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Guest Post: Israel’s Use of Law and Warnings in Gaza

by Janina Dill

[Janina Dill is a Lecturer at the Department of Politics and International Relations at the University of Oxford.]

In the ongoing military campaign ‘Protective Edge’ the Israeli Defence Forces (IDF) consistently issues warnings before air strikes against targets in Gaza. The population is warned of impending attacks with phone calls, text messages or so called ‘knocks on the roof’ (dropping of non- or low-impact explosives on the intended target). The warnings play a central role in Israel’s claim that, contrary to Palestinian armed groups, namely Hamas; it obeys the strictures of international law. ‘While the IDF goes to extraordinary lengths to avoid civilian casualties, Hamas deliberately puts civilians in the line of fire, the IDF maintains on its official blog. The First Additional Protocol to the Geneva Conventions, the relevant sections of which have the status of customary international law, in Article 57(2) c indeed prescribes that ‘effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit’.

Warnings, their frequency and form, are at the centre of a narrative that Israel does not simply comply with, but goes beyond the call of international law in its care for the civilians of Gaza. ‘Israel’s use in the Gaza Strip of non-lethal warning shots to the roofs of buildings which constitute military targets … is not legally obligated’, the Military Advocate General’s Corps holds. Media commentary commends Israel for giving civilians a way out without even being obliged to do so. This is a misunderstanding of Article 57. The provision establishes an unequivocal obligation to warn before attacks that implicate the civilian population – as air strikes against a territory as densely populated as Gaza will regularly do. Granted, it is not an absolute obligation. The law recognizes that sometimes it may not be possible to warn. Crucially the provision does not say ‘warn if possible’, but ‘warn unless impossible’. It is open to interpretation when that is the case and reasonable people may disagree, but the default is to issue a warning and it is a failure to do so that requires explanation. Warnings are not acts of charity.

But are the kinds of warnings issued as part of Operation Protective Edge manifestations of the IDF’s commitment to the laws of war? The practice raises two distinct concerns. The first is that the air strikes the IDF carries out after issuing warnings are indicative of a misunderstanding of the legal implications warning before an attack. It has none! The second is the concern that the practice itself violates international law. I discuss them in turn. Continue reading…

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…)

Let’s Call Killing al-Awlaki What It Still Is — Murder

by Kevin Jon Heller

As everyone on Twitter knows by now, the US government has released the notorious memorandum in which the OLC provides the supposed legal justification for killing Anwar al-Awlaki. I’m a bit disappointed not to get a mention in the memo; people in the know have suggested that a post I wrote in April 2010 led the OLC to substantially rewrite it. Vanity aside, though, I’m more disappointed by the memo’s failure to adequately address the most important issue regarding the “public authority justification,” which is at the heart of the memo’s conclusion that it would be lawful to kill al-Awlaki: how can the CIA be entitled to the public-authority justification when the CIA had no authority to use force against Al Qaeda in the Arabian Peninsula (AQAP)?

To understand why that’s a problem, let’s step back and consider what the memo says about whether the Department of Defense (DoD) had the legal authority to kill al-Awlaki. Remember, the memo was written before al-Awlaki was killed, at a time when it wasn’t clear which organisation — the DoD or the CIA — would actually kill him. (It was also written long after al-Awlaki was put on the kill list, as Hina Shamsi reminds us.)

The memo begins by emphasizing (p. 14) that its analysis — for both the DoD and the CIA — turns on whether 18 USC 1119, the foreign-murder statute, incorporates the “public authority justification” (PAJ). Indeed, it notes in n. 24 that the PAJ is the only defence it will consider. The memo then concludes (p. 20), after five pages of analysis, that in fact s 1119 does incorporate the PAJ. It’s an impressive analysis, and I find it convincing. So let’s grant that the PAJ potentially applies to the killing of al-Awlaki.

