Cross-posted at Balkinization

If, as I argued earlier this week, the 2001 AUMF passed by Congress cannot be read to authorize the growing set of U.S. military actions against Syrian and Iranian forces in Syria, does the President’s Article II power standing alone support these strikes? The best articulated argument I’ve seen that the President has the Article II power to attack Syrian aircraft (or Iranian drones or any non-ISIS force in Syria) in the interest of defending U.S.-allied Syrian government rebels goes something like this. The President surely has Article II authority to act in defense of U.S. facilities and troops overseas without first waiting for congressional authorization, a necessary extension of the President’s power (on which there is near uniform agreement) to “repel sudden attacks.” As relevant here, this authority should be understood to extend to the defense of certain organized third parties (whether a state like Britain or our allied non-state Syrian Democratic Forces) operating (as Bobby Chesney puts it) “in close coordination with the U.S. military in a combat setting.” In such a situation, I take the idea to be, our interests are closely enough aligned and our military forces closely enough entangled, that an attack (or threatened attack) on a third party ally is effectively the same as an attack on us.

This ‘third party self-defense’ theory of the scope of Article II power is in one sense quite a bit narrower the currently prevailing position of the Justice Department Office of Legal Counsel – which, under President Obama, took the view that the President has constitutional authority to use military force on his own so long as an important U.S. interest was at stake, and so long as the quantum or nature of contemplated force didn’t actually amount to “war” within the meaning of the Constitution’s “declare war” clause. Under this OLC view – based in part on OLC’s assessment of post-World War II presidential practice – one need not develop any specialized theory of third party self-defense to justify the use of executive power here; the current President could surely assert one of several U.S. concerns in Syria as the important interest at stake (say, protecting the interest of regional stability), and so long as the strikes were limited in scope and duration (i.e. less than “war”), all of these actions could be said to fall within the scope of Article II, whether defense of battlefield allies was among the expressly named interests or not.

Yet there are at least three ways in which this ‘third party defense’ notion may be said to go beyond even the broad 2011 OLC conception of presidential power: (1) I am not aware of any previous practice in which the President has asserted the particular national interest of defending battlefield allies as such as a justification for authorizing the use of force abroad. Now it is surely one of the difficulties with the 2011 OLC opinion that it leaves so open-ended the question of what counts as an national interest sufficiently important for the President to use force, but if we are to take seriously the notion that past practice matters here, it would seem important to identify some at least analogous illustration on which to rely. (2) To the extent past examples of “important” national interests matter, the case for using force to protect a zone in a foreign country within which our own military might train opposition forces strikes me as vastly less impressive than the interest in, say, ridding the world of the scourge of chemical weapons. Indeed, the “de-confliction” zone we are now using force to protect is geographically just over the border from a country (Iraq) in which we have every right (thanks to that nation’s consent) to be operating militarily and, presumably, training anti-ISIL forces all we like. Above all, (3) in the 2011 Libya strike (and almost all previous post-World War II operations), unilateral executive uses of force abroad were taken in concert with UN authorities. For reasons I alluded to briefly in my previous post, both our downing of the Syrian jet and the recent U.S. strikes to preserve its non-state allies’ right to operate in the “de-confliction” zone appear to be in violation of the UN Charter (a treaty we are obligated to observe as supreme law of the land under our own Constitution’s Article VI). Whether one considers that an Article II problem, an Article VI problem, or simply a violation of international law – the United States’ legal position here is as precarious as it gets.

As many readers are probably aware, the ACLU is currently bringing an ATS action against the two psychologists, James Mitchell and John Jessen, who allegedly designed and administered the CIA’s torture program. Here is the ACLU’s summary of the case, Salim v. Mitchell:

The CIA paid the two men and the company they later formed tens of millions of dollars over the next eight years [since 2002] to implement and refine the resulting program. Mitchell and Jessen designed the abusive procedures, conditions, and cruel treatment imposed on captives during their rendition and subsequent detention, devised the torture instruments and protocols, personally tortured detainees, and trained CIA personnel in administering torture techniques. In a clear conflict of interest later acknowledged by the CIA, the two men were also tasked with evaluating the “effectiveness” of the program from which they reaped enormous profits.

The plaintiffs in the case are Suleiman Abdullah Salim, Mohamed Ahmed Ben Soud, and the estate of the late Gul Rahman, who died as a result of his torture. They are three of 119 victims and survivors of the CIA program named in the Senate torture report. All three were experimented on and tortured in accordance with Mitchell and Jessen’s specifications. All were subjected to severe physical and psychological abuse including prolonged sleep deprivation and nudity, starvation, beating, water dousing, and extreme forms of sensory deprivation – methodically administered with the aim of psychologically breaking their will.

