC; doesn’t it have to be both — or neither? After all, each of the factors the ICRC cites in defense of its position apply equally to traditional NIAC. Internment is indeed a “common occurrence in armed conflict,” but it is common in both traditional and extraterritorial NIACs. Common Article 3 does not prohibit detention in either traditional or extraterritorial NIAC. And Additional Protocol II is capable of applying to some traditional NIACs and of not apply to some extraterritorial NIACs. In fact, it is probably more likely to apply in a traditional NIAC.

To be clear, I’m skeptical the Opinion Paper is correct even concerning extraterritorial NIAC. Nothing in conventional IHL suggests an inherent power to detain in any kind of NIAC: as Ryan, Dapo, and Lawrence have all pointed out, international law often recognizes and regulates a practice without authorizing it. And although there could in principle be an asymmetric customary rule that says IHL authorizes detention in extraterritorial NIAC while domestic authorization is required in a traditional NIAC, there seems to be no evidence that such a rule exists. As Dapo and Lawrence point out in their post, “[e]ven in the context of extraterritorial NIACs, states have looked elsewhere for authorisation [to detain] (see, e.g., Iraq and Security Council Resolution 1546).”

My point, then, is simply that I don’t think the ICRC can have it both ways. Either there is an inherent power in IHL to detain in NIAC or there isn’t.

One thing is clear: the ICRC really needs to clarify its position on detention in NIAC.

Guest Post: Samantar and the Perils of Executive Discretion

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

On Monday, the Solicitor General responded to the Supreme Court’s call for his views in Samantar v. Yousuf, a case raising questions of foreign official immunity. After significant diplomatic efforts to determine the official position of the Somali Government (see below), the State Department decided to stand by its prior determination that Samantar was not immune from the jurisdiction of U.S. courts in a case that found him liable for torture and extrajudicial killing. Although the Solicitor General disagrees with the reasoning of the decision below, the State Department’s decision not to alter its immunity determination clearly makes the case uncertworthy. “[B]ecause the court of appeals’ judgment . . . is consistent with the Executive Branch’s determination that petitioner is not immune,” the U.S. brief notes, “this Court should not grant review simply to correct the erroneous reasoning in the Fourth Circuit’s opinion” (p. 23).

Still, according to the Solicitor General, the Fourth Circuit erred in two respects. First, it gave the State Department’s determination of conduct-based immunity only “substantial weight” rather than treating that determination as binding on the court. Second, it announced “a new categorical judicial exception to conduct-based immunity for cases involving alleged violations of jus cogens norms” (p. 12). With respect to the second point, I have previously explained that the Fourth Circuit did not create an “exception” to an existing immunity but rather, quite properly, addressed the question whether torture and extrajudicial killing can be “official acts” to which conduct-based immunity attaches in the first place. Nor is the Fourth Circuit’s position “new,” having been the consistent position of U.S. courts of appeals in human rights cases for at least twenty years. See, e.g., Enahoro v. Abubakar, 408 F.3d 877, 893 (7th Cir. 2005) (discussing prior cases and noting that “officials receive no immunity for acts that violate international jus cogens human rights norms (which by definition are not legally authorized acts)”).

But what of the Solicitor General’s first argument that State Department determinations with respect to foreign official immunity are binding on the courts? Ingrid Wuerth has argued persuasively that the executive branch lacks independent constitutional authority to make rules of foreign official immunity. As Chief Justice Roberts reiterated in Medellin v. Texas, “‘the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.’” 552 U.S. 491, 526-27 (2008) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)). Whatever legal force of the State Department’s immunity determinations may have depends entirely on a federal common law rule created by the Supreme Court. Prior to 1938, federal courts did not defer to executive branch determinations of immunity. See, e.g., Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562 (1926). In a series of cases beginning in 1938, the Supreme Court established a rule of federal common law delegating authority over immunity determinations to the State Department. See Compania Espanola de Navegacion Maritima, S.A. v. The Navemar, 303 U.S. 68 (1938); Ex Parte Peru, 318 U.S. 578 (1943); Republic of Mexico v. Hoffman, 324 U.S. 30 (1945). But the discretion the Supreme Court has given as a matter of federal common law, the Supreme Court may also take away. And as Wuerth and Harlan Cohen have pointed out, the current Supreme Court is not very deferential to the executive on questions of foreign affairs.

