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Wednesday, January 25, 2012

Hamdan's Back and the U.S. Common Law of War

The Hamdan case is back and yet again it offers an opportunity to explore a crucial aspect of the law of war.

Salim Hamdan was one of the first individuals charged before the U.S. Military Commissions.  His challenge to the commissions’ jurisdiction went all the way to the U.S. Supreme Court, which concluded that the commission did not have jurisdiction over his case because, inter alia, the commission violated Common Article 3 of the Geneva Conventions.  A four-justice plurality concluded that the inchoate offense of conspiracy was not a violation of the international laws of war that the Bush Administration was entitled to prosecute before a military commission. 

After Congress passed the MCA of 2006 in response to the Hamdan decision, Hamdan was tried before a military commission for conspiracy and providing material support to terrorism.  Ironically, the military jury acquitted him of conspiracy and only found him guilty of material support.  He was sentenced to 5.5 years, transferred to Yemen, and subsequently released due to time served.   

Although his sentence has long since been completed, his appeal of his conviction for material support is ongoing.  The D.C. Circuit is now hearing the case, which is of immense importance between material support for terrorism is a key charge in both civilian and military commission cases against alleged terrorists.

The U.S. government has filed its brief in the case, and the document contains an interesting choice of language.  (Analysis by Steve Vladeck here).  In the past, the U.S. government has argued that material support for terrorism is a violation of the international law of war, and therefore punishable by military commission.  However, the latest document exclusively uses an alternate formulation: material support for terrorism violates the U.S. common law of war, which the brief defines rather cryptically as "U.S. common law traditionally applied in wartime."  The question is what that phrase really means and why it was used in this case.

The phrase “common law of war” is rather uncontroversial, and harks back to Ex Parte Quirin.  Here’s how the Supreme Court defined it there:

The law of war, like civil law, has a great lex non scripta, its own common law. This “common law of war” (Ex parte Vallandigham, 1 Wall. 243, 249) is a centuries-old body of largely unwritten rules and principles of international law which governs the behavior of both soldiers and civilians during time of war. Winthrop, Military Law and Precedents (1920), 17, 41, 42, 773 ff.

However, Quirin never uses the phrase U.S. common law of war, and this new term of art appears to be made up.  I know of no previous U.S. federal or state case that uses this exact term.  If it appears anywhere else, I would appreciate knowing its provenance.

The shift from “international” to “U.S.” common law of war, if we are to put a coherent gloss on it, must mean something like this: what U.S. courts have interpreted the international law of war to be, in particular in the form of past practice before previous military commissions.  In that sense, although U.S. common law of war does not represent international law per se, it does represent a kind of precedent that might have stare decisis value.  Or more aptly, the U.S. common law of war, in the form of past practice, represents a gloss on international law that Congress was certainly entitled to rely on when it passed the Military Commissions Act, pursuant to its "Define and Punish Clause" power, and codified material support as a crime. 

In other words, Congress’ decision, if consistent with the U.S. common law of war, was presumably reasonable and therefore should not be disturbed by the judiciary, absent unambiguous evidence that Congress clearly erred when it exercised its "Define and Punish" function.  But what if the past practice was wrong?  Or what if past practice was based on previous international law which has, in the interim, significantly evolved or changed?  Can we continue to prosecute before a military commission a violation of the law of war that the international law of war no longer recognizes as a crime?  This seems like an odd -- or at least uncomfortable -- result.

That’s my best guess on the significance of the phraseology.  If anyone has a better idea, I would love to hear it.  Either way, I would not be surprised if the Hamdan case goes back to the Supreme Court again.

Tuesday, January 17, 2012

Response to Gabor Rona

Many thanks to Gabor Rona for taking the time to continue this conversation.  There’s a lot in Rona’s post, but I want to cut to the heart of the conceptual issue here regarding the inter-operation of these bodies of law.