The plaintiffs are suing Mitchell and Jessen under the Alien Tort Statute for their commission of torture; cruel, inhuman, and degrading treatment; non-consensual human experimentation; and war crimes.

I am not going to comment on the merits of the case. Instead, I want to let readers know that Opinio Juris bloggers are involved on both sides of it. I am the expert witness for the plaintiffs concerning the human-experimentation claim; Julian is the expert witness for the defendants on both the human-experimentation claim and the torture claim. You can find my declaration here, and Julian’s response here. We have also each submitted rebuttal declarations. Mine is here (scroll down to p. 48); Julian’s is here.

The New York Times published a long article about the case last weekend. It’s well worth a read.

[Luigi Prosperi received his PhD in “International legal order and human rights” from Sapienza University of Rome, honorary fellow in International Law at Sapienza University, formerly Associate Legal Officer at ICTY.]

Last week, the Appeals Chamber (AC) of the ICC unanimously rejected Bosco Ntaganda’s Defence appeal against the 4 January decision of the Trial Chamber VI (TC), which had found that the Court has jurisdiction over the war crimes of rape and sexual slavery (provided for in Article 8(2)(b)(xxii) and 8(2)(e)(vi) of the Statute) when the perpetrators and the victims are members of the same armed force or group.

The decision caused a stir among several prominent ICL experts, and was harshly criticized in this post by Professor Heller. The aim of this post is not so much to respond to their criticisms, but to shed some light on a fundamental step in the AC’s reasoning, which I will refer to as the “systematic argument”. Since the AC’s systematic approach reverberates throughout the decision, in this blog post I will present the arguments in the same order as the judges.

First of all, the AC identifies the scope of the appeal:

16. The principal issue arising in this appeal is whether the Trial Chamber erred in law when it held that victims of the war crimes of rape and sexual slavery listed in article 8(2)(b) and (e) do not have to be “protected persons” in the sense of the Geneva Conventions of 1949 (“Geneva Conventions”) or “[p]ersons taking no active part in the hostilities” in the sense of Common Article 3 to the 1949 Geneva Conventions (“Common Article 3”) (…).

Interestingly, the first argument wielded by the TC against this conclusion had been a systematic one. According to the judges, provided that “the Statute is first and foremost a multilateral treaty which acts as an international criminal code for the parties to it”, in order to determine if the crimes of rape and sexual slavery provided for in Article 8(2)(b)(xxii) and 8(2)(e)(vi) are limited to acts constituting grave breaches of the Geneva Conventions or serious violations of Common Article 3, they have first to consider the “statutory framework”, and then eventually turn to the laws and customs of international and non-international armed conflicts (TC decision, paras. 35-39).

Even though it upholds this systematic argument, the AC does not refer to the TC’s interpretation of the law in this regard, but proposes a different reading. On the one hand, the AC subscribes to the TC’s findings that neither the chapeaux of Article 8(2)(b) or (e), nor the two provisions criminalizing rape and sexual slavery expressly circumscribe the group of potential victims (para. 46), and that only in relation to “other form[s] of sexual violence” the Statute makes an express reference to grave breaches of Geneva Conventions or serious violations of Common Article 3, with the aim of requiring that the unenumerated conducts meet a “gravity threshold” (para. 49). On the other hand, the AC rejects the theory that including the “Status Requirements” would run contrary to the structure of Article 8, and render the world “other” in the chapeaux of Article 8(2)(b) and (e) meaningless (para. 47). It also finds no indications that the drafters intended to avoid any potential overlaps between the different categories of war crimes listed in the sub-paragraphs of Article 8(2) (para. 48).

However, at para. 48 the AC supports one of the TC’s main findings in relation to the structure of Article 8, and holds that:

while the drafting history is silent as to whether the drafters intended the war crimes of rape and sexual slavery under article 8(2)(b)(xxii) and (e)(vi) to be subject to the Status Requirements, it is clear that the drafters intended these crimes to be “distinct war crimes”, as opposed to merely illustrations of grave breaches of the Geneva Conventions or violations of Common Article 3.

Accordingly, the AC concludes that it is not possible to infer that the drafters intended to circumscribe the protection afforded under Article 8(2)(b)(xxii) and (e)(vi) to a particular group of potential victims. Therefore, the TC did not err in law in finding that, based the ordinary meaning, context and drafting history of the above-mentioned provisions, the statutory framework does not require the victims of the crimes of rape and sexual slavery to be “protected persons” in terms of the Geneva Conventions or “persons taking no active part in the hostilities” in terms of Common Article 3 (paras. 50-51).