The question then becomes: who can invoke the public authority justification? The memo has little problem concluding that the DoD would be entitled to it, because (p. 20) “the operation would constitute the ‘lawful conduct of war’ — a well-established variant of the public authority justification.” In reaching that conclusion, the memo argues (1) that the AUMF covers AQAP, (2) that al-Awlaki qualifies as a targetable member of AQAP; (3) that the US is involved in a NIAC with AQ, making the laws of war applicable; and (4) that the DoD had pledged to obey the laws of war in any lethal operation.

I would quibble with much of the analysis, particularly the memo’s discussion of the scope of the non-international armed conflict between the US and “al-Qaeda.” But I’m prepared to accept that, in the abstract, the DoD would be entitled to invoke the PAJ. My problem is with the memo’s casual assertion that the PAJ applies equally to the CIA, which actually killed al-Awlaki. Here is its conclusion (p. 32)…

Quote of the Day: Tony Abbott on the Rule of Law

by Kevin Jon Heller

Here he is, defending General Sisi, the new President of Egypt:

This is a general, but a general who has studied in both the United States and the United Kingdom, so he is certainly someone who is familiar with the rule of law.

Because everyone knows that you can’t learn about the rule of law outside the West. Duh.

PS. Abbott made his silly comment as a way of explaining why he was confident Egypt would not be unfair to Peter Greste, the Australian Al-Jazeera journalist accused — with no evidence whatsoever — of “spreading false news” and supporting the Muslim Brotherhood.

Greste was just sentenced to seven years in prison. I guess Sisi didn’t pay enough attention in his US and UK classes.

Events and Announcements: June 22, 2014

by Jessica Dorsey

Events

  • The Law and Practice of International Courts and Tribunals will take place  on 18 July 2014 in Geneva. The seminar, the program of which is found here, will focus on the dialogue between the International Law Commission and international courts and tribunals. Members of the ILC, experts and practitioners will take part. The event is open to all.

Calls for Papers

  • The Editorial Board of Comparative Constitutional Law & Administrative Law Quarterly (CALQ) is inviting submissions for Vol. 2 No. 1 from legal academicians, professionals and students. The Journal attempts to initiate and foster academic dialogue concerning the subjects of Administrative Law and Constitutional Law keeping in mind a global perspective. More information can be found here.
  • Call for papers: Imagining post-neoliberal regulatory subjectivities @ Faculty of Law, University of Turku, Finland 15-17 October 2014. The Faculty of Law, University of Turku is pleased to announce a research seminar addressing post-neoliberal regulatory subjectivities. They have issued a call for papers dealing with different aspects of the “subjectivity turn”, understood here as the new art of neoliberal regulation aimed at producing actors with appropriate agency-a subjectivity. The papers could, for example, map the possible genealogies for the emergence of post-neoliberal law, or address the implications of anthropomorphic corporate regulation, or transformations in sovereign subjectivities. The organizers are able to pay for travel and accommodation for presenters.
  • Transnational Dispute Management has announced a new call for papers. The special will be edited by Craig Shepherd and Mike McClure and deals with “Arbitration in the Middle East - Expectations and Challenges for the Future.” 

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.

Analysing the US Invocation of Self-Defence Re: Abu Khattallah

by Kevin Jon Heller

Most of the discussion about Abu Khattallah’s capture in Libya has focused on the operation’s basis — or lack thereof — in domestic US law. Less attention has been paid to whether international law permitted the US to use force on Libyan soil. As Marty Lederman recently noted at Just Security, Abu Khattallah’s capture can potentially be justified on two different grounds: (1) Libya consented to the capture operation; or (2) the capture operation represented a legitimate act of self-defence under the UN Charter. The first justification does not appear open to the US; the available evidence indicates that the operation was conducted without Libya’s consent. So it’s not surprising that the US has claimed — in a letter submitted to the UN by Samantha Power on June 17 — that Article 51 permitted the operation:

The investigation also determined that [Abu Khattallah] continued to plan further armed attacks against U.S. persons. The measures we have taken to capture Abu Khattallah in Libya were therefore necessary to prevent such armed attacks, and were taken in accordance with the United States’ inherent right of self-defense. We are therefore reporting these measures to the Security Council in accordance with Article 51 of the United Nations Charter.

