In honor of the US government’s decision to charge Khalid Sheikh Mohammed and four other men responsible for 9/11 with the non-existent war crime of conspiracy, I want to call readers’ attention to an excellent new article by Samuel Morison about the equally non-existent war crime of material support for terrorism.  Morison vivisects the government’s attempt to justify material support by invoking the summary execution of two British citizens during the First Seminole War.  Here is the abstract:

At present, there are two military commission cases involving terrorism defendants incarcerated at Guantánamo Bay making their way through the appellate courts. In both cases, the defendants are challenging their convictions for “providing material support for terrorism.” While this is a federal offense that could be prosecuted in an Article III court, the legal issue in these appeals is whether providing material support is also a war crime subject to the jurisdiction of a military tribunal. Congress incorporated the offense into the Military Commissions Act, but that is not dispositive, since it is arguably beyond Congress’ legislative competence to create war crimes out of whole cloth and then impose them on foreign nationals having no jurisdictional nexus to the United States.

As a result, the Government has not disputed that there must be at least some historical evidence that the conduct now styled “providing material support” to an enemy previously has been treated as a war crime, where the defendant was a non-resident alien who owed no duty of allegiance to the injured State. In what might be fairly described as a desperate attempt to discharge its burden of persuasion, the Government has now embraced the only “precedent” that comes close to fitting this description. This is problematic, however, because it is also one of the most notorious episodes in the history of American military justice.

In 1818, then Major General Andrew Jackson led an armed invasion of Spanish Florida, thereby instigating the First Seminole War. In the course of the conflict, his troops captured two British citizens who had been living in Florida among the Seminole Indians. In his inimitable style, Jackson impetuously ordered the summary trial and execution of these men, allegedly for “inciting” the Seminoles to engage in “savage warfare” against the United States. Worse yet, Jackson’s immediate motivation for the invasion was to recapture fugitive slaves, who had escaped from the adjacent States and found refuge among the Seminoles. In addition to territorial expansion, his mission was to return this “property” to their “rightful” owners and prevent Florida from serving as a safe haven for runaway slaves.

Remarkably, the legal basis of the Government’s assertion of military jurisdiction over material support charges therefore rests on Jackson’s decision to execute two men, who were almost certainly innocent, in the context of a war of aggression waged to vindicate the property rights of antebellum Southern slaveholders. The purpose of this essay is to reintroduce the episode to a wider audience, and to reflect on the implications of the Government’s decision to rely on it as a precedent for a modern war crimes prosecution.

As Larry Solum would say, read Morison!

I’m traveling in Europe for the next few weeks, so posting will be a bit light.  As always, I’m happy to meet up with Opinio Juris readers in the places I’m visiting.  Here’s my schedule: June 4-7, Helsinki; June 7-9, Tallinn; June 9-13, Berlin; June 13-15, Leuven; June 15-18, Amsterdam; June 18-20, London.  On June 6, I’m giving a talk at the University of Helsinki about prosecuting WikiLeaks for espionage; and on June 14, I’m giving a talk at Katholik University Leuven about the Nuremberg Military Tribunals’ contribution to crimes against humanity.  I’ll also be defending my dissertation — a version of my book on the NMTs — at Leiden University on June 16, which means that you’ll have to call me “Dr. Kevin” very soon.  Apparently, Leiden’s defence is one of the most formal in the world, including requiring students (ie., me) to wear waistcoats.  I plan on blogging about the experience after it’s over.

On a different note, I had one of the most insulting flying experiences ever on my Virgin Blue flight from Melbourne to Sydney this morning.  (I’m writing this post in L.A.)  I did not have a seat assigned, and the woman at the check-in counter was nice enough to give me an exit-row aisle, so I’d have a bit more leg room.  Then, when I got to the gate, one of Virgin Blue’s agents pulled me aside and told me that they were moving me back to a regular seat, because someone had paid $45.00 for the exit-row aisle.  When I expressed amazement that they would assign me a seat and then kick me out of it, the agent simply shrugged and reiterated that someone had paid for it.  No apology, no sympathy.  No class. In general, Virgin is an excellent airline — I always fly Virgin Australia to the U.S. and Virgin Atlantic from the U.S. to London.  But I will certainly do what I can to avoid flying Virgin Blue within Australia in the future; there are too many other domestic airlines to put up with that kind of treatment.

To close on a more positive note, my book will be out in the next couple of weeks, which is very exciting!  My thanks to all the readers who gave me feedback on the cover and who read chapters during the writing and editing process.

In a post last week, I recommended Human Rights First’s new report on U.S. detention and trial operations in Afghanistan for its insights into the evolving situation there.  I also raised a question about the legal framework the report used to analyze the sufficiency of detention procedures: “HRF (in my view correctly) describes the current conflict in Afghanistan as a NIAC, but then moves directly (past Common Article 3’s “regularly constituted courts,” APII, etc.) to int’l human rights law (ICCPR) for the relevant procedural standards. Especially given the United States’ long held (if, in my view, unfortunate) position that ICCPR doesn’t apply extraterritorially (which the report acknowledges), this seems a bit of a tough legal case to make. Beyond the trial situation (to which it seems CA3 would surely apply), as long as we’re choosing between legal regimes the United States officially rejects, why not pick APII, or API by analogy, as the more useful standard? Truly asking here.” Responses to that question produced an interesting exchange on and off-line between Gabor Rona and Marty Lederman. With the relevant permission for the off-line part, I excerpt their exchange here.

The Wall Street Journal reporting on un-classifed portions of a report anticipated for release next month.  I concentrate on robots, not cyber, so I leave it to others to comment, but I do recall that this report and its conclusions have been discussed a fair amount in academic circles, and as far as I know this will not surprise people following those discussions. (Here’s a good new piece on the topic from Matthew Waxman, in YJIL) Though this is not my speciality, I wanted to flag it for people’s attention.

The Pentagon has concluded that computer sabotage coming from another country can constitute an act of war, a finding that for the first time opens the door for the U.S. to respond using traditional military force.

The Pentagon’s first formal cyber strategy, unclassified portions of which are expected to become public next month, represents an early attempt to grapple with a changing world in which a hacker could pose as significant a threat to U.S. nuclear reactors, subways or pipelines as a hostile country’s military.

In part, the Pentagon intends its plan as a warning to potential adversaries of the consequences of attacking the U.S. in this way. “If you shut down our power grid, maybe we will put a missile down one of your smokestacks,” said a military official.

Cross-posted at Balkinization

Bobby Chesney writes back with a thoughtful post responding to my question about whether the United States has forward-going detention needs in its counterterrorism operations that are currently unmet by the 2001 statute known as the AUMF. The question arises in light of Congress’ current debate over whether to pass (as the House already has) new legislation essentially extending and broadening existing use of force authority it passed in 2001.

Before I engage Bobby’s suggestions, a quick note principally to our readers not as steeped in domestic U.S. law who have written to ask what this debate is all about. So in grossly abbreviated form… As a matter of domestic U.S. law, the executive must have some affirmative font of authority for carrying out war-making and/or counterterrorism operations, either under the Constitution or under a statute passed by Congress. The Gitmo detainees and others who challenged the legality of their detention starting in 2002 argued, among other things, that the executive lacked such authority. In 2004, the U.S. Supreme Court held in a splintered plurality opinion that (a) the AUMF (which I quote in an earlier post) did give the executive the authority to detain, at a minimum, “an individual who…was ‘part of or supporting forces hostile to the United States or coalition partners’ in Afghanistan and who ‘engaged in an armed conflict against the United States’ there”; and that (b) the Court’s interpretation of the scope of the AUMF was informed by “longstanding law of war principles.” Litigation in lower federal courts since then has reached some stasis regarding who else beyond the individuals described in Hamdi could be detained, and (although less clearly) how IHL informs this conclusion. Broadly speaking, the courts have read the current AUMF to authorize the detention of members of Al Qaeda, the Taliban, and “associated forces,” as well as those who, to some not entirely clear extent, “support” those groups, provided they’re connected at some level to the attacks of 9/11. The current debate is whether Congress should authorize the President to use force (including force to detain) against more than just these categories of individuals and groups, and whether or not connected to 9/11 per se.

Ok, that said, Bobby suggests there are two categories of individual the United States may need/want to detain in the coming years who he thinks may not be covered by the existing AUMF: (1) Al Qaeda-member detainees like KSM who we’re currently holding at Gitmo and who we may want to continue to hold after the cessation of active hostilities in Afghanistan (when IHL would presumably require Taliban members to be repatriated); and (2) a bomb-making expert (or the like) who’s a member of Al Qaeda in the Arabian Peninsula (AQAP), a group that Bobby (and John Dehn in a helpful comment to an earlier post) I think probably rightly understand as “ideologically but only arguably operationally aligned with al Qaeda” (John’s formulation). (FWIW, the State Department lists Al Qaeda and AQAP separately as designated foreign terrorist organizations. AQAP was added to the list in 2009.)

These are useful examples, but I’d say still don’t really make the case for new and improved use-of-force authorization. The first example is the easier one. KSM is the poster child for the terrorist who could and should (long ago) have been prosecuted in federal criminal court. That he hasn’t been is a moral and political (and legal) embarrassment brought about in substantial part because various members of Congress keep proposing laws like the one that passed along with the House bill yesterday, barring the President from prosecuting any foreign terrorist suspect, wherever he may be detained, in any criminal court. As I think I can safely say based on past discussions (not to mention recent posts), neither Bobby Chesney, nor Ben Wittes, nor Jack Goldsmith, nor Marty Lederman, nor I (all oft-times on opposing sides of these issues) think such a ban is a good idea. I also think it safe to say KSM will, at a minimum, face prosecution before military commission in any case. As for the non-KSM Al Qaeda member at Gitmo, particularly given the habeas cases already decided, I guess I’d say it’s pretty clear they’re considered ‘grandfathered in,’ as it were, under the existing AUMF. Hope of course springs eternal we might eventually just prosecute him, too.

What, then, of AQAP, which seems to be something of a post-9/11, quasi-independent franchise of bin Laden’s Al Qaeda (looking to profit, as it were, from the notoriety of the Al Qaeda brand name)? Let’s imagine for a minute that it is in fact this group and its ilk that Congress has in mind in thinking the President needs more detention authority than he has. If AQAP really didn’t crystallize til 2009 or thereabouts, and if its relationship to Al Qaeda per se is less than clear, maybe (maybe) the existing AUMF doesn’t extend. So if that’s who we’re after why tie such groups to the language of the 2001 AUMF at all? Why not let well enough alone 2001 AUMF-wise, start afresh, and draft a new authorization for the use of military force, all divorced from 9/11, that aims squarely at AQAP and, how might one say, its “ideologically aligned” groups? I can hypothesize at least two reasons why Congress hasn’t gone that route, and both of them suggest to me that we should be concerned about the route they’ve taken instead. First, Congress doesn’t want to bear the political heat of effectively declaring a new war, or a Version 2.0 war, as it’s politically far less costly to just take advantage of the appearance that any upcoming military engagements are one long continuation of the same fight. Second, imagine an authorization for the use of force that actually candidly described what it appears to me the bill’s sponsors have in mind. I’m going to use exaggerated language here, but it’s in service of trying to clarify the point: “…all necessary and appropriate force against AQAP and allied or otherwise ideologically aligned groups engaged in terrorist operations.” Such a construction not only shares the overbreadth problems of the current formulation, it starts to sound a whole lot like the kind of war against Islamic extremism that both post-9/11 administrations have insisted they wish to avoid. And it tees up the strategic argument against such an approach that I think deserves serious attention.

Here, Suzanne Spaulding, former general counsel for the Senate Select Committee on Intelligence, former executive director of the National Commission on Terrorism, makes the case better than I.

Osama Bin Laden sold the notion of a “Global Jihad” as a way of bringing disparate terrorist groups, who had been locally or regionally focused, into his fight with the West. He convinced them that they couldn’t change their local regimes, the “near enemy,” because those regimes were backed by the “far enemy,” the United States and other Western nations. The only way they could succeed with their local objectives, he argued, was to join his global fight against the far enemy…. [T]he events of 9/11 provoked the United States into declaring its own Global War, which Bin Laden used to support his claim that Muslims were called to join in the Global Jihad. No matter how many times US political leaders asserted that they were not engaged in a War on Islam, Bin Laden and his followers pointed to America’s Global War to inspire new recruits. The reason the Arab Spring was such a devastating blow to Bin Laden’s strategy was that the near enemy was overthrown by the efforts of the local population, not as a result of the Global Jihad.… With Bin Laden’s death, the most effective advocate for the globalization of terrorism is gone. Tensions have long existed within al Qaeda between those who believed in the imperative of going after the far enemy and those who thought poking a stick at the West was folly and the fight should be taken more directly to the near enemy. Those fissures should now grow, further complicating the struggle for succession….If we can undermine the appeal of a global movement, that would have significant long-term benefits.

If one buys this case, even a bit, then it strikes me important reason for hesitating to start the post-bin Laden era by declaring war all over again.

Cross-posted at Balkinization

The U.S. House of Representatives today passed its version of the 2012 National Defense Authorization Act, including provisions that prevent any of the Gitmo detainees (or indeed any terrorism suspects) from being subject to criminal trial, and also “affirms that the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces,” whomever those “forces” might be. I take some comfort in the fact that there’s still the Senate and the President’s threatened veto standing between the House bill and the law of the land.

In the meantime, responding to my post below arguing that a new authorization for use of force against Al Qaeda et al. is a bad idea, Bobby Chesney writes the following:

“[I]t seems to me that Deborah’s argument to the contrary–i.e., that the 9/18/01 AUMF is indeed going defunct simply by virtue of the passage of time–is precisely why the proponents of a new AUMF feel it worthwhile to restate explicitly that the executive branch can use military force in dealing with al Qaeda. From this point of view, it seems to boil down to whether one thinks that the potential for temporal expiration of the existing AUMF is a good or bad thing. I think it is a bad thing, as I do not think that the need for military force against al Qaeda (and hence the utility of having Congress actually authorize such force, rather than obliging the executive branch to fall back on Article II arguments) has dissipated sufficiently notwithstanding UBL’s death.”

I had expressed the view that the 2001 AUMF had some sort of implicit time limit attached, a limit one could understand as either a function of the passage of time or, as Bobby sensibly notes elsewhere, more specifically as tied to the facts on the ground. (At the moment, the passage of time has seemed to be associated with the weakening of Al Qaeda per se, but it is true that circumstances could change.) To be clear, I had O’Connor’s warning about AUMF interpretation in Hamdi in mind: “Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.”

But Bobby’s more important point is the one I quote above – namely, that how one feels about the new legislation depends on whether one thinks we need forward-going authority to, say, detain members of Al Qaeda we might catch, say, tomorrow. In this respect, I think Bobby’s put his finger on exactly the key issue, and it’s a biggie. It’s about whether we want to continue to give the President very broad detention authority going forward. Bobby thinks he needs it. I’m not so sure.

Here’s my thinking. Let’s say we can assume, based on the outcome of habeas litigation to date, that the detainees at Gitmo and the detainees now held (or picked up in the next year or two, as the U.S. transfers detention operations to Afghan control) in Afghanistan will generally be considered by the courts and the executive to be covered by the existing AUMF (to the extent the government can establish the relevant facts). Beyond these cases, how do we measure or assess the need for forward-going detention authority to combat Al Qaeda, the Taliban and “associated groups”?
Historically, one way of making this assessment has been to defer to executive judgment. This ‘deference’ was on the grounds, the argument has gone, that the executive has the best access to information and insight into U.S. security needs. Here of course, the executive actually opposes the bill. And the initiative to expand or at least prolong detention authorization comes not from the executive branch but from folks on the Hill who, as best I can tell, haven’t spent much time formally (or informally?) seeking executive branch or other putatively expert opinion on the matter.

Another way of making the case for new and improved detention authority is to demonstrate independently that there is some unmet need out there – for example, that executive agencies have been hamstrung in their counterterrorism activities by a perceived lack of existing detention power. Given the degree of classification involved in U.S. counterterrorism operations in such matters, that kind of independent case has always been difficult to make. Indeed, to the extent I’ve seen such arguments, they seem heavily dependent on, at best, individual and unverifiable anecdotal accounts. Or on slippery logical claims that find causal connections where causation is entirely unclear. (For example, the argument that the United States is engaging in more targeted killing operations in the Af-Pak theater because they’re not sure how much detention authority they have. It seems equally plausible to me that the United States is engaging in more targeted killing operations because, say, after a decade of field intelligence collection we have a better sense of where lawful targets may be found than we did when we opened Gitmo in 2002.)

In any case, the new bill puts a premium on making a contemporary and persuasive case in favor of detention authority that lasts longer (and, under the current version, sweeps more broadly) than the authority we’ve found sufficient to deal with the detention operations we already have under way.

Opinion here in Chamber of Commerce v. Whiting .  The Court green-lights state use of licensing laws as a tool of immigration enforcement, consistent with the 1986 Immigration Reform and Control Act.  It also upheld Arizona’s imposition of the e-Verify system as a mandatory requirement on employers, where Congress had deemed the system voluntary.

The decision is important in its own right: business licensing is a pretty significant tool with which to advance a restrictionist agenda.  It will no doubt embolden anti-immigration activists to ramp up their efforts in state capitals (which is not to say they’ll be successful — business interests have typically been successful in defeating these measures in state legislatures).

But the Court’s reasoning is narrow — pretty much an exercise in statutory interpretation.  No broad pronouncements here on the constitutionally appropriate role of states in immigration enforcement.  At the same time, the Court is now obviously tolerating some state measures that implicate immigration.  The decision might even incrementally point to the further normalization of immigration law from a constitutional perspective, here applying ordinary standards of statutory interpretation and preemption doctrine.  And it’s consistent with the federalism agenda of the Court’s conservative wing.

That doesn’t mean that AZ’s far more controversial SB1070 necessarily gets a pass (the question everyone’s asking), which implicates other federal measures and pushes the envelope in a much more dramatic way.  The Court will probably have to confront SB1070 after it works it way back up the judicial pipeline after another round in the lower courts.

In Serbia, not surprisingly:

Ratko Mladic, the Bosnian Serb general accused of overseeing the worst massacre in Europe since the end of World War II, has been arrested, Serbian authorities said Thursday.

Mladic is Europe’s most wanted war crimes suspect for his alleged role in the 1995 slaughter of 8,000 Bosnian Muslim men and boys in the enclave of Srebrenica, an atrocity that came to symbolize the brutality of the Balkans conflict. The war crimes tribunal in The Hague wants to try Mladic on charges of genocide.

Serbian President Boris Tadic announced Mladic’s capture at a hastily called news conference in Belgrade, the nation’s capital, and said authorities were preparing his extradition.

The arrest comes after sustained criticism of Serbia for being too lackadaisical in tracking down Mladic, including a new report by the International Criminal Tribunal for the Former Yugoslavia that reportedly castigates Belgrade’s efforts as insufficient.

[snip]

He added that Mladic was arrested on Serbian soil but did not disclose other details of the operation.

There will be questions, however, as to how Mladic managed to remain at large for so long and whether elements of Serbian security forces knew of his whereabouts without bothering to act. Some Serbian nationalists consider Mladic a hero and believe their country to be the unfair target of censure for its wartime past by international authorities. The arrest could trigger street protests.

Mladic’s arrest is interesting from a number of angles.  To begin with, it will no doubt have a significant impact on the Karadzic trial.  Prosecutors have long wanted to try Mladic and Karadzic together, although I think the Karadzic trial is too far along to make joinder a realistic possibility.  But who knows what the OTP will do.

A separate Mladic trial would also complicate the ICTY’s completion strategy, which calls for all judicial work to cease by the end of 2014.  Given how long trials involving high-value suspects take at the ICTY, there is little chance that Mladic’s trial and appeal would end by 2015.  So it looks like the Security Council will either have to keep the ICTY going longer than anticipated (which would not be the first time) or leave Mladic’s prosecution to the newly-created residual mechanism. The latter seems like an undesirable option — so my guess is that the ICTY judges and prosecutors will get to keep their jobs a bit longer.

Hat-Tip: Dov Jacobs at Spreading the Jam.

Readers will be delighted to know that Jacob has restarted International Law Reporter, your one-stop-shopping center for all new international-law scholarship.  And I’m delighted to learn that Jacob’s new essay, entitled “The Regulatory Turn in International Law,” is now forthcoming in the Harvard International Law Journal, which has recently partnered with our blog.  The essay looks fascinating; check it out here.  Congrats to Jacob!

Cross-posted at Balkinization

Congress is debating a defense authorization bill this week that would not only prohibit the use of Defense Department funds to transfer Guantanamo detainees to the United States for criminal prosecution, but also effectively double down on the Authorization for Use of Military Force (AUMF) legislation Congress passed just after the attacks of 9/11. Here’s the bill. Recall that the 2001 AUMF has come to serve as the key legal authorization for ongoing detentions in Afghanistan and Guantanamo, as well as (at least in part) for U.S. targeting operations overseas. While congressional efforts to hamstring the criminal prosecution of terrorists are no longer new – though still just as misguided – the re-authorization for the use of force language is new, and efforts to discern what it all means have filled my inbox to overflowing. For my money, I’d say the proposed language makes matters worse for a host of reasons (more on which in a sec). So I was delighted to see the Obama Administration issue a statement yesterday threatening to VETO the entire bill if the set of detainee-related provisions are included. Here’s their take. Although the Administration has complained about the Gitmo prosecution-and-transfer restrictions in the past, this is the first time it has issued a veto threat to underscore the seriousness of its objections.

Bobby Chesney raises the question whether the veto threat should be read to extend to the AUMF redux provisions. I sure read it that way, and we should count on the Administration to say publicly otherwise if there’s any serious question of its intent. The fact that it’s threatening a veto here and hasn’t raised such a threat to earlier, fundamentally identical, transfer restriction provisions might favor the reading that it sees something new in this bill it doesn’t like even more than it didn’t like earlier bills. In any case, I hope the threat extends. Without parsing in detail, here are three of the reasons why I think the new language is a mistake. (I’m also pasting copies of the relevant bills – the original AUMF and the newly proposed language – below so you can judge for yourself. )

(1) A new use of force authorization resets the detention clock. Since 2001, courts interpreting the scope of the original AUMF have at times suggested that there’s probably some implicit time limit on the effectiveness of the authorization. Did the AUMF suffice to authorize the detention of Afghan belligerents in 2001? Sure. Would it suffice to authorize the detention of Somali belligerents in 2021? A harder sell. Interpreting the provision this way only makes sense. It’s hard to believe Congress really think it was buying into an indefinite authorization to detain anywhere, anytime for the rest of U.S. history. But new legislation at this point probably would be seen to extend whatever implicit time limit exists. With the U.S. working to hand over detention operations in Afghanistan to the Afghans, and still committed (for what it’s worth) to reducing the detention population at Guantanamo, what’s the case for getting another ~10-15 years worth of detention authority out of Congress in this conflict?