In other words: given that the Statute is a multilateral treaty which acts as an international criminal code for its parties, the judges are bound to apply its provisions in light of Article 21 and of the rules of treaty interpretation before turning to secondary sources. It is in fact the ordinary meaning to be given to the terms of Article 8(2)(b) and (e) in their context, together with the drafting history of these provisions, that militate in favour of the view that under the Rome Statute, rape and sexual slavery may amount to war crimes when committed against members of the same armed group as their perpetrator.

According to this very principle, the AC has to consider whether any limitations in relation to the Status Requirements may arise from the broader international legal framework.

Pursuant to Article 21 of the Statute, in the absence of any indication to the contrary, the AC considers that the reference to “the established framework of international law” permits recourse to customary and conventional international law “regardless of whether any lacuna exists” in that provisions (para. 53). It is because of this reference (and not in light of a duty to apply Article 8 consistently with pre-existing norms of customary or conventional international humanitarian law) that the Court may introduce additional elements in respect of a given war crime listed in its sub-paragraphs, if required under customary or conventional international law (para. 54).

In relation to the Status Requirements, it should therefore be demonstrated that as a general rule, international humanitarian law circumscribes the group of potential victims of war crimes to persons protected under the Geneva Conventions or persons not taking active part in hostilities under Common Article 3, or that a specific exclusionary rule exists in relation to the war crimes of rape and sexual slavery. In other words, the AC finds that in order to determine that the Court has no jurisdiction over such crimes, it has to be demonstrated that Geneva Conventions and Common Article 3 categorically exclude the members of the same armed group from protection, either in general or in relation to the crimes of rape and sexual slavery.

In this regard, the AC argues that on the one hand, Geneva Conventions I and II respectively afford protection to the wounded and sick on land, and the wounded, sick and shipwrecked at sea, irrespective of their belonging to enemy armed forces or to a party’s own armed forces (para. 59); and on the other, Common Article 3 “provides for unqualified protection against inhumane treatment irrespective of a person’s affiliation” – unless (s)he is taking active part in the hostilities (para. 60).

Moreover, the AC relies upon the updated commentary of the ICRC, which observes that Common Article 3 “protects members of armed forces against violations committed by the armed force to which they belong”, referring as supporting practice to paras. 78-80 of the PTC II decision on the confirmation of charges issued in this very case (para. 61).

Accordingly, the AC finds that “international humanitarian law does not contain a general rule that categorically excludes members of an armed group from protection against crimes committed by members of the same armed group” (para. 63).

As to the argument that an exclusionary rule would be specifically applicable to the war crimes of rape and sexual slavery, the AC upholds the TC’s finding that despite most of the express prohibitions appear in contexts protecting civilians and hors de combat in the power of a party to the conflict, the prohibitions of rape and sexual slavery in armed conflict are well established under conventional (see Article 75 of AP I and Article 4(2)(f) of AP II) and customary international humanitarian law (see Rules 93 and 94 of the ICRC Study on Customary IHL). The AC also agrees that “there is never a justification to engage in sexual violence against any person” in the context of armed conflicts (para. 65). Therefore, the AC concludes that there is “no reason to introduce Status Requirements” to Article 8(2)(b)(xxii) and 8(2)(e)(vi) of the Statute “on the basis of the ‘established framework of international law’ ” (para. 66).

This is indeed the only part of the decision which I find slightly disappointing, since it could have been based on a more solid reasoning.

In particular, having taken a strong stance on the Rome Statute’s nature, I would expect the AC to thoroughly apply the rules on interpretation, as provided for in Article 21. Pursuant to Article 21(3) of the Rome Statute and Article 31(1) of the Vienna Convention on the Law of Treaties, Article 8 shall in fact be interpreted also in light of “internationally recognized human rights” and of the object and purpose of the Rome Statute – or, as the Prosecution had put it before the PTC, pursuant to “a purposive or teleological interpretation of article 8(2)(e)(vi), consistent with the protective rules applicable to children during warfare” (Prosecution submissions, para. 183).

Indeed, I find it somehow disappointing that the AC did not refer to the Statute’s object and scope (to fight impunity “for the sake of present and future generations”), nor to the “internationally recognized human rights” – including everybody’s right not to be victim of rape and sexual slavery. In this spirit, it is of the utmost relevance the fact that under international human rights law, there is never a justification to engage in sexual violence against any person, irrespective of this person’s status.