Power’s letter obscures far more than it reveals. In fact, the US’s invocation of self-defence raises four very difficult questions:

  • Can a non-state actor launch an “armed attack” that triggers the right of self-defence?
  • If so, must that armed attack be attributable in some fashion to the state whose territory is the object of “self-defensive” force?
  • Do all uses of armed force qualify as an “armed attack” for purposes of Article 51?
  • Does the right of self-defence permit force to be used anticipatorily?

In this post, I want to put aside the first two questions. I have no doubt that a non-state actor can launch an armed attack within the meaning of Article 51, and my views on the “unwilling or unable” test are well-known. It’s worth spending some time, though, on the third and fourth questions.

The third question is interesting because it’s not clear that all uses of force qualify as “armed attacks” for purposes of Article 51. The UN Charter itself distinguishes between the “use of force” (Art. 2(4)) and “armed attack” (Art. 51), and the ICJ has suggested in both Nicaragua and Oil Platforms that at least some uses of force may be so de minimis that they do not entitle the victim state to use force in self-defence. (As opposed to taking other countermeasures.) On the other hand, customary international law seems to indicate that the threshold of force for an armed attack is extremely low. Here is Tom Ruys’ conclusion in his magisterial book “Armed Attack” and Article 51 of the UN Charter (p. 155):

In the end, customary practice suggests that, subject to the necessity and proportionality criteria, even small-scale bombings, artillery, naval or aerial attacks qualify as ‘armed attacks’ activating Article 51 UN Charter, as long as they result in, or are capable of resulting in destruction of property or loss of lives. By contrast, the firing of a single missile into some uninhabited wasteland as a mere display of force, in contravention of Article 2(4) UN Charter, would arguably not reach the gravity threshold.

In sum, the following general conclusions can be made: (1) the travaux of the Definition of Aggression suggest that a minimal gravity is indeed required and seem to rule out the aforementioned Option 3; (2) ‘concrete’ customary evidence nonetheless makes clear that the gravity threshold should not be set too high and that even small-scale attacks involving the use of (possibly) lethal force may trigger Article 51.

If Ruys is right — and he has examined state practice and opinio juris far more carefully than any other scholar writing on the use of force — the attack on the US embassy in Benghazi almost certainly was, in fact, an “armed attack” for purposes of Art. 51.

What, then, about the fourth question? Here is where the US claim of self-defence regarding the Abu Khattallah operation becomes problematic. The US clearly cannot use the original Benghazi armed attack to justify the operation — although a state’s response to an armed attack may not have to be immediate, the prohibition on armed force in Art. 2(4) of the UN Charter would be meaningless if a state could “pocket” an armed attack and respond to it with armed force much later — nearly two years later, in the case of Benghazi. Indeed, Power seems to acknowledge as much when she emphasises that Abu Khattallah was planning further armed attacks. Does that planning mean the capture operation was a legitimate act of self-defence by the US?

Answering that question, of course, requires us to address the temporal limits of self-defence under Art. 51. Three basic positions on that issue are possible:

  • Self-defence permits the use of force only in response to an armed attack; force cannot be used pre-emptively or preventively (“responsive self-defence”)
  • Self-defence permits the use of force to pre-empt an imminent armed attack but not to prevent a temporally more remote armed attack (“pre-emptive self-defence”)
  • Self-defence permits the use of force to prevent even a temporally remote armed attack (“preventive self-defence”)

Unfortunately, because of the US’s typical lack of transparency concerning its use of force, Power’s letter says nothing about the time-frame of the armed attacks Abu Khattallah was supposedly planning. (Nor does it provide any evidence of that planning, but that’s another question.) The time-frame doesn’t matter, however, if responsive self-defence is the correct position – as noted, the capture operation cannot be justified as a response to the original Benghazi attack.

Most readers — at least those in the West — will no doubt be inclined to reject responsive self-defence as too narrow, even though it is the only position consistent with the text of Article 51, which permits self-defence “if an armed attack occurs.” Surely customary international law does not require a state to wait until an armed attack has already taken place to defend itself, no matter what the UN Charter says.