(2) A new authorization resets the litigation clock. Whatever argument the new bill’s supporters might have that this bill is simply meant to codify the detention standard the courts have already adopted in interpreting the original AUMF (and all such arguments I’ve heard require reference to deep legislative history and other extrinsic sources of interpretation that folks like Justice Scalia, among others, abhor), I think it’s impossible to say that this bill will do anything to clarify the work the courts have already done in interpreting the scope of the original AUMF – and more likely does much to throw stones into those already plowed fields. Judging from my own, highly skewed sample of email correspondents, ask 20 lawyers what they think the new bill means, get 20 different answers. Still think legislation is a cure-all for interpretive uncertainty? I’m thinking the 2005 Detainee Treatment Act, the 2006 Military Commissions Act, and the 2009 Military Commissions Act should be enough to squelch that hope. At this point, new legislation is a step away from the legal resolution of detainees’ status, not toward it.

(3) Overbreadth. Who exactly are forces “associated with” Al Qaeda and the Taliban? This is hardly a new concern, but unlike other aspects of the scope of detention authority, years of litigation and briefing have actually done fairly little to clarify this. If the relevant associated forces are groups in, say, Afghanistan, that we’ve spent a decade mapping out, then why not just name them? If the notion is to cover some heretofore unidentified force that might one day pose a threat, why legislate about them now, and require that they be tied (however loosely) to the weakening Al Qaeda? Congress is quite capable, with surprising speed these days, of authorizing the President to use force against threats that arise. If one thinks legislation is of value in part because it forces democratic deliberation over politically salient issues, how is this value served if Congress is voting for something it doesn’t in any meaningful way understand? This “associated force” problem already exists in the current AUMF. Recapitulating it here – especially given the benefit of 10 years of war-fighting and intelligence we didn’t have when we hurriedly passed the use of force authorization in 2001 – seems an unnecessary, and therefore concerning, fudge.

For the record, here’s the text of the current AUMF, followed by the text of the proposed language below.

AUMF OF 2001
(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL-QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated
forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Nothing like the end of the semester as a cure for one’s reading pile. In addition to Marty Lederman’s post on the bin Laden targeting below (great to have him back in the blogosphere!), I’d recommend the following reports you might have missed.

First, back in April, around the time the Times published its account based on Wikileaks documents of the detainees who’ve passed through Guantanamo Bay, Princeton undergraduate and honors student Sam Dorison handed in his senior thesis. Why mention a student thesis here? It’s the best (and in key respects only) study that uses statistical methods to analyze who has been released from Gitmo since 2002 and why. He correlates a range of individual characteristics with length of detention and concludes, among other things, that a detainee’s citizenship is the most significant factor in determining his length of detention at Guantánamo Bay. For those who’ve been following this, that conclusion may well seem consistent with your general sense. But note the significance: (1) release from Gitmo is at best only very slightly correlated with the level of threat the government thought the detainee presents, and (2) citizenship matters not because we’ve necessarily released detainees to our allies but not our enemies, or to human rights-respecting countries but not human rights violators, but because it reflects the detainee’s home country’s ability to monitor him after release; a lower capacity to monitor translates to longer detention duration. Sam’s data are drawn principally from 516 CSRT reports and also take account (with a critical eye) of all the available studies already out there (some of which are of course better than others). For those keeping track at home, well worth a look.

Second is a new report by Human Rights First on U.S. detention operations in Afghanistan – the most thorough and up-to-date assessment on the topic I’ve seen by a long shot. Reflecting on the fact that the number of detainees in Afghanistan has nearly tripled since President Obama took office (now up to 1700, no doubt a reflection of the increased pace of U.S. operations in country), HRF writes up its observations based on the remarkable access they were granted by the U.S. military to observe a handful of detainee review board hearings, as well as an Afghan trial supported by the United States, late 2010-early 2011. HRF also interviewed former detainees, Afghan defense lawyers, prison officials, and U.S. military and State Department personnel. The upshot: while the Obama administration has made some noteworthy progress, there’s more work to be done. Bagram prisoners now have the right to appear before a board of military officers to dispute their detention as “enemy belligerents” fighting U.S. forces, they lack the legal representation the Gitmo detainees have enjoyed, and still lack the right to see the evidence against them. And while the Afghans have begun conducting some actual trials under U.S. auspices, those proceedings have a long way to go before they come close to meeting international standards of fair trial. Make of all this what you will – I actually take some comfort from the reality that HRF had the kind of access they did, and from at least the general trajectory of detention policy there – but I’m very glad HRF continues to hold the USG’s feet to the fire in Afghanistan. For now, one last suggestion that readers may be interested to note HRF’s application of legal framework here, which is to me a not entirely clear blend of IHL and human rights law. HRF (in my view correctly) describes the current conflict in Afghanistan as a NIAC, but then moves directly (past Common Article 3’s “regularly constituted courts,” APII, etc.) to int’l human rights law (ICCPR) for the relevant procedural standards. Especially given the United States’ long held (if, in my view, unfortunate) position that ICCPR doesn’t apply extraterritorially (which the report acknowledges), this seems a bit of a tough legal case to make. Beyond the trial situation (to which it seems CA3 would surely apply), as long as we’re choosing between legal regimes the United States officially rejects, why not pick APII, or API by analogy, as the more useful standard? Truly asking here.

Finally (for now, I’m still catching up), former State Department Legal Adviser John Bellinger and his former State Department colleague (and soon-to-be Vanderbilt Law professor) Vijay Padmanabhan have a new piece out in AJIL lamenting the ongoing gaps they describe in IHL as applied to non-international armed conflicts. I confess I’ve only skimmed it so far, but particularly in light of my questions about the law HRF is applying in evaluating U.S. operations in Afghanistan, I’m going to give this a careful look. For the time being, let me just quote from the article’s ambitious statement of mission.

[O]ur hope is that by identifying areas of agreement among states detaining nonstate fighters, and by suggesting additional considerations that should receive further thought, the international community will be better positioned to develop new law for guiding and constraining state action in future conflicts. While we recognize that a new international instrument, even if advisable, is unlikely to be achieved in the near future, an agreement on common principles by like-minded states would further the process of legal development—which is urgently needed in this area.

Members of Falun Gong have filed suit against Cisco, alleging the company collaborated with the Chinese government to develop and maintain “Golden Shield” technology. As a result of this technology, Falun Gong members have allegedly suffered “severe and gross abuses, including false imprisonment, torture, cruel assault, battery, and wrongful death.”

The complaint, filed by my former colleague Lee Boyd and Terri Marsh of the Human Rights Law Foundation, reflects the modern trend in international human rights litigation.

First, it names Cisco officers, including CEO John Chambers, Vice President Owen Chan, and Thomas Lam, head of Cisco’s Chinese operations. It also names defendants DOES 1-100, who are Cisco employees whose names are not known but who allegedly were responsible for Cisco’s conduct that resulted in plaintiffs’ injuries.

Second, the ATS claim alleges intent, not mere knowledge, to commit international law violations. Cisco and the other defendants “knowingly and purposefully aided and abetted” the Chinese authorities by “bidding for, building, designing, constructing, customizing, installing, and servicing the Golden Shield surveillance system” that enabled the Chinese authorities to identify and persecute the plaintiffs. “Defendants competed aggressively to win contracts to design and develop the Golden Shield, with full knowledge and purpose that it was to be used for the suppression of the Falun Gong religion…. Defendants knew and intended that the products and services Cisco designed for the Golden Shield would be used to commit human rights violations.”

Third, the complaint alleges international law violations under the ATS and the TVPA, but it also includes traditional state law tort claims, such as battery, assault, false imprisonment, and wrongful death. With ATS claims increasingly difficult to succeed, the complaint supplements those violations with traditional tort claims. Pleading domestic tort law claims for misconduct that occurs abroad seems to be a growing trend. As my colleague Trey Childress has argued, by pleading state law “plaintiffs escape substantive law limitations that have been imposed by federal courts on the ATS. Pleading state … law allows international law to be developed in U.S. courts not through federal common law but through general principles of choice of law.”

Fourth, the complaint is one of the few international law claims that focuses on technological innovation and customization to facilitate human rights abuse. If technology companies are customizing their products and services to facilitate government surveillance of dissidents, it raises novel questions of government and corporate cooperation to commit human rights violations. The complaint emphasizes that Falun Gong members are dispersed throughout China, and must utilize the Internet to practice their religion. The complaint alleges that effective Internet surveillance is a central part of China’s efforts to monitor, identify, and persecute the group.

It seems that the central debate in this lawsuit is whether the plaintiffs can prove that Cisco and its employees customized their technology to facilitate surveillance of the Falun Gong. Based on my conversations with Lee Boyd and Terri Marsh, they are convinced they can prove such customization. They say that Cisco whisteblowers have provided them internal documentation that will prove Cisco customized its products to develop the Golden Shield. Cisco, on the other hand, vigorously denies the allegations. As reported here, the company stated that it does not “customize our products in any way that would facilitate censorship or repression.”

We shall see.

Cisco Complaint

According to TPM Muckraker, the DOJ has authorized prosecutors to indict John Edwards.  So in case you were wondering about the Obama administration’s priorities, here they are: violating election laws to cover up an affair, not acceptable.  Ordering torture, no problem.

Glad we cleared that up.

This according to the New York Times:

The charges — brought by prosecutors Mr. Mubarak had appointed — included hints that former subordinates might testify against him, as onetime allies and government insiders turn on one another.

A Cairo criminal court is expected to set a trial date within days, and the Egyptian people could soon see the leader whose iron fist ruled them for nearly three decades seated in the steel cage that serves as a docket in Egyptian courtrooms.

Alarmed by the calls for Mr. Mubarak’s prosecution,  the Saudi royal family has for weeks urged Egypt’s current military rulers to avoid harsh treatment, fearing that it could intensify unrest in the region, according to Saudi officials and a Western diplomat. Some argue that watching Mr. Mubarak endure the humiliation of a criminal trial and potential conviction could harden the resolve of embattled leaders like Bashar al-Assad of Syria and Ali Abdullah Saleh of Yemen to hang on to power at any cost.

I remember the good old days, when only international prosecutions undermined peace by providing dictators with an excuse to fight to the death.  Now it’s any attempt to hold dictators accountable for their actions.  (Look forward, not backward!)  Next thing you know, people will be arguing that we should provide dictators with their own islands, hefty bank accounts, and the latest designer clothing.  (Not to mention the de rigeur cookies and smiley faces.)  Because if a dictator can’t be certain that he will enjoy his retirement, what reason will he have not to “hang on to power at any cost”?

[Marty Lederman is an Associate Professor of Law at Georgetown Law. He was was Deputy Assistant Attorney General in the Department of Justice’s Office of Legal Counsel from 2009 to 2010 and an Attorney Advisor in OLC from 1994-2002. This post is cross-posted at Balkinization.] Shortly after the recent military operation against Osama bin Laden, several [Anderson] voices [Belllinger] in the blogosphere expressed puzzlement that the Obama Administration (allegedly) had not provided a sufficiently thorough legal justification for the use of lethal force in Abbottabad. What is truly distinctive about the bin Laden case, however, is not the absence of legal explanation (after all, military forces rarely provide a public legal account when they use force against a particular target in an armed conflict), but instead that the Executive has been so unusually forthcoming about its views on the legal aspects of the bin Laden operation.

Then, on May 4th, the President’s chief spokesperson recited verbatim from an official statement designed specifically to address legal concerns that had begun to be heard. He emphasized that the operation was conducted in accord with the laws of war:

Q: The U.N.’s top human rights official said yesterday that she hoped the administration would release full details about the operation in order to settle any questions about whether it was legally justifiable. Does the administration feel or have any plans that it needs to say anything more about how the operation was carried out, the rules of engagement, to justify the action that happened on— MR. CARNEY: Well, let me address that question and I’ll—forgive me, I’m going to read so I’m very precise here. The team had the authority to kill Osama bin Laden unless he offered to surrender; in which case the team was required to accept his surrender if the team could do so safely. The operation was conducted in a manner fully consistent with the laws of war.The operation was planned so that the team was prepared and had the means to take bin Laden into custody. There is simply no question that this operation was lawful. Bin Laden was the head of al Qaeda, the organization that conducted the attacks of September 11, 2001. And al Qaeda and bin Laden himself had continued to plot attacks against the United States. We acted in the nation’s self-defense. The operation was conducted in a way designed to minimize and avoid altogether, if possible, civilian casualties. And if I might add, that was done at great risk to Americans.Furthermore, consistent with the laws of war, bin Laden’s surrender would have been accepted if feasible.

Finally, this past Thursday, State Department Legal Adviser Harold Koh provided a more detailed legal explanation here at Opinio Juris. From these and other Administration statements, I believe it’s possible to piece together in some detail the Administration’s views of the legal basis for the bin Laden killing (with one possible and understandable exception, noted below). In this post, I’ll try to canvass what appear to be the Administration’s views of relevant international and domestic law questions, respectively. Please note that I don’t intend this post to be a defense of each and every one of these legal propositions; my objective here is simply to enumerate in one convenient place the various legal rationales that the Administration can fairly be thought to have adopted—which I hope will, among other things, help to facilitate debate and discussion with respect to the distinct legal questions. Although my recent service in the Department of Justice, including at the time of Harold Koh’s earlier speech to the American Society of International Law, obviously provided me with some insight on these matters, my observations here are based entirely on public sources, and do not reflect any classified or other confidential information to which I might have had access when I worked at DOJ. And, of course, I do not here speak for the Administration. As noted below, in some instances I am merely speculating as to the Administration’s views; and in others, my suppositions might be mistaken, or might reflect views the Executive branch has not yet settled upon conclusively. As for international law… (Continue reading after the jump)

The following post was written by Luna Droubi.  Droubi, who is Syrian American, was Editor in Chief of the New York Law School Law Review from 2010-2011 and received her J.D. this month.

As a child, I remember sitting with my grandfather on my grandparent’s balcony in Homs, Syria on hot, sticky summer nights. We’d swat away at mosquitoes as he told me stories about his childhood and the importance of family. He would rarely sit still, and I would close my eyes and hear the shuffle of his slippers sweeping the sand on the hard balcony floor, only opening them when I heard the sound of a man I called the Baghwe-Baghwe man. This was a thin, older, graying man who would slowly push his cart of corn down the streets of Homs. From down the block, I would hear him call out “Baghwe Baghwe!” I never quite knew what that meant, but I would immediately grab a few lira and sprint down the four flights of stairs at my grandparents small apartment. Out of breath, I’d beg for “milh akteer” in my American Arabic. Lots of salt please. He always responded with a big broken smile.

As I watch the news programs showing my fellow Syrians filling the streets in defiance of their government, I am filled with an incredible pride. For the entirety of my 27 years, I never thought I would see the day that so many people would stand up against the regime. Every time I watch, though, I can’t help but also fear for my family, my 80-year-old grandparents and my baby cousins, who I worry are without adequate food and water. Though we have been able to reach them by phone, they aren’t able to speak to us candidly out of fear that our phone calls are being monitored. I can only sit and watch, like so many people around the world, as nothing is being done to help them. Syria is curiously off the global radar and, without any exports of value, I fear the world will not pay attention, that Syria’s revolution will be forgotten. For me, the protests have proved to be totally consuming. I scour the videos and pictures in vain, looking for my family members. I try to recognize the names of stores and streets. It is possible that I may never be able to sit on that balcony, or even see my grandfather, again.

Though it is comprised of a peaceful civilian people, Syria has been ruled by the iron will of dictators instilling fear for as long as I have known. A small religious minority, the Alawi, has ruled the country for years. This fear has even been transferred to Syrian Americans who might talk openly about these atrocities in their homes, but are afraid to utter words of protest in public that might put their family back home in danger.

In February 1982, the father of the Bashar al Assad, Hafez al Assad, ordered the killing of what many believe was 20,000 (and some put as high as 40,000) men in the town of Hama without any international condemnation or intervention. As a child, I was told of women who ran miles in their nightgowns to flee from the brutality. As the years dragged on, nearly every Syrian I know (including me) has had a family member or friend who has been “disappeared,” only to return years later unable to talk about the severity of their detainment and torture. These stories and more are ingrained in the minds of everyday Syrians, who are too frightened to mention anything about their political beliefs lest the Mukhabarat, the thug-like secret police force, find out. The world watches but does nothing.

Humanitarian intervention in Syria, under the Responsibility to Protect doctrine so often mentioned in the halls of the United Nations, would send a powerful message to Syrians and the Middle East. The people would feel validated, their plight recognized. Simply put: it would instill hope in a part of the world in dire need of it.

Back in 2005, I studied Arabic at Damascus University. During my interview for the program, I was asked how I felt about Syria. Like a good Syrian daughter, I talked about how wonderful the country was and how thankful I was for our great leader, Bashar al Assad. I left feeling the disgust of so many Syrians who must answer such questions on a daily basis. After two months there, I only felt hopeful on a typically hot and humid July night. A few friends from University and I went to the first Jazz Festival in the country. It was a refreshing to see the next generation of Syrians celebrating an international music festival on their own soil. There was a buzz of excited youthful energy in the air. The crowd was massive, and I recognized the faces from my day to day interactions: at University, on the streets, at the local cafes. They were the faces of the next generation of Syrians ready for something new, and there was hope that Syria was moving into a new era of change.

The slaughter of thousands of unarmed civilians, and the use of detainment and disappearance as a method of fear mongering in the last few weeks has changed all of that. Attacking unarmed civilians is a crime against humanity. Such a crime has long been recognized and litigated in international tribunals and the ICC. It’s time that the international community stands up against this brutality. It’s time for the UN to demand harsher penalties. It’s time for the Security Council to refer the issue to the ICC, thereby authorizing the ICC Prosecutor Moreno-Ocampo to issue warrants for the arrest of Bashar al Assad and his cronies. It’s time for Syrians to feel hope for the future of their country.

In his post below, Harold Koh continually refers to the existence of an “armed conflict” between the U.S. and al Qaeda.  Koh does not specify what kind of armed conflict the U.S. believes exists, but he references Common Article 3 in the detention section of the ASIL speech that he quotes, indicating that the U.S. believes it is in a global non-international armed conflict (NIAC) with al Qaeda.

That position may be consistent with domestic U.S. law under the AUMF, but it’s incorrect under international law, for reasons I’ve explained before.  Even more troubling, though, is that various commentators on the legality of UBL’s killing are claiming that the United Nations has endorsed the U.S. position that a global NIAC exists between the U.S. and al Qaeda.  The first mention I found was a BBC article that quoted Philip Bobbit, an excellent national security law scholar, as saying that the attack on UBL was not an extrajudicial killing because “I think this is part of an armed conflict authorised by the United Nations, authorised by both houses of Congress” (my emphasis).  The second mention was in a blog post by Robert Haddick at Foreign Policy, in which he claimed — linking to the BBC article — that “[t]he U.S. view is that the 9/11 attacks sparked an ‘armed conflict’ between the United States and al Qaeda, a legal status that both the Congress and the United Nations quickly affirmed” (my emphasis).

It is critically important to understand why this is wrong.  The U.S. position that it is involved in a global NIAC with al Qaeda is bad enough; it would be even worse if people believed that the United Nations agreed with it.

The first thing to note is that neither Bobbit nor Haddick identify how the UN has affirmed the U.S. position.  The most logical source, though, is clearly Security Council Resolution 1368, enacted the day after 9/11.  Here is the text of the Resolution:

“The Security Council,

“Reaffirming the principles and purposes of the Charter of the United Nations,

“Determined to combat by all means threats to international peace and security caused by terrorist acts,

“Recognizing the inherent right of individual or collective self-defence in accordance with the Charter,

“1.   Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington (D.C.) and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security;

“2.   Expresses its deepest sympathy and condolences to the victims and their families and to the People and Government of the United States of America;

“3.   Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable;

“4.   Calls also on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council resolutions, in particular resolution 1269 of 19 October 1999;

“5.   Expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations;

“6.   Decides to remain seized of the matter.”

Robert Turner has argued in a recent essay on torture — perhaps serving as the source of Bobbit and Haddick’s view — that Resolution 1368’s reference to “the inherent right of individual or collective self-defence” is “the language of armed conflict, not law enforcement.”  Nothing could be further from the truth.  The resolution deals specifically — and only — with the jus ad bellum issue of when a state can invoke Article 51 of the Charter and respond to a terrorist attack with armed force; it says nothing, either directly or indirectly, about the legal regime that would govern those responses.  (Indeed, Resolution 1368 never mentions armed conflict, nor was armed conflict discussed in the Security Council meeting that preceded the vote.)  Those issues are, of course, separate: as always, whether a state is entitled to use armed force in self-defense is irrelevant to whether hostilities in a particular battlespace rise to the level of NIAC.

Resolution 1368 may well provide support for the U.S. view that the jus ad bellum entitles it to use armed force against al Qaeda even when doing so violates the territorial integrity of another state, although even that claim has been contested by scholars.  (See Carsten Stahn’s thoughts here.)  But it provides no support whatsoever for the U.S. position that it is engaged in a global NIAC with al Qaeda.  Commenters need to stop claiming that it does.

Silence from the White House today on how to rationalize continuing participation in Libya operations notwithstanding the expiration of the WPR’s 60-day-clock.  I think this is a relatively gutsy move on the Obama Administration’s part.  Why go on pretending that section 5(b) of the Resolution poses any constraint on presidential discretion?

Unlike his predecessors (Bill Clinton in particular, with his pretty weak argument for compliance in the context of the Kosovo bombing), Obama is in effect saying, this law is unconstitutional and I’m not paying any attention to it.  It’s not worth taking some transparently evasive action (like halting operations for some short period to try to set the clock back to zero).  It doesn’t even merit a statement from my press secretary.

There will be some carping, of course, but Congress won’t do anything about it.  (Here’s a new algorithm:  if Dennis Kucinich and Rand Paul agree on anything, the opposite is true.)  That should pull the plug on a provision that has been on life support since its enactment over President Nixon’s veto in 1973.  It will still be in the U.S. Code, but it will have been decisively invalidated by practice.

Should we care?  I don’t think so, since the act has never had any impact on executive branch decisionmaking (beyond conformity with the reporting requirement), and never made much sense from either a constitutional or functional perspective.  Presidents will still undertake unilateral action for operations not requiring significant resource commitments or casualty risks.  But they will still go to Congress when the stakes are high.

UPDATE:  The President has written a letter to congressional leaders updating them on US participation in the Libya operation.  The letter welcomes the possibility of a resolution in support of the action:

Congressional action in support of the mission would underline the U.S. commitment to this remarkable international effort. Such a Resolution is also important in the context of our constitutional framework, as it would demonstrate a unity of purpose among the political branches on this important national security matter.  It has always been my view that it is better to take military action, even in limited actions such as this, with Congressional engagement, consultation, and support.

No mention of the War Powers Resolution and no suggestion that congressional authorization is constitutionally mandated.  A very credible finesse.

[Harold Hongju Koh is the Legal Adviser, U.S. Department of State.]