The U.S. brief notes that foreign official immunity, like foreign state immunity, rests on “considerations of comity” (p. 17). But as I explain in a draft paper, the notion that questions of comity must be left to the executive branch is a myth. Indeed, the State Department’s experience with determinations of foreign state immunity in the decades prior to passage of the 1976 Foreign Sovereign Immunities Act (FSIA) shows what harm executive discretion can do not only to the rule of law but also to U.S. foreign relations. When the State Department had the power to determine the immunity of foreign states from suit in U.S. courts, foreign states naturally lobbied the Department for immunity. Moreover, despite the State Department’s best efforts to apply the restrictive theory of foreign sovereign immunity faithfully, foreign governments tended to view the denial of immunity as a political rather than a legal decision. It was precisely to avoid this negative impact on U.S. foreign relations that the executive branch asked Congress to remove its authority by passing the FSIA. “The transfer of this function to the courts,” the Secretary of State and Attorney General explained in their letter of transmittal to Congress, would “free the Department from pressures by foreign states to suggest immunity and from any adverse consequences resulting from the unwillingness of the Department to suggest immunity.”

As John Bellinger predicted, the same dynamic is now playing itself out in the context of foreign official immunity. When the Samantar case first came before the Supreme Court in 2010, the U.S. amicus brief (pp. 24-26) identified a number of factors the State Department might consider in making an immunity determination. On remand, the State Department’s 2011 determination emphasized two of particular relevance to Samantar’s case: (1) the lack of a recognized government in Somalia; and (2) the fact that the defendant was a U.S. resident who “ordinarily should be subject to the jurisdiction of our courts, particularly when sued by U.S. residents.” In January 2013, the United States recognized the Government of Somalia. As recounted in the U.S. brief filed Monday (pp. 7-8), there followed a confusing series of letters from different members of the Somali Government alternately purporting to assert and to waive Samantar’s immunity. In January 2014, the Solicitor General told the Supreme Court that “further diplomatic discussions” were needed “to clarify the position of the Government of Somalia on the immunity issue.” By April, the State Department had still not been able to have the necessary discussions because of the security situation in Somalia. In July, the Department was finally able to meet with the proper Somali official, who indicated that Somalia would not seek immunity for Samantar, but the Department received no diplomatic correspondence to confirm this position. So on December 23, 2014, the State Department sent Somalia a formal communication, relating its understanding that Somalia did not wish to seek immunity for Samantar and asking Somalia to respond by January 23, 2015 if that understanding were in error. Having received no response from Somalia, the State Department reaffirmed its determination that Samantar was not immune in a letter to the Solicitor General dated January 28, 2015. See U.S. brief (pp. 10-11).

Ironically, the State Department invested all this diplomatic energy with respect to a factor that is not even dispositive in its analysis. Although a foreign government may waive the immunity of its current or former officials, the United States does not treat a foreign government’s assertion of immunity as binding. See, e.g., Statement of Interest and Suggestion of Immunity at 9, Rosenberg v. Lashkar-e-Taiba (“Notwithstanding such a request, however, the Department of State could determine that a foreign official is not entitled to immunity.”). As I suggested in an earlier post, I find it hard to believe that the State Department would have changed its immunity determination with respect to Samantar, who has admitted liability for torture and extrajudicial killing, even if Somalia had sought immunity on his behalf. The State Department should be commended for its diligent efforts to clarify Somalia’s position in this case. But those efforts are likely to have two unintended and harmful effects: (1) to raise the profile of the case in U.S.-Somali relations; and (2) to suggest to Somalia and other governments that they can influence State Department’s determinations in future cases. As was true with foreign state immunity four decades ago, executive discretion over foreign official immunity is proving to be a poisoned chalice.

The better course is the one taken by the Fourth Circuit—to allow federal courts to decide the immunity of foreign officials under federal common law, including the established rule that jus cogens violations are not “official acts” for purposes of conduct-based immunity. Foreign governments might not like the results in every case, but they would not be able to blame the executive branch for the outcomes. Of course, conclusory allegations of a jus cogens violations would not be enough to allow a suit against a foreign official to go forward. Under Ashcroft v. Iqbal, 556 U.S. 662 (2009), the plaintiff must plead facts sufficient to make a facially plausible claim that the defendant is liable, which in the case of a foreign official may include that defendant’s lack of immunity from suit. If the relevant facts are in dispute, the trial court may allow jurisdictional discovery limited to the question of immunity, as courts currently do with questions of state immunity under the FSIA. See, e.g., Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534 (5th Cir. 1992) (noting that jurisdictional discovery “should be ordered circumspectly and only to verify allegations of specific facts crucial to an immunity determination.”). At present, the State Department plays this screening role in cases against foreign officials, suggesting immunity if the complaint does not allege facts establishing a lack of immunity with sufficient specificity. But surely courts are better equipped for the task.

I expect the Supreme Court to deny cert in Samantar. But the uncomfortable position of the State Department in these cases—and the corresponding harm to U.S. foreign relations—will continue until Congress or the courts make clear that the executive branch does not have the final word on determinations of foreign official immunity.