In terms of the relationship between IHL and IHRL, and the notion that IHL is a lex specialis, Rona ascribes to me a view that he describes as framework exclusion, as opposed to the more reasonable rule exclusion.  Actually, though, I think I would be willing to subscribe to rule exclusion myself, so we should be on the same page.

Rule exclusion, I take it, means that if there is an applicable rule of IHL on a given point, then IHL applies and IHRL does not apply.  Again, I’m happy with that point of view, but I’m not sure that everyone else is.

For example, in the Israeli Targeted Killings decision, the court applied the IHL rule that allows the targeting of civilians who are directly participating in hostilities (DPH).  As everyone knows, IHL permits the intentional targeting of civilians who DPH because they perform the function of combatancy.  However, the Israeli TK decision went further.  It concluded, in para. 40, that “a civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed.”  The court then went on to discuss proportionality and the need to attempt capture (if feasible), rather than kill, based on the notion of proportionality.

This is a curious result.  The DPH standard is clearly an IHL rule.  However, the need to attempt capture (if feasible) of an individual engaged in combatancy is not a core IHL concept.  Rather, it allegedly stems from IHRL.  That’s why many people have interpreted the TK decision as reading IHRL norms into the applicable IHL norm in that case.

So what’s at issue here is the co-applicability of IHRL and IHL with regard to the same rule.  It’s precisely that kind of co-applicability that I find curious.  Even under the “rule exclusion” notion of lex specialis, it is hard to countenance. How do both bodies of law apply at the same time with regard to the same norm?  That’s one of the reasons why the development of the ICRC Interpretative Guidance on Directly Participating in Hostilities became so contentious.  The Interpretative Guidance document followed the methodology of the Israeli TK decision, to the apparent dismay of some of the participants in the project.

I don’t have a strong view about detention, although one can see the current debate about detention through this lens.  I understand Kevin’s point to be that IHRL applies to detention in NIAC because there is no IHL rule regarding detention (until the end of hostilities) in NIAC.  I am inclined to disagree (though my mind remains open), but only because I think there is, in fact, an IHL rule regarding detention in NIAC.  First, there’s CA3 and APII, both of which demand certain treatment regarding detainees.  Second, I suspect that customary international law both permits detention until the end of hostilities in an NIAC and demands humane treatment of those detainees (though again my mind is open).  Marty and Steve’s post suggests that the detention rules of IAC apply by virtue of analogy in NIAC, but I think the better formulation is to suggest that some of those detention rules apply by virtue of custom.  That being said, I don’t have a particular view on the specifics of which detention rules apply by custom, and I wouldn’t want to be put in the position of defending the current Administration’s view or practice on this.  Rather, I want to emphasize the underlying structure of this debate, which is the existence or non-existence of an IHL norm regarding detention that applies in any given factual circumstance. 

At a certain point, the applicable rules of IHL, (including the customary ones applicable in NIAC), become so comprehensive that one might describe them as a framework, though I don’t think much hinges on this language.  The framework of IHL is essentially the core concepts of combatants/civilians/DPH-CCF, and much of it is now jus cogens.

It strikes me as curious that human rights activists are so quick to cabin CIL application of the IHL rules of IAC to NIAC.  To my ear, it is one of the great advancements of the last few decades: that the rules of warfare must be respected and that no nation can ignore them simply because the armed conflict is internal. (Incidentally, this was also the great fault of the early Bush Administration: to audaciously proclaim that the armed conflict with al-Qaeda was unconstrained by IHL and LOW principles.)  It also strikes me that it is one of the great advancements that ICL case law has given us. Why do some human rights activists resist this laudable move? I suppose they want to fight the expansion of IHL norms because, in their absence, IHRL norms can swoop in to fill the gap, and in the process better protect the rights of the vulnerable. I’m not sure I share this strategic vision, though my skepticism does not make their view wrong.  (Ultimately, I have more faith that IHL, as a body of law, will make the situation on the ground better.)  The legal fight, though, is about the existence of the underlying IHL norm. 

