Recent Posts

Is Violating “Serious Obligations” of the INF Treaty the same as its “Material Breach”?

by Duncan Hollis

A few hours ago, the NY Times broke a story that the United States views Russian tests of a ground-launched missile as violating the 1987 INF treaty, formally (and lengthily) titled, “The Treaty Between The United States Of America And The Union Of Soviet Socialist Republics On The Elimination Of Their Intermediate-Range And Shorter-Range Missiles”.  According to the story, the State Department will publicly issue a report that says, among other things:

The United States has determined that the Russian Federation is in violation of its obligations under the I.N.F. treaty not to possess, produce or flight test a ground launched cruise missile (GLCM) with a range capability of 500 kilometers to 5,500 kilometers or to possess or produce launchers of such missiles,”

In addition, President Obama has notified Russian President Putin of the U.S. charges in a letter delivered today.

The U.S. move adds a new brick to the wall of tensions building in the U.S.-Russian relationship (others include Crimea, Russian support for Eastern Ukrainian separatists, the MH17 tragedy, not to mention Edward Snowden’s continuing presence in Moscow).  I assume the timing of the U.S. accusations is no accident.  Moreover, I find it interesting that in so many of these recent crises with Russia, the United States has consistently relied on law and legal argumentation to push against Russia’s actions (or inaction).  This case may be the most extreme example of such an approach since the issue here is entirely one of international law and treaty interpretation.  As such, it’s very much in the wheelhouse of Opinio Juris and its readers. I thought I’d start the conversation with a few preliminary thoughts (emphasis on the “preliminary” since we don’t have too many details to go on as yet).

For starters, the precise language used to describe Russia’s tests — a violation of its obligations under the I.N.F. Treaty” — appears quite significant (especially where it comes after reportedly extensive deliberation). Certainly, the concept of a violation is easy to grasp and has important political implications. For treaty lawyers, however, the term “violation” is not the language we’d expect to see where there’s non-compliance with a treaty’s terms. The Vienna Convention on the Law of Treaties (VCLT), which sets the customary international law rules in these cases, describes violations in terms of a treaty’s “breach”  More specifically, it articulates a set of remedies where breaches are “material” (see VCLT Article 60 here).  In this case, however, that key adjective — “material” — is nowhere to be found, suggesting the United States is not looking to invoke this VCLT provision.  But even if it were, in a move that has stumped generations of international law students, the VCLT’s remedies for a treaty’s material breach are quite limited — they entitle the non-breaching party to suspend or terminate its own obligations under the treaty in whole or in part (the VCLT also adds some procedural hurdles but these are largely ignored in State practice). Of course, there’s no evidence suggesting that the U.S. has any intention of suspending or terminating the INF Treaty; on the contrary, U.S. interests seem to lie squarely on keeping Russia obligated by the treaty as long as possible and forestalling any Russian move to withdraw from the INF Treaty (which Article XV allows it to do).  Simply put, the United States does not appear to consider Russia’s behavior as a material breach of the INF treaty nor want the remedies that label conveys; such a path would actually undercut the stability of the INF treaty’s continued performance for which the United States is pushing.

Second, just because the VCLT remedies are undesirable does not foreclose the United States from all legal leverage in this case. By using the term “violation . . . of obligations” the United States may be invoking a different set of international law rules … those of State responsibility.  Although the United States has been ambivalent to the UN’s Draft Articles on State Responsibility, those articles elaborate a detailed sets of obligations, rights and remedies where a State commits an internationally wrongful act (defined to include a breach of treaty obligations).  The offending State is required to cease (and not repeat) non-compliant behavior and the injured State(s) may engage in “counter-measures” to induce such a return to compliance. These counter-measures may include behavior previously categorized as a retorsion (lawful behavior such as canceling foreign assistance done in response to a prior breach) and a reprisal (behavior that would be unlawful but for the existence of the prior breach).  At present, the types of U.S. responses on offer described in Michael Gordon’s story are likely retorsions, but I assume other measures, including reprisals, could follow if Russia does not respond appropriately.