Moreover, the AC may have held that the Court should especially exercise its jurisdiction over rape and sexual slavery committed against members of the same armed group, when such status had been determined by the perpetrator’s unlawful conduct. In this regard, the AC could have enhanced the TC’s references to the duty not to recognise situations created by certain serious breaches of international law, and to the principle that one cannot benefit from one own’s unlawful conduct (TC decision, para. 53). These considerations may in fact contribute to defining, in the specific circumstances of the case, the “purpose” of fighting against impunity (of individuals that had enlisted the same underage kids they would abuse of).

In other words: provided that international humanitarian law does not generally and categorically prohibit the prosecution of those conducts, it is the evolutionary nature of the Rome Statute, which should at any time be interpreted in light of international human rights law, to justify the adoption of the broadest possible interpretation of Article 8(2)(b)(xxii) and 8(2)(e)(vi).

In order to prevent a likely objection in relation to the (unwanted) effects of this decision, in the final paragraphs the AC underlines that it does not blur in any way the distinction between war crimes and ordinary crimes:

68. The Appeals Chamber emphasises in this context that the Elements of Crime for each war crime contain an express nexus requirement which must be established in each particular instance. Thus, it must be established that the conduct in question “took place in the context of and was associated with an armed conflict” of either international or non-international character. In the view of the Appeals Chamber, it is this nexus requirement, and not the purported Status Requirement, that sufficiently and appropriately delineates war crimes from ordinary crimes. To that end, as rightly observed in the Impugned Decision with reference to the judgment of the ICTY Appeals Chamber in Kunarac, the Trial Chamber may have regard, inter alia, to “the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator’s official duties.” The Appeals Chamber considers that any undue expansion of the reach of the law of war crimes can be effectively prevented by a rigorous application of the nexus requirement.

According to the AC, any undue expansion of the reach of the law of war crimes may in fact be prevented by a rigorous application of the principles concerning the nexus requirement. It is in fact the absence of a link to the armed conflict situation (which according to the same Kuranac AC consists in the fact that the crime “is shaped by or dependent upon” the armed conflict) that would put hundreds of potential war crimes (of rape and sexual slavery) back into Pandora’s box.

Finally, a further consideration has to be made in relation to the impact of this decision.

Considering that it is jurisdictional in nature, and that the ICC judges are not bound by a principle of precedent, it is foreseeable that the saga is far from over. In the meantime, it is noteworthy that Prosecution witnesses have testified about the child soldiers’ status and their participation to the UPC military operations.

Cross-posted at Balkinization

Because it’s too easy for our growing war in Syria to get lost amidst other also-pressing news, I want to be sure to note that last week ended with the Senate Foreign Relations Committee formally requesting the Trump Administration’s legal justification for a growing set of clashes between the U.S. military and armed forces allied with Syrian President Bashar Assad. The U.S. military has of course been engaged in anti-ISIL operations in Syria since 2014. But this recent violence – including the incident last week in which the U.S. military shot down a Syrian jet it said was firing on U.S.-allied non-state forces on the ground, as well as multiple U.S. efforts to defend its creation of a “de-confliction zone,” an area in Syria surrounding a garrison used by U.S. Special Forces to train partner forces there – involves the United States far more directly in state-to-state conflict with Syria (and its allies, Iran and Russia) than we have previously undertaken. Apart from the mammoth policy implications of this kind of escalation, it is far from clear what domestic legal authority supports it. In this post, I’ll address the notion that an existing statute authorizes these operations. In a later post, I’ll take up the suggestion the President’s inherent power under Article II of the Constitution does the job.

One possibility the Administration has advanced to justify its recent conduct is that the anti-Syria actions are (at least implicitly) authorized by the 2001 authorization for the use of military force (AUMF), which gave the President the power to use “all necessary and appropriate force” against those nations, organizations or persons he determines were responsible for the attacks of September 11. The Obama Administration indeed relied on the 2001 AUMF for its operations against ISIL in Syria. And while many of us have written critically (e.g. here) about the plausibility of relying on a 2001 AUMF to attack a group that did not come into existence until years after 2001 (and is indeed today the sworn enemy of the group, Al Qaeda, that all agree was responsible for the attacks of 2001), we might just for a moment set those arguments aside to consider the new claim on its own. The new claim is that to the extent the AUMF supports U.S. operations in Syria at all, it surely also must include the implied authority to defend U.S. forces operating there against whomever might subject them to attack.