This issue is much more difficult issue than it may appear. Those interested should read the relevant section of Ruys’ book; I’ll just quote his bottom line (pp. 341-42):

In light of the available evidence, it can be concluded that there has indeed been a shift in States’ opinio iuris insofar as support for pre-emptive self-defence, fairly rare and muted prior to 2001, has become more widespread and explicit in recent years. At the same time, it seems a bridge too far to claim that there exists today widespread acceptance of the legality of self-defence against so-called “imminent” threats. Such assertion tends to forego the opposition of a considerable group of mainly Latin-American, north-African and Asian States. In the present author’s view, it would therefore be more appropriate to argue that the crack in opinio iuris among States has widened, without, however, identifying one approach or the other as the majority view. The implication is that, taking account of the Charter “baseline” and the absence of a concrete precedent in State practice which convincingly demonstrates the international community’s support for some form of anticipatory self-defence, it is impossible to identify de lege lata a general right of pre- emptive – and a fortiori preventive – self-defence.

Ruys’ reference to the UN Charter’s “baseline” is important, because Art. 51′s adoption of responsive self-defence indicates that states who support a more relaxed concept of self-defence, such as the US, have the obligation to find sufficient state practice and opinio juris to establish a broader rule. And such state practice and opinio juris is simply lacking — unless, as is too often the case with custom, we simply ignore the views of the Global South.

Even if responsive self-defence is too narrow, however, that does not mean the Abu Khattallah operation was a legitimate act of self-defence. If the US had evidence that Abu Khattallah was about to launch another armed attack, it is reasonable to assume Powers would have said so in her letter. That she failed to do so thus seems to indicate — though is clearly not dispositive — that the US did not believe another armed attack was imminent when it launched the capture operation. Power’s letter may well indicate, therefore, that the US is promoting the broadest understanding of self-defence possible — preventive self-defence instead of pre-emptive self-defence. If so, as Ruys notes (pp. 336-38), the US is on shaky ground indeed:

[T]here can be no doubt that even among States adhering to the “counter-restrictionist” view, support for self-defence against non-imminent threats is virtually non-existent. Apart from the fact that the sponsors of Operation “Iraqi Freedom” avoided this justification, it may be observed that many States, such as Germany, Japan, Switzerland, Uganda, Singapore or Liechtenstein, which professed support for anticipatory self-defence after 2002, nonetheless placed great weight on the imminence requirement. Germany, for instance, expressly denounced an erosion of the Charter framework and State practice via the notion of “preventive self-defence.” Likewise, the French politique de defense unequivocally “rejects… the notion of preventive self-defence.”

What is more, even the “traditional” adherents of the counter-restrictionist interpretation of Article 51 generally appear to uphold the imminence requirement. Despite bold statements by its Prime Minister on the need to adapt the UN Charter, Australia’s response to “In Larger Freedom” was rather cautious: it simply “[supported] reaffirmation by the Secretary-General that Article 51 of the Charter adequately covers the inherent right to self-defence against actual and imminent attack.” Israel called for an explicit recognition in the World Summit Outcome that States may use force in self-defence “in the event of both actual and imminent attacks.” As far as the British position is concerned, Attorney- General Lord Goldsmith in 2004 declared before the House of Lords that: “It is… the Government’s view that international law permits the use of force in self-defence against an imminent attack but does not authorize the use of force to mount a pre-emptive strike against a threat that is more remote.”…

[W]e may therefore conclude that the trend in State practice has been broadly similar to that in legal doctrine: support for anticipatory self-defence has increased, but has by and large restricted this concept to imminent threats.

Again, in the absence of additional information, we cannot categorically reject the US’s insistence that the Abu Khattallah operation was a legitimate act of self-defence. But there is considerable reason to be skeptical. Indeed, the US’s lack of transparency concerning its understanding of Art. 51 of the UN Charter may well indicate it has adopted a position that even its closest allies formally disavow.

Bensouda Accuses UNAMID of Covering Up Sudanese Crimes

by Kevin Jon Heller

I’m not sure how I missed this, but these are very strong — and atypically blunt — allegations by Fatou Bensouda:

The International Criminal Court (ICC) prosecutor Fatou Bensouda urged the United Nations Security Council (UNSC) to investigate reports that the UN peacekeeping force in Darfur (UNAMID) deliberately contributed in covering up crimes in the restive region.

