Yesterday, as members of Congress continued to debate the need for a new AUMF against ISIS, lawyers for Guantanamo detainee Al Warafi have filed a new habeas petition to the D.C. District Court, arguing that the basis for detaining Warafi evaporated when the war in the Afghanistan ended. Specifically, the petition argues that the administration has conceded in prior litigation that the basis for Warafi’s detention was his membership in the Taliban. In the past, Warafi had argued in that he was a medic for the Taliban and his continued detention violated IHL’s rules on the treatment of medics. That argument was ultimately rejected by a district court which concluded that Warafi’s status was not analogous to that of a medic in a traditional army.

Warafi’s new argument takes as its starting point that last legal conclusion. Since Warafi was deemed detainable as a regular member of the Taliban, the authority for his continued detention evaporated with the conclusion of the war in the Afghanistan.

How do we know that the war in Afghanistan is over? On this point, Warafi’s petiton relies exclusively on Obama’s own statements that the conduct of hostilities in Afghanistan is over:

On December 15, 2014, President Obama stated that “[t]his month, after more than 13 years, our combat mission in Afghanistan will be over,” and “[t]his month, America’s war in Afghanistan will come to a responsible end.” Exhibit A, p. 2. Then, in the State of the Union Address on January 20, 2015, the President stated, without any qualifications or conditions, that “our combat mission in Afghanistan is over.” Exhibit B, p. 1.

These pronouncements had been foreshadowed during the preceding two years by repeated presidential statements that the United States’ war in Afghanistan would be ended, and its combat mission would be terminated, by the end of 2014. On February 12, 2013, President Obama declared in the State of the Union Address that “[b]y the end of [2014], our war in Afghanistan will be over.” Exhibit C, p. 5. On May 23, 2013, he stated that “[t]he Afghan war is coming to an end.” Exhibit D, p. 7. On November 25, 2013, he stated that ‘[t]he war in Afghanistan will end next year.” Exhibit E, p. 1. On December 20, 2013, he stated that, “[b]y the end of next year, the war in Afghanistan will be over.” Exhibit F, p. 2. In the State of the Union Address on January 28, 2014, he repeated that “we will complete our mission there [Afghanistan] by the end of this year, and America’s longest war will finally be over.” Exhibit G, p. 6. The President followed up with a prepared statement on May 27, 2014, that “this year, we will bring America’s longest war to a responsible end,” that “this is the year we will conclude our combat mission in Afghanistan,” and that “America’s combat mission [in Afghanistan] will be over by the end of this year.” Exhibit H, p. 1. On December 28, 2014, the United States Case 1:09-cv-02368-RCL Document 80 Filed 02/26/15 Page 3 of 7- 4 – marked the end of the war in Afghanistan with a ceremony in Kabul.1 Exhibit I. On that date, President Obama released a statement that “the ceremony in Kabul marks a milestone for our country” because “our combat mission in Afghanistan is ending, and the longest war in American history is coming to a responsible conclusion.” Id.

The argument relies exclusively on the President’s own statements regarding the conduct of hostilities, rather than engage in an underlying assessment of the actual situation on the ground. This strategy seems designed to appeal to the D.C. Circuit, which might be more inclined (than another court) to view the President’s assessment as dispositive of the issue:

The D.C. Circuit has also stated that the “determination of when hostilities have ceased is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war.” Al-Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. 2010). “Whether an armed conflict has ended is a question left exclusively to the political branches.” Al Maqaleh v. Hagel, 738 F.3d 312, 330 (D.C. Cir. 2013), cert. dismissed sub nom. Al-Maqaleh v. Hagel, 135 S. Ct. 782 (2014). Under these precedents, a conflict is over when the President says it is over.

The argument also suggests an estoppel point which goes unexpressed in the petition: since the administration has conceded that the war is over in public statements, it is estopped from arguing before the judiciary that the war continues (for the purposes of justifying Wafari’s continued detention).

One issue is whether Obama’s multiple statements regarding the conclusion of “our combat mission in Afghanistan” is the same thing as saying that hostilities there are over. Does the former imply the latter? It seems like a viable and legitimate inference to draw, although none of the Obama quotes in the petition include the actual words: “the hostilities are over.” Is that distinction important? Or would it be overly legalistic to insist that the political branch use the phrase “hostilities” in its public pronouncements?

The petition also tees up another important legal issue. Is there a “wind up” period after the conclusion of hostilities when continued status-based detention is still justified, or must law-of-war detainees be released immediately upon the conclusion of hostilities? As this ICRC analysis notes, the Hague Regulations once required that POWs be released as soon as possible after the conclusion of peace, but the Third Geneva Convention requires that “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities” (article 118). Most legal experts assume that it was significant that the codified law moved from a “conclusion of peace” standard to a “conclusion of hostilities” standard, because the latter requires repatriation of soldiers after fighting ends, even if there is a delay in negotiating a formal state of peace. Also, article 118 of the Third Geneva Convention requires release “without delay” as opposed to the older and looser requirement of “as soon as possible,” which is vague and somewhat indeterminate. So the law has moved over time to require quicker repatriation of captured soldiers. Of course, this assumes that IAC principles of detention are the relevant principles governing Gitmo detention, which is itself a contested and controversial question.

Overall, the Warafi petition highlights that extinguishing or ending an armed conflict is often just as legally complex as declaring or authorizing an armed conflict. Both involve questions of inter-branch allocations of constitutional authority (Article I versus Article II of the US Constitution), as well as the relative value of public statements versus actual events on the ground.

If you haven’t seen it yet, the Elders Proposal for Strengthening the UN is a must read.  Chaired by Kofi Annan, The Elders is an independent group of global leaders who work together for peace and human rights.

Released earlier this month at a conference in Munich, the four proposals are generating a lot of attention include:

1)  A new category of Security Council membership is needed: non-permanent members but who are immediately eligible for re-election, thus making them de facto permanent members if they secure the confidence of fellow member states.

2)  A pledge for non-use of the veto:  P5 states must also be more responsible in using their veto, especially during a crisis where people are threatened with genocide or other atrocities.

3)  Consultation with civil society:  the Security Council should take care to regularly consult those people who are affected by its decisions, especially in conflict zones.

4)  A new, more transparent and accountable system for choosing the next Secretary-General.

The last proposal, a new process for choosing the Secretary General, is where the Elders really break new ground.  They propose:

At the United Nations, it is the Secretary-General who has to uphold the interests and aspirations of all the world’s peoples. This role requires leadership of the highest calibre. Yet for 70 years the holder of this post has effectively been chosen by the five permanent members of the Security Council, who negotiate among themselves in almost total secrecy. The rest of the world is told little about the process by which candidates are identified, let alone the criteria by which they are judged. This barely follows the letter, and certainly not the spirit, of the UN Charter, which says the Secretary-General should be appointed by the General Assembly, and only on the recommendation of the Security Council.

To remedy this, we call on the General Assembly to insist that the Security Council recommend more than one candidate for appointment as the Secretary-General of the United Nations, after a timely, equitable and transparent search for the best qualified candidates, irrespective of gender or regional origin.

We suggest that the next Secretary-General be appointed for a single, non-renewable term of seven years, in order to strengthen his or her independence and avoid the perception that he or she is guided by electoral concerns. She or he must not be under pressure, either before or after being appointed, to give posts in the Secretariat to people of any particular nationality in return for political support, since this is clearly contrary to the spirit of the Charter. This new process should be adopted without delay, so that the United Nations can make full use of it to choose the best person to assume the post in January 2017.

By tradition, the post rotates amongst different geographical areas of the world, and the next Secretary General would, under this system, come from Eastern Europe.  Because of tensions at the UN between Russia and Western States, however, many predict it will be impossible to find a candidate acceptable to all.   The proposal for implementing a merit based search with multiple candidates, and for a non renewable 7 year term therefore comes at an excellent time.  Member states should take up the call and consider updating the SG selection procedure. What will be required to implement it is a new GA resolution.   Ban Ki Moon’s term will be up at the end of 2016:  the time to act is now.

A helpful overview of the UN Charter requirements for the post (Article 97), relevant GA resolutions on the selection process, and recent proposals for reform of the office of the SG can be found here.