I write in response to those who have raised questions regarding the lawfulness of the recent United States operation against Al Qaeda leader Osama bin Laden. United States officials have recounted the facts of that well-publicized incident, most recently in the interview of President Obama on CBS News 60 Minutes on May 8, 2011. In conducting the bin Laden raid, the United States acted in full compliance with the legal principles previously set forth in a speech that I gave to the American Society of International Law on March 25, 2010, in which I confirmed that “[i]n …all of our operations involving the use of force, including those in the armed conflict with al-Qaeda, the Taliban and associated forces, the Obama Administration is committed by word and deed to conducting ourselves in accordance with all applicable law.” The relevant excerpts of that speech are set forth below:

The United States agrees that it must conform its actions to all applicable law. As I have explained, as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for Use of Military Force (AUMF). These domestic and international legal authorities continue to this day.

As recent events have shown, al-Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks. As you know, this is a conflict with an organized terrorist enemy that does not have conventional forces, but that plans and executes its attacks against us and our allies while hiding among civilian populations. That behavior simultaneously makes the application of international law more difficult and more critical for the protection of innocent civilians. Of course, whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses. In particular, this Administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles, including:

• First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and

• Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

In U.S. operations against al-Qaeda and its associated forces … great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.

…[S]ome have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.

…

[In addition] some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.

… Finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

In sum, let me repeat: … this Administration is committed to ensuring that the targeting practices that I have described are lawful.” (emphasis in original)

Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda. In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force. By enacting the AUMF, Congress expressly authorized the President to use military force “against … persons [such as bin Laden, whom the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 …in order to prevent any future acts of international terrorism against the United States by such … persons” (emphasis added). Moreover, the manner in which the U.S. operation was conducted—taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter—followed the principles of distinction and proportionality described above, and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way. Finally, consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

In sum, the United States acted lawfully in carrying out its mission against Osama bin Laden.

[From the Opinio Juris team: We encourage reader comments and discussion and have set up an open comment thread here.]

Readers are invited to comment on Harold Koh’s post on the legality of the Bin Laden operation. As always, we expect and anticipate that all comments will be substantive, responsive, and civil. The permanent contributors will moderate any comments that depart from this norm.

As discussions over the legality of the May 1 killing of Osama Bin Laden by U.S. forces heated up and international law and law of war experts provided a range of potential arguments for and against the lawfulness of U.S. action, we thought it would help public discussion to present the official U.S. position on the legal dimensions of the raid and killing.  We are delighted to announce that the Legal Adviser to the U.S. State Department, Harold Hongju Koh, has accepted our invitation to address these issues and that he will be guest blogging with us tomorrow, May 19.

As many of our regular readers know, Koh came to the position of Legal Adviser in 2009 with a wealth of experience and deep expertise as a leading scholar in international law, a former Assistant Secretary of State for Human Rights, Democracy and Labor, and Dean of the Yale Law School.  We are honored to host him on Opinio Juris and look forward to what is sure to be a lively follow up discussion here and elsewhere.  I should note that Koh’s predecessor, John Bellinger, guest blogged with Opinio Juris in 2007, to address a range of questions relating to the U.S. legal policies on detention and counter-terrorism and the power of the president to interpret international law.  The opportunity to hear from the current Legal Adviser continues an important tradition of dialogue between government lawyers, the academy, and the general public.  It also represents the kind of transparency of legal policy necessary to effective and accountable governance in these challenging times.

Jean d’Aspremont’s supremely kind comments on my article require little response other than an expression of appreciation. Jean’s knowledge in this field is second to none, and the differences in our perceptions of these topics are minute. But it is, perhaps, worth clarifying my position on the recognition of coup regimes and the question of a democratic entitlement in international law.

There is no question that the international order has departed from the strict anti-interventionism that underlies what I have termed ‘the effective control doctrine’. Coups against ‘freely and fairly elected’ governments have, as Jean has demonstrated, systematically come to incur disfavor. What is unclear is whether it remains the exceptional case or is now the rule that this disfavor extends to denying a coup regime legal standing to assert rights, incur obligations, exercise powers, and confer immunities on behalf of the sovereign entity that it purports to govern. The Haiti (1991–94) and Sierra Leone (1997–98) precedents were path-breaking but involved unusually egregious regime characteristics and have not been followed in cases of mere disrespect for election results.

Tellingly, Jean has conceded that once ‘authors of a coup d’etat … have gained effective power’, they become for legal purposes ’an organ of the state,’ and their subsequent breaches of international legal obligation ’are attributable to the state.’¹ And indeed, if a coup regime, notwithstanding widespread disapprobation, acquires permanence, it becomes dysfunctional for the international order to relate to it in any other way.

Given the continuing heterogeneity of ruling arrangements, old and new, it seems anomalous that the international order should make sacrosanct a particular formula for establishing a government. Moreover, ‘free and fair elections’ achieve general acceptance as the arbiter of political conflict only where antecedent questions, both procedural and substantive, have been resolved. Where there is no agreement about what fates electoral outcomes should be permitted to determine, the stakes of electorainl competition can be intolerably high. In addition, elections often pose a choice among options as to which there is little sense of popular ‘ownership,’ and elected governments may frequently be seen to have vitiated their mandates by provocative or ineffective conduct. Coups and other unconstitutional disruptions cannot be blanketly characterized as anathemas to popular will.

This is not to say that the proliferation of free and fair electoral processes is not to be encouraged nor that recognition practice should regard bullets and ballots as equivalent. Nor do international norms stand still. The Côte d’Ivoire crisis (2010–11) furnishes a new instance of regime repudiation, albeit distinctive for (1) having already been the object of Chapter VII resolutions aimed at resolving a sectional civil war, and (2) having been the site of an externally brokered agreement calling both for elections organized in a specific manner and for the parties to abide by an internationally-backed body’s judgment on the electoral outcome. Whether this episode augurs the long awaited normative transformation or represents just another exceptional case remains to be seen.

Notes:

¹ Jean D’Aspremont, ‘Responsibility for Coups d’Etat in International Law’ (2010) 18 Tulane Journal of International & Comparative Law 451, 473.

[Jean d’Aspremont is Associate Professor of International Law and Senior Research Fellow of the Amsterdam Center for International Law at the University of Amsterdam]

Brad Roth’s timely and insightful article entitled ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’ published in the Melbourne Journal of International Law deserves the greatest attention. Twelve years after his seminal Governmental Illegitimacy in International Law. Brad Roth shows that his knowledge and analysis of questions of governmental legitimacy and state creation remains unequaled. He remains a voice that still resonates with authority – and rightly so in the international academy. This article is just one more illustration thereof. Although I have occasionally taken different paths than those suggested by Brad, most of the time I have reached similar conclusions. On the whole, I find myself in agreement with the call for prudence that permeates his scholarship and, in particular, his rejection of the all-out and unbridled embrace of the so-called principle of democratic legitimacy promoted by the Manhattan School in the first half of the 1990s.

This article is no exception. In particular, I concur with Brad’s conclusion regarding the place of the effective control doctrine in situation of state creation and secessions. Indeed, Brad correctly thwarts the often naïve, in my view, legalism infusing the international legal scholarship pertaining to state creation and secession and rejects the tendency to elevate what scholars commonly but misleadingly present as the ‘statehood criteria’ into rules regulating state creation and secession. In that sense, he rightly backs away from what I have called elsewhere the ‘Montevideo Illusion’, whereby it is thought that states are necessarily created under and in accordance with international law. state creation and secession remains primarily a question of — as I used to distinguish them — external and internal effectivité, the former being directly determined by recognition and the latter being the result of the actual territorial control which the entity concerned can establish. Likewise, Brad rightly keeps at bay progressive interpretations of the principle of self-determination (see, eg, the oral statement of the only African country participating in the advisory procedure before the International Court of Justice pertaining to declaration of the unilateral declaration of independence in respect of Kosovo: http://www.icj-cij.org/docket/files/141/15738.pdf) as well as the contention that self-determination has grown into a principle that regulates secession. There is no doubt that self-determination has significantly impacted the creation of states in the second half of the 20^th century. That legal principle bears upon factual developments which are the essence of the political project behind international law. It is however going one step too far to claim that the factual effect that self-determination can bear automatically elevates it into a legal rule governing statehood. This is why, as far as Brad’s treatment of state creation and secession is concerned, there is thus not much I would disagree with.

The conveners of this symposium would probably not relish having me concurring with all the points made by Brad. Legal blogging owes its raison d’être to, among other things, its provision of a platform for discussion (http://www.ejiltalk.org/in-defense-of-the-hazardous-tool-of-legal-blogging/). I shall accordingly seize this opportunity to spot the few issues with respect to which my views depart from those of Brad. While agreeing with most of his positions in terms of state creation and secession, I find myself slightly more uncomfortable with some of his conclusions pertaining to situations of coup d’etats. I entirely share his caution and his contention that we must resist the temptation of legalism and over-reading individual cases, for these situations are most of the time sui generis and the following reactions simply ad hoc. Likewise, I agree that the cases of Honduras and Madagascar can be the object of diverging interpretations. However, as I have argued elsewhere, and despite the fact that, in my view, coups d’etat can never be attributed to the states because authors of coups cannot be acting in the capacity of an organ of the state, one cannot turn a blind eye to the contemporary systematic practice whereby putschists almost always fail to secure recognition — unless they commit themselves to organize free and fair elections — and undergo a wide range of sanctions. Putschists most of the time fall short of being recognized and are subject to sanctions, but that does not necessarily mean that there is the ‘invisible hand of a rule’ behind it. It simply means that there are some well entrenched standards in practice and that free and fair elections have become one of the central yardsticks in terms of legitimacy of government (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1265527). It is true — and this probably is the major divergence between Brad and I – that I have gone as far as to claim that not only conventional law (the ICCPR and regional conventions), but also customary law, now enshrine a very minimal requirement pertaining to the organization of free and fair elections. Yet, even if one rejects that idea, as Brad does, it seems difficult to ignore that the practice bespeaks a solid trend towards the non-recognition of putschists — and hence a systematic denial of legal standing and the capacity to speak and act on the behalf of the state by those that seize power by virtue of a coup.

This being said, irrespective of whether practices pertaining to coups d’etat are the manifestation of the existence of a customary rule, as I have just indicated, it does not necessarily need to be so. Making the claim that free and fair elections have become central standards in recognition of governments does not prejudge that this practice may currently be waning and that the commitment of states for procedural democracy after the Cold War may soon be superseded by other considerations (see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1729786). While disagreeing on the ambit of past and present practice, it may well be that in the future, Brad and I will eventually come to share a similar cold-eyed take on the matter.

[Brad Roth is an Associate Professor of Political Science and Law at Wayne State University]

The effective control doctrine that, in different forms, has governed the recognition of states and governments is unappealing at its core.  Based on the principle of non-interference in civil strife within established international borders, the doctrine’s essential logic is that, with regard to internal efforts to create new states by secession or to overthrow existing constitutional orders, the international rule of law reduces to respect for the outcomes of trials by ordeal.  Traditionally, international law has not established any pathway by which secession can be peacefully achieved without the consent of the original state, nor has it systematically predicated a governmental apparatus’s standing to exercise the state’s legal prerogatives on anything other than victory in an internal power struggle.

In these fundamental ways, international law has seemed to lack a ‘rule of law’ character.   Nonetheless, alternatives are elusive, and not merely because of realpolitik considerations.  Appeals to the idea of ‘popular’ rather than ‘state’ sovereignty miss the point that opposing sides in internal conflict typically claim this mantle.  The right of peoples to self-determination is associated with non-fragmentation as much as with independence; respect for majority rule presupposes an answer to the very question being contested — the ‘majority of whom?’ problem — and respect for minority rights presupposes straightforward resolutions to clashes, not only between legitimate majority and minority interests, but also between minorities and minorities-within-minorities, between territorially concentrated and dispersed minorities, and between ‘national’ and ‘non-autochthonous’ minorities.

What counts as a democratic outcome in any given instance is highly dependent on contested normative conceptions.  From one perspective, in conditions of extreme economic disparity and social stratification, liberal-democratic constitutional forms are consistent with a substantive political inequality that belies the ‘democratic’ imprimatur; in the face of concentrations of economic and social power, a concentration of political power may be necessary to change the game.  From another perspective, adherence to a particular constitutional formula may allow for demagoguery or deadlock to win the day at a critical historical moment, with potentially severe and lasting social costs.  Where such assertions are facially plausible and are embraced by substantial constituencies, the words ‘essentially within the domestic jurisdiction,’ expressing the principle of sovereign equality so central to the international legal order that we have lately known, seem apt.

That said, the existence of twilight does not refute the distinction between day and night.  There remains an underlying moral logic to the international legal order, and the plurality of interpretations, while substantial, is not unlimited.  A cross-cutting consensus in the international community is frequently achievable, if not about what popular sovereignty is, then about what it is not.  Where the outcome of a local trial by ordeal is widely perceived to be in blatant contradiction to the notion of the state as embodying the self-determination of the entirety of the territorial population, or to the notion of the government as an authentic representative (for the time being) of the political community that the state encompasses, international institutions may repudiate that outcome and champion an alternative solution.  That alternative solution, however, tends ineluctably to have an ad hoc character.

The full article can be accessed here.

Many thanks to Duncan for his great post on Dominique Strauss-Kahn’s (DSK) potential immunity, and for inviting me to follow up. My short answer: status-based immunity (often referred to as “diplomatic immunity”) is not available. Conduct-based immunity (also called “official acts” or “functional” immunity) is not available either. Here’s why.

The only type of immunity that would benefit DSK would be status-based immunity; that is, immunity based on his position as executive head of the IMF. The BBC has quoted Jovan Kurbalija, the director of DiploFoundation, as saying that DSK might enjoy absolute immunity by virtue of his status as the executive head of an international organization under the 1947 Convention on the Privileges and Immunities of the Specialized Agencies. However, the United States is not a party to that treaty. This means that the IMF cannot invoke article 6(21) of that treaty, which provides that “the executive head of each specialized agency … shall be accorded in respect of himself, his spouse and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.” In any event, as others have indicated, the IMF would not likely assert such immunity, particularly since article 6(22) of the same treaty provides that “[e]ach specialized agency shall have the right and duty to waive the immunity of any official in any case where, in its opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the specialized agency.”

As Duncan points out, the governing statutory provision in the United States, 22 USC § 288d(b), does not provide for executive head immunity, and instead entitles international organizations to claim immunity for their officers and employees only for “acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees.” Because the United States is not party to the 1947 treaty, the only way the IMF could attempt to invoke status-based immunity would be by arguing that article 6(21) of the treaty represents customary international law, and that the omission of this provision in 22 USC § 288d(b) does not indicate a congressional intent to depart from that custom.

There is no doubt that subjecting DSK to prosecution will interfere with his ability to conduct business on behalf of the IMF, although an acting managing director stepped in upon news of his arrest. If the IMF were entitled to assert status-based immunity on DSK’s behalf, the IMF would have to weigh the impact on its own operations, among other factors, in deciding whether to assert or waive it. However, there does not appear to be any status-based immunity for the IMF to either assert or waive. In this sense, media headlines confirming that DSK does not have “diplomatic immunity” are unremarkable; the issue is whether or not the IMF could claim functional immunity on DSK’s behalf.

In order to claim functional immunity, the IMF would have to argue that alleged the attack fell within DSK’s functions as head of the IMF. Even if the IMF were paying for DSK’s $3,000 per night hotel room while he visited his daughter in NYC (or whatever he was doing there), it is difficult to see how DSK’s alleged conduct could benefit from any type of conduct-based immunity, which is modeled on consular immunity and requires a close nexus with the official’s job duties or at least the exercise of apparent (even if not actual) authority. Whether or not DSK was “in transit” to an IMF meeting, or even in New York on official IMF business, is irrelevant in this context. Interacting with a maid in a hotel room is not an official function, even if you are on a business trip. (I say “interacting with” rather than “attacking” because certain unlawful acts might still fall within the scope of conduct-based immunity, depending on the circumstances.) The absence of functional immunity was confirmed by IMF spokesman William Murray, who has indicated that DSK’s immunities “are limited and are not applicable to this case.”

The difference between the scope of status-based immunity and conduct-based immunity is significant. Status-based immunity is limited to a very narrow category of individuals, including sitting heads of state and diplomats, to preserve their ability to engage in international relations on behalf of the states they represent. The scope of conduct-based immunity is more limited, and thus more often contested. Last year, the Second Circuit held in Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010), cert denied 131 S. Ct. 151 (Oct. 4, 2010), that three former U.N. officials enjoyed functional immunity as a matter of treaty and statute for alleged sex discrimination in working conditions and workplace retaliation against the plaintiffs for pursuing a complaint. This holding was grounded in the observation that the suit was based on the defendants’ alleged “abuse of authority in the workplace” (as characterized by the district court) and “personnel management decisions falling within the ambit of the defendants’ professional responsibilities” (as characterized by the Second Circuit). Because there was no federal subject-matter jurisdiction over these claims, the Second Circuit did not reach the question of whether the plaintiff’s state tort law claim for battery (relating to an alleged improper touching during a 2003 meeting in Geneva) would fall within the scope of a former official’s functional immunity.

Under the current state of the law, it does not appear that the IMF has any grounds to assert immunity for DSK, even if it were inclined to do so (which it clearly is not). Moreover, thanks to Roman Polanski, DSK will have to spend at least some time at Riker’s Island. Is it possible that the whole affair is a set-up by DSK’s political opponents in France? Unless we see a plea deal, a New York jury will decide.

Can arguments for preemptive self defence under international law be regarded as a mirroring of feminist arguments for justified self-defence in cases of homicide by individuals who have experienced long-term domestic violence? This is one of the questions Dianne Otto raises in response to my MJIL article, ‘Feminist Reflections on the ‘End’ of the War on Terror’. In the article I argued that preemptive force, or what was known as the Bush Doctrine, mirrors provocation defences in western national legal structures. The core of my argument assumes that, as a consequence, the removal of preemptive force justifications would be beneficial to the integrity of the discipline just as provocation has increasingly been abolished or rejected by national legal structures.

To shift the domestic analogy from provocation to legal constructions of self-defence introduces a host of new feminist questions. Western states have often responded to and attempted to adapt feminist reasoning on the gendered nature of interpersonal self-defence claims to create legal justifications for domestic violence survivors who have killed their partners to ensure their own or their children’s long term security. If my domestic analogy is accepted as a useful tool to engage and explore the assumptions behind the discipline of international law, the self-defence analogy may lead to a requisite broadening of international self-defence to encompass preemptive self-defence in response to long term violence against a state by another actor.

In my article in the MJIL, however, I use the domestic analogy to explore conceptual analogies between Western, common law legal structures and international law rather than in a prescriptive manner. This approach is enlarged on in my forthcoming book, The Law on the Use of Force: a Feminist Analysis (Routledge, 2011) where I argue:

A prescriptive analogy assumes the correlation of domestic legal categories with international legal categories and, therefore, explains international legal justifications for violence by drawing upon domestic legal justifications for violence. In contrast, the conceptual analysis developed in this book does not assume the sameness of international and domestic legal structures instead, it seeks, to expose concepts developed in Western domestic legal orders that are assumed to exist in the international legal system. . . The conclusion drawn from this is not that the analogy between the two forms of justifications should be strengthened or that feminist solutions to domestic legal issues should be superimposed on to the international. Instead the feminist appraisal of the international law on the use of force, viewed through the lens of the domestic analogy, promotes a re-examination of the appropriateness of contemporary legal rules on the use of force.

In the book, I conclude that one of the flaws of international self-defence is the implicit personification of the state within constructions of the law on the use of force, particularly the imagery and expectations of legal self-defence under Article 51 of the UN Charter and customary international law. The consequential limitations contribute to the sexing and gendering of international law, where violence and law are both concepts that function through the projection and development of strong gender norms about what is rational, justified and legitimate. Our preconceptions about the ‘normal’ characteristics of international legal subjects (or any legal subject or in any legal structure) infiltrate our understanding of how law should or could work. Furthermore, this understanding of the international legal subject is not only gendered male but also envisages heteronormative spaces (that is, where not only are legal subjects imbued with male characteristics, they exist in opposition to other actors whose traits are feminised). I will be enlarging these thoughts on the impact of heteronormative assumptions in the law on the use of force at the upcoming Queer Perspectives on Law Workshop at SOAS on 13 May 2011 (see: http://www.soas.ac.uk/cceil/events/13may2011-queer-perspectives-on-law-workshop.html) .

If we open international law to examine our own assumptions, about the gendered characteristics of legal subjects as well as our heteronormative expectations of relationships between subjects (for example, the powerful state protects the weaker state, forcefully when necessary, and often without consent), we find a range of powerful tools to see the structures which humanity has built as law as normative stories representing only the beginning of what human thinking might imagine in the making and re-making of international law. In my MJIL article, I use Arendt’s powerful description of natality to begin to envisage where we might go next to better represent humanity in the international. To return then to Otto’s question about the parallels between domestic laws on self-defence, particularly cases where survivors of intimate partner violence have killed their abuser and seek justification, and international arguments for acts of preemptive force: hunting out the conceptual analogies should push us toward exposing the assumptions we bring to international law; assumptions that we must work toward moving beyond.

[Dianne Otto is a Professor of Law at the University of Melbourne, where she directs the programme on International Human Rights Law]

Two of the challenging questions that Gina Heathcote asks in her wonderfully provocative article are: What is a ‘feminist’ approach to the regulation of the ‘use of force’ in international law? What light is thrown onto this question by reforms feminists have promoted in domestic criminal law whereby, in seeking the abolition of provocation as a (partial) defence to murder, they have sought to tighten rules that excuse pre-emptive use of deadly force?

Heathcote argues that feminist engagement with international law has circled around the first of these questions rather than confronting it. I agree. Even worse, as Heathcote goes on to explain, since 9/11, most feminist work relating to the use of force in international law has, directly or indirectly, lent support to the increasing number of justifications for the pre-emptive use of force that have emerged. To illustrate this unlikely alliance, she uses the example of feminist concern with women as the victims of armed conflict and terrorism, which has served to strengthen arguments for pre-emptive use of force in order to protect women, as in Afghanistan and Iraq. Feminist advocacy has thus helped to sustain the familiar gendered imaginaries of international law that support the belief that military force is fundamental to global security, rather than subjecting them to fundamental challenge. Heathcote proposes that feminists focus more on strengthening the prohibition of the use of force in international law, following the lead of those seeking to abolish provocation as a defence in domestic criminal law.

As creative and thought-provoking as Heathcote’s analogy with domestic law is, I would like to push it a step further. Feminists have not just sought to limit the availability of exculpatory defences to murder in domestic criminal law. They have also argued that the rules that justify killing in self-defence should be loosened, in order to exonerate women who respond pre-emptively with deadly force to anticipated domestic violence. Extending Heathcote’s analogy, this suggests there may be some instances in which feminists would endorse the pre-emptive use of force in international law. This could help to explain apparent feminist support for the idea that force could be used to rescue women from widespread or systematic sexual violence during armed conflict, as Security Council Resolutions 1820 and 1960 suggest. The extended analogy raises a host of further questions which feminists engaging with international law need to address. Are there situations in which feminists would support the pre-emptive use of force? How far might this support extend? To situations where men are facing widespread sexual violence during armed conflict? For ‘humanitarian’ purposes? To stop the accumulation of weapons of mass destruction? To fight terrorism? And does it matter who uses the force?