Taken together, these moves lend support to Bruno Simma and Christian Tams argument in my book that the law of state responsibility has proven more attractive to States than the VCLT’s remedies for treaty breach. That said, I do not mean to suggest that the VCLT is entirely irrelevant to this case.  On the contrary, its provisions on interpretation (Articles 31-33) are likely central to the U.S. claim of a Russian violation.  What’s more, I’d expect Russia to offer its own interpretation to the contrary employing the same interpretative framework (not to mention counter-claims of U.S. violations as described in tonight’s story).

All in all, there’s quite a bit here that should be of interest not just to those who care about arms control and nonproliferation, but international law and international relations more generally.  I’d be interested to hear what others think the U.S. claim suggests and how you see things playing out? Comments welcome.

Weekly News Wrap: Tuesday, July 1, 2014

by Jessica Dorsey

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

Africa

Asia

Europe

Middle East and Northern Africa

Americas

UN/Other

Canada Citizenship-Stripping Law (Probably) Violates International Law

by Peter Spiro

Canada last week enacted a major amendment (Bill C-24) to its citizenship law. As a general matter it makes citizenship harder to get and easier to lose. Residency periods for naturalization are lengthened and physical presence requirements toughened up, English and civics tests will apply more broadly, and naturalization fees are tripled. This on top of the elimination of the “golden visa” program through which many (mostly Chinese) secured permanent residence through investment. These moves are all well within Canada’s sovereign discretion over its citizenship practices (whether they are good policy or not is another question – for an excellent critical analysis, see this from the Canadian Association of Refugee Lawyers).

But there are two provisions are at least problematic and may violate international human rights.

1. Naturalization applicants will now need demonstrate an intent to reside in Canada after naturalization. This is a response to the phenomenon of “naturalization as exit strategy” — one we are seeing in the U.S. as well. A growing number of long-term permanent residents are naturalizing only once they want to go back home to their countries of origin. With Canadian citizenship, they know they can freely travel back to Canada to visit friends and relatives, and perhaps also to take advantage of the social welfare net (remember: Canada has universal health care). Acquiring citizenship becomes a kind of insurance. This template for naturalization is the opposite of the traditional sequence, in which naturalization is the final act of commitment to the new community. The amendment means to end it.

Some fear that the new requirement will be used to de-naturalize anyone who moves abroad after naturalization (on the theory of fraudulent intent), and in any event the requirement is likely to have a chilling effect on those who would like to. It discriminates against naturalized citizens, since native-born Canadians are free to leave the country and keep their citizenship in the process. That’s in tension with an emerging norm under which naturalized and native born citizens should be equal before the law (see for example article 5(2) of the European Convention on Nationality).

Key to how this plays out: whether it is enforced (one can imagine not at all — in the way that the naturalized U.S. citizens are never held to the renunciation oath).

2. The government gets the power to strip individuals for convictions relating to treason, spying, or terrorism. Here Canada follows a British lead. But the Canadian measure may be the more problematic. The British law extends a very broad power to the Home Secretary to revoke citizenship where it is “seriously prejudicial to the vital interests of the United Kingdom.” That would seem worse than the Canadian approach, which at least requires a conviction. But because it requires a conviction, the Canadian measure is more clearly penal — expatriation is tied to the criminal activity. The result looks like banishment. The U.S. Supreme Court long ago found the penal use of expatriation to violate the constitution, in a 1958 decision (Trop v. Dulles) that drew extensively on international law norms prevailing even in the mid-twentieth century against the penal use of expatriation.

Moreover, this ground of revocation discriminates against dual citizens. The law does not apply where it would result in statelessness, so mono-nationals are insulated. This argument has had some traction against the UK measure, which until recently at least also discriminated against dual citizens. To the extent that maintenance of dual citizenship is framed as a human right, the new Canadian law burdens it.

Both elements are already being challenged in Canadian courts. It will be interesting to see whether international law enters into the constitutional equation. In any case forgive me for suffering just a touch of legal schadenfreude in seeing our usually internationally law-abiding northern neighbor push the envelope much harder than we are. This is one context in which the U.S. probably has it right in keeping expatriation out of the counterterror mix.

