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Friday, July 27, 2012

How to Count Armed Conflicts

The recent lawsuit filed by the estate of Al-Aulaqi against Panetta et al, over his targeted killing in Yemen, contains many different legal theories in an attempt to sustain at least one that would yield relief.  (For recent commentary on the lawsuit, see here and here).  But I find it particularly interesting that the lawsuit argues that "[a]t the time of the killing, the United States was not engaged in an armed conflict with or within Yemen."   However, the lawsuit also goes on to assert that even assuming the existence of an armed conflict, the killing was illegal under international humanitarian law (IHL) because he was not directly participating in hostilities at the time he was killed.

What interests me most is the claim that the United States is not involved in an armed conflict in Yemen.  Obviously, this is carefully worded.  The lawsuit does not claim that there is no armed conflict in Yemen, because that stronger claim would offer little additional benefit to Aulaqi's legal claim.  It is enough for the plaintiffs to assert that since the US was not party to the conflict, IHL did not govern the US killing of Aulaqi.

There are several different routes towards finding an armed conflict -- or several armed conflicts -- in Yemen. Presumably, plaintiffs will attempt to argue in this case that all of these routes are foreclosed.  First, there is the obvious argument that the US is directly engaged in an armed conflict with al-Qaeda as a non-state actor, and that Aulaqi's killing took place as part of that armed conflict.  The plaintiffs might assert that global al-Qaeda is too fractured to constitue a single non-state actor, or that Aulaqi was not a member of al-Qaeda "core" in Afghanistan and Pakistan when he was killed.  But the U.S. government could always argue -- assuming the case is argued on merits rather than on procedural grounds -- that the U.S. government was engaged in an armed conflict with AQAP at the time of the killing, and it is unclear to me how the plaintiffs could block that argument from succeeding.  At the very least, the government could argue that its drone strikes against AQAP in Yemen are part of that armed conflict.  The only way of defeating that argument is for plaintiffs to argue that the AQAP is not sufficiently organized to constitute a party to an armed conflict, though that is a factual claim that might be difficult to sustain.

Of course, there is a completely different route to the same result.  The US officials can also argue that there is a non-international armed conflict in Yemen between its government and insurgent forces; this claim seems difficult to deny.  The drone strikes against Aulaqi and others could be pitched as an American intervention into that non-international armed conflict on the side of the Yemeni government, thus internationalizing the previously non-international armed conflict.  Whether this then counts as a single armed conflict (Yemen and the US against the insurgents) or two parallel armed conflicts, would be immaterial.  Either way, the US would be a party to an armed conflict and IHL would apply to the drone strikes.

As a final point, I was somewhat surprised that the complaint outlines completely different standards for the government's use of force under IHL and outside the context of armed conflict (i.e. peacetime).  Although this is my view as well (separate standards apply whether IHL applies or not), there is a growing wave of legal thought in Europe that views IHL and human rights law as co-applicable in many situations like this.  Although this co-application idea is well-regarded in many parts of the world it is much less accepted in the United States, so it is perhaps wise for the plaintiffs to have avoided it explicitly in the complaint.  But it will be interesting to see if the co-application strategy nonetheless shows up in subsequent arguments in the case.

Friday, July 13, 2012

With Lubanga, ICC Leaves Room at the Top

The ICC just released its first sentencing judgment, giving Lubanga 14 years in prison.  Minus the six years for time already served, he will be released in eight years -- if not sooner.

The Chamber clearly rejected the sentencing approach used by the Sierra Leone tribunal in the Charles Taylor case.  In that decision, the SCSL convicted Taylor as a mere accomplice, but then on sentencing dropped the analysis of his derivative liability and instead referenced his status as a head of state, in command of his own forces, causing regional instability, etc., and for that reason decided to give him a sentence of 50 years in prison.

My reaction to the decision?  As I have called it before, this is clearly a case of “leaving room at the top” in a hypothetical sentencing hierarchy.  Although often branded a warlord, Lubanga was charged with the procurement of child soldiers, and related offences, and was not vicariously charged with the many atrocities allegedly committed by these soldiers under his command.  Clearly, the ICC felt compelled to distinguish Lubanga’s culpability from other leadership-level defendants down the road who might be convicted of far more serious charges.