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

Africa

• A young girl with explosives strapped to her killed five people and wounded dozens at a security checkpoint outside a market in the northeast Nigerian town of Potiskum on Sunday, witnesses said.
• Boko Haram militants attacked an island on Niger’s side of Lake Chad but the army repelled them after heavy fighting, residents and security sources said on Saturday.

Middle East and Northern Africa

• US-led air strikes against the Islamic State of Iraq and the Levant (ISIL) group in Syria have killed more than 1,600 people since they began five months ago, according to the Syrian Observatory for Human Rights.
• The UN special envoy to Syria is travelling to Damascus to try to reduce the fighting which has intensified in Aleppo, where rebels claim to have killed 300 government soldiers in the past week.
• A Moroccan court sentenced a former Spanish soldier to eight years in jail on Friday on charges of leading an Islamist network in the kingdom that was plotting terror attacks, the state news agency MAP said.

Asia

• North Korea has banned foreign runners from participating in an international marathon scheduled to be held in the capital in April, citing fears about the spread of the deadly Ebola virus, a Beijing-based travel agency said.
• Nearly three months after police cleared away the last of Hong Kong’s pro-democracy street protests, lingering anger is stoking a new front of radical activism that has turned shopping malls and university campuses into a fresh battleground.

Europe

• France’s Charles de Gaulle aircraft carrier has started military operations against Islamic State in Iraq, a French army source said on Monday.
• France will support a bid by the African Union to win the backing of the U.N. Security Council for its five-nation force fighting Islamist militant group Boko Haram, French Foreign Minister Laurent Fabius said on Sunday.
• International investigators looking into the downing of Malaysia Airlines Flight MH17 over Ukraine last July met for their first joint consultation this week, examining cracks and impact patterns on the jet’s fuselage, Dutch officials said on Friday.
• The Swedish government is shutting down a job coaching program for new immigrants after complaints that it was being used to recruit people for militant groups, a state official said on Friday.

Americas

• High-level nuclear negotiations between the United States and Iran resumed in Geneva on Monday as both sides work through technical and political differences to come up with an initial deal by a March 31 deadline.
• Indonesia has recalled its new ambassador to Brazil after the South American country stopped him taking part in a credentials ceremony following the execution of a Brazilian national for drugs trafficking.

Oceania

• Australian air force personnel have begun training on armed drones in the United States, Australian defense officials said on Monday, less than a week after Washington said it would begin exporting the controversial weapons system.
• Australia’s Prime Minister Tony Abbott has announced that his government will tighten immigration laws and crack down on groups that incite hatred under a raft of counterterrorism measures introduced in a bid to combat the threat from “home-grown terrorists”.

UN/World

• United Nations war crimes investigators plan to publish names of suspects involved in Syria’s four-year war and push for new ways to bring them to justice, in a radical change of strategy announced on Friday.

Events

• This Friday, February 27, from 12pm to 1pm ET, join the American Society of International Law New Professionals and International Criminal Law Interest Groups for a special online event featuring speakers from the international courts and tribunals in The Hague and other organizations engaged in international criminal law.  “Getting Started in International Criminal Law” is part of the ASIL New Professionals Interest Group’s “Getting Started” series. The webinar will be broadcast live through the ASIL website. Speakers will include staff from the Office of the Prosecutor of the Special Tribunal for Lebanon and the International Criminal Court, legal officers from the chambers of judges on the International Criminal Tribunal for the former Yugoslavia, and defense counsel from the Special Tribunal for Lebanon, as well as academic and non-governmental practitioners working in the field.  The event will be moderated by Professor Beth van Schaack of Santa Clara Law School. Viewers can stream the event on their personal computers and submit questions during the livestream by emailing events [at] asil [dot] org.  For more information and to register, go here.

Announcements

• The Academy on Human Rights and Humanitarian Law is pleased to announce that the Program of Advanced Studies on Human Rights and Humanitarian Law is now accepting applications. The program will take place from May 26 to June 12, 2015. This Program offers 18 courses in English and Spanish lectured by over 40 scholars of relevance in the field of Human Rights and Humanitarian Law and gathers more than 150 participants from more than 25 different countries and with different levels of professional experience. The Academy on Human Rights and Humanitarian Law provides through this Program the unique opportunity to learn and interact with judges of the International Criminal Court (ICC), the International Court of Justice (ICJ), Special Rapporteurs of United Nations, members of the Inter-American Commission on Human Rights and professors from all over the world. The Program is offered in three categories which include the modality of Certificate of Attendance for lawyers, law students and HR professionals of any country, ABA Credits for U.S. students and finally, the Diploma Course that is offered to a select group of 35 law professionals who fulfill the admission requirements. You can review the brochure here and the application form for this program will be available here. For more information, please contact: hracademy [at] wcl [dot] american [dot] edu.

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

Here is the advertisement, which I hope will be of interest to Opinio Juris readers:

3 x full-time posts & 1 x part-time (0.5 fte) post

Lecturer: £33,476-£48,088 p.a / pro rata inclusive of London Allowance

Senior Lecturer: £49,462-£56,975 p.a / pro rata inclusive of London Allowance

The SOAS School of Law invites applications for 3 full-time and 1 part-time (0.5) Lectureships/Senior Lectureships in Law tenable from 1 September 2015.  The successful candidates will be expected to have expertise and interest in teaching in at least one of the following areas, at both undergraduate and post graduate level: International Trade Law; Law & Economics; Refugee & Migration Law; Alternative Dispute Resolution; Legal Systems of Africa & Asia; and Property Law (including the English Law of Land & Trusts but ideally encompassing non UK centric areas such as African Land Rights, Cultural Property, Property Theory, Intellectual Property etc). The School of Law is also keen to recruit scholars with additional & specific expertise in the laws of particular countries within Africa or Asia although applicants without such expertise are also encouraged to apply.

Successful candidates will be expected to have research interests relevant to the mission of the School, including a strong interest in issues of particular importance to law in the developing world. These applicants should have (or be nearing completion of) a PhD in Law (or a related discipline) and a strong record of (or potential for) excellence in research and publications appropriate to a research intensive law school that was ranked fifth, by reference to the proportion of world class publications it produced, in the recent REF.

Prospective applicants seeking further information about SOAS or the School of Law may contact the Head of the School of Law, Paul Kohler (pk3 [at] soas [dot] ac [dot] uk).

To apply for this vacancy or download a job description, please visit www.soas.ac.uk/jobs. No agencies.

This is an exciting time to be at SOAS. We ranked 10th in the UK in the 2015 Guardian law table, we’ve made a number of excellent new hires over the past couple of years, and we will be moving into a beautiful new building — a renovated North Block of Senate House — early in 2016.

Any readers serious about applying should feel free to contact me with questions. The closing date for applications is March 19, and interviews will be held in late April.

This fortnight on Opinio Juris, Kevin recommended an article on China’s proposed broad definition of terrorism, argued that there is no practice supporting the “unwilling or unable” test, and was surprised by the news that David Hicks’ conviction for material support for terrorism has been voided.

Julian questioned whether the Outer Space Treaty allows for private exploitation of the Moon’s resources.

Kristen advanced four reasons why the Security Council’s new Terrorist Financing Resolution is significant, and Jens explained why he remains troubled by the draft proposal to authorise the President to wage war against ISIS.

Other proposals that caught our attention were a proposal to make it easier for some US citizens overseas to renounce their citizenship without facing a hefty tax penalty and Duncan’s proposal (with Tim Mauer)  for a Red Cross-like movement in Cyberspace.

In guests posts this fortnight, Jonathan Horowitz looked into the drafting history of APII to argue that IHL does not regulate NIAC internment and Charlotte Peevers discussed the Chilcot Inquiry (1, 2)

Finally, Jessica listed events and announcements (1, 2) and wrapped up the international news (1, 2).

Many thanks to our guest contributors and have a nice weekend!

It’s finally seeping into the mainstream consciousness that the U.S. tax system works very aggressively against citizens abroad, even those who are citizens in name only. Boris Johnson, the mayor of London, is renouncing his U.S. citizenship after he had to pay a hefty IRS tab on capital gains on the sale of his London home. Johnson was born in the U.S. and spent some of his toddler-hood here before moving back home, permanently, with his parents to the UK.