My suggested extension of Heathcote’s argument only reinforces her conclusion that feminists engaged in international law need to address questions that are raised by the rules on the use of force head-on. In addition to finding ways to strengthen prohibitions as she proposes, the example of self defence in domestic law attests to the importance of also examining the possibility that there may be circumstances in which feminists support the use of force. Recognizing this would, to begin with, disrupt the conventional wisdom that associates ‘women’ with ‘peace’, which Heathcote identifies as deeply embedded in the gendered hierarchies of international law. It would also challenge the feminist adage that armed force, and the militarism that accompanies it, is never good for women. Heathcote’s provocation made me wonder whether circling around these issues may, in some instances, end up being the most violent thing to do.

[Gina Heathcote is a Senior Teaching Fellow at the School of Oriental and African Studies]

In my 2010 article in the Melbourne Journal of International Law (‘MJIL’), I explore two issues within a larger discussion of the impact of the war on terror on feminist scholarship in the international arena. The first issue is the role of feminist approaches in contemporary international legal scholarship. This leads on to questions that need to be asked about what we can expect from feminist approaches to international law, what feminist approaches might add to contemporary issues on collective security and at what entry point feminist debates might be occurring. The second issue considered in my article, is the end of the war on terror, or at least the Bush administration’s approach to combating global terrorism, and the legacy of the noughties on our understanding of the law on the use of force. Even if we can only argue that the end of the Bush administration in the US resulted in a semantic conclusion to the war on terror, and no change in practice, it is important to review and acknowledge the legacy of this period. This leads us then toward questions about the shape of collective security in 2011. When these two sets of questions and issues are drawn together, as I have done in this article, a range of new and pertinent questions and debates about the position of international law today, and the assumptions international law continues to work within, become exposed.

Feminist approaches appear to have gained a permanent space in international law, yet outcomes remain marginalised. For example, sexual violence in armed conflict is regarded as a gendered issue and thus an important site for feminist progress within international law. Militaries are identifiably skewed toward male membership so gender disaggregated statistics are collected. Both these developments may be important, although it would be misleading to think their importance stems from feminist concerns alone. At the same time the central argument of pivotal feminists works on the sexed and gendered limitations of international law — notably Charlesworth and Chinkin’s Boundaries of International Law; Buss and Manji’s International Law: Modern Feminist Approaches and Anne Orford’s Reading Humanitarian Interventions — remain muted in terms of international legal outcomes, even if they continue to raise and lead academic scholarship and conversations, globally. In the area of collective security this is a largely overlooked concern. Yet feminist scholarship has much to say about the assumptions of international law, about the structural bias of the discipline and a need to shift beyond seeing feminist dialogues as wholly about the twin issues of combating sexual violence in armed conflict and female representation within military structures.

Through the use of a domestic analogy I have attempted to re-develop feminist knowledge to think through the basic concepts and legal models that we bring to feminist debates on collective security. That is, I have used feminist critiques of the relationship between law, gender and violence that have been developed within the national feminist arena as a tool to test, identify and measure the gendered assumptions that permeate our understandings of the international. The second method used is a law-as-a-narrative model. When law is identified as a narrative that produces and reflects gendered understandings of legal subjects and relationships, gendered concepts are connected across the range of social discourses. In taking these two feminist methods to an analysis of the war on terror, what is now described as the global war against terrorism, I have challenged the preemptive force argument as a deployment of a provocation type excuse for the use of force in the international sphere that is analogous to domestic provocation excuses within Western, common law structures. It is interesting to note that Sir Ian Brownlie came to a similar conclusion in 1961 arguing against any form of provocation excuse within the international legal structure.[1] When coupled with a feminist understanding of the limitations of provocation as an excuse or mitigation for killing within domestic legal structures, the limitations of the Bush Doctrine of preemptive force are difficult to overlook.

In examining law as a narrative, preemptive force arguments can also be seen to be embedded in wider social discourses that curtail rather than develop humanity, be it through the consequent social fears and civil restrictions or the necessary denial of the two way impact of force — on both those who use force (whether that force be illegal, justified, excused, mitigated, authorised or legitimate) and those who experience the use of force within their community. Ultimately the joint interrogation of feminist scholarship and international legal understandings of the global war against terrorism, raises two final questions. Can international law afford to ignore the gendered assumptions deployed and reinforced in contemporary legal narratives on the use of force? And, when, if ever, would feminist approaches justify the use of force on the territory of another state? These are issues this symposium might further develop discussion on.

The full article may be accessed here.

Notes:

[1] For discussion of alliance treaties see Sir Ian Brownlie, ‘The Use of Force in Self-defence’ (1961) 37 British Yearbook of International Law 183, 199.

As a general matter, we agree with Professor Weber’s comments, especially in relation to development and climate change. While we have not in this article focused on developmental aspects of the global financial architecture, in fact, we both view this as the fundamental goal.[1] Development however is not a simple objective and no single set of solutions to the development challenge has emerged. In the global economic architecture today, developmental issues are addressed through the Millennium Development Goals (‘MDGs’), a huge range of multilateral, domestic and non-governmental organizations from the World Bank to UNCTAD to national aid agencies, the Grameen Bank and beyond, and most recently the G-20 Seoul Development Consensus, reflecting the experiences of successful developing countries and the report of the Commission on Growth.

In looking at related issues, we believe the MDGs and Seoul Development Consensus reflect an appropriate way forward for coordinating development across the global economic architecture. Nonetheless, we believe that the International Monetary Fund’s (‘IMF’) role in development should be limited, with its focus on financial matters and crisis resolution. Further, we argue that a financial transactions tax could have important benefits in supporting development as well as reducing financial crises and enhancing mechanisms available for addressing them. At the same time, climate change and related issues such as food security need to be given a much more central role. However, the mechanisms in this context are likely to be different yet again from those adopted in other contexts discussed in the article.

In the context of hardening international financial law, this is a topic which we have addressed separately.[2] In this context, we see a range of possible options from the soft law arrangements preceding the Asian Financial Crisis of 1997, to the hardened soft law arrangements of the Financial Stability Forum/Financial Sector Assessment Program (‘FSAP’) that followed and then to the G-20/Financial Stability Board (‘FSB’)/FSAP arrangements in the wake of the Global Financial Crisis and beyond.

In respect to the ‘beyond’ category, one option would be to incorporate regulation into the WTO framework, accessing its hard law negotiating and dispute resolution framework. However, financial development and stability is a different animal from trade in goods and we would argue that the mindset and legal framework in this context is inappropriate.

A second option would be a global financial regulator — either a new organization or one formed through giving the IMF, Bank for International Settlements (‘BIS’) or FSB appropriate legal authority. This has a certain attraction and would mirror domestic arrangements (a central bank/lender of last resort, financial regulator and financial institution resolution regime). However, politically, we do not think the world is yet ready for this step — perhaps the last crisis simply was not big enough! The European Union is pursuing this approach to some extent through the European Central Bank and European regulatory authorities. Even in that context, though, sovereignty continues to pose serious obstacles.

A third approach would be to follow the approach in the context of investment: an international dispute resolution authority. Once again, however, the contexts are sufficiently different that this may not actually address the core issues of externalities embedded in finance.

As a result, while hardening in some context may be most appropriate (perhaps through the FSB or BIS), we do not yet see this as a viable option politically but one which does have much to recommend it.

Douglas W Arner & Ross P Buckley

Notes:

[Rolf H Weber is a Professor for Civil, Commercial and European Law at the University of Zurich Law School and a visiting Professor at the University of Hong Kong]

The contribution of Professor Douglas W Arner and Professor Ross P Buckley is an important piece to the lively debate about the (new) architecture of the global financial system. The exposé is very thoughtful and enlightening, giving a historical outline of the attempts of regulators to prevent financial crises, with special focus on architectural aspects to be derived from experiences made between 1944–98 and 1998–2008. Still, I would like to offer two observations related to often underestimated aspects which could widen the scope of discussions for further considerations and debates.

Firstly, the regulation of international trade within the WTO framework has shown that a ‘hard law’ approach encompasses substantial merits even if not much progress in the further liberalisation of trade rules has been made during the last decade. As correctly stated by Arner and Buckley (at 39), tensions between developed countries and developing countries (mainly the BRIC countries) have indeed increased. Notwithstanding this observation, however, it should not be overlooked that two ongoing advantages of the given WTO framework remain of importance: (i) The international trade regime being based on multilateral agreements (‘hard law’) can be enforced and incorporates a dispute resolution mechanism which puts substantial preventive pressure on countries inducing them to comply with the WTO rules. The respective incentives are not to be underestimated since even financial sanctions (compensation schemes) can be a consequence of non-compliance. This dispute resolution mechanism is quite unique in the international arena and should be taken as an example which could eventually also be applied in other segments of the economy, in particular in the financial markets. Obviously, such a move would require a ‘hardening’ of many ‘soft law’ rules governing financial markets. (ii) The importance of building stronger links between financial markets and international trade is also evidenced by the fact that the co-operation between international financial institutions (ie the IMF, World Bank, Bank of International Settlements) on the one hand and the WTO on the other hand has materially increased; the risk that their respective policies contradict each other, which was still eminent some 10 to 15 years ago, seems to have become relatively remote.

Secondly, as shortly stressed by Arner and Buckley (at 51), issues relating to development and climate change are inextricably linked to financial matters. Even if the Asian financial crisis (1998–99) was more a problem of sustainable growth than the most recent financial crisis (2007–08), the main international financial institutions (IMF, World Bank) should devote more attention to becoming effective lenders, thereby improving the economic positions of the developing countries. Finding financial means that would provide sufficient resources for achieving global access to financial and other markets can appear to be a daunting task. But leveraging and mobilizing the instruments at disposal requires a focused and strong international consensus that is not always present. Nevertheless, it is paramount to spur the current international debate since there is a need for increased financing resources supporting sustainable and environmentally sensitive growth that can only be met with more engaged international cooperation in this field.

[Douglas P Arner is Director of the Asian Institute of International Financial Law, Director of the Duke–HKU Asia–America Institute in Transnational Law and a Professor of Law at the University of Hong Kong. Ross P Buckley is a Professor of International Finance Law at the University of New South Wales and a Fellow of the Asian Institute of International Financial Law]

During the great period of globalisation before the First World War, the international economy was based on global trade and global finance with monetary policy largely fixed under the gold standard. After the Second World War, a new international system was designed based upon global trade, fixed exchange rates and essentially domestic finance. This system did not include global financial regulation as finance was to be principally national. Starting in the 1960s however, capital markets began to globalise and in the early 1970s the fixed exchange rate system unravelled. The consequences have been a return to a level of financial and monetary instability not seen since the period following the First World War. The most dramatic example to date of this instability is the global financial crisis of 2007–10 (the GFC).

In our 2010 article in the Melbourne Journal of International Law, we analyse the responses to the GFC of the G20 group of nations, commencing in November 2008, followed by further meetings and measures in April and September 2009 and June 2010. Our assessment in broad terms is that the G20 acted effectively in the early stages of the crisis, and has lost momentum as the imminence of the threat to the global financial system has receded.

We argue there is a fundamental need to redesign the architecture of today’s global financial system to meet the requirements of this new reality. We explore possible new mechanisms and the changes to existing mechanisms that could be introduced to address economic coordination, macroeconomic and monetary management, development, and financial crisis prevention and resolution. In particular, we explore the potential for systemic measures such as bank levies, financial activities taxes, financial transaction taxes, and a sovereign bankruptcy regime.

The full article can be accessed here.

Mark Kersten has a useful post today at his excellent Justice in Conflict blog about what will happen once the OTP announces the results of its investigation of the Libya situation.  Check it out!

A busy week of grading prevented me from addressing Ken’s May 6 post on battlefield geography along with the May 6 news that the US conducted a drone attack in Yemen any sooner, but there should be an important take away on the boundaries of the battlefield from the bin Laden operation.

An often heard complaint about the US conduct of the “war on terror” is that it treats “the whole world as a battlefield.” Many contend that such a conception of the battlefield, particularly in the context of a NIAC, violates international law. Mary Ellen O’Connell is perhaps most readily identified with the position that if the NIAC threshold is not met within the geographical boundaries of a specific state then the use of the tools of armed conflict on that state’s territory is impermissible, even with that state’s permission. However many others have taken similar positions with regard to the Aulaqi case or other possible uses of US force outside of Afghanistan (see e.g. my January debate with Ben Wizner of the ACLU on the Aulaqi case).

In analyzing the bin Laden operation Kevin expressed his belief that there is currently a NIAC between the US and “original” al Qaeda, a group to which bin Laden clearly belonged. Although there is not sufficient violence taking place within Pakistan to say that there is currently a NIAC occurring on Pakistani territory, that fact did not prohibit the use of armed force in Pakistan when a participant in the NIAC between the US and al Qaeda could be found there. Likewise, if bin Laden were in Yemen, the same outcome would have been reached, the tools of armed conflict could be employed against bin Laden in Yemen (under certain circumstances) because he was a participant in the NIAC with the US.

The normative reason for this conclusion is that any other reading of IHL with respect to the boundaries of the battlefield would essentially turn IHL on its head. One of IHL’s principal goals is to spare the civilian population and members of the military that are hors de combat from the ravages of warfare. To this end it insists on proportionality and military necessity for all attacks, it requires the acceptance of surrender, it ties the availability of the combatants’ privilege to organizational respect for IHL, and it removes civilian immunity from those participating in an armed conflict either temporarily for such time as they directly participate in hostilities (DPH) or more permanently for those who continuously perform a combat function (CCF). Members of al Qaeda are targetable when they are engaged in attacks (DPH), and leadership (like bin Laden) that is consistently engaged in the planning and direction of operations is targetable at all times (CCF). IHL rewards organizations that enforce the laws of war by allowing members of those orgainzations the combatants’ privilege. IHL discourages terrorist organizations like al Qaeda that target civilians and blend in with the civilian population (thereby placing them at greater risk) by denying them the combatants’ privilege and removing civilian immunity from its members.

However, if IHL is read to prohibit the use of the tools of armed conflict outside of certain geographically defined areas it would be conferring a tremendous strategic advantage upon these same terrorist organizations that it disfavors. By limiting the use of the tools of armed conflict to territory on which the threshold of violence for a NIAC is currently occurring, IHL would effectively create sanctuaries for terrorist organizations in any state in which law enforcement is known to be ineffective (like Yemen, Somalia, Sudan and the FATA area of Pakistan). This reading of IHL would thereby cede the initiative in the NIAC between a state actor that abides by IHL and a non-state terrorist organization (which IHL disfavors in every other way because of its conduct during an armed conflict) to the terrorist organization. The disfavored terrorist organization would get to decide when, where and how the war is to be fought because they would be immune from targeting based purely on geography. That cannot be how IHL should be read when considering the boundaries of the battlefield.

This does not mean that IHL does not offer a number of other challenges to strikes in Yemen or elsewhere. Has the NIAC threshold been met just for al Qaeda, or are other organizations such as AQAP properly part of that NIAC? Do the strikes comport with military necessity and proportionality? What sort of positive identification procedures are required before such strikes take place? Is some form of independent post-strike review required? Is host state permission required? If not, (in the self-defense paradigm) has the host state shown itself to be unwilling and/or unable to apprehend the targeted individuals? What is the standard that should be used to make the unwilling/unable determination? All of these are legitimate questions that may call into question some, most or all of the US’ drone strikes outside of Afghanistan (depending upon how you choose to answer them).

But the question of whether IHL provides a geographically-based immunity for participants in a NIAC should be answered in the negative once and for all.

A former research assistant of mine writes with news of a conference at Columbia Law School May 23-25 that may be of interest to our readers. I copied the announcement below. More information available here.

The Center for Climate Change Law and the Republic of the Marshall Islands are co-sponsoring a conference, “Threatened Island Nations: Legal Implications of a Changing Climate.” The meeting will discuss such issues as continuing statehood and maintenance of maritime zones for states facing inundation from sea level rise; resettlement rights and practicalities of population displacement; liability for climatic harm in judicial forums; the utility of responsibility regimes under current law; and the role for a new convention on climate displacement.

The arrest on sexual assault charges of IMF Managing Director Dominique Strauss-Khan (or “DSK” as he’s known to the French tabloids) is big news this morning. Most of the main stream media attention (quite naturally) has focused on the salacious allegations themselves and/or DSK’s potential presidential ambitions back in France. Here at Opinio Juris, however, I’m sure I was not the only one whose first thought went to the immunity question — namely did officers of the Port Authority of New York and New Jersey detain DSK consistent with federal and international law? 

International Organizational immunity is a complicated topic given its tendency to operate by analogy to the more established concepts of diplomatic and consular immunity.  The relevant U.S. law, the International Organizations Immunity Act (IOIA), 22 U.S.C. 881, generally tracks consular immunity for international organization officers and employees. Thus, 22 USC 881d(b) provides:

(b) Representatives of foreign governments in or to international organizations and officers and employees of such organizations shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees except insofar as such immunity may be waived by the foreign government or international organization concerned.

This approach mimics that taken in the IMF’s own Articles of Agreement.  Section IX(8) provides that officers of the IMF and employees of the Fund “(i) shall be immune from legal process with respect to acts performed by them in their official capacity except when the Fund waives this immunity.” 

Thus, it seems at first glance DSK is entitled only to official acts immunity, barring a waiver by the IMF (and I don’t think their current “no comment” can be read as a waiver here).  This would beg the question of what he was doing in New York on Saturday?  Was he there for some meeting?  Was he “in transit” to his planned Sunday meeting with German Chancellor Merkel?  Or, was he just enjoying a spring weekend in the Big Apple?  Ultimately, what qualifies as an “official act” is a tricky topic that will ultimately require us to know more facts. 

But, before we all assume official acts immunity is the governing framework, there’s a complicating factor — could DSK actually have diplomatic immunity?  Not all international organization officials are subject to official acts immunity, some of the most senior (see, e.g., the Secretary General and Assistant Secretaries General of the UN, senior OAS officials) get the same privileges and immunities as diplomats, meaning that they are absolutely immune in almost all cases from criminal arrest or civil suit.  And, at least some members of the IMF get this treatment as well.  The IMF is a specialized agency of the United Nations and the United Nations and the United States have a long-standing “Headquarters Agreement” that governs U.S. treatment of UN representatives and personnel. Article 15 of that agreement provides that

“principal resident representatives of members of a specialized agency and such resident members of the staffs of representatives of a specialized agency as may be agreed upon between the principal executive officer of the specialized agency, the Government of the United States and the Government of the Member concerned, shall whether residing inside or outside the headquarters district, be entitled in the territory of the United States to the same privileges and immunities, subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it.”

Thus, if DSK were a “principal resident representative” (PRR) of the IMF, he might actually be immune from arrest entirely.  I’m guessing he does not qualify because he’s not representing anyone other than the IMF as its Managing Director.  But that creates the rather odd result that a lesser IMF official might have absolute/diplomatic immunity denied to the titular head of the IMF (on the other hand, PRR immunity might be deemed more a function of the respect due the sovereign states these individuals represent rather than anything derived from their service to the IMF itself).

So, what do others think?  Can DSK claim anything other than official acts immunity?  If he does claim that status, how broadly should a court read what counts as “official” here?  And, to be clear, this will likely be a question for a U.S. court to resolve — as the State Department’s guidance to law enforcement makes clear on the question of what constitutes an “official act”:

official acts immunity pertains in numerous different circumstances. No law enforcement officer, State
Department officer, diplomatic mission, or consulate is authorized to determine whether a given set of circumstances constitutes an official act. This is an issue that may only be resolved by the court with subject matter jurisdiction over the alleged crime. Thus, a person enjoying official acts immunity from criminal jurisdiction may be charged with a crime and may, in this connection, always be required to appear in court (in person or through counsel). At this point, however, such person may assert as an affirmative defense that the actions complained of arose in connection with the performance of official acts. If, upon examination of the circumstances complained of, the court agrees, then the court is without jurisdiction to proceed and the case must be dismissed. Law enforcement officers are requested to contact the U.S. Department of State before arresting a consular officer, or, if not possible, immediately after arrest. 

There’s obviously a lot more that could be said (I’ve not touched on the “official acts” case law in the U.S. or elsewhere, nor have I analyzed whether the Convention on Privileges and Immunities of the United Nations (to which the United States is a party) would apply.  I hope some of the commentators can help further clarify these and other relevant issues.

The Melbourne Journal of International Law is delighted to be continuing our partnership with Opinio Juris. This week will feature three articles from our most recent issue. The full issue is available for download here.

On Monday, Douglas Arner and Ross Buckley will discuss their article ‘Redesigning the Architecture of the Global Financial System’. Examining the history of global financial governance from 1944–2010, Arner and Buckley argue that there is a fundamental need to redesign the international financial system to better handle financial and monetary instability in a globalised world, and examine a variety of reform options with respect to economic coordination, macroeconomic and monetary management, financial crisis prevention and resolution, and trade and sustainable development. Rolf Weber, Professor of Law at the University of Zurich, will respond.

On Tuesday, Gina Heathcote will discuss her article ‘Feminist Reflections on the “End” of the War on Terror’. Drawing an intriguing analogy between the justifications of violence in the international law on the use of force and in the domestic criminal law defences of provocation, Heathcote considers what a feminist response to the legacy of the ‘War on Terror’ might involve. Dianne Otto, Professor of Law at the University of Melbourne, will respond.

Finally, on Wednesday, our discussion will centre around Brad Roth’s article ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’. Roth examines the question of when de facto exercises of governmental authority after secessions and coups are given legal status in international law, evaluating alternatives to the traditional emphasis on ‘effective control’ in doctrines of statehood. Jean D’Aspremont, Associate Professor of International Law and Senior Research Fellow of the Amsterdam Center for International Law at the University of Amsterdam, will respond.

We hope that you enjoy participating in the upcoming discussion. Many thanks to Kevin Heller and the team at Opinio Juris for hosting us over the coming week, and to the 2010 Editors, Tim Farhall, Christopher Hibbard, and Mary Quinn for their work in producing the issue.

Information on our submissions process, publication policy and past issues can be accessed here. If you would like any further information about the Journal, please contact the Editors at law-mjil [at] unimelb [dot] edu [dot] au.

Sam Naparstek, Tiong Tjin Saw, and Suzanne Zhou

2011 Editors

Patrick McGlynn

2011 Assistant Editor

So, you’re a climate scientist. You’re tired of the lies and misinformation about climate change peddled by know-nothing pundits on the radical right. (We’re looking at you, George Will.) What do you do?

You rap about it, of course.

Well done, Aussies. More info at The Guardian here.