The notion that the AUMF contains some implied authority for U.S. troops engaged in operations under its auspices to defend themselves against foreign attack is in one sense entirely plausible. If, as the Supreme Court held in 2004’s Hamdi v. Rumsfeld, the AUMF contains the implied authority to detain war prisoners under its auspices because such detention was a recognized incident of the use of force under international law, then surely self-defense of one’s own forces (at least to the extent permitted by international law) should also be within the realm of implied statutory authority. The problem is, U.S. self-defense is not what most (or maybe all) of these recent incidents have involved. (For a nice list of recent actions in Syria, see here.) By the United States’ own account, the Syrian SU-22 we shot down last week was firing on local anti-Assad fighters the United States supports, but there was no indication U.S. forces themselves were remotely at risk. CENTCOM rather explained that the move was in “collective self-defense” of coalition-partnered forces – a concept that appears pulled from Article 51 of the UN Charter (to which the United States is of course party) providing in relevant part: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.” Even if one were to assume the text of the AUMF should be interpreted with guidance from relevant international law, Article 51 by its terms limits the right of “collective” self-defense to UN member states. Local anti-Assad forces, whatever their merits, aren’t states. More, especially to the extent that what we are doing in establishing our “de-confliction zone” is effectively seizing an area inside Syrian territory for our use and defending it from incursion by Syrian or other forces, we are not engaging in defense (self or otherwise) at all, but rather in the partial armed occupation of another country – which is, without putting too fine a point on it here, the opposite of a recognized incident of force under international law.

So what about finding a relevant implied authority in the AUMF under other principles of statutory interpretation? Ignore international law for a moment – could the AUMF be read based on its text, context or legislative history to authorize the military operations we’ve carried out against Syria and Iran on behalf of anti-ISIL allies here? To pursue this theory, it is impossible to look just at the Administration’s latest interpretive move, but rather at the set of inferences one would have to draw from the AUMF itself. For buying the notion that the 2001 AUMF authorizes U.S. bombing of Syrian aircraft or Syrian-allied forces in Syria in all the circumstances we have in recent weeks requires us to embrace not just one dicey inference, but three: (1) that a statute limited by its text to authorizing force against the groups that attacked us in 2001 extends to a group that did not exist in 2001 (and is itself at war with the group that did attack us in 2001); (2) that the statute includes some implied authority to defend our own forces from attack not only against those nations and organizations the statute authorizes us to fight, but as against any nations and organizations anywhere worldwide our AUMF operations, whether or not our assertion of self-defense complies with international law; and (3) that statute further authorizes us to “defend” any local group with which we might ally in the course of global AUMF operations – up to and including apparently excluding a sovereign state from its own territory for the purpose of carving out some training space for the local group.

It is, to put it mildly, implausible that the Congress that passed the 2001 AUMF thought it was authorizing all this. The textual limitation of the 2001 AUMF to the groups responsible for the attacks of 9/11; the Charming Betsy canon of interpretation and others that would favor reading a statute to accord with our binding treaty obligations where possible; and the total absence in legislative history of any intention to authorize force against Syria and Iran – all weigh against any such construction. Which leaves us, alas, with the President’s power under Article II of the Constitution. I’ll pick up in a future post there.

[Charu Lata Hogg is the Director of the All Survivors Project at the UCLA School of Law and an Associate Fellow, Asia Program, Chatham House. This post is based on primary research conducted by Mirak Raheem, Deanne Uyangoda and Marisa De’Silva in Sri Lanka.]

Eight years since Sri Lanka’s nearly three-decade conflict came to a brutal end following the defeat of the Liberation Tigers of Tamil Eelam, the country is still coming to grips with the legacy of massive human rights violations committed by all sides. Egregious abuses by state security forces and armed groups also took place during other insurgencies in Sri Lanka, specifically during the armed insurrections in the south by the Marxist Janatha Vimukthi Peramuna (JVP) first in 1971 and then 1987-1989. However, sexual violence against men and boys, particularly in the context of detention under a previous infamous security legislation, has only recently begun to be recognised as among the numerous abuses that have taken place within the context of the armed conflict. A proposed Counter Terrorism Act (CTA) which is awaiting Parliamentary approval threatens to continue prolonged detention without charge. If approved this counter-terrorism bill could continue to facilitate human rights abuses in detention.