In the future, shedding U.S. citizenship may be a lot cheaper for those with similarly thin connections to the United States.

Existing tax law treats renunciation as if it were a liquidation event. If you have more than $2 million in assets, you have to pay capital gains on all of your assets as if they were sold as of the date of expatriation — an exit tax, in effect. Prospective renunciants must also show that they have been tax compliant for the past five years on regular income taxes, which all U.S. citizens must file regardless of residence. External Americans who haven’t been filing have to pay hefty back taxes and penalties on the way out the door (including some under the hated FBAR and FATCA regimes relating to foreign accounts that fall heavily on external citizens). Even so, every quarter now we are hearing that record numbers of individuals are renouncing their U.S. citizenship.

The Obama Administration’s 2016 Green Book  includes a proposal under which an individual would not be subject to the exit tax requirements if the individual:

1. became at birth a citizen of the United States and a citizen of another country,
2. at all times, up to and including the individual’s expatriation date, has been a citizen of a country other than the United States,
3. has not been a resident of the United States (as defined in section 7701(b)) since attaining age 18½,
4. has never held a U.S. passport or has held a U.S. passport for the sole purpose of departing from the United States in compliance with 22 CFR §53.1,
5. relinquishes his or her U.S. citizenship within two years after the later of January 1, 2016, or the date on which the individual learns that he or she is a U.S. citizen, and
6. certifies under penalty of perjury his or her compliance with all U.S. Federal tax obligations that would have applied during the five years preceding the year of expatriation if the individual had been a nonresident alien during that period.

This would exempt those whose citizenship really is nominal (or even unknown to them). It may be the smart U.S. citizen parent outside the U.S. who doesn’t register a child’s birth with a U.S. consulate, a trend that is now being reported.

It would still leave covered a lot of folks whose connections are very tenuous (maybe Boris used a U.S. passport here and there). It’s only a proposal, requesting and requiring congressional action. This very informative post from the Canadian law firm Moodys Gartner explains how the Obama Administration might be able to accomplish the same end through a regulatory backdoor allowing it to backdate the expatriation of birthright dual citizens.

In any case, the proposal does evidence some understanding that the imposition of U.S. taxes on accidental Americans is unsustainable. The Moodys Gartner post plausibly suggests that foreign governments (including Canada) may be pushing for the reform as their constituents get caught in FATCA’s net. This is a continuing story.

Big news — and news I wasn’t expecting:

A former prisoner at the U.S. Navy base at Guantanamo Bay, Cuba, from Australia on Wednesday won a legal challenge to his terrorism conviction before a military court.

The U.S. Court of Military Commission Review struck down the March 2007 conviction of David Hicks in a unanimous ruling that reverses what had been one of the government’s few successes in prosecuting prisoners at Guantanamo.

Attorney Wells Dixon said he immediately called Hicks’ attorney in Australia, where it was the middle of the night, to pass on the news to his client.

“David is aware of the decision and he is thrilled,” Dixon said. “He is free to live his life without this conviction hanging over his head.”

Hicks, 39, pleaded guilty to providing material support to terrorism. It was a plea bargain in which all but nine months of his seven-year sentence was suspended and he was allowed to return home by the end of that year.

In 2014, an appeal’s court ruled that material support was not a legally viable war crime for the special wartime court at Guantanamo known as a military commission. Prosecutors argued his conviction should still stand because he agreed not to appeal as part of the plea deal, an argument rejected by the U.S. Court of Military Commission Review.

Quite a journey for Hicks. When he was first charged, he was one of the most hated men in Australia. By the time the military-commission farce was through with him, he was a national hero.

Kudos to the CMCR for doing the right thing.

Lately, I’ve spent a lot of time thinking about the future of cyberspace and how to deal with the coordination and collective action problems that are leading to the normalization of cyber insecurity. As I’ve written previously, I’m skeptical that the standard legal regulatory move — proscription — will work at either the individual or the State level.  Thus, I’ve tried to examine ways law can help regulate and promote resilience in cyberspace independent of identifying and punishing bad actors, including an idea for some sort of e-SOS system.  Much of the feedback I received on that idea involved questions on operationalizing any duty to assist.  Certainly, it could be something States (or other actors) adopt unilaterally; or it could be something States might coordinate in some form of international agreement such as a treaty (or more likely these days) some form of political commitment.  There is, however, another option based on one of the most successful humanitarian organizations in history — the Red Cross.  Simply put, why not have a Red Cross-like movement in cyberspace where interested entities (including CERTs) combine to coordinate and offer assistance to victims of severe cyberthreats impartially, neutrally, and independent of governments and their particular interests (e.g., surveillance)?

Together with Tim Mauer of New America, I’ve got a populist call for such a movement in Time today.  To be clear, the idea is not to hand over cyberspace to the Red Cross (even if it may have a clear role to play in future cyber conflicts).  Rather, it’s to see the potential of using the movement’s evolution, its structure and its norms (e.g., neutrality, independence, and impartiality) to improve resilience and cyber security at a global level.  Here’s the opening salvo:

Here’s an understatement: 2014 was a bad year for cybersecurity. The Sony hack was the highest profile hack of the year, a cyber-attack against a German iron plant caused massive physical damage, and the Heartbleed vulnerability was considered “catastrophic” even among experts not known to be alarmist. In the meantime, large-scale data breaches hit household names such as Target, Home Depot and JP Morgan Chase, with new reports emerging almost weekly. In the history of cybersecurity, 2014 marks a new low. As 2015 gets underway, news of the insurance company Anthem being hacked suggests cybersecurity is unlikely to improve anytime soon. That’s why conversations in national capitals, boardrooms, international conferences and on-line discourse feature a growing call to action.

The time is ripe for a bolder approach to cybersecurity, one not beholden to the existing politics of Internet governance nor linked to particular governments or intergovernmental organizations. We believe cyberspace could use a global cyber federation, a federation of non-governmental institutions similar to the role that the Red Cross and Red Crescent movement and humanitarian assistance organizations more broadly have with respect to armed conflicts and natural disasters.

Obviously, there are lots of questions (and details) that require elaboration. For now, however, I’m going to push this idea and see whether it might get traction among those who would be in a position to actually participate in such a movement.  After all, if a few committed individuals like Henry Dunant could create the Red Cross, what’s to stop a similar idea from taking hold in cyberspace?

[Charlotte Peevers is a Lecturer in Law at the University of Technology, Sydney and author of ‘The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law‘ (Oxford University Press: 2013). Part one of this guest post can be found here.]

Legal-Political Authority and International Law

Any review of the inquiry hearings would be incomplete without a word from Tony Blair. In this extract from his so-called ‘recall’ to the inquiry on 21 January 2011 Sir Roderick Lyne asks him about his statement to the House of Commons in February 2003. The statement referred to the apparent exercise of an “unreasonable veto” in relation to a second resolution – that is, beyond 1441 – a subject upon which Lord Goldsmith had already advised was not a justifiable legal position to take against the French or Russian postures within the Security Council.

Video clip begins at 109.26 and ends at 116.05

Transcript (line 11 page 71 – line 6 page 75)

In this extract, Blair’s rather tortured distinction between legal and political arguments highlights a particularly interesting aspect of the relationship between international law and politics. His is an attempt to parse political and legal authority, to justify his deployment of legalistic language as a pure political exercise that was not only permissible, but that his audience would have appreciated and known was not premised upon legal authority. This parsing of authority highlights the difficulty faced by those who might oppose government policy or at least question its bases: without the contemporary knowledge as to the legal advice proffered by government experts, there is no way of holding statements such as Blair’s to account. The ambiguity of his articulation – that encompasses the possibility of legal justification, but not necessarily being explicit about it – leaves him able to claim ex post facto that he was merely making a political point. If this was interpreted the ‘wrong way’ by his audience, or indeed by Sir Roderick Lyne in his questioning, that that was not his fault, nor was it his intention.