Events and Announcements: June 29, 2014

by An Hertogen

Call for papers

  • Professor Julian Killingley and Dr Jon Yorke are calling for contributions to a new volume on “International Law and American Exceptionalism“, to be published in the Ashgate Series: Controversies in American Constitutional Law. This edited collection engages with the controversies surrounding the relationship of international law and American domestic law. It deals with a variety of approaches to the use/restriction/rejection of international law by Congress and the American courts through engaging with international legislation (in both “hard” and “soft” forms) and the increasingly important discourse on international judicial dialogue. The collection will bring together scholarship from different disciplines in analysing this issue, and we encourage contributions from both sides of the American political spectrum. We want to provide a platform for both conservative and liberal approaches to the issue of the utility of international law. The critique supplied can be multidisciplinary, including: legal, sociological, political, psychological and philosophical enquiry. More information is here.

Announcements

  • OGEL has published a new issue, as special on Governance of Unconventional Gas Outside the United States of America. Interested readers can find the editorial and abstracts of the papers here.

Last week’s events and announcements 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.

Milestone: The EU Signs Association Agreements with Ukraine, Moldova, and Georgia

by Chris Borgen

On Friday, Ukraine, Moldova, and Georgia signed the Association Agreements with the European Union that have been at the center of so much controversy among Russia, the EU, and these states. Preventing Ukraine, Moldova and Georgia from signing these agreements had become an important foreign policy goal for Moscow (see, for example: 1, 2, 3) after significant pressure, and perhaps some incentives, from Moscow, former Ukrainian President Yanukovich’s decided at the last minute not to sign the agreement at the EU’s summit in Vilnius in November precipitated the demonstrations that began in Kiev. Those were followed by Yanukovich fleeing, Russia’s intervention in and annexation of Crimea, and the ongoing tensions over the future of Ukraine. Moldova and Georgia have also faced threats of economic and/or energy embargoes as well as the ongoing Russia-backed separatist issues in Transnistria, South Ossetia, and Abkhazia.

After the diplomatic disputes and the pipeline politics, the secessionist movements and Russian military incursions, Maidan Square and Crimean annexation, the signing of these treaties are a significant milestone, and hopefully a turning point. Ukraine, Moldova, and Georgia are committing themselves to a path of greater economic and normative integration with the EU. The EU is committing itself to allowing market access to the EU; more generally, the EU will likely become increasingly involved the in the internal policies of these countries, although they are not member states.

What is clear is that this is a significant moment, President Poroshenko of Ukraine called it the most important moment for his country since the dissolution of the Soviet Union. What is not yet clear is how relations with Russia will evolve from this point. Here are some issues to consider… (more…)

Weekend Roundup: June 14-27, 2014

by An Hertogen

This fortnight on Opinio Juris, Kevin and Deborah discussed the OLC’s legal justification of the killing of Anwar al-Awlaki, which Kevin called murder. Kevin then replied to a response by Jamie Orr on the issue of the CIA’s entitlement to invoke the public authority justification. Deborah analysed what procedural protection the Fifth Amendment requires before a citizens can be targeted and discussed the key legal limits on the scope of U.S. targeting authority identified in the memo.

Kevin posted how US drone strikes now also target citizens of US allies, as witnessed by the recent killings of two Australian citizens. More Australians made the blog, as Kevin wrote about Tony Abbott’s mistaken belief that the rule of law would be observed in Egypt’s prosecution of Peter Greste, the Australian Al-Jazeera journalist, and his colleagues.

Kevin also analysed the US self-defence argument in relation to the killing of Abu Khattallah, discussed Fatou Bensouda’s request for the UNSC to investigate the role of UN peacekeepers in covering up crimes in Darfur, and drew our attention to Charles Taylor’s detention situation in the UK, as discussed in his request to be transferred to a prison in Rwanda. Finally, he asked readers for insights on the OTP’s motivations when dropping its appeal against Katanga.

Deborah discussed potential international law obstacles against US airstrikes in Iraq, even at the request of the Iraqi government.

Lest you think this blog has become the Kevin and Deborah show, Kristen wrote about the relevance of Security Council acts for the formation of customary international law.

As always, we listed events and announcements (1, 2) and Jessica wrapped up the news. For those of you in the UK, you can see Kevin in action on Monday night during a LSE roundtable on Syria and international justice.

Have a nice weekend!

Why Did Katanga Drop His Appeal? And Why Did the OTP?

by Kevin Jon Heller

Many people are surprised that Germain Katanga has dropped his appeal, particularly given Judge Van den Wyngaert’s savage dissent. I’m not surprised in the least, because it locks in his sentence, which the OTP planned to appeal. Katanga’s 12-year sentence is even shorter than Lubanga’s, and he has already spent seven years in pre-trial detention. In fact, he’ll be eligible for sentence review in little more than a year.