Here I was, thinking that targeted killing raised complex and contestable legal issues that required painstaking analysis.  Fortunately, Somin sets me straight at Volokh Conspiracy by pointing out that, as a simple matter of logic, there is no legal difference between killing Admiral Yamamoto during World War II and killing a terrorist anywhere in the world today:

But most of the debaters have overlooked a key point. If it is moral and legal to individual target uniformed enemy military officers, surely the same goes for leaders of terrorist organizations. It cannot be the case law and morality give the latter greater protection than the former.

[snip]

What is true of uniformed officers surely also applies to leaders of terrorist organizations such as al Qaeda. The latter, too, represent enemy military assets that we can legitimately target in wartime. If anything, targeting terrorist leaders is more defensible than targeting individual uniformed officers. Unlike uniformed soldiers, terrorist leaders openly target civilians and don’t even pretend to obey the laws of war.

[snip]

First, targeted killings, like other military tactics, can only be used against terrorists in conflicts that are large-scale enough to qualify as a war. One can legitimately debate the exact point at which a terrorist threat rises to that status. But surely al Qaeda, given the enormous scale of its atrocities, qualifies.

[snip]

In sum, if we assume that the targeted killing of enemy military personnel is a legal and moral tactic in wartime, the same reasoning also justifies the targeted killing of terrorists.

Yes, surely! Stupid international lawyers, “overlooking” the obvious point that there cannot possibly be a difference between targeting a military officer in an international armed conflict and targeting a terrorist in something that Ilya Somin is really convinced is a war.

Nothing to see here, people.  Everything the U.S. does is fine.  Move along…

UPDATE: Somin responds to my post by claiming that I provide “no substantive critique” of his argument.  First, I have written extensively on precisely the IHL issues that he ridicules, most recently here.  Second, Somin did not make a substantive argument, other than to claim that the “enormous scale” of al Qaeda’s activities qualify as a “war.”  That’s empty rhetoric, not an argument.  Who counts as “al Qaeda”?  What kind of armed conflict is it?  What status do “terrorists” have in that “conflict”?  Are all terrorists equally targetable?  All the time?  Somin makes no attempt to address, much less answer, any of those questions — because, of course, he is “surely” correct and we dumb international lawyers have “overlooked” the obviousness of his conclusions.

If Somin wants to engage with the legal issues instead of simply assuming that he is correct, I’m happy to provide a substantive critique of his argument.

UPDATE 2: Somin replies again, and only makes things worse for himself.  He claims that “Heller’s theory of when targeted killings can be used against terrorists is actually broader than mine. He seems to believe that we can target them any time they are members of ‘an organized armed group’ engaged in an ‘armed conflict’ whereas I argued only that we can do so when they are engaged in an armed conflict that qualifies as a war.”  Somin obviously doesn’t understand my post, because I was quite clearly discussing targeting in non-international armed conflict, not in “armed conflict” generally, which is a meaningless concept in terms of IHL.

That said, Somin is absolutely right that his view of targeted killing is narrower than mine — just not in the way he imagines.  It is, of course, legally impossible for a state to be in a “war” — i.e., in an international armed conflict — with a non-state actor like al Qaeda, as the Supreme Court recognized in Hamdan.  As reflected in Common Article 2 of the Geneva Conventions (and this is really IHL 101), international armed conflict can exist only between states.  By Somin’s own logic, therefore, it is only legal to target terrorists who are part of an international armed conflict between states.  And that means UBL’s killing was actually illegal, because the international armed conflict between the U.S. and Afghanistan ended when the Taliban lost power in 2002.

UPDATE 3: Somin now claims that “[n]othing in Heller’s argument turned on a distinction between ‘international’ and ‘non-international’ armed conflict, unless he is prepared to claim that targeted killing is illegal in the former. Indeed, the earlier post Heller references does not even mention that distinction.”  Apparently, he is unaware that we are talking about NIAC when we examine “whether hostilities rise to the level of armed conflict”; there is, as readers know, no threshold for international armed conflict.  And, of course, my discussion with Marty Lederman specifically discussed NIAC — again and again — in relation to the combatants’ privilege.

Somin also fails to understand Hamdan.  He writes:

As for Hamdan, the Supreme Court majority opinion in that decision repeatedly refers to the “war with al Qaeda” and also describes the Civil War as a “war,” even though the latter was not an international armed conflict, since neither the US nor any other nation recognized the Confederacy as an independent state. Clearly, the Court does not share Heller’s view that it is “impossible” for a state to be in a war with a non-state actor. The Court did rule that the war with al Qaeda was not an “international armed conflict” because it is not against a state. But, in its view, at least some non-international armed conflicts still qualify as wars.”

The first part of that statement indicates that Somin has no understanding of the concept of belligerency: as I’ve noted before, the reason the Civil War qualified as a war and not an insurrection was that Europe formally recognized the conflict as a state of belligerency and declared itself neutral in the conflict.   And the second part of the statement just concedes my point that Hamdan recognized that the “war” with al Qaeda did not and could not qualify as an international armed conflict.

Oh, and by the way, Somin also grossly mischaracterizes Hamdan.  The majority opinion used the expression “war with al Qaeda” precisely twice — and both times when the majority was characterizing the Court of Appeals’ decision that it was rejecting: “The court accepted the Executive’s assertions that Hamdan was captured in connection with the United States’ war with al Qaeda and that that war is distinct from the war with the Taliban in Afghanistan. It further reasoned that the war with al Qaeda evades the reach of the Geneva Conventions.”  The majority never referred to the conflict with al Qaeda as a war, because it — unlike Somin — understood that  “[t]he term ‘conflict not of an international character’ is used here in contradistinction to a conflict between nations.”

Someone’s hole is indeed getting deeper.  But it’s not mine.

Please don’t make any important international news or events with any international law implications, because we’re exhausted from the last week or two, and also we have a lot of papers and exams to grade.  Memo to World:  Don’t do anything rash for awhile, while we catch up.  (I’m just back from a week guest-posting at Instapundit, and talk about exhausting … I don’t mean we’ll stop posting, of course, but I did notice that we all came to a screeching halt.)

Because the “Untold Stories” symposium that Gerry Simpson and I organized was such a success, we are organizing another one.  Here is the call for papers:

THE EICHMANN TRIAL AT 50

A two-day international symposium to discuss one of the most important trials of the 20th Century

Melbourne Law School

14-15 October 2011

Presented by The Asia Pacific Centre for Military Law, Melbourne Law School, and supported by an Australian Research Council Discovery Project Grant

Organizers: Kevin Jon Heller & Gerry Simpson

CALL FOR PAPERS

Deadline for Abstracts: 15 June 2011

On 11 April 1961, the trial of Adolf Eichmann began in the District Court of Jerusalem. The trial was broadcast internationally, the first televised trial in the history of television, drawing millions of viewers around the world. Eight months later, after the testimony of nearly 100 witnesses had changed perceptions of the Holocaust forever, the court convicted Eichmann and sentenced him to death. Five months after that, Eichmann was hanged and his ashes were scattered at sea, bringing to a close one of the most important trials of the 20th century.

2011 marks the 50th anniversary of the Eichmann trial. The trial has had a profound impact on a variety of academic disciplines – law, philosophy, literary theory, political science, and history, to name only a few – yet scholars in those disciplines have rarely interacted with each other. The goal of symposium is to bridge that gap by bringing together scholars who have nothing in common other than a shared interest in the trial. The organizers thus encourage proposals from any discipline on any topic related to Eichmann.

The symposium will be held over two days.  We regret we cannot offer travel or accommodation expenses, but lunches and teas (morning and afternoon) will be provided.  A speakers’ dinner will be held on the evening of the 14th and an informal dinner on the 15th for those who remain in town.

The symposium is the third of four symposia being held as part of the Australian Research Council-funded project “Invoking Humanity: A History of War Crimes Trials.” The organizers intend to publish a selection of papers presented at the symposium as an edited book, although there will be no obligation to publish. Conversely, the organizers are happy to consider contributions to the book from scholars who are unable to attend the symposium.

If you are interested in presenting a paper at the symposium or contributing to the planned book, please send a 300-500 word abstract and a short C.V. no later than 15 June 2011 to Kevin Jon Heller, c/o James Ellis (j [dot] ellis [at] student [dot] unimelb [dot] edu [dot] au).  Doctoral students are welcome to submit abstracts. Participants will be selected by July 1 to facilitate travel plans.

Questions about the symposium should be directed to Kevin at kheller [at] unimelb [dot] edu [dot] au.

I hope some Opinio Juris readers will be interested in attending!

The Gottingen Journal of International Law has just made available online its new special issue that focuses on the relationship between resources and conflicts. This issuse is the result of a symposium which was held this past October. The sixteen papers are organized around the four panel themes: (a) resources before, during, and after conflicts; (b) actors of armed conflicts and international law; (c) resources and conflict prevention: access, sharing and regulation; and (d) knowledge as a resource: access, assessment and legal consequences. There is also a keynote from Professor Marie-Claire Cordonier Segger of the Centre for International Sustainable Development Law.

I think this theme is a great way to address the cross-cutting issues related both to conflicts over the use and ownership of resources as well as how various resources can feed conflicts. Congratulations to the editors for putting together an interesting symposium and special issue.

I am proud and delighted to report that my former student and current friend, Golriz Ghahraman, has accepted a position as a prosecutor at the ECCC.  I don’t think I’m old enough or distinguished enough to have a protege — but if I am, she’s it.  Golriz, who is Iranian-Kiwi, is by far the most gifted student I’ve ever had, and her record speaks for itself: LLB from the University of Auckland; four years of experience as a defence barrister in New Zealand; positions with the Karadzic defence team at the ICTY and the Bikindi defence team at the ICTR; just finishing her masters at Oxford with a dissertation on extrajudicial killing and Iran’s special courts (which I had the pleasure of co-supervising).  She will make a fantastic addition to the Office of the Co-Prosecutors, and it speaks volumes about Andrew Cayley and his team that they would hire someone whose entire legal career has been on the defence side.  Her defence skills will serve her well now that she’s defected to the other team.

Congratulations, Golriz!

At The New Yorker blog, a useful discussion of the legal issues in the OBL attack. As Raffi Khatchadourian writes:

What was true in Iraq and in the Second World War also applies in the ongoing conflicts in Afghanistan and Pakistan. Targeted air strikes are status-based operations. The drone strikes are status-based operations. Raids conducted by Special Forces to kill key militants—as in the case of Abu Musab al Zarqawi, who was killed in Iraq by Special Forces working under the command of General Stanley McChrystal—are status-based operations. A status-based target can become a non-combatant (that is, illegal to kill) only if he is wounded to the point where he no longer poses a threat, or if he is in the process of surrendering. This is why Eric Holder said, during a recent Congressional hearing, that if bin Laden “had surrendered, attempted to surrender, I think we should obviously have accepted that, but there was no indication that he wanted to do that, and therefore his killing was appropriate.” In such a circumstance, the law suggests that the onus is on the target to immediately revoke his combatant status. Soldiers do not have to wait.

The executive director of Human Rights Watch, Kenneth Roth, has criticized the White House for its public handling of the killing. He recently wrote on Twitter, “White House still hasn’t clarified: OBL ‘resisted’ but how did he pose lethal threat to US forces on scene? Need facts.” This may be a worthwhile thing to know for broader ethical or policy or tactical reasons, but it is not the most pertinent question when judging the action against our existing military laws. The key legal question is not whether bin Laden was armed before he was killed, or even whether or not he posed an immediate “lethal threat,” but whether he was “positively identified” before the trigger was pulled, and whether Holder is accurate when he says that “there was no indication” that bin Laden was actively attempting to surrender. Those are the more relevant facts.

That is correct, at least as far as how I understand the US government would see the legal situation, and very well put (my emphasis above).  I have two modest legal criticisms of Khatchadourian’s fine piece.

One is that the US executive order banning assassination is much narrower than many commenters seem to understand, to judge by the amount of ink spilled over asking about the meaning of assassination and so on.  The term is not defined in the order itself, and the US government’s interpretation — stated in 1989 by then-Legal Adviser to the State Department Abraham Sofaer and re-stated in 2010 in current Legal Adviser Harold Koh’s ASIL speech — is that the assassination only applies to a killing that is otherwise unlawful.  If the killing is otherwise lawful — such as the targeting of a lawful target — then it does not apply.

If that looks like the assassination ban does no independent work, since it is merely a ban on something that is already unlawful, that is perfectly correct.  It is also consistent with the history of the executive order, which seems to have been a 1970s concession to a Congress investigating the CIA to affirmatively state something in a single sentence with an undefined term, easy to say and not much at stake except rhetorically.

The second is to emphasize that surrender is an act that requires completion, and is harder to accomplish that one might have thought merely reading the law in the abstract.  I emphasize this because I have had so many conversations privately in the last week with JAG or former JAG who have advised on the rules of engagement on which Khatchadourian is writing.  These are not high level political decisions; these are the rules for relatively routine, tactical engagements undertaken every month in Afghanistan by special ops teams.  Those rules have been worked out over years — and when the operation is intended to be lethal, the reliance is upon speed and surprise, and killing the target before the confusion lifts. These JAG emphasize the risks involved in “pausing” operations that depend fully on surprise in order to see if someone is trying to surrender for real; they have no legal obligation to do so — and don’t.  The manifestation of clear intent to surrender is much more complicated and much more fraught than it might seem to a human rights monitor merely reading off an abstract rule.

These folks are concerned that the traditional legal interpretation of surrender might be eroded if the Bin Laden operation were to cause a highly technical act in tactical operations to become politicized.  They worry particularly about interpretations given by high level political appointees who, worried only about putting the best light on the OBL operation, wind up making implicit concessions on the rules of surrender that are not the current understanding of the law for operations involving many ordinary but lawful targets down the road. One would not want, for example, an Eric Holder defending the OBL attack by saying something like — had he so much as raised a hand, we would have stopped to ask if he was surrendering, but he didn’t so we didn’t.  It is not the legal standard, and might undermine future combat missions by implying that it is.

(See also the communication to Ben Wittes at Lawfare by an active duty Navy JAG, Michael Montgomery, writing in his personal capacity.)

At the end of my last post I alluded to preemption as an obstacle to receiving an offer. Many times authors will be able to determine for themselves whether their article is novel or whether someone else had the same idea in 1986. Other times information about possibly preempting articles is more asymmetrical. My impression is that there are a couple of hot topics every year that grab the attention of many authors, usually based on what issues are being litigated or are in the news. For more than a year, topics like “fixing the mortgage crisis,” “immigration preemption,” “health care,” “international tax,” and “targeted killing” have all received a lot of attention from scholars. This is not to suggest that there is nothing left to be said about these topics, for new facts on the ground and new arguments can reframe the terms of the debate in ways that move scholarship forward. I look forward to seeing how work on targeted killing will continue to develop in the next year or so, for example.

But trendy topics like these carry strong first-mover advantages given the long time-horizon of the publication schedule. My sense is that an article completed today is not likely to be published sooner than January 2012, and articles published today were likely completed not much later than September 2010. There may be several articles about the same topic in the pipeline, none of which may be known to any of the other articles’ authors. Considering an example purely at random—sorry for readers who are working on this topic—the IL community is likely to see a large number of pieces on direct participation in hostilities come out sometime next spring. Authors don’t know what other authors are writing about, leading to an information gap.

This gap is asymmetrical, for on the other side of ExpressO, editors may see a glut of 10, 20, or 60 (gasp!) articles on a given topic. Even if editors cannot conclude formally that an article is preempted, they might think it carries a higher risk of preemption given the uncertainty of what other articles are in the pipeline. So too might they experience burnout on these topics, akin to the intertemporal preference-shifting effect I described in my first post. Even if alternative submissions expected to come in throughout the year might be higher quality, an article reviewed in April may preempt the better-executed article reviewed eight months later. Yet as these articles start to get published and the time horizon continues past a single volume’s publication cycle, authors start to see the glut of articles and may determine that it’s no longer profitable to write on that once-trendy topic, given fewer opportunities to carve out a novel argument for themselves. This may explain why, as a commenter noted after my first post, we haven’t seen many articles about torture in the past few years; early movers in 2003 to 2006 have made it difficult to come up with something new to talk about.

I’ll close my guest stint with a few brief thoughts, although I can try to respond to further questions or comments below.
• Five years ago my journal did not accept electronic submissions, but now all but a handful are electronic. Electronic submissions mean I can read your article on a smartphone in the gym, or on the train, without carrying around a stack of paper. It means I can distribute your article to editors who have summer jobs in far-flung cities. It means I am not killing trees. I, for one, welcome our new Internet overlords.
• To briefly wade into the debate about peer review: if professors really thought student-edited journals were not institutionally competent to review scholarship, they would sort into their own peer-reviewed journals. PRSM may be a start, but ultimately I don’t see control over the submissions process (the fun part) shifting to professors, until the latter start handling the citechecking and production process (the not-so-fun part). In this way, “calls for abandoning law reviews are counterproductive unless faculty are committed to occupying the field.”
• Readers skeptical about some of the claims I’ve made–such as editors having enough expertise to evaluate scholarship in a specialty area–might check out a post by Lisa Larrimore Ouellette, a YLJ articles editor, that I just now came across and that makes some of the same points.
• I suggested last time that articles generally place into the right category for their quality. This isn’t a hard and fast rule, and isn’t meant to suggest something like a “merit pyramid,” as a commenter alluded to in a recent thread on PrawfsBlawg. I’m sure I’m not the only person who has read an article and thought its quality didn’t necessarily match up with how it placed (in either direction). Anomalous preferences, internal board politics, and informational asymmetries can throw wrenches into the placement process, giving us pause before thinking rankings are anything but a highly imperfect proxy for “quality.”
• That said, it may still be a proxy. Getting to a final board read at a “top” journal may mean that an article is among the best 30 to 100 articles they are considering. Even if a publication offer doesn’t follow, if journals disclose that a submission got to a final board read, authors might conclude from that signal that they’re doing something right.
• Journals will have different policies about whether they treat “articles” and “essays” in the same process. Many collapse the distinction, unless of course they specifically say otherwise in their submissions instructions.
• The consensus seems to be that many journals have closed up shop for this volume. Authors might consider off-season submissions for journals that do year-round submissions.

Thanks again to Roger and everyone at Opinio Juris for hosting me during a week that turned out to have some important news for those interested in international law. For everyone who has placed articles this year, congratulations; for those currently working on articles with an eye toward submitting later this year, best of luck!

The other countries in the top ten on the list are Australia, Ireland, Sweden, Denmark, New Zealand, Finland, Belgium, Netherlands, and France.

Alas, the United States does not fare so well. It ranks 31st in the 2011 Mother’s Index of the Best Places in the World to be a Mother. According to Save the Children, there are several reasons why the United States does not fare better:

1. The United States’ rate maternal mortality is 1 in 2,100—the highest of any industrialized nation. A woman in the United States is more than 7 times as likely as a woman in Italy or Ireland to die from pregnancy-related causes.

2. The United States’ under-5 mortality rate is 8 per 1,000 births. Forty countries performed better. A child in the U.S. is more than twice as likely as a child in countries such as Finland, Greece, or Slovenia to die before reaching age 5.

3. Only 58 percent of children in the United States are enrolled in preschool—the fifth lowest country in the developed world.

4. The United States has the least generous maternity leave policy of any wealthy nation.

5. The United States lags behind other countries in the political status of women. Only 17 percent of congressional seats are held by women, compared to 45 percent in Sweden and 43 percent in Iceland.

I hope readers have been following the backlash against CUNY’s Board of Trustees for its cowardly decision not to award Tony Kushner an honorary degree from John Jay college because one trustee — with no notice, and giving Kushner no opportunity to respond — lied about his political beliefs and accused him of being “anti-Israel.”  Here is a bit of the backstory:

According to a podcast of the Monday meeting and accounts from two CUNY officials who attended it, one of the 12 trustees present, Jeffrey S. Wiesenfeld, objected to John Jay College’s submission of Mr. Kushner for an honorary degree. Mr. Wiesenfeld described viewpoints and comments, which he ascribed to Mr. Kushner, that he had found on the Web site of Norman Finkelstein, a political scientist and critic of Israel.

Mr. Wiesenfeld, an investment adviser and onetime aide to former Gov. George E. Pataki and former Senator Alfonse M. D’Amato, said that Mr. Kushner had tied the founding of Israel to a policy of ethnic cleansing, criticized the Israel Defense Forces and supported a boycott of Israel.

“I think it’s up to all of us to look at fairness and consider these things,” Mr. Wiesenfeld said. “Especially when the State of Israel, which is our sole democratic ally in the area, sits in the neighborhood which is almost universally dominated by administrations which are almost universally misogynist, antigay, anti-Christian.”

Mr. Kushner, who had not been alerted that Mr. Wiesenfeld would speak against him, said that he was “dismayed by the vicious attack and wholesale distortion of my beliefs.” He has criticized policies and actions by Israel in the past, and said that he believed — based on research by Israeli historians — that the forcible removal of Palestinians from their homes as part of the creation of Israel was ethnic cleansing. But he added that he was a strong supporter of Israel’s right to exist, that he had never supported a boycott of the country, and that his views were shared by many Jews and supporters of Israel.

“This has been an incredibly ugly experience,” Mr. Kushner said, “that a great public university would make a decision based on slanderous mischaracterizations without giving the person in question a chance to be heard.”

“I’m sickened,” he added, “that this is happening in New York City. Shocked, really.”

The attack itself is simply business as usual for Israel’s self-appointed right-wing champions.  Unable to win the war of ideas, they simply wage war on ideas, trying to silence anyone who has the temerity to criticize Israel.  What’s surprising is that a traditionally progressive university like CUNY would be swayed by such baseless attacks.  Similar attacks did not prevent Brandeis from awarding Kushner an honorary degree in 2006.

Kushner defended himself in an open letter to the Board of Trustees, and the pushback against its decision was immediate.  CUNY’s faculty union condemned the decision as “perverse” and “craven.”  At least three recipients of honorary degrees from CUNY — Yeshiva historian Ellen Schrecker, and the writers Barbara Ehrenreich and Michael Cunningham — informed the university that they intended to return their honorary degrees.  Even Ed Koch, noted leftist, condemned the decision and said that Wiesenfeld (who doubled down on his criticisms in an algemeiner editorial a couple of days ago that reads like it was written by The Onion) should resign from the Board of Trustees.

It now looks like the Board of Trustees is going to reverse its decision, with individual trustees trying to claim — pathetically — that they voted against Kushner simply because they needed more information about him.  (Conveniently ignoring the fact that they had not planned on getting that information before the graduation ceremony.)  Kushner himself is wavering about accepting the award if it is now offered to him.  Either way, he will come out of this all-too-predictable debacle looking much better than CUNY.

UPDATE: CUNY’s executive committee has reversed the Board of Trustees’ decision, and Kushner has agreed to accept the reward.  That’s the right call.  For the record, though, I would be completely opposed to removing Wiesenfeld from the Board of Trustees over the incident, as some want CUNY to do.  His attack on Kushner was appalling, unfair, and wrong on the merits — but removing him would simply compound CUNY’s original mistake.