A 2015 report resulting from UN investigations concluded that men were as likely to be victims of sexual violence as women within the context of detention (The investigations were mandated by the Human Rights Council (Resolution 25/1) to investigate allegations of violations of international law following the breakdown of the 2002 Ceasefire Agreement to the end of the conflict. See, Report of the Office of the High Commissioner for Human Rights Investigation on Sri Lanka (OISL)), but the issue remains largely hidden and stigmatized. At the core of this silence is the lack of legal protection for men and boys against sexual violence which informs social attitudes and contributes to an environment in which violations can take place with virtual impunity. In addition to law reform, a fundamental gap in knowledge and expertise on preventing, investigating and responding to sexual violence constitutes a significant barrier. Training of all relevant government, official and professional stakeholders including members of law enforcement and security forces, the judiciary, national human rights institutions, medical and mental health professionals and humanitarian workers could provide a crucial first step.

In numerous cases of sexual violence against men and boys documented by the UN and other international organisations, victims were detained under the 1979 Prevention of Terrorism Act (PTA) which has been widely used to detain LTTE suspects and under which many fundamental rights and guarantees to protect detainees are suspended. There have been repeated calls for its repeal and the new government which came into power in 2015 has promised to do so. Yet, the PTA remains on the statute books and continues to be applied, permitting the administrative detention for up to 18 months with only limited judicial supervision, irregular access to legal representation, and without the possibility of challenging the legality of detention. The PTA also creates an environment in which forced confessions are effectively encouraged by permitting statements made to police officers at any time while in custody to be admitted in court as evidence, with the burden placed on the accused to prove that the confession was extracted under duress.

A complex set of factors prohibit male victims of sexual violence in Sri Lanka from coming forward to report this violation. But even if they did, Sri Lanka does not recognise the possibility of male rape under the law. Rather men are defined only as perpetrators of rape. Article 363 of the Penal Code states “a man is said to commit rape who has sexual intercourse with a woman under any of the following descriptions…” (See Section 363 of the Penal Code (Ordinance No. 2 of 1883 as amended). Similarly, the prohibition of statutory rape applies only to girls under the age of 16 years and not to boys (Section 363(e) of the Penal Code in describing conditions for statutory rape refers to “…with or without her consent when she is under sixteen years of age).) Similarly, the prohibition of statutory rape applies only to girls (under the age of 16 years) and not to boys (Section 363(e) in describing conditions for statutory rape refers to “…with or without her consent when she is under sixteen years of age” [emphasis added]). Other provisions under the Penal Code mischaracterize or define sexual violence in a way that they do not reflect the lived experience of survivors, are inconsistent with the more inclusive, gender-neutral definitions under international law, or are otherwise inadequate for prosecuting sexual violence against males.

This legal discrimination against men and boys which is so acutely reflected in Sri Lankan law also permeates other institutions and sectors and contributes to the pervasive lack of medical, counselling and other support services available to male survivors. While services for women are equally inadequate, increased attention on this issue during the post-war phase has triggered a recognition of this issue which remains entirely absent in the case of male survivors. Some medical teaching institutions continue to put forward the understanding that only women can be raped and do not recognise the rape of men. Other representatives of the humanitarian community have admitted to All Survivors Project that sexual violence against men is neither monitored nor responded to during the conflict or outside of it. Added to this is the widespread discrimination against homosexuals which is prescribed in law and the criminalization of consensual same sex acts which may also discourage male survivors from reporting or accessing services for fear that they may be accused of homosexual activity. Specifically, Sections 365 and 365A criminalize certain homosexual acts categorizing them as ‘unnatural offences’. These provisions have been used to persecute members of the LGBTIQ community and serve to reinforce discriminatory gender stereotypes.

During our research, (more…)

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.

[Kinga Tibori-Szabó is the author of the monograph Anticipatory Action in Self-Defence, which won the 2012 Francis Lieber Prize. She currently works at the Kosovo Specialist Chambers. The views expressed herein are those of the author and do not necessarily reflect the views of the employing organization.]

On 18 June 2017, a US Navy Super Hornet shot down an SU-22 fighter jet of the Syrian government south of Tabqah, in Syria. The US-led anti-ISIS Coalition’s statement indicated that the Syrian fighter jet was shot down after it dropped bombs near Syrian Democratic Forces (SDF) positions in the area. The Coalition statement averred that the action was taken

“in accordance with rules of engagement and in collective self-defense of Coalition partnered forces”.

Let’s analyse that statement. The action seems to have been a standard exercise of unit self-defence, a tactical level application of national or collective self-defence. It allows commanders to defend their unit, other units of their armed forces as well as other specified units (friendly forces) against hostile acts or hostile intent (see annex D of the San Remo Rules of Engagement (ROE) Handbook). But as aptly discussed in a post on Opinio Juris, unit self-defence should be viewed as a ROE concept that has underlying legal consequences but is not a legal term in and of itself. So the fact that the downing of the Syrian aircraft was in accordance with ROE does not answer the question of its legal basis in jus ad bellum. That brings us to the second part of the statement, the reference to collective self-defence.