In reference to US-based Foreign Policy (FP) magazine reports, Bensouda asked the council to authorize a “thorough, independent and public inquiry” probe into allegations that UNAMID being subject to “manipulation” through acts committed “with the intentional effect of covering up crimes committed against civilians and peacekeepers”.

FP obtained confidential internal UN memos from UNAMID ex-spokesperson Aicha ElBasri that asserts how the UN peacekeeping force suppressed negative information on violations that occurred in Darfur by Sudanese government and other parties.

The ICC prosecutor said that the responsibility for the “cover-up” may lie “with a handful of individuals” but warned that it undermines the credibility of the peacekeeping mission.

Africa Review adds some additional detail to ElBasri’s disturbing allegations:

Last April, former Unamid spokeswoman Aicha Elbasri, revealed that the unit had misinformed the UN by withholding important details about Darfur.

Unamid has observed the government forces indiscriminately bombing entire villages, targeting civilian and military targets alike. However, these observations are never publically reported in the regular updates by the UN Secretary General to the UNSC,” Ms Elbasri claimed.

She reported that the UN peacekeeping mission did not tell the world that the Khartoum government failed to disarm the Janjaweed militias; that it, conversely, reintegrated them into paramilitary forces under new names, and let them continue committing their widespread, systematic attacks directed against the civilian population in Darfur.

The UNAMID situation obviously requires a UN investigation, so it’s encouraging to see that Bensouda request was quickly supported by both Australia and Rwanda. The UK’s statement, however, is disappointingly tentative, suggesting that the Secretariat — and not the Security Council — should investigate. Given the seriousness of the allegations, that’s simply not good enough.

Bombing Iraq Doesn’t Just Pose Serious Questions of Domestic Law, International Law May Be a Problem, Too

by Deborah Pearlstein

My blogospheric colleagues have begun debating whether the Administration has sufficient domestic legal authority to proceed with what the Times has called a “targeted, highly selective campaign of airstrikes against Sunni militants in Iraq” – reportedly now under contemplation. Jack Goldsmith, for example, thinks it might, under the 2002 statute authorizing the President to use military force against the government of Iraq for the purpose of ridding it of its “weapons of mass destruction.” My friends at Just Security and elsewhere have usefully debunked this notion, and related others (like the idea I’ve argued against here, that ISIS can be considered any kind of “associate” of Al Qaeda).

But while I’d contest the idea that the discussion so far is “premature” – it is no doubt precisely a topic with which Administration lawyers are currently struggling – the doubtful legality of such a set of strikes under domestic law is made even worse by the likely illegality of such strikes under international law. That is, even if the United States could come up with a domestic statutory basis for some military action in Iraq – extant Title 50 covert action authorities are quite broad, for example – it would still struggle for the approval of our allies on international legal grounds. Here’s my thinking. (more…)

Charles Taylor Requests Transfer to Rwanda

by Kevin Jon Heller

Full disclosure: Taylor is represented by John Jones QC, who is my colleague at Doughty Street Chambers.

Charles Taylor has filed a disturbing motion with the Special Court for Sierra Leone’s Residual Mechanism, requesting that he be transferred from prison in the UK to a prison in Rwanda because of his mistreatment by the British government. Here are the key paragraphs from the motion’s introduction:

Charles Taylor is the first and only person sent by an international court to serve their sentence, against their wish, outside of their continent of origin. This previously invariable practice accords with a basic requirement of humane treatment: that prisoners should be able to receive periodic visits from their families. International human rights standards, including as recently affirmed by the European Court of Human Rights (“ECtHR”) in Khodorkovskiy, prohibit sending a prisoner unnecessarily for away from the habitual residence of family members, or otherwise creating obstacles that prevent periodic visits.