In addition, this parsing can be seen as an attempt at making a representation of legal authority in the absence of having political authority. In other words, in the absence of majority public support – a democratic mandate – for using force without UN backing. And this is particularly problematic when, as Roderick Lyne seeks to point out, the government had been advised explicitly that there was no legal authority for such a claim. Blair’s evidence therefore seeks to claim an excessive sovereign right to wage war on the premise of an internationalized legal authority, avoiding the strictures of democratic mandates, or indeed international authority vested in the UN Security Council’s authorization of force. The boundaries of that legal authority were, at the time, entirely subject to secrecy and could therefore be publicly represented in any way deemed justifiable by the government; and then later as merely a political argument that did not in fact rely upon legal authority!

The Chilcot Inquiry as International Legal Archive

These two brief extracts from the present Chilcot Inquiry archive illustrate the wealth of material that can be analysed now, regardless of when the final report will be published together with the promised publication alongside it of 1,500 or so declassified documents. (See the video of Sir John Chilcot’s evidence before the Foreign Affairs Committee on 4 February 2015 at 27.05 where he discusses the publication of declassified material alongside the final report, available here.) Perhaps the most important thing we have learnt is that there is still a huge amount to learn from secrecy. Secrecy as a structural, structuring force on the generation of public policy and the place of law – not just international law – in the exercise of sovereign power.

In addition, we have learnt more of the ‘inner life’ of international law – how international law actually works in policy-making. It exists not just in formal sources, or texts, but behind closed doors, in corridors of extreme power. It is given life in memoranda, letters and meeting records. In order to understand how international law works, we need to consider the processes of advice-giving, the means by which decisions are taken in government – sofa government, ad hocism, inner war cabinets, limited disclosures to Cabinet and to Parliament, and the like – and the production of a government archive.

The archive disclosed through the Chilcot Inquiry, like any archive, is already constructed, is incomplete and partial. Reflecting, by way of comparison, on the Suez Crisis archive is particularly instructive (see Charlotte Peevers The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law (OUP: 2013): despite the existence of an Israeli copy of the Protocol of Sèvres – the document proving collusion and that the Anglo-French occupation of the Suez Canal in late October 1956 was a pretext for invading Egypt following the nationalization of the Suez Canal Company – it has never surfaced in the British archive, in any form. Collusion was suspected for many years before the Israeli copy finally surfaced, but was always denied by the British government and no amount of archival material could have resolved the question of collusion one way or another – evidence had been destroyed and all reference to it expunged from the records (including presumably the direction that all reference be expunged!).

Despite the ‘constructedness’ of any archive, the ability to rake back over documents and oral evidence in relation to the Iraq War ought to be considered a hugely rich potential source for us as international lawyers, and of course as historians and political scientists. The danger with the saga generated over the publication of the Chilcot Inquiry report is that in all the dramatic distraction we miss the opportunity for reading the current archive for ourselves. An official history, however critical or otherwise, will act as the final word over the Iraq Affair, framing our future treatment of the archive and guiding our interpretations of it, whether in opposition or affirmation of the Inquiry’s final conclusions.

Again, the Suez Affair gives pause for thought. There was never an official inquiry into or official history of the Suez Crisis, its scandalous nature rumbling on in Parliament, behind-closed-doors in Whitehall, and in the public imagination without any final word being drafted. Whilst the absence of any holding to account of Anthony Eden’s government is not necessarily something to celebrate, one lesson that might be learned is this: an official history would not have been able to substantiate collusion – which went to the very heart of the question of accountability. In the absence of an official accounting, Suez has become the mythologized nail in the coffin of the British Empire, a supreme act of folly that was, unquestionably, illegal. We can continue to discover the lessons to be learned from Suez, particularly in relation to how international law was used to justify military action, by reading the archive for ourselves. I hope we will continue to quarry the mine of material produced by the Inquiry process, going beyond the limiting – and limited – question of whether the Iraq War was legal or illegal, instead proposing unofficial histories of the place of international law in domestic and international politics.

Regular readers of the blog know that one of my hobbyhorses is the “unwilling or unable” test for self-defense against non-state actors. As I have often pointed out, scholars seem much more enamored with the test than states. The newest (regrettable) case in point: my friend Claus Kress, who is one of the world’s best international-law scholars. Here is what he writes in an otherwise-excellent contribution to Just Security about the use of force against ISIL in Syria (emphasis mine):

It therefore follows not only from the right of self-defense’s general requirement of necessity, but primarily from the respect for the sovereignty of the territorial State that the right of self-defense in case of a non-State armed attack is of a subsidiary nature. It presupposes that the territorial State is either unwilling or unable to end the non-State armed attack – or, as it should be added for the sake of completeness, fails to exercise due diligence to that effect. State practice is remarkably consistent with these principles. As Professor Ashley Deeks has demonstrated in a formidable article, the legal claims to a right of collective self-defense in cases of non-State armed attacks have generally included the statement that the territorial State is unwilling or unable to deal with the non-State threat.

In terms of what the “unable or unwilling” test might look like if it represented customary international law, Deeks’s article is indeed excellent. But the article is anything but “formidable” in terms of state practice that supports the test. Indeed, the non-state actor section of the article spans all of two pages (pp. 501-03) — and cites precisely two states that officially endorse “unwilling or unable”: the United Kingdom and the United States. That’s it. And those are the same two states that Claus discusses in his post.

Simply put, there is simply no “consistent practice” that supports the “unwilling or unable” test, and scholars need to be careful not to put states in the “unwilling or unable” camp simply because they are willing to use armed force against a non-state actor. Deeks has been particularly prone to this kind of overinclusiveness, most recently arguing that Jordan, Bahrain, Qatar, the UAE, and Iraq support the “unwilling or unable” test because they have attacked ISIL in Syria — this despite the fact that all five states are members of the Arab League, which has specifically rejected the test in the context of Israel’s attacks on Hezbollah in Lebanon. (Actual opinio juris.)

I have the utmost respect for Claus, and I have no desire to pick on Deeks. But methodological rigor is particularly critical when it comes to doctrines like “unwilling or unable,” because its actual adoption by states would open the floodgates to the extraterritorial (ie, sovereignty-infringing) use of force against non-state actors. There may well come a time when the “unwilling or unable” test reflects customary international law, but that time is not now. Two states do not a customary rule make, however powerful those states may be. And we cannot simply ignore the states in the Global South, however inconvenient powerful states in the Global North may find their views.

[Charlotte Peevers is a Lecturer in Law at the University of Technology, Sydney and author of ‘The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law‘ (Oxford University Press: 2013).] 

In the past few weeks we have learned, though we have suspected for quite some time, that the Chilcot Inquiry will not be in a position to publish its final, wide-ranging, ‘lessons learned’ report until after the next General Election, in June 2015. Media commentators and numerous Members of Parliament have decried the “scandalous” delays that have plagued publication, blaming at turns the civil service, Tony Blair, and/or the American Administration.

But this drama over publication delay – the latest in the saga of producing an official history of the Iraq War that has played out in the media – is something of a distraction from the real value of the Chilcot Inquiry, at least for scholars and students of international law. I argue that through its process of declassifying previously secret documents, holding public, oral hearings and receiving written testimony, the Inquiry has already informed our understanding of the operation of international law in the justification to use force.

During the course of oral evidence between 2009 and 2011 we heard more international legal debate than ever before, certainly than during the original debates of 2002/2003. We also heard about what I have come to think of as the ‘inner life’ of international law: revelations of back room disagreements – jousting, even – between figures such as Sir Michael Wood, then Senior Legal Adviser at the Foreign & Commonwealth Office and Jack Straw, then Foreign Secretary, over the “vagueness” and consequent interpretive latitude of international law. We also saw the careful, self-conscious production of numerous memos between the Foreign Office, Attorney General’s Office, Ministry of Defence and No 10. And of course memos within those departments, documenting and recording for history the disagreements amongst officials and politicians. In addition we saw how law, evidence and intelligence related to policy demands.

The production and accessibility of this rich textual and testimonial archive has already generated a map for us to navigate how international law and its users – including advisers, government policy-makers, and politicians – actually work. How did people such as Sir Michael Wood conceive of their role as expert authority on the interpretation of the prohibition on the use of force? How did politicians such as Jack Straw or Tony Blair view and use international law as a body of rules to justify their commitment to military action? And how did these politicians and their policy officials interact with in-house experts such as Wood, or his deputy Elizabeth Wilmshurst, not to mention the government’s chief legal adviser, the Attorney General ,Lord Goldsmith?