To be sure, if Katanga thought he had a good chance of overturning his conviction on appeal, I’m sure he would have rolled the dice. But I think his assessment of that likelihood was spot-on. As I’ve noted before, the verdict was a disaster for the OTP — had the Trial Chamber majority not appointed itself backup prosecutors, Katanga would have walked. And despite Judge Van den Wyngaert’s impressive dissent, the Appeals Chamber was very unlikely to disapprove of the Trial Chamber’s unfair use of Regulation 55. After all, the Appeals Chamber has already issued two horrible decisions affirming its applicability.

The big question in my mind is why the OTP agreed to drop its appeal, which was obviously part of a quid pro quo. Unlike Katanga, the OTP had little to lose by appealing — there is no way the Appeals Chamber would have reduced Katanga’s sentence, and for the reasons above it’s equally unlikely it would have overturned his conviction.

If any readers know — or can intelligently speculate about — the OTP’s motivations, please weigh in below.

Are Security Council acts relevant to the formation of Customary International Law?

by Kristen Boon

Just like General Assembly resolutions can be indicative of state practice and opinio juris, I have always assumed that acts of the Security Council – an organ of the UN, composed of states – would be relevant as evidence and to the formation of customary international. Significantly, however, Security Council acts do not feature in the first report of the Special Rapporteur Sir Michael Wood, on the ILC’s current study on the formation of custom.  A word search reveals “zero” matches with Security Council, while the General Assembly comes up 13 times. There is no explanation in the report for why Security Council acts are not relevant to custom.

Given the Security Council’s power to legislate, this omission is both interesting and significant. One could surmise it is due to the Council’s composition – its members number 15 – as opposed to the universal membership of the General Assembly. Perhaps its not a big enough cross section, even though the P5 would presumably be big players in determining custom. Or perhaps it is related to the fact that the Council can act inconsistently, not always applying principles consistently in like cases. Further still, perhaps it emanates from distrust of the Council’s occasional role as a legislator. Indeed, if Security Council acts (and as a subsidiary matter, statements of Council members during meetings of the Security Council) are relevant to custom, then those same customary rules would bind the UN (and the Council as an organ of the UN), which raises important considerations with regards to the perennial debate about what legal limits apply to the Security Council.

The Council’s capacity to bind member states, and derivatively International Organizations, under Articles 25 and 48 is well established. Its ability to override inconsistent law under Article 103, and its demonstrated propensity to legislate in areas like anti-terrorism, and the many calls in the mid-2000s for Council power to be curbed through judicial review or other means, would lead one to expect at least consideration of the Council’s role.  It is noteworthy that in the Memorandum prepared by the Secretariat’s on the same topic, the Security Council is mentioned twice in relation to non-recognition of acts in breach of peremptory norms (citing the ILC’s commentary on State responsibility, which in turn cites Council resolutions on Iraq’s invasion of Kuwait and the situation in Rhodesia.) I note that Greg Fox and I are interested in the question of Security Council legislation, and are now embarking on an empirical assessment of the Council’s law-making in relation to the field of armed conflict.  As a result, I may have a vested interest in the debate…  Nonetheless, what do readers think:  should Security Council decisions be considered in regards to the formation of customary international law?

Syria and International Justice at the LSE

by Kevin Jon Heller

I will be participating in a roundtable about Syria and international justice next Monday night at the LSE. It’s free and open to the public, so I hope at least a few OJ readers will come. You can also send questions to the following hashtag: #LSESyriaICC. We will try to answer at least a few of them!

Here are the event details:

Syria and International Justice
LSE Centre for International Studies Dialogue
30 June 2014
6.30-8pm at LSE
Thai Theatre
New Academic Building

With a draft Security Council resolution to refer the situation in Syria to the International Criminal Court vetoed, what, if anything, should the international community or other interested actors do to achieve justice in Syria?