That is precisely the consequence of Mr. Taylor’s detention in the United Kingdom (“UK”). The extraordinary cost and difficulty of travel for Liberian citizens to the UK, given the financial circumstances of Mr. Taylor’s family, means that Mr. Taylor will seldom, if ever, see his wife and three young daughters, let alone the rest of his family, again. That deprivation will continue, given the length of Mr. Taylor’s sentence, for the remainder of his life unless significant measures are taken to facilitate those visits. The UK has, to the contrary, obstructed such visits. Visa requests by Mr. Taylor’s wife and two of his young daughters have been denied even though the UK was well aware of the purpose of the requested visit. Mr. Taylor has not seen his wife and children since being transferred to the UK eight months ago. This already constitutes a human rights violation: the ECtHR has specifically held that even shorter periods of deprivation of family contact constitute a violation of the right to family life.

Even if these legal impediments were to be surmounted, neither the UK nor the RSCSL has demonstrated any willingness to overcome the inherent difficulties and cost of travel to the UK so as to permit family visits of even a minimally acceptable frequency. The United Kingdom and the RSCSL are jointly and severally responsible for the violation of not only Mr. Taylor’s right to family life, but that of his family members. An immediate remedy is required to put an end to this ongoing violation, and a remedy is readily available to the RSCSL: terminate his enforcement in the UK and transfer Mr. Taylor to Rwanda.

Mr. Taylor’s isolation is exacerbated by the conditions in which he is, and must be, held in the UK. Mr. Taylor has been confined to the prison’s hospital wing, effectively in isolation, since his arrival there. The prison authorities believe, correctly, that Mr. Taylor is too much of a target and too vulnerable to be accommodated within the general prison population. The seriousness of the danger is underscored by the interception of an anonymous letter, possibly originating from within the prison itself, threatening Mr. Taylor with bodily harm and death. Radislav Krstić, whose crimes were less notorious than those for which Mr. Taylor has been found responsible, suffered a near-fatal attack by fellow inmates in a UK prison in 2010. The ICTY was apparently sufficiently concerned about the UK’s ability to ensure adequate conditions of detention for Mr. Krstić that he was transferred back to The Hague. The RSCSL should be equally concerned about the real threat faced by Mr. Taylor, and the unsuitability of a UK prison to ensure that he is kept in a situation that meets the minimum standards required by international law.

The RSCSL should accordingly exercise its authority pursuant to Article 9(2) of the Enforcement of Sentences Agreement between the Court and the UK on 10 July 2007 (“SCSL-UK Enforcement Agreement”) and immediately terminate the enforcement of Mr. Taylor’s sentence, and order that he be transferred directly to Rwanda or, in the alternative, to The Hague pending further deliberations. Rwanda is a location that will permit reasonably frequent family visits and provide Mr. Taylor with a safe environment without being segregated from all other prisoners.

The motion’s allegations, which are supported by hundreds of pages of annexes, are profoundly unsettling. I’d like to say I’m surprised that I haven’t heard more about Taylor’s situation, but I’m not: the media generally pay attention only to individuals accused of international crimes, producing article after article about the allegedly cushy conditions in the UN Detention Unit — the so-called “Hague Hilton.” Once defendants are convicted, journalists seem to lose interest in them. I hope this new motion will spur more coverage of post-conviction detention, which is anything but cushy even in places as “advanced” as the UK — as Taylor’s situation demonstrates.

It will be interesting to see if the SCSL takes the motion seriously. It should.

Weekly News Wrap: Monday, June 16, 2014

by Jessica Dorsey

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

Africa

  • Three armed groups from northern Mali have agreed to begin peace talks with the government aimed at resolving long-standing disputes in the country. 
  • More than 50,000 children in South Sudan face death from disease and hunger, the United Nations has warned while seeking over $1bn to support those hit by six months of civil war.
  • Entire elephant populations are dying out in many African countries due to poaching on a massive scale, wildlife regulator CITES has warned, while also hailing the continent for improving its crackdown on ivory smuggling.