The rich archive – all available at http://www.iraqinquiry.org.uk/ – fleshes out a detailed map of how international legal rules are navigated, are traced into routes for action or inaction, or demarcate the boundaries of certain policy decisions. This map allows us to traverse beyond the restrictive self-imposed boundaries of strict doctrine or bare textual analysis of the prohibition on the use of force, and instead navigate the extent of international law’s scope, impact on and relationship with domestic and international politics.

As scholars and students of international law we ought not be deterred from engaging with an already rich archive created by the Inquiry simply because there will be yet more delay in the publication of the final report.   Indeed, we ought to revel in the exploratory freedom that delay provides: there is yet to be a final word on the Iraq War, evidence is yet to be marshaled to support the drawing of particular conclusions or interpretations. This continued delay is, therefore, a prime opportunity to read and digest the current raw material produced through the inquiry process. Two examples from the oral and documentary evidence illustrate the richness of the existing archive.

Lawyers and International Law

To give a fuller sense of some of the rich detail of the ‘inner life’ of international law the following links detail an extract from Sir Michael Wood’s evidence to the Inquiry:

Video clip (begins at 53.10 and ends at 62.35)

Transcript (line 16 p28 – line 20 p.34)

First off, Wood’s comments are so interesting for a range of reasons which are not necessarily limited to international law. For instance, the comment that Jack Straw was used to pushing the boundaries of law whilst at the Home Office, even when faced with clear legal advice that what he was doing went against existing legal opinion and precedent domestically, tells an intriguing, partial tale of the political relationship to law, to courts and to cases more generally. This tells us something incredibly rich and perhaps disturbing about the way law works, stripping away the mythologised notion of a separation of powers, and making us think more about the institutional deference manifest in courts faced with government policies and actions that run counter to existing law. And that is just an example from the domestic realm.

For scholars and students of international law, Wood’s comments are particularly revealing when we consider the role of a government legal adviser – acting much in the way that Harold Koh and the transnational legal process school might envisage – as a benign (or enlightened) adviser to princes. Wood considers his overriding duty to international law in the absence of a court. Wood expresses a deep commitment to international law precisely because of its horizontal interpretive nature; it is for government legal advisers to demarcate the acceptable boundaries of policy versus international law, providing apparent ‘clear bright lines’ beyond which policy cannot traverse without incurring international illegality.

Not so, according to the government, if instructing Independent Counsel. In a document declassified and released by the Attorney General’s Office dated 13 March 2003 (ie on the eve of formal invasion) the legal secretary to the Attorney General, David Brummell, considered the difficulty with the government’s legal position – in particular highlighting the position vis à vis revival in the absence of a further resolution and therefore on the sole basis of Security Council Resolution 1441 – and advised that the position would have to be bolstered by obtaining formal legal opinion of Christopher Greenwood, David (he meant Daniel) Bethlehem, and Sam Wordsworth – three of the leading international lawyers at the English bar. (Bethlehem was to go on to be Wood’s successor at the FCO.) It seems that faced with intransigence from in-house Counsel, the government wanted to turn to the independence of senior international lawyers who they felt, given their lack of ties to government policy-making, might have been more able to express an opinion, if asked, in support of the government legal position (in the event none of the three were in fact approached to provide a legal opinion).

In these contrasting roles we see the distinction between advisory capacities and advocating positions: Wood was clearly deeply uncomfortable with the prospect of advocating on behalf of government in relation to a legal position he could not support, because he held a special position as expert adviser to government, acutely aware of the need to police the boundary of forceful intervention. Whereas independent Counsel could more freely take on the role of advocate for government as would be taken on for any other client looking for a legal position to support its policy choices.

Interestingly, we also learn from Wood’s evidence that the Attorney General appeared to take on both of these distinct roles at different times: he adopted an advisory role very early, though was careful to avoid documenting this in the immediate run up to war in the Autumn of 2002 (presumably to avoid hamstringing any later need to justify government policy in legal terms); but when war became inevitable, in around February 2003, he moved to advocate’s role, documenting the possible legal justifications that could be made in support of the government’s use of force.

In addition, the disagreement evidenced in the oral testimony between Sir Michael Wood and Jack Straw is particularly enlightening for us if we are to try to interpret an archive that is already self-consciously (re)constructed. We learn from Wood that Straw was careful to document his insistence on the ambiguity of international law and that reasonable difference of opinion could be had on the issue of the using force, even where opinion emanated from the apparent government expert, the Senior Legal Adviser’s office in the FCO. This recording of, and thereby justification of, an opposing legal view is significant from at least two perspectives.

The first is as an articulated understanding of what international law means to a politician in government such as Jack Straw. We learn that there is a high degree of self-awareness as to the power – and latitude – afforded to state actors in international legal doctrine. This self-awareness appears to translate as authority to speak to what international law actually is, or could be as interpreted by such a state actor. In a sense, this gives a behind-the-scenes affirmation of what scholars and students of international law already superficially recognize as ‘custom’ formation. Here, we learn that state actors know the force they command over international law, even in an area that is apparently so black and white: the prohibition on the use of force.

Secondly, we see the self-conscious fashioning of an archive; the production of official documentation that will, it is known by its author(s), represent government decision-making once it is categorized into the various filing systems of the National Archives (filed under ‘Iraq War’ within the FCO Ministerial and Legal Adviser’s records as sender and recipient respectively).

On February 12, the UN Security Council unanimously passed an important new Chapter VII resolution – Resolution 2199 – to respond to terrorist groups in Iraq and Syria.

This resolution is significant for four reasons.   First, the resolution specifically targets the supply of oil. In other words, it attempts to degrade the supply chain and the support networks.  The preamble refers to oilfields and their related infrastructure, as well as other infrastructure such as dams and power plants.  The operative paragraph states the Council:

“Condemns any engagement in direct or indirect trade, in particular of oil and oil products, and modular refineries and related material, with ISIL, ANF and any other individuals, groups, undertakings and entities designated as associated with Al-Qaida by the Committee pursuant to resolutions 1267 (1999) and 1989 (2011), and reiterates that such engagement would constitute support for such individuals, groups, undertakings and entities and may lead to further listings by the Committee;and attempts to target companies and activities that contribute to terrorist activities.”

This effort by the Council condemns direct and indirect trade in oil and oil products, and emphasizes that all states must freeze assets of the targeted groups, as well as their agents, intermediaries and middlemen, including oil producers.  In another paragraph, the Council also expresses concern that vehicles coming from certain areas could be carrying oil, minerals, livestock and other materials to barter.

Second, the resolution prohibits trade in cultural artifacts. Terrorist groups in these countries are known to be profiting from the looting of antiquities, and this resolution seeks to prevent the trade in items of cultural, scientific and religious importance.   It notes that terrorist groups are generating income from illegally removing artifacts from both countries during periods of conflict.  The resolution reaffirms an existing ban on antiquities from Iraq, and imposes a new ban on antiquities from Syria.  It also sets the basis for cooperation with INTERPOL and UNESCO.

Third, the resolution bans the payment of ransom, regardless of how or by whom the ransom is paid. It further “Reiterates its call upon all Member States to prevent terrorists from benefiting directly or indirectly from ransom payments or from political concessions and to secure the safe release of hostages, and reaffirms the need for all Member States to cooperate closely during incidents of kidnapping and hostage-taking committed by terrorist groups.”  In so doing, it attempts to cut off funds derived from ransom, and reaffirms that UN sanctions prohibit ransom payments to UN listed groups.

Fourth, the resolution was drafted by Russia.  While Russia’s opposition to intervention in Syria and  is well known, this is an example of positive engagement with the situation in Syria.  Although the resolution does not authorize intervention, it makes creative use of the Security Council’s sanctions power and is indicative of creative new approaches to targeting.

The Council’s efforts to prevent direct and indirect trade in oil products are illustrative of the Council’s regulatory activities in the economic sphere. An article I published in the Vanderbilt Journal of Transnational Law in 2008 provides some background on the topic of the Security Council as norm setter in the international economic sphere.