SPEAKERS

Kevin Jon Heller, Professor of Criminal Law, SOAS. @kevinjonheller
Dov Jacobs, Asst Professor of Int’l Law, Grotius Centre. @dovjacobs
Mark Kersten, Researcher, LSE. Justiceinconflict.org. @MarkKersten
Jason Ralph, Professor of Int’l Relations, University of Leeds. @JasonRalph4
Leslie Vinjamuri, Senior Lecturer in IR, SOAS. @londonvinjamuri

CHAIR

Kirsten Ainley, Director of LSE CIS. @kirstenainley

The CIA and the Public Authority Justification: A Response to Orr

by Kevin Jon Heller

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It’s a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don’t find his arguments convincing.

Orr begins by citing Art. 43 of the First Additional Protocol (AP I), which defines the armed forces as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” In Orr’s view, that means the CIA qualifies as “armed forces” under Art. 43, because the CIA is responsible to President Obama, the Commander in Chief:

The CIA may not be a part of the US military, not subordinate to the Secretary of Defense, but it is hard to claim it is not in any way an armed “group” or “unit” which is under the Command of the responsible party – the same person with responsibility for the military services, namely the Commander in Chief.

Orr’s argument, however, proves too much. By his logic, every armed organisation in the federal government that is ultimately responsible to Obama would qualify as the “armed forces” of the US — the FBI, the DEA, the ATF, even the US Marshals Service. That can’t possibly be correct.

To be fir, Orr recognises that it is not evident a “paramilitary” group like the CIA qualifies as the armed forces of the US and thus has the right to participate in hostilities. In particular, he acknowledges that, at a minimum, the CIA would have to comply with the four criteria set out in Art. 4 of the Third Geneva Convention (GC III): (1) responsible command; (2) a fixed distinctive sign; (3) open carry of arms; and (4) compliance with IHL. Here is his argument that it does:

(a) and (c) seem to apply (remotely piloted aircraft are operated in the open). The claim is made that (d) applies. Does (b)? Hard to say, but it’s also hard to understand how this criteria has modern relevance with stand-off weapons of any sort.

I don’t think it’s hard to say at all that (b) is not satisfied. CIA agents does not wear uniforms, nor do they wear anything that identifies them as CIA — particularly at a distance. And why would they? The CIA is an intelligence organisation that operates almost exclusively in secret; as noted by its own website, the CIA’s mission is “conducting effective covert action as directed by the President.” Fixed distinctive signs are the last thing CIA agents would ever wear.

Indeed, that’s almost certainly why Orr downplays the role of a fixed distinctive sign, saying that its “hard to understand how this criteria has modern relevance with stand-off weapons of any sort.” But that comment gives away the ballgame. Orr is not really arguing that the CIA is entitled to participate in hostilities because its members comply with the four criteria in GC III, art. 4. On the contrary, he is arguing that the CIA only has to comply with three of the four criteria — conveniently, the three with which it can comply. The inconvenient fourth criteria is simply wished out of existence. (And note that the question is not whether the CIA’s weapons have a fixed distinctive sign; it’s whether the CIA’s agents have one. Which they don’t.) Lex ferenda, not lex lata.

Jamie Orr has responded to my previous post on the drone memo, in which I argue that the OLC fails to adequately defend its conclusion that the CIA is just as entitled to the public-authority justification (PAJ) as the DoD. It’s a thoughtful response, and I appreciate Dean Orr taking the time to write it. But I don’t find his arguments convincing.

Orr begins by citing Art. 43 of the First Additional Protocol (AP I), which defines the armed forces as “all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates.” In Orr’s view, that means the CIA qualifies as “armed forces” under Art. 43, because the CIA is responsible to President Obama, the Commander in Chief:

The CIA may not be a part of the US military, not subordinate to the Secretary of Defense, but it is hard to claim it is not in any way an armed “group” or “unit” which is under the Command of the responsible party – the same person with responsibility for the military services, namely the Commander in Chief.

Orr’s argument, however, proves too much. By his logic, every armed organisation in the federal government that is ultimately responsible to Obama would qualify as the “armed forces” of the US and be entitled to participate in hostilities — the FBI, the DEA, the ATF, even the US Marshals Service. That can’t possibly be correct.