In the comments to my post below, Kevin argues against a certain view attributed to the US government on its non-international armed conflict (NIAC).  For what it’s worth … I have a very short paper, for a broad audience, footnote-free, and only 8,000 words that tries to outline the various positions that different folks have taken.  It even tries to be relatively neutral in stating them and seeks to give an account of how positions on the existence, duration, and geographic extension of armed conflict have shifted over the last decade.  Drawing on that, my understanding of the US government position is more or less as follows.  I’m not defending anything, I’m just trying to be clear on what I understand the USG view to be.  I’d welcome corrections as to the accuracy of the statement of the view; less interested in hearing at this point whether it is correct or incorrect.

The US has taken itself to be in an armed conflict with Al Qaeda since at least the AUMF, and possibly before that.  It does not believe that it is impossible to be in an armed conflict with a non-state actor, given that civil wars feature non-state actors and we have a regime of armed conflict addressing those cases.  The peculiarity is that the armed conflict is with a non-state actor that is not tied to the territory of a state, which is not entirely consistent with CA3, but not necessarily inconsistent with it, either.  The view that the US is engaged in a NIAC has been endorsed by all three branches of government, as the USG view of its situation under international law.  The foundation for the US resorting to force against Al Qaeda is international law of self-defense.  It has domestic roots in both inherent executive authority and the AUMF, with different administrations emphasizing different sources.  The resort to force, in response to attacks by AQ, have resulted in a NIAC governed by the law of non-international armed conflict.

NIAC has thresholds in customary law that make it distinct from international armed conflict under CA2 – intensity, etc. Leaving aside Afghanistan and spillover areas of Pakistan border region in which fighting clearly meets those criteria, a question is whether and how uses of force elsewhere in Pakistan, or Yemen, or elsewhere meet those criteria for a NIAC.  The administration’s view is that the war against AQ and any party under the AUMF is a single conflict, and it has extension in both time and space.  Once the conflict got underway, it’s not over til it’s over – the nonstate actors don’t get to call game off, game on – and those among them that are lawful targets can be targeted over time.  As for space, the conflict follows the lawful targets – no safe havens among the unable or unwilling sovereigns – and hostilities against them can be initiated at any time or place, at least among the unable or unwilling.  For purposes of the threshold of violence, however, my understanding of the US view is that all the various instance of attacks, uses of force, individual hostilities across many places over time are aggregated together – this being one enemy, under the view of the US as to whom it sees itself as fighting – into a single conflict.  Insofar as the actors are covered under the terms of those against whom the US has undertaken hostilities, then the armed conflict is one.

None of that is outside of an armed conflict paradigm, so that the attacks against Al-Aulaqi are part of the same conflict against OBL and are part of an armed conflict underway since 9/11 and the AUMF at a minimum.  I have argued, and the US government in Harold Koh’s 2010 speech seems also to accept, that there is the residual possibility of uses of force that are not part of any armed conflict.  But the position of the USG appears to be that although “naked” self-defense uses of force outside of armed conflict exists as a real possibility, in the current circumstances, those being targeted and pursued by the United States are part of the existing armed conflict as defined under the AUMF.  The AUMF for this purposes is not just a statement of US domestic authority; it is a statement of those against whom the US undertakes hostilities, in an armed conflict established by the existence of those hostilities (and, aggregated together, as noted above, meeting the NIAC threshold).  Naked self-defense might arise in a different situation, but as things stand now, in the US view, the hostilities undertaken are all part of the same NIAC, because it has extension in time and space.

Now, one can agree or disagree with all or any part of it.  I’m much less interested in that than in knowing whether I have accurately captured the US government’s position.  In any case, your life will not be complete without reading my blessedly short paper on debating whether there is a “legal geography of war.”

If I were the Obama administration, I would be looking to put together an ad hoc task force of senior administration lawyers, led by Harold Koh, to defend the following propositions as matters of law. It is:

• okay to enter a country that is “unable or unwilling,” [temporarily recall Deeks to DOS]
• okay to treat it as armed conflict under jus ad bellum justification of self-defense,
• okay not to undertake the action as law enforcement, versus attack in armed conflict,
• okay to use lethal force,
• okay to attack without warning,
• okay to attack an unarmed, unthreatening, but still lawful target,
• okay to attack without inviting surrender,
• okay to press the attack with lethal force and without pause, the exception being if the target were to succeed in completing the act of surrender — which, in this case, is likely to be never, because there will not be enough time, and
• okay not to give the target time to make an attempt at surrender, even if inclined or even attempting, by pausing or slowing the attack.

This is in shorthand, of course; we are all international lawyers here, and whether you agree or disagree with the propositions, we more or less know what we’re discussing.  However, defense of these propositions, if that’s what one wants to do, practically requires someone with Harold Koh’s stature – which is to say, Harold Koh – to impose some legal order on the administration’s current international law chaos.

Were I advising the administration, I’d add that there is also an urgent need for senior military lawyers, ones who are in charge of interpreting the nitty-gritty legal circumstances of surrender, to explain to the public why surrender is not just “wave something white, done,” everyone stop firing.  In the comments to an earlier post here at Opinio Juris,  two commenters — Alan Kaufman, a former Navy JAG with a distinguished career, and Ian Henderson, author of a well-regarded treatise on targeting law — each weigh in on what surrender means in practical legal terms.  They manage to say more than all the senior administration officials put together have managed to say – merely in the comments to a blog post.

In earlier posts I’ve talked about some of the gatekeeping points in the submissions process, although I’ve largely described them from a procedural angle. Today’s post deals with the substantive angle.

Take the cursory review stage, when editors might sort incoming submissions into reject and consider further piles. Each journal and each editor will have their own policies (and thus statistics) about how many articles are seriously considered past this first stage; for illustrative purposes, imagine that one-half of submissions are culled out at this stage. Editors might cull articles for various reasons. Perhaps the article doesn’t satisfy formal submissions criteria—no articles from students, no “comments” or “notes,” no book reviews, etc. Depending on editors preferences, there will also be informal submissions criteria—no partisan hack jobs, no articles about cases written by that case’s counsel, no math, etc. Perhaps the editor gives the article a quick read, and it turns out it’s not well argued, not well researched, or simply not “interesting.”

Except for the spring article submissions dump when boards usually turn over, editors will usually have good information about their co-editors’ preferences. They should be able to predict where an article would fall on a unidimensional preference spectrum of the kind I described last time. They should be able to predict whether a coalition of editors, sufficient to vote for making an offer, would form. When it is substantially certain that other editors would not vote to publish, cursory review marks the end of the road for the article, as editors are rational, time is scarce, and no one wants to spend time discussing pieces that will not be published. When there is uncertainty about other editors’ preferences, or when those preferences are sufficiently predictable to think that a coalition would vote to publish, the article moves ahead.

I alluded above to some of the pitfalls that increase the chances that an article will not move ahead for further review, and in my last post I suggested that most submissions are undertheorized early drafts. What I mean is that editors will adjust the attention and care they give to reviewing an article to their impression of the attention and care the author has given to the article. Obvious early drafts get rejected. For example, including very few footnotes suggests the author wants our editors and staff to complete the library research; this is a job for the author’s RA, not an unpaid journal staffer. It also undercuts an author’s credibility, suggesting that there is little or no support for her arguments. On the other hand, it’s of course possible to have citation overkill, so authors should try to find balance here.

The papers that caught my eye are those that are well argued and well written, but very few people are able to pull this off. I don’t think it’s coincidence that the people who do these things well have usually also presented their article in workshops and job talks, or may have received feedback from a range of colleagues. I do not mean to suggest that a footnote with a long list of acknowledgements is a proxy for article quality; I would usually pay it no heed since an acknowledgment might mean someone pointing out a misplaced comma. (If I had ever paid attention to acknowledgments I might be worried about perverse effects similar to the “name recognition” effect that some invoke as a reason in favor of moving to blind review.) Either way, the point is much broader than this. Authors’ attitude toward soliciting feedback from colleagues and at workshops should be “the more the merrier”—the quasi-Condorcetian idea that as more people offer feedback, the aggregated feedback is more likely to have identified aspects of the article that need to be revised.

The value of that feedback comes when it is actually incorporated into the article itself, which is ultimately the basis on which editors decide whether to extend a publication offer. Moreover, the process of soliciting feedback works when readers offer serious substantive criticism of arguments, with an eye toward the shared goal of improving an article; it doesn’t work when authors solicit comments from colleagues whose views overlap with the author’s own. Improving an article may mean stepping out of one’s comfort zone, asking for comments from a broader range of voices, and then actually incorporating that feedback into the substance of the article. This can actually be helpful for authors in relatively “specialized” fields, for whom soliciting feedback from colleagues in other areas may help show how an article can be framed to make sense for a wider audience (including student editors and non-specialist faculty). This may also mean situating one’s argument within a broader context—statutory change or doctrinal evolution, scholarly debates, connections with other disciplines, or connections with other areas of law. Authors can complain all they want about how much or little editors know about their specialized area of law, but in doing so they may forget that a mainline journal’s readership may be similarly unfamiliar with a given specialty area. All authors would like to think that their article might revolutionize its area of estate law, antitrust law, or immigration law, but unless it is accessible to non-specialists, editors and readers may not be able to pick out its potential.

Two more points about soliciting advice and workshopping articles. First, after a journal makes an offer and the author accepts, the author may want to incorporate further input from post-submissions presentations. This is rarely a “problem” from editors’ perspective, unless a tight production schedule precludes substantial further revisions. But it should be a “problem” from authors’ perspective, since waiting to solicit comments works at cross purposes with the signaling functions of the submissions process. Articles editors may attend workshops, or they may be familiar with how they work; in any event, a meeting in which editors discuss an article is likely to track the style of a particularly tough-minded workshop. Articles become more impressive as they become more polished, but in order to convince editors to extend an offer, the author has to apply the polish before submitting the article. In other words, it’s better to have the merits and demerits of an article fleshed out well before the article is in front of an editorial board; it’s better to have editors not be able to identify possible demerits because they’ve already been addressed. Authors wondering why they are not placing in as highly-ranked journals as they would like might consider whether their articles are in publishable shape before submission. Publishable shape is not the same as “could be accepted by a board”; what I mean is that authors serious about making a positive impression on journal editors should aim to have every aspect of their article as fleshed out as would appear in a final published edition.

Second, consider the revise-and-resubmit. Some journals, probably a minority of them, may have policies against considering articles that they or an earlier board rejected. At other journals, a rejection is an implied invitation to revise and resubmit—not an invitation to resubmit without revising. In this age of electronic submissions it’s easy to tell how extensively an author has revised an article, using something like Microsoft Word’s “compare documents” feature. Nothing would annoy me more as an editor, and make me want to summarily reject the article, than a resubmitted article with little or no revisions. An author unhappy with a rejection should take the time to solicit candid advice from colleagues, students, RAs, etc.—not law review editors—about how an article should be strengthened. She should not simply resubmit with the hope that a less-discriminating later board will overlook whatever flaws the previous board found.

Those are a few ideas about how to make articles better—how to save them from the reject pile. But just making an article better will usually not be enough. The review at intermediate and full-board review stages will be far more exacting. It bears repeating the obvious point that to get an offer an article must be among the very best considered all year. Remember that of the thousands of submissions top mainline journals receive every year, they may make somewhere on the order of twelve offers (or up to fifty offers, at least for those journals that lose articles more frequently to expedited review elsewhere). Limited page counts mean journals cannot publish as many articles as they might like, but that category is also pretty small, extending to probably no more than the best fifty or so articles that come across an editors desk. I suspect that while there are some informational inefficiencies in the placement process—expedite signals may be too strong or too weak, for example—articles are usually placed in the right “tier” for their quality. My own experience was learning quickly (but not too quickly) upon first reading an article whether it “fit” the kind of article our journal would publish. This intuition, separate from the substantive review factors I described above, is hard to describe. It could simply collapse into the kind of prediction about coalition-building and co-editors’ preferences I described in my last post. But even before editors learn their co-editors’ preferences, they will have been staffers and will be exposed to the kind of articles the journal publishes. There is also a subjective, know-it-when-I-see-it quality to an identifying well-written and well-argued articles; usually, it means not only that the author is executing the technical aspects skillfully, but also that she is addressing my objections, questions, or concerns as I’m reading the article. Editors may try to fill in these gaps during the post-offer revision process, but it’s better when there are no gaps at all. Authors looking to break into a certain group of journals should look at what those journals are publishing, and should make their articles as polished as the final products before submitting them for review.

An article’s subjective quality is not the only factor in the review decision. Journals have more or less exacting standards for preemption, but they likely take such standards very seriously. In my experience, too many authors play fast and loose with prior work; preemption is a very common reason why boards will not extend publication offers. Obvious preemption—for example, publishing as an article a book chapter that has already been published elsewhere—is sure to elicit a rejection. An author who declines to cite to previous work (her own or others’) on which her article is based may get beyond the cursory review stage, but a forthcoming preemption check will probably show the board why it should not allocate scarce volume space to an argument that is not “new.” Even if article #2 is not based on article #1, editors may not take seriously an author who does not make a serious attempt to show why article #2’s argument is novel and not derivative; the omission may make them presume that it was based on article #1.

I ought to mention a few other minor pitfalls to close out this post. First, too many authors overstate their arguments but never deliver. This is reason to be skeptical about claims from authors (as mentioned above) who think their article will revolutionize its area of estate law, to pick a random example. Second, editors may prickle when authors have not scrubbed their files of metadata like “track changes,” which many people use to track revisions and provide comments on drafts. The oversight might be embarrassing in itself. But when failing to scrub metadata reveals text from earlier drafts, or feedback from colleagues and RAs, the effect may be worse—especially if the author hasn’t addressed the feedback but the editors think think the feedback is materially important. Finally, there is signaling value in sending an exclusive submission to a single journal, which may get the editors’ attention. There is no similar value in sending an “exclusive” submission to the top ten journals—a strategy that is by definition not “exclusive,” and that carries only the signal that the author thinks very highly of her article.

I suspect that many of our readers already receive ASIL Insights, but for those of you who do not, I wanted to flag the release yesterday of Pakistan’s Sovereignty and the Killing of Osama Bin Laden by Ashley Deeks, a former colleague of mine in the Legal Adviser’s Office at the U.S. State Department. Deeks is now a fellow at Columbia Law School, but until recently served as the Assistant Legal Adviser for Political and Military Affairs at the State Department. Obviously, the views she articulates in this piece are her own.  But given her work experience, I wouldn’t be surprised if they don’t give some insight (pun intended) to the State Department’s internal arguments on the legality of the mission to kill Osama Bin Laden. In any case, here’s a few highlights from her argument:

International law restricts the situations in which a state may use force in the territory of another state. There are three situations in which such an act is lawful: pursuant to U.N. Security Council authorization under Chapter VII of the U.N. Charter; in self-defense; or (at least in some cases) with the consent of the territorial state. Once a state concludes that it has a right of self-defense, it must assess what specific types of actions it can take in response, including whether it can use force. The standard inquiry has three elements: whether the use of force would be necessary; whether the level of force contemplated would be proportionate to the initial armed attack (or imminent threat thereof); and whether the response will be taken at a point sufficiently close to the armed attack (i.e., whether it would be immediate).

In determining whether it is necessary to use force against a non-state actor operating in another state’s territory, the victim state must consider not just whether the attack was of a type that would require force in response, but also the conditions within the state from which the non-state actor launched the attacks. In this latter evaluation, states, absent consent, employ the “unwilling or unable” test to assess whether the territorial state is prepared to suppress the threat. If the territorial state is either unwilling or unable, it is reasonable for the victim state to consider its own use of force in the territorial state to be necessary and lawful (assuming the force is proportional and timely). If the territorial state is both willing and able, the victim state’s use of force would be unlawful. . . .

Based on an examination of state practice, it is possible to ascertain a few key principles that the international community might expect a state using force (the “acting state”) to follow. The principles might include requirements that the acting state: (1) ask the territorial state to address the threat and provide adequate time for the latter to respond; (2) reasonably assess the territorial state’s control and capacity in the region from which the threat is emanating; (3) reasonably assess the territorial state’s proposed means to suppress the threat; and (4) evaluate its own prior interactions with the territorial state. However, an important exception to the requirement that the acting state request that the territorial state act arises where the acting state has strong reasons to believe that the territorial state is colluding with the non-state actor, or where asking the territorial state to take steps to suppress the threat might lead the territorial state to tip off the non-state actor before the acting state can undertake its mission. . . .

Applying the Test . . .

Based on the facts that have come to light to date, the United States appears to have strong arguments that Pakistan was unwilling or unable to strike against Bin Laden. Most importantly, the United States has a reasonable argument that asking the Government of Pakistan to act against Bin Laden could have undermined the mission. The size and location of the compound and its proximity to Pakistani military installations has cast strong doubt on Pakistan’s commitment to defeat al Qaeda. The United States seems to have suspected that certain officials within the Pakistani government were aware of Bin Laden’s presence and might have tipped him off to the imminent U.S. action if they had known about it in advance. . . . Pakistan might argue that it would have been able to stage an effective mission against the compound, or that the United States at least should have constructed the mission as a joint operation, given that the two countries work closely together in other intelligence and military contexts. It also could point to the fact that it conducted searches for al Qaeda leaders in Abbottabad in 2003 and in subsequent years, and that it passed on information about the 2003 search to U.S. officials. On balance, however, Pakistan’s defense of its sovereignty in this case, while understandable from a political perspective, seems weak as a matter of international law.

For my final guest contribution regarding Bin Laden’s killing, I’m reposting (with permission) a piece that was just published by Foreign Policy magazine entitled The Bin Laden Aftermath: Why Obama Chose SEALs, Not Drones.  I look forward to comments from the OJ community.

Why did the United States choose to launch a raid against al-Qaeda leader Osama bin Laden’s compound in Abbottabad, Pakistan, rather than bombing it?  It wasn’t because of a “law enforcement mindset.”  And it wasn’t compelled by human rights law.  Rather, it was the best option based on the military objectives, available intelligence, and the law of armed conflict.

On the one hand, practical considerations dictated this riskier kind of raid.  The United States needed to have a body to prove, once and for all, that the hard-to-kill Bin Laden was in fact dead.  The recent media fascination with whether the U.S. will release photos of his body lends credence to this concern.

A second issue prompting the raid was that the Obama administration was worried about collateral damage.  This problem is more serious than some may initially suspect.  Abbottabad is a heavily populated city, with nearly 1 million residents.  Moreover, numerous civilian residences and the Pakistani military academy were near bin Laden’s “drone-proof compound.” There’s little doubt that the risks to nearby residents certainly weighed on the minds of senior policymakers and President Obama.  The matter of collateral damage alone, though, may not have been enough to tip the scales away from a bombing operation.

Instead, the issue may have been the uncertainty over whether Bin Laden was even in the compound.  Nation-states are simply not permitted to  drop bombs in the hope they will kill the right person; they need to be reasonably certain they are attacking the right target.  That fact leads us to the legal concerns that may have necessitated a raid rather than a bombing operation.

The Requirement to Positively Identify a Target

Most contemporary discussions of collateral damage skip the threshold legal question likely posed by the Obama administration, namely whether bin Laden or some other lawful military target was actually inside the compound.  Unless that question could be answered to a reasonable degree of certainty, any bombing operation would have been unlawful, even with no or minimal collateral damage to surrounding persons and objects.

This reality flows from the principle of distinction, (or “positive identification” in U.S. military parlance) a fundamental tenet of the law of armed conflict.  Armed forces are required to “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”  Positive identification, according to U.S. policies, requires that commanders know with reasonable certainty that “a functionally and geospatially defined object of attack is a legitimate military target.”  In short, directing attacks against civilians (in this context, non-uniformed personnel) is not permitted, unless they are directly participating in hostilities.

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I wonder whether the current kerfuffle over whether there was a legal obligation to invite OBL to surrender would be different had the Obama administration, and John Brennan and Eric Holder in particular, not inexplicably displayed a certain hesitation on the question of capture versus kill.

Suppose that faced with that initial, and entirely predictable, question — did the SEALs attempt to capture Bin Laden? — Brennan had instead brooked no opposition and snapped back with visible irritation — of course they were not attempting to capture him, they were there to attack and kill him, to attack him with lethal force.  This was an armed lethal attack upon a a criminal adversary of the United States in an armed conflict, without cavil or apology.  They were sent to attack and kill him as someone who was targetable with lethal force and no warning at any time.  Which, as explanations go, and (at least as it appears at this particular moment) does have the virtue of being true, as well as legally sound.

Brennan’s response was weak – he’s not the legal counsel, after all – but Holder’s was also weak.  Particularly as differing accounts have dribbled out, the administration has found it surprisingly hard simply to say (with apologies to Mary Ellen O’Connell), it is not law enforcement, and of course it was legal to target OBL, legal to target with lethal force, legal to target without warning or invitation to surrender, and that has always been the US legal position.  I don’t understand how this entirely obvious question wasn’t briefed and anticipated, with an answer directly from Harold Koh’s 2010 American Society of International Law address on exactly this point:

Some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in an armed conflict or in legitimate self-defence is not required to provide targets with legal process before the state may use lethal force ….

The principles of distinction and proportionality that the US applies are … implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law ….

Some have argued that our targeting practices violate domestic law, in particular, the longstanding domestic ban on assassinations. But under domestic law, the use of lawful weapons systems — consistent with the applicable laws of war — for precision targeting of specific high-level belligerent leaders when acting in self-defence or during an armed conflict is not unlawful, and hence does not constitute ‘assassination’.

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The video is here. No big surprises. Dellinger’s argument is based on the post-9/11 Authorization for the Use of Military Force and that under international law “you can kill enemy combatants.” 

Dellinger explains that drones attacks on other al Qaeda members are legal too. However, regarding drone attacks, I wish he hadn’t said that that there was “a policy judgment” to be made about “how careful you ought to be” about protecting the lives of civilians and non-combatants and contrasting that “policy judgment” with “decisions having to do with the lawfulness of the use of military choice.”  Putting it that way seemingly makes proportionality merely a policy consideration as opposed to an obligation.

For his part, Gergen focused on the moral issues of targeted killing.

Following up on my previous post, Obama has announced that he will not release photos of Usama bin Laden’s body:

It is important to make sure that very graphic photos of somebody who was shot in the head are not floating around as an incitement to additional violence or as a propaganda tool,” said the president.

“We don’t trot out this stuff as trophies,” Mr. Obama added. “The fact of the matter is, this is somebody who was deserving of the justice that he received.”

The president said he had discussed the issue with his intelligence team, including Defense Secretary Robert Gates and Secretary of State Hillary Clinton, and that they agree with the decision. White House press secretary Jay Carney said Wednesday that Mr. Obama made the decision today.

In explaining his choice not to release the photo, Mr. Obama said that “we don’t need to spike the football.” He said that “given the graphic nature of these photos it would create a national security risk.”