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

Africa

• A female suicide bomber has killed at least ten people at Damaturu Central Motor Park, a bus station in the northeast Nigerian city.
• Boko Haram fighters attacked a village in Chad on Friday, the first known lethal attack in that country by the Nigerian militant group, which killed several people including a local chief according to residents and security forces.
• Nigeria’s president has called for greater military assistance from the US in the fight against armed group Boko Haram.
• The United Nations expects the Nigerian military to do more to combat Boko Haram and urged Nigeria and its neighbors Chad, Niger and Cameroon to allow hot pursuit of the militants across borders as this was key to a regional offensive.
• There is enough evidence to put Chad’s deposed strongman Hissene Habre on trial for crimes against humanity, war crimes and torture, judges in Senegal ruled on Friday, according to a statement from the special tribunal set up to handle his case.

Middle East and Northern Africa

• Any Israeli-Palestinian peace deal must lead to improved living conditions for Palestinians to prevent violence between the two from erupting again, Middle East peace envoy Tony Blair said on Sunday.
• Fighters pledging allegiance to the Islamic State of Iraq and the Levant (ISIL) have released a video purporting to show the killing of 21 Egyptian Coptic Christians kidnapped in Libya.
• The United States and its coalition partners conducted three air strikes against Islamic State militants in Syria and eight in Iraq since Saturday, according to the U.S. military.
• Thousands of foreigners have flocked to Iraq and Syria in the past two years, mostly to join Islamic State, but a handful of idealistic Westerners are enlisting as well, citing frustration their governments are not doing more to combat the ultra-radical Islamists or prevent the suffering of innocents.

Asia

• Indian Prime Minister Narendra Modi is sending his top diplomat to Pakistan as part of a regional tour, the first top-ranking visit since Modi broke off talks last year over the disputed region of Kashmir.
• A former adviser to Prime Minister Shinzo Abe has praised apartheid as a model for how Japan could expand immigration, prompting the government’s top spokesman on Friday to emphasize that Japan’s immigration policy was based on equality.
• China’s President Xi Jinping will visit Pakistan this year in what will be the first trip by a Chinese head of state to its western neighbor in nine years, as Beijing looks to take a bigger role in South Asia.
• Sri Lankan Foreign Minister Mangala Samaraweera said on Thursday he was optimistic about securing a delay in the release of a U.N. report on alleged war crimes during his country’s civil war until the government has had time to establish a new judicial mechanism to deal with the allegations.

Europe

• A suspected gunman in two shootings on Saturday and Sunday in Copenhagen, in which two were killed and several injured, has been killed by police; the first shooting occurred at a freedom of speech event with Swedish cartoonist Lars Vilks, and second happened outside a synagogue in the city.
• After the deadly shooting at a Denmark synagogue, Israeli Prime Minister Benjamin Netanyahu said on Sunday such attacks will likely continue and Israel would welcome European Jews who choose to move there.
• The Italian coast guard has rescued more than 2,100 migrants in a major rescue operation in the sea between Europe and North Africa.
• Italy closed its embassy in Libya on Sunday and stepped up its call for a U.N. mission to calm the worsening conflict there as thousands of migrants approached Italy by boat from North Africa.
• Ukraine’s rebels disavowed a new truce on Sunday hours after it took effect, saying it did not apply to the town where most fighting has taken place in recent weeks.
• Greece and its international creditors started talks on Friday on reforms needed to keep the country financed, increasing the possibility of a interim compromise deal between the euro zone and Athens at a ministerial meeting on Monday.

Americas

• A United Nations watchdog called on Mexico on Friday to probe and prosecute alleged complicity of state forces in thousands of “disappearances”, including a notorious case of 43 students believed murdered last year.
• Canada is inclined to extend the six-month mandate of its military mission in Iraq, which comprises special forces on the ground as well as fighter bombers, Defence Minister Jason Kenney said on Wednesday.
• Colombia’s Marxist ELN rebels have freed a Dutch citizen kidnapped in January, the International Committee of the Red Cross (ICRC) said on Wednesday after facilitating his liberation.

Oceania

• Australian Prime Minister Tony Abbott has warned Indonesia of the potential for diplomatic fallout if Jakarta goes ahead with the looming execution of two Australian citizens on death row for drugs charges.

UN/World

• The United Nations Security Council has unanimously adopted a resolution that demands that Houthi rebels immediately relinquish control of Yemen’s government.
• United Nations Secretary-General Ban Ki-moon appealed to Indonesia on Friday not to execute prisoners on death row for drug crimes, including citizens of Australia, Brazil, France, Ghana, Indonesia, Nigeria and the Philippines.

The White House has proposed a draft resolution authorizing the President to use military force against ISIL (also know as “ISIS” or simply the “Islamic State”). While it is laudable that the president is asking for specific congressional authorization for military strikes against ISIL, I remain troubled by several aspects of the proposal.

First, the passage of the proposed resolution would replace the existing patchwork of justifications for the current military operations, including the Constitution’s Article II commander-in-chief power, the 2001 AUMF (the so-called “9/11 AUMF”), and the 2002 Iraq AUMF. Regardless of the current administration’s position regarding the lawfulness of military force in Iraq and Syria in the absence of a new AUMF, all three of the prior foundations remain available–at least in theory–as justifications for military action against ISIL. The only way around this is to repeal the 2001 and 2002 AUMFs or to explicitly state in the new AUMF that it, in some way, supersedes them. This is crucially important.

If the prior AUMFs remain on the books and the administration continues to maintain that they are sufficient to justify the current level of military force against ISIL, then it is not clear what the new AUMF is actually accomplished. In particular, as many others have noted, the constraints and limitations in the new AUMF become effectively meaningless because the administration could always rely on the unrestricted and unconstrained authorizations already on the book and still valid. This problem is created by the absurdity of having overlapping statutory authorizations for a military campaign, creating a pick-and-choose menu for this (or future) administration to use when justifying its military deployments. This isn’t a restaurant; this is war. There are too many menu options.

I wonder if there is a middle ground to solve this problem without explicitly repealing prior AUMFs. For example, could the new AUMF simply be amended to state that the president cannot rely on prior AUMFs as authorizations against ISIL? This would allow the prior AUMFs to stay on the books (which plenty of congressional leaders will be unwilling to repeal anyway) while still limiting their applicability with regard to ISIL. It would make the new AUMF the one and only AUMF applicable to ISIL targets. One could describe this as a “partial repeal” or “partial de facto repeal” of the prior AUMF, or you could describe it simply as making the new AUMF a superseding AUMF with regard to ISIL. This would clarify that the constraints in the new AUMF are meant to apply and that the older unconstrained AUMFs cannot be used as an authorization against ISIL.

The next issue is the use of the phrase “associated forces” in the draft AUMF. The phrase “associated forces” has been used before, most notably in the Detainee Treatment Acts as well as in the federal government’s briefs in Guantanamo Bay habeas litigation before the D.C. Circuit. That being said, the phrase never appeared in the 2001 AUMF and Congress never before authorized the use of force against associated forces of al-Qaeda. What’s different now is that the proposed new AUMF includes a very broad definition of associated forces that is arguably much wider than the concept of co-belligerency from which the term “associated forces” gains whatever legitimacy and reflective glory it has. The new definition of associated forces also includes successor entities that are sufficiently related to the original group. Here is the language:

SEC. 5. ASSOCIATED PERSONS OR FORCES DEFINED.
In this joint resolution, the term ‘‘associated persons or forces’’ means individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.

Apparently the Administration is concerned that ISIL will collapse and might be replaced by an equally dangerous jihadist entity, with new leadership, but exhibiting the same level of dangerous. The administration wants the AUMF to apply to those groups as well, even if they are not, properly speaking, a part of ISIL. (Incidentally, the notion of “closely related successor entity” reminds one of Robert Nozick’s closest continuer theory of personal identity.)