One final quick point.  Rona says a few things about the relationship between IHL and domestic criminal law that I obviously agree with, but also a couple of points that I disagree with.  First, the agreement: of course there is room for domestic criminal law during armed conflict.  The privilege of combatancy changes the underlying norm regarding killing (which is what I was talking about in my original post), but if an unprivileged combatant kills someone then he has absolutely violated domestic criminal law -- absent self-defense of course.  This then raises the further question of whether the killing also violates the LOW (killing in violation of the laws of war) and could be prosecutable by a military commission.  Kevin and a number of others have written extensively about this theory and I share their concerns about it.  Undeniably, though, this hypothetical killing represents a violation of domestic criminal law.

Now the disagreement.  Rona goes on to say, regarding privileged combatants, “should they engage in rape, the use of biological weapons, torture of detainees or dozens of other violations of the laws of war, domestic criminal law – namely war crimes law – is the place to go for accountability.”  That doesn’t really make sense to me.  The place to go for accountability in such a situation is ICL because war crimes are one of the three core crimes of ICL.  Now, it is true that the conduct might also violate domestic criminal law if there is an applicable criminal law norm in question.  So a rape could potentially be prosecuted as a war crime under ICL or it could be prosecuted under the criminal law of one of the interested states (either based on territorial jurisdiction or active personality).  Both bodies of law prohibit the conduct because their respective norms are basically co-extensive.

But that’s not really an example of co-application in the sense that interests me.  In the war crime case, two or more bodies of criminal law (one international, the others domestic) prohibit the same conduct.  Co-application of IHRL and IHL involves the importation of principles of IHRL to inform one’s understanding of rules that are governed by IHL.  In the Israeli TK decision, this took the form of severely restricting the principle as it existed under IHL, which is what generated so much controversy at the ICRC.

Here’s a better, and more extreme, example.  Suppose the domestic penal law of country A prohibited the possession and use, not of biological weapons, but of automatic weapons (machine guns). Could an entire army be prosecuted for violating this domestic criminal law?  In that case, the domestic law would severely restrict – in fact eviscerate -- the IHL norm (privileged combatancy), and there would be something specious about permitting co-application of the norms in this context.

Saturday, January 14, 2012


To the uninitiated, IHRL is shorthand for International Human Rights Law, and IHL is shorthand for International Humanitarian Law, a.k.a. the Law of War.  Two simple and short acronyms, but their contested relationship represents the biggest controversy in international law at the moment.

Congress recently passed the NDAA (The National Defense Authorization Act for Fiscal Year 2012), and Obama signed the legislation just before New Year’s Day.  Obama had promised to veto the legislation, which expresses a preference for military detention for suspected terrorists, but he relented and agreed to sign the legislation after provisions were inserted in the law that permitted the executive branch to issue waivers to allow detention by civilian law enforcement agencies.  Provisions were also included in the law that clarified that the legislation would not change the existing law regarding executive authority for detention.  It is therefore incorrect to read the law as broadening Executive Branch detention authority.  Legal scholars everywhere have different views about the scope and origin of this existing authority, but whatever it is, it hasn’t changed.

But I want to concentrate on a different aspect.  For some time, there has been a controversy in the federal courts over how to interpret the Authorization to Use Military Force (AUMF) that Congress passed to give the President the power to fight the War on Terror.  The Obama Administration Justice Department has argued that the AUMF ought to be interpreted with international law in mind, specifically IHL.  In other words, unless Congress explicitly states otherwise, it should be assumed that Congress was granting authority to the President that is consistent with international prohibitions on how armed conflict is conducted, i.e. IHL.  See Charming Betsy, etc.  A couple of judges on the D.C. Circuit, see al-Bihani, have protested loudly on this point -- or at least at great length given the pages they devoted to the issue -- arguing that international law is irrelevant for interpreting the AUMF.  (The full D.C. Circuit's view is here, and Lederman's & Vladeck's analysis is here).

But there’s a sub-disagreement too.  Within the group of people who believe that the AUMF should be interpreted in light of international law, some go further and say that the relevant body of international law includes IHRL as well.