This is the right call, and Obama deserves credit for it.  (As I predicted, the right-wing has been in a lather for the past couple of days over his decision to dispose of UBL’s remains in accordance with Islamic principles.)  The only non-frivolous counterargument is that photographic evidence is necessary to convince people that UBL is actually dead.  Obama addressed that concern, noting that there is no doubt among members of al Qaeda that the U.S. killed their leader.  (I’m sure most readers have seen footage of the various al Qaeda groups crying over the news.)  There will always be some people, Muslim and non-Muslim, who believe that UBL’s death is a hoax, but it’s silly to think that the U.S. would convince such people simply by releasing a photo.  If the birthers and the truthers have taught us anything, it’s that conspiracy theories are effectively impervious to rational argument.

His name?  John Ashcroft.  Yep, that John Ashcroft:

The consortium in charge of restructuring the world’s most infamous private-security firm just added a new chief in charge of keeping the company on the straight and narrow. Yes, John Ashcroft, the former U.S. attorney general, is now an “independent director” of Xe Services, formerly known as Blackwater.

Ashcroft will head Xe’s new “subcommittee on governance,” its backers announced early Wednesday in a statement. The subcommittee is designed to “maximize governance, compliance and accountability” and “promote the highest degrees of ethics and professionalism within the private-security industry.”

I could never write a sufficiently snarky response to that.  I’ll just point out that the Ninth Circuit recently reinstated the lawsuit against Blackwater for its 2007 massacre of Iraqi civilians in Nisoor Square.

Mary Ellen O’Connell has written a more detailed analysis of the international law involved in the bin Laden killing responding to some of the comments on her Opinio Juris post. Here’s a taste:

The use of lethal force is governed by two types of international law: the law of peace and the law of armed conflict. In peace, international law supports national legal systems when it comes to the resort to force. National systems restrict the use of force to law enforcement authorities — the police, or in special circumstances, the military (I argue here that the SEALs, who are military, kept their use of force at law enforcement levels). Unauthorized persons may resort to force in self-defense if necessary to save a life immediately. Otherwise, using force is considered a crime under international law.

Some crimes are so serious they are outlawed in international law, as well as national law, with the crime of terrorism is a prime example. As an international crime, states around the world have an obligation to suppress terrorism. But in suppressing even the most serious crimes, law enforcement agents must limit the amount of lethal force they use, and excessive force, even in anti-terrorism cases, has been ruled a violation of human rights law by both the European Court of Human Rights [ECHR] and the Inter-American Court.

The ECHR considered a case in 1995 with parallels to the bin Laden raid. In McCann v. The United Kingdom, the court found that members of the elite British SAS used excessive force when they killed IRA members in Gibraltar who were suspected of preparing a bombing. The court found that the operatives should have attempted to arrest the terrorists, instead of shooting them based on intelligence they possessed that the suspects were preparing to use explosives. If the suspects had resisted arrest or attempted to escape, authorities then would have had had the right to resort to lethal force.

This is the law that applied in bin Laden’s case. On May 2, no fighting was going on in Pakistan that would rise to the level of “armed conflict” as defined under international law; Pakistan had to suspend major military operations against militant groups in the country’s tribal areas after the floods of 2010. And despite what some commentators have argued, under international law there is no right to engage in cross-border military force based on the argument that a state is unable or unwilling to deal with the threat themselves. The correct choice of law, therefore, was peacetime law.

Cross-posted at Balkinization

In response to my post a few days ago lamenting the post-bin Laden urge to rehash debates about torture’s efficacy, Ben Wittes writes to disagree.

“Pearlstein is right, of course, that we will never know with any certainty whether any specific piece of information that the CIA program developed would have been developed had the program used no coercion–or had the program not existed at all and had the interrogators in question been military folks. One can never establish a but-for relationship between coercive practices and any valuable intelligence that we learned following its use. But I do not think the effort to understand the value added of the CIA program is useless. In fact, I think it’s critical. If one believes that the program contributed nothing–or little–of value that could not have been obtained in a manner that did not trouble our collective conscience, one will and should feel very differently about it than one will and should if one believes it provided critical intelligence that saved American lives and led to the capture and killing of key Al Qaeda figures. While it may be impossible to get certainty on the answers to these questions, it should not be impossible to get some more solid understanding of the matter than we currently have as a society. A lot of people are quick to opine on this matter in one direction or another, but it has received virtually no impartial study.”

Various things to say. First, I quite agree that impartial study of intelligence methods and their effects is of great value. That (among other reasons) is why I have long supported the establishment of an independent commission that would look back over intelligence practices of the past decade and evaluate not only questions of history, but also questions of strategic impact, small and large. It is also why I thought it worth looking closely at the findings those impartial studies that do exist – like the 2006 report on Educing Information by the Intelligence Science Board – which I’ve often cited for its conclusion, among others, that “knowledge of behavioral indicators that might assist in the detection of deception is very limited and provides little reliable information that could assist intelligence collectors” with current populations of interest. In other words, 4 years in to our dramatic program of coercive intelligence collection, no one knew in any real way how to secure the revelation of accurate information from an individual. My point in this week’s post was not that such investigations, when rigorously and ethically done, lack value. Just the opposite, it was to note that post hoc assertions based on incomplete information about a particular anecdotal case are no substitute for rational study. Put differently, for every “maybe some guy in Gitmo said something useful” story, there’s a “some guy in Gitmo said something false that lead us to war in Iraq” story. Dueling anecdotes do nothing to advance – and plenty to mislead – the inquiry about efficacy.

Second, and more broadly, let’s imagine for a minute that the closest to “truth” about efficacy we will ever be able to get is that sometimes people say useful things under torture and sometimes they don’t. In other words, let’s imagine that study will not be able to conclusively foreclose the possibility that on some occasion, someone will say something true if you torture them. (With more study, maybe one could discern what kinds of torture are more likely to produce true answers than false ones, even true answers not otherwise obtainable, but I’d be fascinated to hear the scenario for doing this in any ethical way.) The far harder question still remains: What policy conclusion follows from this result? How does one weigh this information in a cost-benefit analysis that includes tactical gain vs. strategic loss, effects on our own forces, variations among individual responses, designs of training and education, alternative options (including a finding that sometimes, someone will say something true if you give them a Big Mac), or all of the important arguments from philosophy, morality, law, medicine and religion that say efficacy is entirely beside the point, and we can decide as humans that there are some kinds of things we simply won’t do? Science can be enormously valuable. But I think it’s a mistake to imagine in thsi case that it will get us out of – or even much clarify – the otherwise far deeper question. In all events, for those who have not yet settled this matter in their own minds, this week strikes me as a particularly inopportune time to try.

[Major John C. Dehn is an Assistant Professor in the Department of Law, US Military Academy, West Point, NY. He currently teaches International Law and Constitutional and Military Law. He is writing in his personal capacity and his views do not necessarily represent the views of the Department of Defense, the US Army, or the US Military Academy. The analysis presented here stems from his academic research of publicly available sources, not from protected operational information from, or actual involvement in, aspects of this or any other military operation.]

I want to start by noting that the debate between Kevin and Michael Lewis is an important one, one that I raised in recent remarks at St. John’s Law School’s Center for International and Comparative Law inaugural symposium. The current differentiation in the jus in bello trigger between states and non-state actors is an important one, one that may ultimately disappear through state practice given the grave nature of threats posed by non-state actors exploiting modern technologies. What I mean is that it is generally believed, as Kevin indicates, that IHL is triggered by any use of force between states, but only by sufficiently intense and protracted hostilities between a state and non-state armed force of sufficient organization (or between two such non-state groups). Kevin offers a fair argument regarding the applicability of IHL based on the ICTY and ICJ case law, Michael a good one based on the way things seem to actually work in state practice. Unlike Michael, I read Jordan Paust to argue that IHL should apply by analogy to acts of Article 51 self-defense against non-state actors not reaching the armed conflict threshold. I intend to write much more on this topic in the future because, as Kevin seems to grasp, removing the differentiation between attacks against states and non-state actors in this context might allow opportunistic resort to the IHL paradigm in questionable cases.

With all of that that said, in the various press reports about the recent operation against Osama bin Laden, one fact strikes me as worthy of note. It seems that the CIA was in charge of this “military operation” justified in part by resort to the Authorization for the Use of Military Force (but in the usual manner, a general right of self-defense has also been asserted).

CBS reported this command arrangement as fact. The New York Times reported, “The president and his advisers watched … the C.I.A. director, on a video screen, narrating from his agency’s headquarters across the Potomac River what was happening in faraway Pakistan.” And earlier in that article,

“In February, Mr. Panetta called Vice Adm. William H. McRaven, commander of the Pentagon’s Joint Special Operations Command, to C.I.A. headquarters in Langley, Va., to give him details about the compound and to begin planning a military strike.

Admiral McRaven … spent weeks working with the C.I.A. on the operation, and came up with three options: a helicopter assault using American commandos, a strike with B-2 bombers that would obliterate the compound, or a joint raid with Pakistani intelligence operatives who would be told about the mission hours before the launch.”

It seems fairly clear that this was a CIA operation for which the U.S. military served as the tip of the spear, and that this is part of the new way of warfare…

A number of students and colleagues have asked me if I believe that Usama bin Laden’s killing was legal. I’m swamped with teaching and writing responsibilities, so my ability to blog is limited.  But I thought I’d at least put my thoughts on record, skeletal though they may be.  And I want to reply to what I think are two misleading statements in Michael Lewis’s post regarding the relationship between the jus ad bellum and the jus in bello.

First, with regard to the UBL question: I have no doubt that killing UBL was legal. To begin with, I think the applicable legal regime is international humanitarian law (IHL), not international human-rights law (IHRL) — a conclusion that can be reached in a number of different ways.  The best rationale is that UBL was a member of an organized armed group (“original” al Qaeda) taking part in the armed conflict in Afghanistan.  In the alternative, I think we can say (although it is a closer call) that the hostilities in Pakistan rise to the level of armed conflict and that UBL was a member of an organized armed group (original al Qaeda or al Qaeda Pakistan, if the two are distinct entities) taking part in that conflict. Either way, UBL was legitimately targetable with lethal force at any time, subject only to the principles of distinction and proportionality.  And nothing I’ve seen indicates that the attack on UBL’s compound violated either of those principles.

Importantly, I don’t think the result would be any different if the applicable regime was IHRL, not IHL.  As I’ve written before, IHRL limits targeted killing more than IHL, but it by no means prohibits it. And I think UBL’s killing was permissible, for reasons articulated by the inestimable Marko Milanovic:

IHRL does allow states to deliberately kill individuals if they have a sufficient justification. OBL was undoubtedly a highly dangerous individual, whose apprehension was needed to protect the lives of others. The US military operation at least contemplated the capture of OBL; the troops on the ground shot him in a firefight. There are no indications that he had tried to surrender before being shot. Under the same facts, his killing would have been equally as lawful had he been hiding somewhere in Alaska rather than in Abbottabad.

Now, to Lewis.  He and I obviously agree that UBL’s kiling was lawful and that the applicable legal regime is IHL, not IHRL.  It is important to recognize, however, that his explanation of why IHL applies rests on an unacceptable conflation of the jus ad bellum and the jus in bello.  He writes:

[S]tate practice strongly supports the view that an expansive reading of Article 51 to include non-state actors is appropriate. Sunday’s operation was another example of state practice undertaken with the belief that the boundaries of the battlefield are not determined by geopolitical lines but rather by the location of participants in an armed conflict, whether the participants are states or non-state actors. This continues to be the standard for determining where the law of armed conflict is properly applied.

The second and third sentences of this statement are correct, but they in no way follow from the first sentence.  IHL applies to the operation for one reason and one reason only: because hostilities rising to the level of armed conflict exist in Afghanistan and/or Pakistan (and UBL was a member of an organized group taking part in one of those conflicts). Whether the operation against UBL is consistent with Article 51 of the UN Charter (which I agree it was) has no bearing on that question; the consistency issue is exclusively one of the jus ad bellum — namely, whether the operation violated Pakistan’s sovereignty. Differently put, if the objective requirements of armed conflict do exist, IHL applies even if Article 51 did not authorize the operation; IHL does not distinguish between just and unjust, legal or illegal, uses of force.  (Which means that it is perfectly legal for a soldier fighting an illegal war to kill an enemy combatant.)  Conversely, if the objective requirements of armed conflict do not exist, IHL does not apply even if Article 51 did authorize the operation.  The jus ad bellum question is irrelevant to the jus in bello one.  (A conclusion reached, it’s worth noting, by the Farben, Krupp, and Ministries tribunals in the aftermath of WW II.)

I would also take issue with this statement in Lewis’s post:

The United States military sent some of its most highly trained combat experts into Pakistan without asking for Pakistan’s permission. They entered Pakistan’s airspace in military helicopters specifically equipped to defeat the Pakistani air defenses. According to a national security official in the immediate aftermath of the operation they went there for the sole purpose of killing Osama bin Laden, a goal which they quickly accomplished. These facts support characterizing this as a military operation conducted under the laws of armed conflict and not a law enforcement operation.

This is not necessarily wrong, but it is at least misleading.  Although how a state chooses to respond to a threat from a non-state actor is relevant to whether hostilities rise to the level of armed conflict, the form of the response — military or law-enforcement — does not determine whether an armed conflict exists.  It is simply one factor, the importance of which is debatable.  States do not get to unilaterally determine whether IHL applies to hostilities with a non-state actor; again, that is an objective question determined by the intensity of the hostilities and the organization of the parties to the conflict.  Nor, it is important to add, would we want states to be able to trigger IHL simply by calling in the military instead of deploying police officers.  If that was the test, the Syrian government would be able to argue that its recent decision to massacre protesters with tanks was governed by IHL, not by IHRL, because the use of tanks means that the massacre was “a military operation conducted under the laws of armed conflict and not a law enforcement operation.”

The bottom line: yes, killing bin Laden was legal.  But it was legal because the operation that killed him complied with IHL, not because it was permitted by Article 51. The latter issue is relevant only to whether Pakistan has the right to complain about the United States’ violation of its sovereignty.

The United States military sent some of its most highly trained combat experts into Pakistan without asking for Pakistan’s permission. They entered Pakistan’s airspace in military helicopters specifically equipped to defeat the Pakistani air defenses. According to a national security official in the immediate aftermath of the operation they went there for the sole purpose of killing Osama bin Laden, a goal which they quickly accomplished. These facts support characterizing this as a military operation conducted under the laws of armed conflict and not a law enforcement operation. The fact that John Brennan is now describing it as a “capture-or-kill” mission does not change this characterization because the laws of armed conflict treat all missions as “capture-or-kill”, requiring that an enemy offering to surrender may not be killed.

The legal justification for this use of force cannot have been based upon Pakistani consent because it was never sought. It is extremely unlikely that the legal basis for the operation was hoped for Pakistani acquiescence after the fact. The justification that was almost certainly relied upon was Article 51 self-defense as described by Jordan Paust.

This is significant because it represents the use of Article 51 self-defense against non-state actors. While the ICJ’s opinions in the Palestinian Wall case and Congo v. Uganda both called into question whether Article 51 self-defense can support the use of force against non-state actors, the separate opinions of Judges Simma and Kooijmans recognized that in a post-9/11 world containing failed states, state practice strongly supports the view that an expansive reading of Article 51 to include non-state actors is appropriate. Sunday’s operation was another example of state practice undertaken with the belief that the boundaries of the battlefield are not determined by geopolitical lines but rather by the location of participants in an armed conflict, whether the participants are states or non-state actors. This continues to be the standard for determining where the law of armed conflict is properly applied.

[Mary Ellen O’Connell is the Robert and Marion Short Chair in Law and Research Professor of International Dispute Resolution—Kroc Institute. She is a Vice President at the American Society of International Law and the author of author of The Choice of Law Against Terrorism, 4 J. NAT. SEC. L. & POL’Y 2010]

In his speech announcing the death of Osama bin Ladin, President Obama made reference to the cloudless skies over New York on the morning of 9/11. I was in those cloudless skies, my flight from LaGuardia to Columbus, Ohio landing a short time before our world was turned upside-down by a small group of violent terrorists. It was with a tremendous sense of relief that I heard the news that bin Ladin had been killed. John Brennan affirmed that the Seal team had been given orders to attempt to capture bin Laden. That was the key factor in a lawful operation. The operation, far from a battle zone, followed law enforcement standards, including the attempt to capture and the likely use of assault rifles. As a firm believer in the role of our justice system in the fight against terrorism, I have long known the extraordinarily small chance of bin Ladin being found, captured, subdued, transported, and tried in a court of law. But it was America’s obligation to attempt this—something that could not be accomplished with drones.

Pakistani leaders have praised the operation. We can conclude that they have waived any objection to the fact the U.S. conducted the operation without their knowledge.

Having shown that we can pursue wanted terrorists through law enforcement rules, it is time to finally end both the “global war on terror” and the “armed conflict against al Qaeda, the Taliban and associated forces.” As we close the book on one of the most notorious criminals in the past century, the opportunity is before us to turn a corner, not only in the fight against terrorism, but also in the techniques used to fight terrorism. As the British learned in their struggle against the Irish Republican Army, as the Germans learned in their efforts against the Red Army Faction, as the Italians learned in subduing the Red Brigades, the most effective tools are good information and effective police work. The death of bin Ladin should also be the death of extra-judicial killing. Capture-and-trial is the legal and effective option for dealing with the criminals we call “terrorists.”

Yes, resistance to capture may have to be met with appropriate force, but it should be police force, acting on the basis of solid intelligence. If we do not stop using drones to pursue terrorist suspects, we will have extended to bin Laden more rights than we do to persons about whom we have far less information. Instead, let’s devote appropriate resources to finding, apprehending, and trying these individuals in courts of law, with legal cases built on evidence gathered using police techniques and proper chains of evidence.

Some reading these words might argue that military force against bin Ladin worked–why not continue these methods against other terrorist suspects? In the end, the operation that worked followed law enforcement techniques. The use of military force had failed for ten years, following 9/11. Contrast the use of military force with the police efforts to uncover and disrupt terrorist plots in areas such as New York City, Buffalo, Albany, Detroit, Chicago, Washington, Fort Dix, and Dallas, among others. Those arrested are serving prison sentences ranging from more than a decade to life. They are no longer threats to US citizens due to solid police investigations and vigorous prosecutions. Let’s keep up that good work in the fight (not “war”) against terrorism.

Parag Khanna of the New America Foundation has an essay at CNN.com which gave me cognitive whiplash. He tries to set out an argument that the killing of Bin Laden signifies an important evolution in the rule of law. Khanna, however, seems to like the idea of the rule of law without actually wanting to deal with the details of legal rules.

Khanna starts by arguing that

the narrative of the [killing of Bin Laden] must be dramatically shifted away from rhetorical overtones about a “war of ideas” or “struggle for soul of Islam” towards a more neutral and universal appeal to a global rule of law.

But then what Khanna does with the idea of the “rule of law” makes my head snap back. As he sees it, the legal significance of the killing is in part because it was Americans acting in Pakistan:

That it was American counterterrorism operatives who conducted the assassination on the sovereign soil of a foreign country is an even more important marker. Many see the assassination of rogue individuals as a violation of sovereign immunity and even “playing God,” a right that no nation can arrogate to itself. This is false. It is a powerful symbol of our collective evolution that individual perpetrators are targeted for their crimes rather than entire societies punished in wars.

He then criticizes international law for being too, well, legalistic and saying that what is important about the killing is that it wipes away some old notions of sovereignty:

Over the past decade, international law has evolved in such a way as to justify such direct interventions, if only we could act more quickly on the thicket of protocols and deliberations we have invented. The International Criminal Court which oversaw the trial of Serbian war criminal Slobodan Milosevic, has indicted sitting heads of state such as Omar Bashir of Sudan. The Responsibility to Protect (R2P) doctrine, ratified in 2005 by the United Nations General Assembly in 2005, sets forth a process for determining whether the international community can be obligated to intervene to prevent crimes against humanity.

The core principle behind these institutions and treaties is that sovereignty is a responsibility, not a privilege. This applies not only to dictators and terrorist fugitives, but to the governments that give them safe harbor.

Let’s set aside for the moment that R2P is anything but settled in terms of either process or content and that General Assembly resolutions are not binding. A bigger problem is trying to tie together the killing of Bin Laden, the ICTY (not the ICC), and the NATO bombing in Kosovo in a single normative package. This brings together examples with more disparities than commonalities.

And when it comes to applying legal principles, details and distinctions matter. Consider this statement:

The arguments against political assassinations hinge on an overly legalistic commitment to sovereignty and a misplaced fear of retribution. It is precisely the accretion of a body of international humanitarian law that justifies interventions from Kosovo to East Timor and assassinations of figures like Osama bin Laden.

That sounds like the work of someone looking for a “big think” tagline and misunderstanding the law regarding assassination and targeted killing along the way. Lawyers try not to overturn old paradigms when current rules are perfectly adequate. In this case, Khanna was just looking at the wrong rules. I much prefer Jordan Paust’s  argument, set out in a brief comment to the post in this link (and at greater length in this article):

As international law experts, we should recall that the killing of bin Laden was permissible under Article 51 of the U.N. Charter, which allows the U.S. to target the leader of al Qaeda in self-defense in response to ongoing armed attacks on U.S. military personnel and other nationals in Afghanistan across the porous border areas with Pakistan. The U.S. does not need the consent of Pakistan in order to engage in self-defense actions against those in charge of attacking U.S. nationals, but apparently had consent in this instance. This was not simplistically a “law enforcement” operation, but a self-defense and law of war operation, especially since the de facto theater of war has migrated to parts of Pakistan and to the very spot where bin Laden had been directing attacks through his couriers.

Greg Mc Neal points to a similar argument made by John Bellinger, with the added point of Pakistani consent.

No need to proclaim the end of sovereignty or the rise of some new paradigm. Just mind the details and do the legal analysis.

That’s more than enough.

Often used to model legislative politics, positive political theory (PPT) has core insights that can be applied to the journal submissions process as well. There are important differences between the legislative and editorial processes. Like legislative action, however, editors’ deliberations and voting on submissions are a process of aggregating preferences within the constraints of voting rules and other institutional features. In this post I sketch out the outlines of such a theory. (For an application of PPT potentially of interest to the international law community, check out Josh Benson’s treatment of the “Guantanamo Game” a few years back.)

Each journal has its own set of submissions review procedures and voting rules, but decisionmaking is likely to be similar enough at each journal, and it’s likely to take the form of a sequential game. Editors play a micro game for each article, and a macro game for the entire slate of articles. We can describe the macro game simply, for our purposes, as maximizing the sum of the twelve—or however many articles in a slate—best outcomes across micro games. Each micro game starts effectively when an article comes into the pipeline, and ends either when the editors reject the article, or when the author accepts or declines their publication offer. The collegiality on journal boards may mean there are norms against openly strategic voting, and voting systems might be designed to minimize editors’ incentive to vote strategically. Nonetheless, we can assume that people will be strategic if they’re trying to maximize their preferences; they will figure out how to play the system to get the outcomes they want. And besides, it’s easier to model real-world processes by making unrealistic simplifying assumptions.