To be fair, Orr recognises that it is not evident a “paramilitary” group like the CIA qualifies as the armed forces of the US and thus has the right to participate in hostilities. In particular, he acknowledges that, at a minimum, the CIA would have to comply with the four criteria set out in Art. 4 of the Third Geneva Convention (GC III): (1) responsible command; (2) a fixed distinctive sign; (3) open carry of arms; and (4) compliance with IHL. Here is his argument that it does:

(a) and (c) seem to apply (remotely piloted aircraft are operated in the open). The claim is made that (d) applies. Does (b)? Hard to say, but it’s also hard to understand how this criteria has modern relevance with stand-off weapons of any sort.

I don’t think it’s hard to say at all that (b) is not satisfied. CIA agents does not wear uniforms, nor do they wear anything that identifies them as CIA — particularly at a distance. And why would they? The CIA is an intelligence organisation that operates almost exclusively in secret; as noted by its own website, the CIA’s mission is “conducting effective covert action as directed by the President.” Fixed distinctive signs are the last thing CIA agents would ever wear.

Indeed, that’s almost certainly why Orr downplays the role of a fixed distinctive sign, saying that its “hard to understand how this criteria has modern relevance with stand-off weapons of any sort.” But that comment gives away the ballgame. Orr is not really arguing that the CIA is entitled to participate in hostilities because its members comply with the four criteria in GC III, art. 4. On the contrary, he is arguing that the CIA only has to comply with three of the four criteria — conveniently, the three with which it can comply. The inconvenient fourth criteria is simply wished out of existence. (And note that the question is not whether the CIA’s weapons have a fixed distinctive sign; it’s whether the CIA’s agents have one. Which they don’t.)

It is important to recognize, though, that Orr’s argument concerning Art. 43 of AP I and Art. 4 of the GC III is ultimately beside the point. Orr may think that, as a matter of international law, the CIA is part of the US’s armed forces and thus has the right to participate in hostilities. But the US government doesn’t. Footnote 44 in the drone memo makes that exquisitely clear…

OLC Memo Redux – The Bigger Picture

by Deborah Pearlstein

So did we learn anything new from the redacted OLC memorandum we didn’t already know from the earlier White Paper, Administration fact sheet, official speeches, testimony, and media leaks about the nature of the Administration’s legal theory supporting lethal targeting? Yes, several things, with important implications for operations going forward. The newly released memo has some key deficits (see, e.g., my criticism of its constitutional analysis), and as Kevin’s post notes, will not satisfy those (i.e. everyone except the United States) who reject the legal concept of a non-international/transnational armed conflict between the United States and Al Qaeda. But the analysis is detailed enough in this iteration to accomplish something the White Paper, etc. in important ways did not: identifying key legal limits on the scope of U.S. targeting authority.

Take the source-of-authority example. The earlier White Paper was remarkably successful in fudging whether the Administration was invoking the President’s Article II self-defense power under the Constitution, or the statutory AUMF, to support targeting operations. The White Paper likewise (notoriously) fudged whether it was invoking a UN Charter-based self-defense justification under international law (in which case concerns of imminence would be centrally relevant), or whether the United States believed itself in an armed conflict with AQAP such that the law of armed conflict applied (including limitations on who may be targetable). This memo is clear: the AUMF is the domestic source of legal authority, at least for the U.S. military, and the international law of armed conflict (LOAC) applies to constrain U.S. operations against AQAP. (While there is much redacted in the memo’s analysis of the nature of the CIA’s authority, it is certainly the case that the applicability of the “public authority” exception to the coverage of domestic murder statutes turns on a question of domestic, rather than international law. Here, even if the AUMF was not meant to authorize the CIA to do anything, the CIA has broad authority under Title 50 of the U.S. Code to engage in operations overseas, provided it has relevant Presidential approval and complies with requirements of congressional notification. In other words, I can imagine a straightforward explanation for why such an exception would apply to the CIA as well. That it is not evident from the memo is, I suspect, far more a function of redaction than absence of legal authority.)

The significance of the memo’s relative clarity (relative to the White Paper) is not that it forecloses the possibility that the Administration might carry out other targeting operations that are based solely on the President’s Article II self-defense power, drawing on its broad understanding of ‘imminence’ under international self-defense law; the memo is repeatedly at pains to limit its analysis to the particular circumstances of Awlaki’s case and foreclose nothing about the import of the law in other circumstances that might arise. Rather, the recognition that these bodies of law in such circumstances apply – and the analysis that accompanies that recognition – carries with it several implications for future operations.