The ICC might have done something similar here: convict Lubanga of using child soldiers, but then look at the facts of the case to impose a sentence based on factual elements related to far more serious charges that the ICC Prosecutor might have pursued but decided not to.  The ICC might have used such an analysis to justify a longer sentence.  I am glad that they did not do this, because there is something fishy about resorting to factual elements that are so disconnected from the charges and modes of liability that served as the basis for the conviction.

On the other hand, I do wish the court had considered a longer sentence, but for completely different reasons.  As I have argued many times before, the necessity of giving Lubanga a shorter sentence depends mostly on the need to "reserve" space at the top of the sentencing hierarchy (say 50 years like for Taylor, or even life in prison) for individuals who might be convicted of more serious international crimes, under a misguided application of the principle of proportionality.  But if proportionality requires reducing the lower-level offenders to 14 years in prison, which quite frankly accords with a white-collar offense in the United States, then something has gone very wrong, because at that point the sentence of the lower-level offender is now disproportionately low when compared against the inherent gravity of the crime.   In my view, the court is implicitly engaging in a trade-off: maintain proportionality between multiple defendants and in so doing sacrifice the proportionality between Lubanga and the gravity of his crimes.

I would like to see a chamber at the ICC explicitly make the argument that such a trade-off is both legally and morally justified, as well as institutionally required.  I have not seen such an argument yet.

Saturday, July 7, 2012

Legitimation Crisis Cancelled? A Pyrrhic Victory for the ICC

Two weeks ago I asked whether a burgeoning legitimation crisis was striking international criminal justice.  Four ICC lawyers were taken into custody in Libya on widely considered trumped up charges of espionage, and the Mladic Trial at the ICTY was put on indefinite hold.  Now, both issues have been resolved.  Or have they?  Melinda Taylor and the other ICC personnel were released from the custody of the Zintan Brigade in Libya, and the ICTY Trial Chamber has scheduled the Mladic trial to resume with the prosecution’s presentation of evidence.  But both situations strike a worrisome tone for the future of international criminal justice.

The primary concern about the Melinda Taylor situation is that the status of her diplomatic immunity was insufficiently resolved in my opinion.  The Libyan NTC managed to secure her release after weeks of diplomatic wrangling, and the Zintan rebels finally agreed to allow her and the other court personnel to travel back to The Hague.  But, as a formal matter, neither the Libyan NTC nor the Zintan Brigade made any formal statements accepting the immunity of the court personnel.  Furthermore, the ICC itself did not strenuously enough state that the release was pursuant to diplomatic immunity.  Formerly, the Libyan officials stated that a case against the individuals was still pending in Libya, though no one thinks that Taylor and the others will return to Libya to participate in such a case.  Regardless, though, even the theoretical existence of a pending case against Taylor is inconsistent with the view that diplomatic immunity attaches to court officials.

Of course, this seems to have been the diplomatic trade-off that was made to secure their release.  The ICC, the UN, the Australian government as well as other national governments all pressured the Libyans to release the defendants, but there was apparently insufficient leverage to get them released quickly.  The release was only secured as long as both the Libyan NTC and the Zintan rebels were allowed to maintain the position that they were entitled to detain the court personnel given their alleged conduct (including position of an alleged pen camera).  If the ICC and the UN wanted the Libyans to concede the issue of diplomatic immunity, then the Libyans weren’t going to release them.

Was this an acceptable trade-off for the ICC to make?  Or perhaps it was a Pyrrhic victory, opening the door to a very disastrous situation the next time a defense counsel – or even a prosecutor – is traveling in an uncooperative country.  Here’s the real result: trips in these countries aren’t going to happen in the future and that’s a very bad thing for the court.  And I think it sets a worse precedent for prosecutors than it does for defense counsel.  In my view, the OTP had the most incentive to make sure that the right precedent was set in this case, and it wasn't.  It is future OTP personnel that will bear the brunt of this mistake.

On the Mladic trial:  The trial will resume, assuming that the prosecution does not run into more disclosure problems with the court. That’s certainly a good thing, but the overall pace of the trial is still a concern, and Mladic isn’t getting any younger.  More importantly, though, the recent dismissal of the genocide charge for Karadzic for crimes committed outside of Srebrenica will probably have an impact on the Mladic trial, with a possible argument that Mladic should not face a genocide charge for those municipalities either.  More on that in my next post.