Voting rules will shape the details of the submissions process, and will also shape the leeway editors will have in bringing articles to the next stage of review, deliberation, and voting. Time is a valuable resource for editors and no one wants to waste time reviewing articles for which everyone knows the full board will not extend a publication offer. The decisions at earlier stages of review are made in the shadow of the decisions that must be made at later stages of review—and in particular, the preferences of the agenda-setters at different stages of reviews. Imagine there are three rounds of review: cursory review by a single editor, intermediate review by a five-editor panel, and full board review by nine editors. Imagine further that the voting rules require a single editor to bump an article up to intermediate review, three editors to bump up to full review, and six editors to make an offer. (The point should be similar if the journal uses a different voting rule, like weighted voting.) In the cursory and intermediate review stages the editors’ attention will be directed toward whether an article will make it to full-board review, and whether it will receive an offer. In particular, they will be attuned to the preferences of agenda-setters at each stage of review. They will also be attuned to the reputational consequences of their decisions with other members of the intermediate and final review groups: flagging an article that does not gain support in intermediate review may hurt an editor’s credibility going forward.

Agenda setters are the “swing” editors whose preferences will be pivotal and crucial in evaluating a given submission. Editors work closely together and develop senses of each other’s preferences and idiosyncrasies. Consider the question of placing international law articles in mainline journals. Editors will have different preferences along a unidimensional spectrum—essentially whether they are more or less interested in publishing an article about international law. Some editors may be very interested in international law, while others may be skeptics. If editors know each others’ preferences, the entrepreneurial editor pushing to publish a certain international-law article will look to the preferences of the sixth of the nine voting editors. The three editors whose votes she does not need aren’t likely to come into the analysis—except to the extent journals are social institutions, editors care about internal reputations, etc. Thus the only international-law articles that are likely to get serious attention past intermediate review are those that are consistent with the preferences of that pivotal sixth vote. (This same idea can be applied to other questions—whether to publish an article for which the ideological slant is more or less conservative, whether to publish a bankruptcy article, whether to publish an empirical article, etc.)

All journals are constrained in the number of articles they can publish, and thus in the number of offers they can make. In order to fill a volume with twelve articles, the board may make from twelve to many dozens of offers (depending on how many articles get expedited away to other journals). These constraints interact with the unidimensional preferences of editors on various issues, which are likely to change across the macro game as article slots fill up with articles of one type or another. So once a board makes an offer on, or places, an international law article in one of its slots, the preferences of the full board may shift up the spectrum; the sixth voter’s preferences in particular will become more stringent; and another international law article will face a higher burden of persuasion in order to elicit an offer. This preference-shifting phenomenon might help explain why authors go for the first-mover advantage, a question I puzzled over in my last post. First-mover strategies work well when journals fill up quickly. But for journals that do rolling submissions, the vote on the submission will still be oriented toward the merits of this piece in light of alternative submissions expected to come in through the year.

In short, a specialty article will often face an uphill battle in a mainline journal; in order to be taken seriously, it will have to be one of the “best” articles of that specialty that the editors anticipate seeing that year (given the preference-shifting effects of making an offer). This may mean many things: the article is interesting, provocative, and well argued; it is technically well executed and substantially finished; or it has received comments at workshops and from other professors, and thus the author has addressed many possible counterarguments. Along these dimensions, the idea of the “best” article represents one that will bring the journal the most bang for its editorial-labor buck. This idea also captures the possibility that the article’s argument is wide enough to secure votes along other preference dimensions. An article about international criminal law, or international banking regulation, may have substantive overlap with editors’ preferences in other areas. For example, this will collapse into unidimensional preferences when the editors interested in international law, and the editors interested in criminal law, all vote together as a coalition for this article—a coalition that may be enough to secure a sixth vote.

What does this mean for international-law scholars seeking to publish in mainline journals? First, specialized articles will be placed in specialized journals, while generalized articles will be placed in generalized journals. The more an article is able to draw connections to doctrines, debates, cases, examples, implications, etc., outside the narrow field in which an international-law article is operating, the more likely that the article will satisfy the pivotal agenda-setting sixth editor’s preferences. Moreover, having many high-quality specialized journals in a given area (like IL) may make it more difficult for authors to land articles in mainline journals. An editor’s conclusion that an article’s subject matter is too narrowly specialized would be shaped by the wide set of alternative journals in which the author could publish. My intuition is that if there were more criminal law specialty journals, for example, we’d probably see mainline journals substituting away from publishing as many pieces on criminal law. The take-home for authors here, though, is that appealing to a wider audience can be helpful.

A second suggestion is that authors should take advantage of the credible signal that an expedite request provides. The best bet is to play up the ladder, since the most helpful signals for mainline journals will be expedites from top secondary journals. Since (as I explained above) an IL article would have to be among the “best” IL pieces a board would see all year, the signal of an offer from a top secondary journal is a more credible signal that yours is one of the “best” pieces, than an offer from merely any secondary journal. In this sense, playing up the ladder may mean taking advantage of the secondary-journal expedite process before moving over to mainline journals. At the same time, securing offers from mainline journals helps cut back on the previous paragraph’s concerns about an article’s scope being too narrow.

A final suggestion would be to take time to get an article into the best possible shape. The vast majority of article submissions are undertheorized early drafts. The best articles are those that look as if they might be publishable immediately; for these the author has invested considerably more time and effort in polishing its arguments—including by addressing material counterarguments. Articles of this sort are probably fewer than 10% of submissions; because of their relative rarity, very well executed articles are those most likely to make it to intermediate or full-board review. Reading a well-executed IL article may favorably shift the preferences of pivotal editors who might not otherwise be interested in publishing the article just for its subject matter.

I can’t offer much more than that by way of the specific challenges IL authors face at mainline journals. It would be folly to try to identify what, in particular, articles editors at mainline journals are looking for in IL scholarship. I doubt more than one or two editors will have thought about IL enough to have developed such preferences. Relatively “expert” editors—who are agenda setters in their own right—may be tasked in reviewing IL submissions in the earlier rounds of review and thus would be positioned to choose the articles that both coincide with their subject-matter preferences and that are likely to secure the pivotal sixth vote in full-board review. My own subject-matter interests, for example, would have made me more amenable to reviewing articles about the laws of war, and less amenable to articles about international banking regulation. But the preferences of these editors and of boards in general will be hidden (unless articulated in calls-for-submission, for example), will differ widely from editor to editor and from journal to journal, and thus will not be available to authors who would want to approach the submissions process strategically.

And if that’s not bad enough, one of Fox’s DC anchors announced that “President Obama is, in fact, dead.”

John Bellinger, former State Department Legal Adviser has posted a very short piece entitled Bin Laden Killing: The Legal Basis.  Here is an excerpt:

The U.S. killing of Osama bin Laden in Pakistan was lawful under both U.S. domestic law and international law…The Authorization to Use Military Force Act of September 18, 2001, authorizes the president to use “all necessary and appropriate force” against persons who authorized, planned, or committed the 9/11 attacks.

The killing is not prohibited by the longstanding assassination prohibition in Executive Order 12333 because the action was a military action in the ongoing U.S. armed conflict with al-Qaeda and it is not prohibited to kill specific leaders of an opposing force. The assassination prohibition also does not apply to killings in self-defense. The executive branch will also argue that the action was permissible under international law both as a permissible use of force in the U.S. armed conflict with al-Qaeda and as a legitimate action in self-defense, given that bin Laden was clearly planning additional attacks.

And on the Pakistani sovereignty issue:

…under the UN Charter, the United States would normally be prohibited from using force inside Pakistan without obtaining Pakistan’s consent…the Pakistani government appears at least to have consented after the fact to this potential infringement of its sovereignty.

Cross-posted at Balkinization

For all the interesting things that might be said about the still-emerging circumstances of bin Laden’s death, it’s disheartening to see conversation already turning to old, old debates about interrogation. Peter King (R-N.Y.) was naturally quick to suggest that reports that information leading to bin Laden’s capture came from detainees held at Guantanamo Bay should lead Obama to rethink his opposition to torture. Emptywheel, naturally, says it’s clear waterboarding had nothing to do with it. FWIW, Rumsfeld appears far closer to Emptywheel’s view than King’s.

Why is this a fruitless (not to mention so, so old) conversation? Any number of reasons. For one, the odds are negligible that we will ever truly know who produced the critical piece of information when and for what reason. If perchance we do learn the actual “facts” about what happened – facts as distinct from competing anecdotal accounts selectively leaked by “official sources” with agendas of their own – they will prove nothing in any meaningful way. If a detainee effectively volunteered key information, advocates of waterboarding, prolonged isolation, etc. will insist torture could have produced it sooner. I’ll look forward to their controlled study. If a detainee gave up the information under torture, critics will insist that it is impossible to know whether he also would have conveyed the same information under other conditions. Just right.

Either way, let’s be clear that the arguments in this realm have never been about ‘interrogation’ as an intelligence collection method per se. No one seriously thinks we should refrain from using our broad range of lawfully available means to seek information from terrorist suspects who are otherwise lawfully in our custody. The debate is about torture and cruelty. And all the arguments that existed about the legality, morality, and efficacy of torture that we had when we had the debate in 2002, and 2004, and 2006, and 2008 and all the years in between – remain the same today as they were yesterday. So let’s note that the U.S. law prohibiting cruel techniques has been strengthened since 9/11. Let’s recall that there was nothing at all in the President’s speech last night to suggest that this no-doubt defining experience of his presidency has led him to reconsider his standing executive order reinforcing existing prohibitions. And let’s not nudge the blogosphere to see that yesterday’s events “reignite” that old, rightly concluded, debate.

The killing of Osama Bin Laden is no doubt a significant victory in the conflict with al Qaeda (see Michael Lewis’ post here).  However, contrary to Peter Bergen’s assertion that “Killing bin Laden is the end of the war on terror. There is no one to replace him in Al Qaeda. Bin Laden was the guy who fought against the Soviet Union and the United States. No one in the network is like that..” I’m not convinced.

But don’t take my word for it, the jihadist’s are not convinced either, just consider what they are saying in the jihadist forums:

• “We were not fighting for Osama. We were fighting for Allah. The Jihad will continue even if the Amir [leader] is Shaheed [martyred]!!”

• “Those who fought for shaykh usaamah, know that shaykh usaamah has passed away, but those who fought for Allaah, know that Allaah is alive and will never die”.

• “a million new bin Ladens will be born! And the flag of jihad will be raised! Inshallah”.
  

The President declared in his speech that killing Bin Laden was his top priority upon taking office, this differs a bit from his statements on January 15, 2009, when he noted that killing Bin Laden wasn’t essential, rather keeping al Qaeda on the run was the key to strategic success.  The linked story admittedly notes the importance placed on capturing or killing Bin Laden, but it’s set in a broader strategic context that required placing pressure on the entire al Qaeda network.  That network, despite the killing of Bin Laden, still exists.

As Jason Burke noted in a 2004 piece for Foreign Policy entitled Think Again: Al Qaeda (firewalled):

“Capturing or Killing Bin Laden Will Deal a Severe Blow to Al Qaeda”

Wrong. Even for militants with identifiable ties to bin Laden, the death of the “sheik” will make little difference in their ability to recruit people. U.S. Secretary of Defense Donald Rumsfeld recently acknowledged as much when he questioned in an internal Pentagon memo whether it was possible to kill militants faster than radical clerics and religious schools could create them. In practical terms, bin Laden now has only a very limited ability to commission acts of terror, and his involvement is restricted to the broad strategic direction of largely autonomous cells and groups. Most intelligence analysts now consider him largely peripheral.

This turn of events should surprise no one. Islamic militancy predates bin Laden’s activities. He was barely involved in the Islamic violence of the early 1990s in Algeria, Egypt, Bosnia, and Kashmir. His links to the 1993 World Trade Center attack were tangential. There were no al Qaeda training camps during the early 1990s, although camps run by other groups churned out thousands of highly trained fanatics. Even when bin Laden was based in Afghanistan in the late 1990s, it was often Islamic groups and individuals who sought him out for help in finding resources for preconceived attacks, not vice versa. These days, Islamic groups can go to other individuals, such as Jordanian activist Abu Musab al-Zarqawi, who set up his al Tauhid group in competition with bin Laden (rather than, as is frequently claimed, in alliance with him) to obtain funds, expertise, or other logistical assistance.

Bin Laden still plays a significant role in the movement as a propagandist who effectively exploits modern mass communications. It is likely that the United States will eventually apprehend bin Laden and that this demonstration of U.S. power will demoralize many militants. However, much depends on the manner in which he is captured or killed. If, like deposed Iraqi President Saddam Hussein, he surrenders without a fight, which is very unlikely, many followers will be deeply disillusioned. If he achieves martyrdom in a way that his cohorts can spin as heroic, he will be an inspiration for generations to come. Either way, bin Laden’s removal from the scene will not stop Islamic militancy.

That Islamic militancy importantly includes other al Qaeda off-shoots such as al Qaeda on the Arabian Peninsula.  In February 2011, Michael Leiter, National Counterterrorism Center Director said in testimony before the U.S. House Homeland Security Committee “I actually consider Al Qaeda in the Arabian Peninsula, with Al-Awlaki as a leader within that organization, is probably the most significant risk to the U.S. homeland.”

I’m hopeful that Bin Laden’s death spells the demise of al Qaeda, but hope alone won’t change the reality of a global movement dedicated to attacking America.  Others may see the same thing, but will attribute it to a “military-industrial complex” that makes money off of wars.  Whatever your root cause explanation, this conflict is probably not ending anytime soon.

Cross-posted at LawandTerrorism

The best lines in President Obama’s speech last night were at the beginning:

It was nearly 10 years ago that a bright September day was darkened by the worst attack on the American people in our history. The images of 9/11 are seared into our national memory — hijacked planes cutting through a cloudless September sky; the Twin Towers collapsing to the ground; black smoke billowing up from the Pentagon; the wreckage of Flight 93 in Shanksville, Pennsylvania, where the actions of heroic citizens saved even more heartbreak and destruction.

And yet we know that the worst images are those that were unseen to the world. The empty seat at the dinner table. Children who were forced to grow up without their mother or their father. Parents who would never know the feeling of their child’s embrace. Nearly 3,000 citizens taken from us, leaving a gaping hole in our hearts.

On September 11, 2001, in our time of grief, the American people came together. We offered our neighbors a hand, and we offered the wounded our blood. We reaffirmed our ties to each other, and our love of community and country. On that day, no matter where we came from, what God we prayed to, or what race or ethnicity we were, we were united as one American family.

Try to remember where you were on September 11, 2001. I was in Geneva during the attack, sitting across the table from Iraqis at an oral argument before the United Nations Compensation Commission. It was several days before I could get back home. My flight on September 13, 2001 was one of the first transatlantic flights allowed after the terrorist attacks. As soon as I landed, I could feel it. There was a palpable sense of patriotism and unity. I had never felt anything like it in my life. Americans were truly one. It’s been 9 years, 7 months, and 21 days since that day.

Today we are closing a chapter in history. There are moments in history that should never be forgotten. February 1, 1979. November 9, 1989. September 11, 2001. May 2, 2011. We know that Bin Laden’s demise will not end the war on terror. But now we know how the war on terror will end.

The Middle East is in upheaval, and Bin Laden has long since lost his appeal. Tyranny and terrorism needed each other. Tyranny fuels the anger that gives rise to terrorism, and terrorism becomes a justification for continued tyranny.

We do not know what the new chapter in the Middle East will bring. Perhaps it will be like the velvet revolution of 1989, the brief Prague spring of 1968, or the tumultuous French revolution of 1848. What we do know is that the Middle East revolution of 2011 will not mirror the Iranian revolution of 1979. Bin Laden’s dream of a militant Islamic revolution is over. Today is the closing of a chapter in the Middle East. It’s the closing of a chapter in American history as well.

May 2, 2011 is a hallmark day on the calendar of history.

Over at Lawfare Ben Wittes aks Will Bin Laden’s Death Reignite the Interrogation Debate? I think there is little doubt that it will.

Consider this recent post by Marc Thiessen over at The American Enterprise blog.  Thiessen writes:

“So Guantanamo detainees provided the key intelligence that allowed the CIA to track down bin Laden. But not just any Guantanamo detainees. It turns out the detainees in question were KSM and Abu Faraj al-Libi…Before coming to Gitmo, both were held by the CIA as part of the agency’s enhanced interrogation program, and provided the information that led to bin Laden’s death after undergoing interrogation by the CIA. In other words, the crowning achievement of Obama’s presidency came as a direct result of the CIA interrogation program he has denigrated and shut down.”

His source?  A New York Times report that notes:

As Obama administration officials described it, the real breakthrough came when they finally figured out the name and location of Bin Laden’s most trusted courier, whom the Qaeda chief appeared to rely on to maintain contacts with the outside world.

Detainees at the prison at Guantánamo Bay, Cuba, had given the courier’s pseudonym to American interrogators and said that the man was a protégé o Khalid Shaikh Mohammed, the confessed mastermind of the Sept. 11 attacks.

American intelligence officials said Sunday night that they finally learned the courier’s real name four years ago, but that it took another two years for them to learn the general region where he operated.

Cross posted at LawandTerrorism

It is interesting comparing this mornings posts. Ken’s sober, philosophical reflection on all that has gone on since 9/11, Kevin’s reflexive response to view events through a political lens, and Greg’s operationally-minded quest for figuring out “who’s next, and when will we get him?”

My reaction contained elements of all three. Having friends that died in Afghanistan trying to accomplish the task that the SEALs completed yesterday, my first thoughts were of them and their families. There is a deep satisfaction in having this search ended.

But, like Greg, I found it hard not to move on to the question “what does this mean?” For the triumphalists out there, I would point out that neither the capture nor the execution of Saddam Hussein significantly changed our fortunes in Iraq. Unless OBL’s killing is the first in a rapid succession of operations against top leadership throughout Afghanistan and Pakistan it is hard to imagine that this will significantly affect Taliban/al Qaeda operations in the region. So operationally it may not have much impact.

On the other hand, when the question “how will this ‘war’ ever end?” has been raised, whether in the detainee context or in the legal debate about whether operations against al Qaeda should be characterized as law enforcement or as an armed conflict, I have always thought that OBL’s capture or killing was a necessary, but not a sufficient, condition of conflict termination. There will be a new #1, whether Zawahiri or another, but no one whose incapacitation would be required before saying “it is over.” In light of this success, and barring any successful attack on the United States in the next few months, the Obama administration is likely to start publicly discussing Afghan withdrawals and the “end of the conflict” as spring turns to summer.

Lastly, of course this improves Obama’s re-election chances, but the election is 18 months away and today is not the time to be talking about such things.

Unknowingly, by this guy.

The media is reporting that the Obama administration is handling Usama bin Laden’s remains in accordance with Islamic principles.  That decision is a stark reminder of why we are so fortunate that a Republican is no longer President.  When the Bush administration killed Uday and Qusay Hussein, recall, it infuriated Muslims and at least arguably violated the First Additional Protocol by immediately releasing grisly photos of their bodies.  The release of the photos was utterly hypocritical to boot, given that the Bush administration had earlier condemned Arab media for showing photos of dead American soldiers as a violation of the Geneva Conventions.

Great decision by the President.  I wonder how long it will take conservatives to criticize it.

ADDENDUM: The media is now reporting that bin Laden’s remains will be buried at sea, so that his final resting place cannot be used as a terrorist shrine.  The similarity to Israel’s disposal of Eichmann’s remains is striking: his ashes were scattered at sea so that his final resting place could not be used a neo-nazi shrine.

Beyond confirming that Bin Laden was actually the person killed in Abottabad, what is the significance of troops being on the ground to conduct the Bin Laden Operation?  Can their presence lead us to the new #1 in al Qaeda, Ayman al-Zawahiri?

In the coming days we will likely hear about the gathering of “pocket litter” and other exploitable intelligence and there will probably be some speculation about where that intelligence may lead us.  Given that the U.S. has surveilled the Bin Laden compound for a few months, we likely know quite a bit about the comings and goings of couriers and others who may lead us to Zawahiri.  Moreover, unless this operation was time sensitive (which it doesn’t sound like) we can expect that U.S. forces would not have conducted the operation without already planning for the next operation — the one leading to Zawahiri.  Of course, if we knew where Zawahiri was we would have conducted simultaneous operations.  The fact that we didn’t likely means that we were hoping to exploit intelligence to be found inside the Bin Laden compound.  The value of that intelligence gathered on the objective will determine whether Zawahiri’s days are best measured in weeks, months, or longer.

Thanks to OJ for allowing me to guest blog for a bit.  I’m a law professor at Pepperdine, specializing in national security law and policy.

First off, there is a lot of talk about this operation being a “human operation” involving special operations forces.  Some readers may assume that this meant there were no air assets involved (e.g. no Predators and no bombs dropped).  This is highly unlikely.  What probably occurred was that ground troops staged outside of wherever Bin Laden was housed, called in air strikes, then moved-in to exploit the objective.  This is not inconsistent with the idea that a firefight took place, it’s just a more likely and more complete description of how things probably played out.  This is especially likely given reports that Bin Laden was killed in a heavily fortified compound with 12-18 foot high walls with a significant security presence.  We will hear more about this in the coming days, but I’m guessing there was airpower in support of the ground operation.

Second, the fact that this took place in Abottabad, Pakistan tells us something about the credibility of the Pakistani government’s repeated claims that Bin Laden was not in Pakistan.

Third, Peter Bergen just said on CNN that killing Bin Laden is “The end of the war on terror.”  I’m skeptical of this claim and imagine that one year from now we will still be employing armed forces around the world in search of al Qaeda members.

I’ll have some more detailed thoughts once the speculation dies down.

I’m sure most readers are aware that President Obama is about to announce that Osama Bin Laden has been killed, in a mansion outside of Islamabad, Pakistan.  I’m just going to leave this as an open thread.  I’m not quite sure what the international law aspects of this will turn out to be, as we have no details at this point, but I’m sure readers will fill us in.

(For my own part: Having just heard President Obama, I thought it was a fine and moving speech.  I thought it captured very well the sensibility of the American people and our longer view of this struggle; the American people, I thought listening to the President, heard their voice through him.  Certainly President Obama spoke for me.  I’m sure other OJers and commenters take away different things and reflect differently on these things; I don’t speak for the nuances, difficulties, or alternative framings that others here might find.  I’m not attempting to offer an academically distanced comment here.

There are things to comment on in the speech in that way, of course, interpreting it as diplomats and international lawyers should, with regard to inferences and implications as to US views of international law and politics, questions of special ops and intelligence agents, means and methods, the possibly several and opposed roles played by elements of Pakistan’s government – but I won’t attempt to take that up tonight.  For my personal part, I intend to savor the moment and reflect on the sacrifices of those who serve and brought about this operation – those whom the President thanked directly and frankly in his speech – the military and the intelligence and counterterrorism professionals.  I thought Volokh Conspirator Dale Carpenter, with H/T to Bette Davis, got my feeling exactly:  “They say one should only say good things about the dead.  Bin Laden is dead.  Good.”)