According to the statement, the Coalition acted in collective self-defence to protect the SDF against an attack by the Syrian regime without itself seeking to fight that regime.

First, a few points need to be made regarding the reference to collective self-defence to underline that the Coalition does not seek to fight the Syrian regime.

• The jus ad bellum basis of Coalition actions on Syrian territory has attracted criticism because of reliance on a controversial interpretation of collective self-defence. In a nutshell, the request of Iraq for the assistance of the international community to fight ISIS was interpreted as a legal basis for the exercise of collective self-defence not only on the territory of Iraq, but also on the territory of Syria (see opinions on this here, here and here)
• Be that as it may, the Coalition has repeatedly emphasized and the quoted statement expressly states that “[t]he Coalition does not seek to fight [the] Syrian regime”. This cautious approach was somewhat overshadowed by the evident US support for ‘vetted Syrian opposition forces’, but until recently, the US and its Coalition partners had avoided direct confrontations with the Syrian regime. However, the US strikes against the Syrian airbase in early April amounted to use of force against the Syrian regime and have initiated an international armed conflict between the two states in the sense of Common Article 2. The downing of an Iranian UAV in early June and of a second one two days after the shooting of the Syrian aircraft made it clear that these confrontations are no longer isolated incidents, but clashes in the context of an international armed conflict between Syria and the leader of the Coalition (US).
• Nonetheless, the existence of an armed conflict between the US and Syria is a separate issue from the question whether (collective) self-defence can be invoked by the Coalition as a justification for some of the clashes within the context of that armed conflict. Simply put, the invocation of collective self-defence in the Coalition statement does not protect the US from the obvious: that it is now in armed conflict with the Syrian regime and potentially with its allies.

Second, the exercise of collective self-defence requires, in addition to the core conditions of self-defence, at least a request for assistance from a state. This is unsurprising, as the right of self-defence enshrined in Article 51 of the UN Charter pertains to states rather than armed groups. While it is widely accepted that an armed attack may be carried out by an armed group and self-defence may be exercised against such a group, the possibility of armed groups having the right to invoke self-defence is not contemplated. Nonetheless, it seems that the Coalition invoked collective self-defence to protect a ‘friendly’ armed group notwithstanding the fact that such a group does not have the right to invoke self-defence in the first place and request assistance on that basis. The question thus arises whether there is room for an expansive view on the right of self-defence permitting a state to invoke ‘collective’ self-defence on behalf of an armed group and assist the group on that basis. The wording of Article 51 of the UN Charter leads to a prima facie negative answer. Nonetheless, the proliferation of conflicts involving armed groups and the current reality of states defending such groups without themselves being the target of the same attack may bring this question to the fore and further complicate the interpretation and application of self-defence in relation to non-state actors.

I’ve got a new draft article up on SSRN (you can download it here) entitled China and the U.S. Strategic Construction of Cybernorms: the Process is the Product.  It was written for a really great inter-disciplinary workshop held at Stanford Law School earlier this Spring by the Hoover Institution’s National Security, Technology and Law Working Group (which is chaired by Ben Wittes and Jack Goldsmith). The article will be published shortly in Aegis, the Hoover Institution’s Paper Series with some cross-linking on Lawfare (Hoover already has one of the Workshop’s other papers posted – a great piece by by Adam Segal on Chinese Cyber Diplomacy).

In the meantime, here’s my abstract:

This paper explores the role norms—shared expectations about appropriate behavior within a given community—play in advancing U.S. interests in changing Chinese behavior in cyberspace. It focuses on two recent normative achievements: (1) the U.N. Group of Governmental Experts’ consensus that international law applies in cyberspace; and (2) the U.S.-China understanding that neither State would pursue cyber-espionage for commercial advantages. To date, both agreements have been studied largely in terms of their contents – on what they say.

In contrast, this paper undertakes a broader, process-based analysis of U.S. efforts to generate cybernorms. It compares and contrasts the two projects by examining (a) their respective normative ingredients (i.e., the type of desired behavior, the identity of the group subject to the norm, the source of the norm’s propriety, and the extent of any shared expectations); (b) where the norm promotion occurred (i.e., grafted onto an existing institution or deployed in a newly established process); and (c) the choice of mechanisms—incentives, persuasion, socialization—by which the United States sought to develop and evolve each norm. Doing so reveals a diverse range of choices that offers a new lens for analyzing and assessing how cybernorms may emerge (or change) in a global, dynamic and pluralistic environment. As such, this paper provides a framework for strategizing about the potential risks and rewards of pursuing different normative processes, whether in U.S. efforts to impact China’s behavior in cyberspace or vice-versa. States and scholars would thus do well to assess current and future efforts to construct cybernorms with China and other States by looking at not just one, but all the aspects of normative processes.