But there are deeper problems to the use of “associated forces” concept beyond the broad definition offered in the draft AUMF. The whole idea of using “associated forces” in an AUMF is problematic. In order to understand why, it is important to remember the role that military authorizations play within our modern constitutional order. Congress no longer declares war, although it retains the constitutional authority to do so. Pursuant to its constitutionally mandated role in war making (and as articulated in the War Powers Resolution), Congress has the power to authorize the president to deploy military force—a necessary step whenever the President’s Article II authority runs out. There are many disputes about the nature and scope of the Article II power, but unless you believe in an unlimited Article II power, you must recognize that Article II has an outer limit, at which point Congressional authorization is required. That process is essential for multiple reasons.

First, the involvement of Congress provides for an open, transparent, and deliberative assessment of the wisdom of deploying force. “Wisdom” here includes questions of law, morality, and the burden that will be placed on the nation’s shoulders to execute the action. Although the executive branch engages in deliberation, it is neither open nor transparent; it is secretive and insular. Only in the legislative branch do these issues get aired with the appropriate amount of light. At the end of the conclusion of this process, the public knows who we are fighting, and why.

Second, the AUMF announces to the world community the nature of our armed conflict. It sends a signal to the world community regarding the nature of the conflict and the underlying legal and moral rationale for its commencement. All of this is essential for the world community’s assessment of jus ad bellum and its proportionality constraints. Only if they know who and why we are fighting will they be able to decide whether our actions comply with basic principles of international law. The use of the “associated forces” concept in the new AUMF frustrates both of these goals. In order to fulfill its communicative obligation, both to the American people and to the world community, Congress needs to identify—by name—the organizations that we are fighting. Is it too much to ask that we identify, with specificity, the other party to our armed conflict? This is war; the identity of the belligerents isn’t peripheral to the event, its absolutely central and arguably a sine qua non. No belligerents, no armed conflict.

Why would I suggest that Congress owes a communicative obligation to the world community? Usually we don’t talk of Congress owing supra-national obligations to foreign people. But this note of skepticism misconstrues the nature of the communicative obligation. Congress owes the American people an obligation that it communicate to the world community the nature of our armed conflict. Why? Because the military force is being deployed on behalf of the American people, and its lethality, justified or not, will ultimately be attributed to the American nation. In that context, the announcement of military force, in a public and open fashion to the world community, is essential so that the world community knows why the “American people” is engaged in lethal force.

The default presumption in international law is that lethal force is unlawful unless justified by self-defense or Security Council authorization. While in this case I believe that force against ISIL is justified under international law, this is only the first step. The second step is that this justification must be communicated to the world, and Congress owes it to the American people that this communication be clear and successful. Failure to identify the enemy belligerent by name frustrates this communicative obligation.

The Administration might argue that ISIL could collapse in the future and be replaced by a successor organization with a different identity, new leadership, and a different name. What then? The answer is simple: pass a new AUMF.

Events

• Benjamin N. Cardozo School of Law announces: “Liberty and Security Today: A New Normal?” a panel discussion taking place Thursday, Feb 26, 2015 from 7pm – 8:30pm at the Benjamin N. Cardozo School of Law. Given renewed fears of terrorism driven by the rise of ISIS and their skilled use of social media, how is the continuing conflict over security and liberty evolving? What can we expect in the future as the renewal of the Patriot Act looms and debate over authorizations for the use of force and surveillance come to the floor of Congress? Is there a new normal? And if so, what does it mean for civil liberties and for the safety and security of Americans? Panelists include our own Deborah Pearlstein, Associate Professor of Law, Benjamin N. Cardozo School of Law; Jameel Jaffer, Deputy Legal Director, ACLU; and Scott Shane, New York Times. The discussion will be moderated by Karen J. Greenberg, Director, Center on National Security at Fordham Law School. Please RSVP to sutjipto [at] yu [dot] edu.
• The Holocaust, Genocide and Human Rights Program at Cardozo School of Law, Jacob Burns Foundation, Rutgers School of Law-Newark, and the Law & Humanities Institute invite you to: The Abolition of War, from February 20-21, 2015. Why has war never become a taboo? This topic and others connected to the experience of war will be explored at a two-day symposium at Cardozo School of Law and Rutgers School of Law.

Announcements

• The International Committee of the Red Cross (ICRC) has now made the preparatory documents to the Geneva Conventions available digitally.
• The ICRC has also published its latest quarterly bibliography, which lists references to English and French publications on international humanitarian law. The bibliography is based on books and other material in the ICRC library.
• The University of Geneva has announced its summer school program in international humanitarian law, taking place from June 22 to July 10, 2015. The course methodology insists on the importance of a practice-based teaching of International Humanitarian Law (IHL), the law protecting persons affected by armed conflicts, thus combining theory and discussions of contemporary conflicts.The course welcomes applications from graduate or post-graduate students (currently enrolled in master degree or above) in law, international relations or related areas, Ph.D candidates, and humanitarian practitioners. Upper-year undergraduate students may also apply, and will be considered on a case-by-case basis. Please note that this is a master-level course. Background in public international law is recommended, although not required.More information, including the program flyer, information about courses and faculty can be found on the website here.
• The Kalliopi Koufa Foundation on the Promotion of International Law and Human Rights organizes the inaugural session of the Thessaloniki Summer Courses on International Law and Human Rights from 1 to 10 July 2015 in Thessaloniki, Greece, on the topic of “International Aspects and Issues of Energy Law”. The Thessaloniki Summer Courses are open to students, especially LLM students and PhD candidates, researchers and practitioners from all over the world. The registration deadlines are 1 March 2015 (early bird reduced fee) and 1 May 2015 (late application). For all other information concerning the provisional programme, please visit the website here, or contact the organizers at summercourses [at] koufafoundation [dot] org.
• The Research Group “The International Rule of Law – Rise or Decline?“ invites applications for three 12-24 months Fellowships in International Law or International Relations from 1 October 2015. The Group (Krieger, Nolte, Zimmermann (IL), Jachtenfuchs, Liese, Zürn (IR)) examines the role of international law in a changing global order. Developments in recent years give rise to the question whether the move towards an international rule of law, which seems to continue in some areas, has lost momentum in others. The Research Group addresses these questions from a legal and a political science perspective. The working language of the group is English. Fellows will work at Humboldt University Berlin. A monthly stipend of EUR 2500,00 plus one roundtrip is attached to the position from which all costs will have to be covered. The Fellowships are designed for applicants worldwide with a doctorate in international law or in international relations. The proposed projects should relate to the Group’s area of research. Applicants must have completed their PhD by 31 August 2015 and should not have pursued more than 3 years of postdoctoral research. Candidates from outside Europe are particularly encouraged to apply. Applicants should submit, apart from their CV and a list of publications, a description of current research and of a project to be pursued du-ring the first year of the Fellowship (no more than 1000 words), a summary of the candidate’s doctoral thesis, and two letters of recommendation. The deadline for application is 31 March 2015. Please send your application in PDF format to intlaw [at] rewi [dot] hu-berlin [dot] de.

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

Today’s a travel day, so I don’t have time to write a full post. But I thought I’d flag a very interesting article in The Diplomat about China’s new draft anti-terrorism bill, which seems to have a strong chance of becoming law. Here’s a snippet:

Obviously owing to the worrisome escalation of terrorist acts since the Tiananmen Square attack in October 2013, Chinese authorities decided to enact a comprehensive anti-terrorism law to address the new situation. Such a law requires, first and foremost, a well-reasoned definition of terrorism. Surprisingly, the draft law did not take up the terrorism definition that had been offered by the anti-terrorism Decision in 2011. According to Article 104 of the draft law, “terrorism” means “any thought, speech, or activity that, by means of violence, sabotage, or threat, aims to generate social panic, influence national policy-making, create ethnic hatred, subvert state power, or split the state.”

Article 104 goes on to flesh out the keyword “terrorist activity” as referred to in the “terrorism” definition. Accordingly, “terrorist activities” include (a) propagating, inciting, or instigating terrorism; or (b) forming, leading or participating in an terrorist organization; or (c) organizing, plotting, or implementing a terrorist action; or (d) supporting, assisting, or facilitating a terrorist organization or individual through the provision of information, funds, material, equipment, technologies or venues; or (e) other terrorist activities.

[snip]

Absent a comprehensive and universal definition of terrorism, individual countries, including China, are left with the authority to interpret the term for themselves. Compared with Western liberal countries, China has greater discretion to combat terrorism in an effective – albeit repressive – manner. However, whenever China resolves to address the scourge of terrorism, it must also face the challenge of how to strike a proper balance between security and liberty.