I have to confess that I have never fully understood the rationale beyond this claim.  To me, IHRL and IHL cannot apply at the same time -- precisely what this view entails.  IHL is a lex specialis, in the sense that it displaces other bodies of law, including domestic criminal law, with a set of radically different norms based on reciprocity, namely that combatants can kill each other with impunity but must protect civilians and others hors de combat.
I know, I know.  The ICRC thinks that IHLR and IHL can apply at the same time.  What case do they cite for this proposition?  Usually the Israeli Supreme Court Targeted Killings decision.  What did the Israeli Supreme Court cite for this proposition in the TK case?  Nothing.  No case citation.

But forget precedent for a minute.  Why is this view ultimate unconvincing?  Well, for starters, the most basic principles of IHRL don’t make sense in armed conflict, especially the right to life, which is logically irreconcilable with the core principles of IHL.  Combatants don’t have the right to life under the IHL -- that's the whole point of combatancy as a legal concept.  Second, IHL is much older as a body of cultural and legal norms, going back to the Lieber Code and even further back if one counts non-codified, customary prohibitions; IHL includes a robust set of norms that already govern the humane treatment of prisoners and others hors de combat.  Third, if IHRL applies during armed conflict, what need is there to continue developing IHL in the areas of humane treatment (which states still do, in the form of new conventions, treaties, and protocols)?

Tuesday, January 10, 2012

John Yoo, David Scheffer, and the Goals of International Justice

John Yoo, the former Bush Administration OLC lawyer and Berkeley law professor, has just published a Wall Street Journal review of David Scheffer’s memoir, All the Missing Souls.  Scheffer was U.S. Ambassador at Large for War Crimes Issues and was heavily involved with the creation of the ad hoc tribunals in the 1990s as well as the Rome Statute Conference.  (Chris Borgen also has commentary on the review here.)

Amongst other things, Yoo criticizes Scheffer for his naïve belief that international prosecutions will help stop ongoing atrocities or prevent future ones.  The criticism is particularly stinging with regard to Rwanda, for which the Clinton Administration would not authorize an intervention, a decision President Clinton eventually apologized for in person during a trip to Africa after his presidency.  Here’s Yoo’s argument:

One can only gape at Mr. Scheffer's account of his activities while anywhere from 500,000 to 900,000 Tutsis were slaughtered in Rwanda in 1994. Rather than press his colleagues at a National Security Council meeting for military intervention, or resign in protest, Mr. Scheffer says that he achieved a second-best result: American approval for a genocide investigation. “I wonder to this day,” he says, “whether I could have accomplished more at that meeting.”

I am generally in agreement with Yoo that it is naïve to expect international tribunals to stop or prevent atrocities, at least not in the obvious sense of deterrence.  I do not believe that genocidal criminals are susceptible to the usual inducements, i.e. that possible imprisonment in The Hague is a significant factor in their decision-making process.  This is a frequent complaint that I have with much international criminal law scholarship, although I might be something of an outlier in this respect.

What I find troubling about Yoo’s argument is that he implies that this skepticism about the deterrence capacity of international tribunals should entail skepticism about international tribunals themselves.  But the one doesn’t follow from the other.  That’s because international tribunals aren’t justified by deterrence as the consequentialist or utilitarian understands the concept. Rather, international tribunals are justified by retributivism, or the idea that international criminals ought to receive their just punishment, and that there is an inherent value to ending the impunity when no local jurisdiction is willing or able to prosecute them.  For a retributivist, the consequences (like deterrence) do not matter.  Just punishment provides its own rationale for the criminal process.

Of course, one might object that the Security Council’s creation of the ICTY and ICTR was premised on restoring international peace and security – an envisioned consequence to be sure – as understood by Chapter VII of the UN Charter.  The same Chapter VII rationale also applies to binding referrals by the Security Council to the ICC.