As always, comments and feedback are most welcome.

Longtime readers of this blog may have noticed that one of my pet peeves is the incorrect usage of international legal terms in public and diplomatic discourse.  Hence, Israel did NOT commit “piracy” during the 2010 Gaza flotilla raid despite lots of governments claiming otherwise.  Cuba is not under a “blockade” despite tons of Cuban government propaganda otherwise. So you can imagine my dismay when U.S. Secretary of State Rex Tillerson issued this statement yesterday calling the situation in Qatar a “blockade.”

We call on the Kingdom of Saudi Arabia, the United Arab Emirates, Bahrain, and Egypt to ease the blockade against Qatar. There are humanitarian consequences to this blockade.

(Emphasis added). Global media is using the term  “blockade” as well.

I don’t doubt that Qatar is under severe economic pressure.  It is reported that all of Qatar’s neighbors in the Gulf have cut off air, land and sea trade with Qatar.  Saudi Arabia has blocked the only land border into Qatar, which is a peninsula.  But as powerful as these economic pressures are, they do NOT constitute a blockade as defined by international law.  As this definition from the Max Planck Institute Encyclopedia of Public Law explains:

1  A blockade is a belligerent operation to prevent vessels and/or aircraft of all nations, enemy and neutral from entering or exiting specified ports, airports, or coastal areas belonging to, occupied by, or under the control of an enemy nation.

There is no evidence, as far as I know, that Saudi Arabia and other Gulf nations are preventing “vessels and/or aircraft of all nations” from entering Qatar ports.  Instead, the Gulf nations are simply preventing anyone in their territories from traveling to or trading with Qatar.  A blockade would mean that the Gulf nations actually used military force to interdict all shipping and flights into Qatar by any nation and through international waters.  Israel has essentially established such a blockade of the Gaza Strip, but that has not happened to Qatar (yet). Until that happens, there is no blockade.

Why is it so shocking that Secretary Tillerson did not recognize this legal distinction? Because the U.S. frequently engages in economic sanctions of the sort currently being imposed against Qatar.  The U.S. has either strict economic sanctions or full-scale embargoes on countries like North Korea, Cuba, and Iran.  Cuba in particular has tried to label the US embargo on it as a “blockade” even though the U.S. does not use military force to prevent other countries from trading with Cuba. The U.S. should not and cannot water down the legal definition of “blockade” without imperiling an crucial tool in its diplomatic toolbox.   Moreover, since “blockades” are traditionally seen as an “act of war,” they would probably constitute a “use of force” under Article 2(4) of the U.N. Charter.  The U.S., more than any country, should want to maintain the legal right to impose embargoes.

So please, Secretary Tillerson, consult your many talented and knowledge State Department lawyers.  Qatar is NOT being blockaded, and the U.S. (of all countries) should avoid saying so.

Distracted by #ComeyDay and other international crises, I missed this recent U.S. federal court decision in Sexual Minorities of Uganda v. Lively, dismissing an Alien Tort Statute lawsuit on Kiobel extra-territoriality grounds.  While using unusually critical language to denounce U.S. pastor-defendant Scott Lively’s involvement in Uganda’s anti-homosexual laws and actions, the U.S. District Court for Massachusetts held:

…Defendant’s status as an American citizen and his physical presence in the United States is clearly not enough under controlling authority to support ATS extraterritorial jurisdiction. The sporadic trail of emails sent by Defendant to Uganda does not add enough to the record to demonstrate that Plaintiff’s claims “touch and concern the territory of the United States . . with sufficient force to displace the presumption against extraterritorial application.” Kiobel, 133 S. Ct. at 1669.

What is notable about this case is that the same court and judge refused to dismiss this case on Kiobel grounds back in 2013 with largely the same allegations. The main difference with the result in 2017 seems to be that discovery revealed that Lively, the U.S. pastor, did not provide any

financial backing to the detestable campaign in Uganda, he directed no physical violence, he hired no employees, and he provided no supplies or other material support. His most significant efforts on behalf of the campaign occurred within Uganda: itself, when he appeared at conferences, meetings, and media events.

On these facts, this seems like the right result.  Kiobel requires something more than communications from the United States to “displace the presumption against extraterritoriality.” But caselaw continues to be a little muddy and I fully expect this to be appealed.