For instance, as the memo acknowledges (citing relevant international law precedent), not every kind of violent clash rises to the level of a non-international armed conflict. The non-state party to the conflict must possess a sufficient level of organization (including an identifiable command structure) to count as a meaningful “party” to a conflict. AQAP, the memo concludes, is such a party. But for the same reason, the necessary implication of the memo’s reasoning is that a scattered set of vaguely sympathetic, violent bands of terrorists may well not rise to the level of a party to an armed conflict. More, the memo recognizes, there must be a certain level of ongoing violence between the parties – such that it is possible to distinguish between a circumstance in which the dramatic law of armed conflict is triggered, and a circumstance of sporadic violence by a criminal or terrorist group against a state in which ordinary criminal and human rights laws apply. In the memo, the existence of ongoing violence between the United States and Al Qaeda in Afghanistan (circa 2010 when the memo was drafted) seems central to its conclusion that the level of sustained violence between the groups remained high enough to meet the armed conflict threshold. By the same token, assuming U.S. combat troops withdraw from Afghanistan in the near term, that associated violence between the warring groups correspondingly drops there, and that Al Qaeda and the Taliban remain as relatively unsuccessful as they have been in recent years in carrying out attacks against the United States outside Afghanistan – this shift in the facts on the ground will have an important impact on the Administration’s continued ability to assert the applicability of LOAC. Put differently, when we leave Afghanistan, if violence drops as anticipated, LOAC-based domestic laws authorizing the use of force will run out.

Here’s another example. The memo – unlike the White Paper – directly engages the question who is targetable in LOAC. The White Paper made no mention of any LOAC targeting rules that limit Administration target selection, such as the rule that says civilians are not targetable “unless and for such time as they take a direct part in hostilities” (DPH) (AP II, art. 13). It likewise made no mention of the ICRC’s more recent guidance that in non-international armed conflicts, individuals who play a “continuous combat function” (CCF) are also targetable. Here, the memo appears squarely to embrace the CCF concept, quoting it directly: “’individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function,’ in which case they can be deemed to be members of a non-state armed group subject to continuous targeting.” CCF undoubtedly permits a broader range of targets in non-international armed conflict than had been permitted under the more limited DPH standard. But it is a standard – as opposed to no standard – nonetheless. One can serve a CCF if one is typically involved in the “preparation, execution, or command of acts or operations amounting to direct participation in hostilities,” but not if one’s function, however “continuous,” is, for example, the financing of (or in other respects materially supporting) terrorist operations, which the ICRC does not count as “direct participation.”

Will/does the Administration always comply with these rules? What does the Administration think the scope of its targeting authority outside Awlaki’s case? These are among the still many questions unsurprisingly unanswered by the memo itself. But the identification of any legal standards is better than the preceding years of relative silence. We now have a better sense of the law as the Administration itself conceives it. If the Administration now fails to abide by the necessary implications of the applicability of these rules, we will be able to say, as definitively as the facts permit, its actions violate the law.

OLC Memo – The Due Process Piece

by Deborah Pearlstein

Much to say on the redacted version of the U.S. Justice Department Office of Legal Counsel memorandum on targeted killing, released by a U.S. court yesterday. For now, let me start with U.S. constitutional law – namely, what does the Fifth Amendment require by way of procedural protection before a U.S. citizen like Awlaki may be lethally targeted?

Recall the earlier released DOJ White Paper on the topic had been clear its analysis was limited to the particular circumstances the intelligence community represented Awlaki presented: the use of “lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force if al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans.” The memo’s effort to assess the due process requirements in this circumstance runs from page 38 to page 41. It begins by appropriately acknowledging that, because of Awlaki’s citizenship, the Fifth Amendment “likely” protects him even while he is abroad in such circumstances. The memo also correctly identifies Mathews v. Eldridge (a 1976 Supreme Court case assessing what process was due before the government could deprive an individual of property) as setting the test for assessing how much process is required in the targeting case as well; Mathews is the test the Hamdi Court applied in 2004 in determining that U.S. citizen Yaser Hamdi, picked up on the Afghan battlefield, was entitled to notice of the reason for his detention and an opportunity to be heard by a neutral arbiter, once the exigency surrounding his battlefield seizure had past.

Here, the memo’s analysis becomes more problematic. (more…)