Before passing the anti-terrorism law, Chinese law-makers need to overhaul the definition of terrorism to guarantee that terrorism is described as a serious crime with an additional quality that calls both for international concern and harsh treatment. In addition, proper procedural safeguards regarding terror lists should be introduced to ensure that the definition of terrorism does not capture an unreasonably wide range of persons, or, if this happens, that the affected persons will not be subject to unreasonable consequences.

The article contains a nice comparison of the draft Chinese law with the elements of most international conventions on terrorism. It’s well worth a read.

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

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

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

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

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

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

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

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

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

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

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

This is a hotly debated issue.

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

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

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

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

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

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

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

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

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

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

Africa

• Boko Haram fighters waged twin attacks Sunday in Niger, their latest front in a widening regional insurgency, with a market bomb blast sowing panic.
• At least two people were killed when Somali militants al Shabaab attacked the house of a senior police official in the semi-autonomous region of Puntland, police said on Sunday.
• Demanding an immediate end to all hostilities in Mali, the United Nations Security Council urged Malian parties to “engage with sustained political will and a spirit of compromise” and make the necessary concessions to engage in talks towards a comprehensive, inclusive peace deal that addresses the root causes of the years-long crisis in the country.

Middle East and Northern Africa

• Kurdish sources have told Al Jazeera that Syrian Kurdish forces backed by moderate Syrian rebels have recaptured more than 120 villages around the long-contested town of Kobane from the armed Islamic State of Iraq and the Levant (ISIL) group.
• Iranian Foreign Minister Mohammad Javad Zarif has appeared to rule out any new extension to negotiations with world powers over his country’s nuclear programme after meeting US Secretary of State John Kerry for new talks.
• The “Quartet” of Middle East peace mediators urged a prompt resumption of talks between Israel and the Palestinians after a meeting in Munich on Sunday and voiced concern about the slow pace of reconstruction in Gaza, damaged in last year’s war.
• An Egyptian court on Saturday set February 24 as the date that it will consider a lawsuit that claims Turkey is a “state that supports terrorism” and must be designated as such.

Asia

• Among the political, economic and cultural impacts of decades of war and violence in Afghanistan, there’s an artistic transformation: the history of violence is reflected in the country’s ancient art of rug making.
• North Korea has test-fired five short-range missiles into the sea off its east coast, raising cross-border tensions ahead of Seoul’s planned joint army drills with the US, according to South Korea.
• The police force in Afghanistan is being studied for ties to the Taliban.

Europe

• UK laws which let two embassies use diplomatic immunity to block employment rights cases breached European law, the UK Court of Appeal ruled.
• Germany’s Angela Merkel said on Saturday that sending arms to help Ukraine fight pro-Russian separatists would not solve the crisis there, drawing sharp rebukes from U.S. politicians who accused Berlin of turning its back on an ally in distress.
• Europe is set to launch an experimental “space plane”, a car-sized, wingless vessel whose 100-minute unmanned mission will inform the design of reusable spacecraft of the future.
• Russian President Vladimir Putin will visit Egypt as Moscow looks to expand its reach in the Arab world’s most populous country at a time when Cairo-Washington ties remain frayed.
• At least 1,000 British Muslims protested in central London on Sunday against what they called “insulting depictions” of the Prophet Mohammad by French newspaper Charlie Hebdo.
• Britain’s Prince Charles will intervene in the case of a jailed Saudi blogger sentenced to 1,000 lashes and urge Saudi Arabia’s new king to halt the punishment, the Mail on Sunday newspaper reported.
• As Belgium braces for a verdict in Europe’s biggest trial of those accused of fostering Islamist violence in Syria, much attention is on poor Muslim immigrant communities’ struggle in a region blighted by youth unemployment.

Americas

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

Oceania

• Human Rights Watch says Australia’s failure to respect international standards for asylum seekers and refugees is undermining its ability to call for stronger human rights protections abroad.

UN/World

• The International Court of Justice rejected claims made by Croatia and Serbia accusing each other of committing genocide during the Balkan wars of the 1990s (judgment).
• On Friday, the members of the International Court of Justice (ICJ) elected Judge Ronny Abraham of France President of the Court and Judge Abdulqawi Ahmed Yusuf of Somalia Vice President.
• Negotiations aimed at resolving the crisis in Yemen are set to resume on Monday and will be brokered by the U.N. envoy to the country, Jamal Benomar, the United Nations said.

Events

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

Call for Papers

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

Announcements

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

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

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

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

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

Have a nice weekend!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• To evaluate the individualization and formalization of UN sanctions.

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

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

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

• To reflect on coordination with other institutions.

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

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

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

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

Africa

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

Middle East and Northern Africa

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

Asia

• Japanese Prime Minister Shinzo Abe said on Monday he wanted to debate the possibility of Japan’s military rescuing Japanese citizens abroad, a day after Islamic State militants said they had beheaded a Japanese journalist.
• Thousands of pro-democracy protesters returned to the streets of Hong Kong on Sunday in the first large-scale rally since demonstrations rocked the global financial hub late last year.

Europe

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

Americas

• North Korea said on Sunday the United States had rejected an invitation to send one of its top diplomats to Pyongyang, accusing Washington of trying to shift the blame for the deadlock in denuclearisation talks on the North.
• A district court held that environmental groups lack standing to challenge the U.S. Export-Import Bank’s approval of a $90 million loan guarantee that supports a three-year, $100 million loan from a private bank to a coal exporter.

Oceania

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

UN/World

• Fighting and other violence in Iraq killed at least 1,375 people including 790 civilians in January, the United Nations said on Sunday.
• UN chief Ban Ki-moon has backed an African Union (AU) proposal to send a regional force to fight Boko Haram in Nigeria, as warplanes from Chad carried out air strikes against the armed group.

Events

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

Call for Papers

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

Announcements

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

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

I am occasionally accused — correctly, of course — of using the blog as little more than a tool for shameless self-promotion. So it gives me great pleasure to use the blog as a tool of shameless other-promotion and announce the publication of Jens’s important new book, The Assault on International Law, now available from our friends at Oxford University Press. Here is the publisher’s description:

International law presents a conceptual riddle. Why comply with it when there is no world government to enforce it? The United States has long history of skepticism towards international law, but 9/11 ushered in a particularly virulent phase of American exceptionalism. Torture became official government policy, President Bush denied that the Geneva Conventions applied to the war against al-Qaeda, and the US drifted away from international institutions like the International Criminal Court and the United Nations.

Although American politicians and their legal advisors are often the public face of this attack, the root of this movement is a coordinated and deliberate attack by law professors hostile to its philosophical foundations, including Eric Posner, Jack Goldsmith, Adrian Vermeule, and John Yoo. In a series of influential writings they have claimed that since states are motivated primarily by self-interest, compliance with international law is nothing more than high-minded talk. Theses abstract arguments then provide a foundation for dangerous legal conclusions: that international law is largely irrelevant to determining how and when terrorists can be captured or killed; that the US President alone should be directing the War on Terror without significant input from Congress or the judiciary; that US courts should not hear lawsuits alleging violations of international law; and that the US should block any international criminal court with jurisdiction over Americans. Put together, these polemical accounts had an enormous impact on how politicians conduct foreign policy and how judges decide cases – ultimately triggering America’s pernicious withdrawal from international cooperation.

In The Assault on International Law, Jens Ohlin exposes the mistaken assumptions of these ‘New Realists,’ in particular their impoverished utilization of rational choice theory. In contrast, he provides an alternate vision of international law based on a truly innovative theory of human rationality. According to Ohlin, rationality requires that agents follow through on their plans even when faced with opportunities for defection. Seen in this light, international law is the product of nation-states cooperating to escape a brutish State of Nature—a result that is not only legally binding but also in each state’s self-interest.

I have had the pleasure of reading the book, and it’s tremendous. Many international-law scholars are (understandably) resistant to the caricature of international law presented by the Posners and Yoos of the world, but few have the theoretical chops to engage in the kind of imminent critique of “New Realism” that Jens provides. I hope the book gets the audience it deserves.