Responding to Ryan Goodman About Serdar Mohammed — Part I

by Kevin Jon Heller

At Just Security, my friend Ryan Goodman has posted a long analysis of Serdar Mohammed v. Ministry of Defense, in which the UK High Court held that IHL neither authorizes nor regulates detention in non-international armed conflict (NIAC). That decision will soon be considered by the Court of Appeal.

In his post, which is a must-read, Ryan states that he agrees with the High Court that IHL does not authorize detention in NIAC but disagrees that IHL does not regulate such detention. I share Ryan’s position on the first point, but I disagree with him — and agree with Justice Leggatt in Serdar Mohammed — on the second. In a subsequent post, I will address Ryan’s argument that “whatever is permitted in international armed conflict is permitted in noninternational armed conflict.” I have described that argument in a forthcoming book chapter as “reasoning by analogy”; Ryan rejects that description and says he is engaging in “reasoning by structure.” I will try to show in the next post that the “whatever is permitted” argument is problematic no matter how we describe its underlying reasoning.

In this post, I want to focus Ryan’s argument that, contrary to Justice Leggatt, IHL does in fact regulate the permissible grounds for detention in NIAC. Here is what he says (emphasis mine):

So far we have discussed the permissive boundaries of detention in NIAC but what about limitations on states in these contexts? IHL also imposes a set of prohibitions on the grounds for detention in internal armed conflict. That is, multiple sources conclude that IHL prohibits arbitrary deprivation of liberty in NIAC (see footnote 12 of the AJIL article, for example). Subsequent to that law review article, several important states through the Copenhagen Process—including “specially affected” states which is a significant category for customary international law purposes—explicitly accepted such restrictions on detention in NIAC.  Consider also the ICRC’s statement in a Background Paper on detention for the regional consultations 2012-2013: “In terms of grounds for internment, the ICRC, along with a growing international consensus of experts considers that ‘imperative reasons of security’ is an appropriate standard for internment in NIAC.” And a Report by a group of experts convened by the ICRC and Chatham House “quite easily” reached a consensus that in NIACs “parties to a conflict may capture persons deemed to pose a serious security threat and that such persons may be interned as long as they continue to pose a threat.” (See also the ICRC’s customary international humanitarian law Rule 99: Deprivation of Liberty).

To begin, it’s worth noting that Ryan does not seem to be “reasoning by structure” here — he seems to be arguing that, as a matter of customary international law, IHL prohibits arbitrary detention in NIAC. After all, he specifically mentions custom and “specially affected” states in the context of the Copenhagen Process. Moreover, he refers to the ICTY’s jurisdiction decision in Tadic both here and in his superb law-review article on security detention — and Tadic specifically based its (methodologically dubious) extension of IAC-based rules of IHL to NIAC on customary international law. As it said with regard to those rules (para. 127), “it cannot be denied that customary rules have developed to govern internal strife.”

If Ryan is claiming that IHL prohibits arbitrary detention in NIAC as a matter of customary international law, I have no theoretical objection to his argument. Indeed, as I’ll explain in my next post, my position is that international human rights law (IHRL) governs the regulation of detention in NIAC precisely because there are no contrary customary rules of IHL that can serve as the lex specialis of detention. If there are such customary rules, IHL may well displace IHRL (depending on how we understand the lex specialis principle).

That said, I take issue with Ryan’s claim that (as a matter of custom?) IHL prohibits arbitrary detention in NIAC — a standard that has no basis in the conventional IHL of NIAC and is normally associated with IHRL

New ILA Study Group on Sanctions

by Kristen Boon

I am pleased to announce that a new ILA Study Group on sanctions has been formed.  Larissa van den Herik and I will be working together, with the support of a group of sanctions scholars and practitioners, to address questions of individualization, formalization and interplay in multilateral sanctions.  Here are the three aims of the group:

  • To evaluate the individualization and formalization of UN sanctions.

What are the pros, cons and interconnections of developments towards individualized and rules-based conceptions of UN sanctions? How targeted must targeting be and what are the risks of over-targeting and over-compliance?

  • To examine how and in which circumstances UN sanctions regimes can be further (or less) individualized and formalized both in terms of their function as well as regarding procedural aspects.

In which areas of international law can UN sanctions play a role? Do different types of UN sanctions regimes correspond to different protected values and pursued interests? How are procedures and accountability models best organized?

  • To reflect on coordination with other institutions.

What are the best forms of interplay and interaction with other institutions such as the International Criminal Court, ICTY, ICTR and national courts pursuing criminal accountability, and with other regional or sub-regional organizations that apply sanctions, such as the EU and AU?

 

The group aims to present its first report at the ILA meeting in Durban, 2016.

For those who follow sanctions, some other interesting events are coming up including a conference in London, details here.