Asia

Europe

Middle East and Northern Africa

Americas

UN/Other

Lethal Drone Strikes — Not Just for American Citizens Any More!

by Kevin Jon Heller

Not surprisingly, drone strikes that kill American citizens have received the most attention in the press. So it’s important to emphasize that the US kills citizens of its allies, as well, such as the two Australians recently vaporized in Yemen:

TWO Australian citizens have been killed in a US airstrike in Yemen in what is the first known example of Australian extremists dying as a result of Washington’s highly controversial use of predator drones.

The Australian has been told the two men, believed to be in their 20s, were killed in a Predator drone strike on five al-Qa’ida militants travelling in a convoy of cars in Hadramout, in eastern Yemen, on November 19.

The men were Christopher Havard of Townsville and a New Zealand dual citizen who went by the name “Muslim bin John’’ and fought under the alias “Abu ­Suhaib al-Australi’’.

The Australian government, which insists it was given no ­advance warning of the strike, has positively identified the remains of the men using DNA analysis, with samples taken from families of the two men.

[snip]

A senior counter-terrorism source told The Australian the men were “foot soldiers’’ for al-Qa’ida in the Arabian Peninsula, al-Qa’ida’s regional franchise based in Yemen.

It is understood US authorities notified Australian officials about the possibility Australian citizens might have been “collateral damage’’ in the strike, part of an ongoing campaign by the US and Yemeni governments to wipe out AQAP militants.

“The Americans advised us that they had intelligence that suggested they may have been in the car and may have been collateral damage,’’ the source said.

Note that although the drone strike did not target the two Australians, the Australian government knows for a fact that the men were “foot soldiers” for AQAP. And how does it know this? What evidence does it have? Who knows — taking a page from the US, the government won’t say. And some journalists are not impressed. Here is The Guardian‘s Antony Loewenstein:

Yet, uncertainty be damned, the Australian government seems to keep on supporting the CIA killings with most of the media following without question.

Fairfax Media headlined one story “Abbott government defends drone strike that killed two Australian Al-Qaeda militants” without challenging that the two men were, indeed, militants or affiliated with Al-Qaida – they may or may not have been, but innocent civilians have been killed by drones before. The sentence “alleged militants, according to the government” never appeared in the article (this is a relatively common habit in journalism – see for example this essential take-down of a New York Times report on drone killings in Yemen).

I’ve reported independently from Pakistan and Afghanistan, and accurate journalism requires finding reliable sources on the ground (or corresponding with individuals through email, phone, encryption or Twitter) who can confirm or challenge the official version. It’s not rocket science, though definitive information can be scarce in a war zone.

In the last days I’ve reached out to various sources in Yemen (some of the best are herehere and here) and asked Sanaa-based Baraa Shiban to comment. His answer is revealing. “The lack of transparency has became a fixed strategy for the US in its drone war. The US announced recently the death of almost 30 militants in a training camp in Abyan, south of Yemen, but can’t release a single name; this tells it all.”

Taking the word of security sources and the state, when this information is so often wrong or deliberately skewed by anonymous officials whostrategically leak to justify their counter-terrorism policies, is sadly all too common. “We don’t know the facts” is not a shameful statement. To be skeptical shouldn’t be a flaw, but an asset.

Skepticism as an asset, not a flaw. What a radical idea…

Hat-Tip: Bianca Dillon.

Events and Announcements: June 15, 2014

by An Hertogen

Events

  • BIICL is organising an event on ‘Due Diligence: From Rhetoric to Practice’ on Monday June 16, 2014 from 3.00-7.45pm. The event brings together expert speakers from a variety of backgrounds, including lawyers, academics, the private sector and non-governmental organisations. Their expertise will highlight the pertinent aspects of the UN Guiding Principles as a framework for all current approaches in this area as well as their practical implementation. More information and registration is here.
  • The Geneva Academy is holding an events on June 16 on The Situation of Women’s Rights 20 Years after the Vienna World Conference on Human Rights. More information is here.

Announcements

  • Pretoria University Law Press (Pulp) has just published an original book on the highest courts of Brazil, India and South Africa (BISA countries). The book Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and South Africa, published in December 2013 and now fully available online, is the first scholarly account on how the BISA highest courts manage to implement their respective transformative constitutions, including a critical view on instances where those courts fall short of it. You can read the book 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.