Weekly News Wrap: Monday, February 2, 2015

by Jessica Dorsey

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

Africa

  • Malian rebels fought pro-government militia in the northern village of Kano overnight, three security sources said, firing rockets and briefly kidnapping at least 20 people in the latest spike of violence between armed groups.
  • Chadian forces have killed 120 militants from Boko Haram in a battle in the north of neighbouring Cameroon that began when the insurgents attacked its troops, the army said in a statement on Saturday, adding that three of its soldiers were killed.
  • Nigerians who fled from Boko Haram fighters have now become a headache for Chadian authorities after seeking safety across the border.
  • Zimbabwean President Robert Mugabe has dismissed concerns that his appointment as new African Union chairman would harm relations between the pan-African bloc and the West.
  • Suspected Boko Haram fighters have launched an offensive against the key Nigerian city of Maiduguri, the largest city in Borno State, witnesses said.

Middle East and Northern Africa

  • At least 10 people have been killed in Yemen over the past four days in attacks led by an al Qaeda’s affiliate against Shi’ite Houthi fighters and the Yemeni army, local officials and the group said.
  • Jordan has vowed to do all it can to save the life of a pilot held by the Islamic State of Iraq and the Levant (ISIL) after the group released a video purportedly showing the killing of Japanese journalist Kenji Goto.
  • A suspected U.S. drone strike on a car in Yemen killed three men believed to be al Qaeda militants on Saturday and possibly another drone crashed in a different part of the country, residents said.
  • The United States and its allies carried out 27 air strikes against Islamic State militants in Iraq and Syria since early Friday, the Combined Joint Task Force leading the operation reported on Saturday.

Asia

Europe

  • Greek Prime Minister Alexis Tsipras has struck a conciliatory note hours before Finance Minister Yanis Varoufakis was due to seek support for a renegotiation of the country’s $270bn bailout in Paris.
  • Artillery attacks on the Ukrainian city of Donetsk killed at least one civilian on Monday while Kiev’s military reported that five more Ukrainian soldiers had been killed in clashes with separatists in the east in the past 24 hours.
  • The Appeals Chamber of the ICTY on Friday upheld genocide convictions [PDF] for Vujadin Popovic and Ljubisa Beara for crimes perpetrated by Bosnian Serb forces during the 1995 Srebrenica massacre.

Americas

Oceania

  • Two Australian citizens are next in line to be executed for drug offences in Indonesia, the Southeast Asian nation’s attorney general said on Monday, in a move likely to strain ties between the neighbors. .

UN/World

Events and Announcements: February 1, 2015

by An Hertogen

Events

  • The Holocaust, Genocide and Human Rights Program at Cardozo School of Law, Jacob Burns Foundation, Rutgers School of Law-Newark, and the Law & Humanities Institute invite you to a symposium at Cardozo School of Law and Rutgers School of Law titled “The Abolition of War” on February 20-21, 2015. More information is here.

Call for Papers

  • The Goettingen Journal of International Law will dedicate Vol. 7 Issue No. 2 to the protection of the atmosphere in international law. The atmosphere is our planet’s largest single natural resource and is vital to the survival of humankind and any life on earth. Therefore, the degradation of the atmosphere’s condition has long been a matter of concern to large segments of the international community. In 2013, the United Nation’s International Law Commission (ILC) took up this issue. Several conventions regulate atmospheric and related issues, yet there is still no coherent legal framework addressing the protection of the atmosphere. The work by the ILC will be the first attempt to derive rules from the current practice of States addressing the atmosphere’s protection. However, the work by the ILC is significantly complicated by the restrained scope of the topic, as the Commission deliberately decided not to deal with, inter alia, questions of liability, the polluter-pays principle, and the principle of precaution. In order to foster and critically accompany the codification and progressive development of the law surrounding the protection of the atmosphere, the Goettingen Journal of International Law, one of Germany’s leading international law publications, will dedicate the second issue of its seventh volume to this topic. The Editors are therefore inviting authors to submit papers on this subject. Submissions from an international law background as well as other disciplines such as international relations, geography, earth sciences, etc. are welcome. Papers will be submitted to a double-blind peer review and should not exceed 15,000 words including footnotes. The deadline for submissions is July 15, 2015. For further information, please contact the Editors at info [at] gojil [dot] eu.

Announcements

  • TDM Journal has issued a special issue on “The Pacific Rim and International Economic Law: Opportunities and Risks of the Pacific Century“. Edited by Mark Feldman (Peking University School of Transnational Law) and Wenhua Shan (Xi’an Jiaotong University) this TDM special addresses key issues facing the Pacific Rim region at a particularly opportune time: a moment when the Pacific Rim region is shaping, to a very significant extent, the international economic law architecture for the 21st century. The special is introduced by J. Christopher Thomas, Q.C.
  • PluriCourts is announcing a position as research professor in political science. More details are available here.

Our previous events and announcements post can be found here. If you would like to post an announcement on Opinio Juris, please contact us with a one-paragraph description of your announcement along with hyperlinks to more information.