However, restoring international peace and security is not the same thing as deterrence as a consequence.  International peace and security can be promoted even if international criminals are not deterred by the prospect of a trial in The Hague.  Rather, international peace and security is promoted when victims (or more properly, victim groups) believe that perpetrators will receive their just deserts at an international court; without this belief, victims might engage in reprisals and exact revenge at the point of a gun.  The existence of an international criminal forum prevents this cycle from continuing, but it has nothing to do with deterrence. 

So although I’m with Yoo about the naivety regarding the deterrence function of international courts, I think it is a logical mistake to then conclude that the program of international criminal justice is misguided.  First, the tribunals might still promote peace and security.  Second, even if they didn’t, the inherent value of retributivism justifies them at a normative level.

Friday, January 6, 2012

Kiobel and Criminal Law Norms

I have spent part of my holiday reading the amicus briefs in the upcoming Kiobel case to be heard by the Supreme Court this term.  The case will finally determine whether corporations can be sued under the Alien Tort Statute for aiding and abetting violations of international law.

There’s much to be said on the topic, and I have my own views on the law of corporate responsibility, and the concept of complicity in general.  But I want to address a much more basic frustration that I have with the current legal debate about the Kiobel question.

The U.S. Solicitor General’s Office has filed a brief in the case, and the brief correctly points out that there is no evidence that any of the Nuremberg cases (either the international cases or the Telford Taylor cases) conclusively precluded the possibility of criminal responsibility for corporations.  The brief cites Jonathan Bush’s excellent Columbia Law Review article for the proposition that:

With respect to Nuremberg in particular, while it is true that no private organization or corporation was criminally charged or convicted, it is equally true that nothing in the history of the Nuremberg proceedings suggests that juridical persons could never be held accountable (through criminal prosecution or otherwise) for violating international law. See Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in Criminal Law: What Nuremberg Really Said, 109 Colum. L. Rev. 1094, 1239 (2009) (noting that corporate liability was “explored, and was never rejected as legally unsound,” and that corporations were not prosecuted at Nuremberg “not because of any legal determination that it was impermissible under international law”)…

While this is certainly true, I wish the brief were more clear about the unique status of criminal norms in international criminal law.  In fact, I find that most of the corporate aiding and abetting ATS cases leading up to Kiobel have been deeply confused on this point.  Simply put, the history of international criminal law only tells you about which violations of international law yield criminal responsibility.  The ATS, by contrast, exists to vindicate violations of the law of nations, regardless of whether they are criminal or not.  True, Sosa restricted ATS litigation to a limited subset of norms, but the high requirement of Sosa does not track the distinction between criminal and non-criminal violations of international law.  Whatever Sosa (and its reference to Blacktstone) means, I do not think it can stand for the proposition that only violations of international criminal law are subject to ATS litigation.

Let’s assume for the sake of argument that the Nuremberg history could be properly read to stand for the proposition that corporations cannot be prosecuted before an international criminal tribunal.  Even if that were the case (which several scholars have suggested is not the case), this would not demonstrate that corporations cannot be liable in tort for violating the law of nations in an ATS action.  In fact, the argument proves way too much.  Nation-states were also not prosecutable before an international criminal tribunal, which is focused on individual conduct.  Does that mean that nation-states cannot violate customary international law?  That’s a reductio ad absurdum.

One might respond that the very notions of aiding and abetting or complicity are criminal law notions, so Kiobel and its companion cases are meaningless unless we understand them as criminal law violations.  True, complicity is originally a criminal law notion, but it has long since been imported into tort law and there are companion concepts in tort that would apply just as well to the underlying factual allegations in Kiobel (e.g. aiding and abetting tortious conduct).

But even if one concedes this point about complicity being an exclusively criminal law notion (which I don’t think it is), my overall argument still holds.  That’s because one can treat the reluctance to prosecute corporations at Nuremberg, the ICTY, ICTR, and the ICC, as purely a matter of jurisdiction.  And just because these tribunals don’t have jurisdiction over corporations does not mean that corporations cannot violate international legal norms.  And just because the ICC does not have jurisdiction over corporations does not entail that a US court does not have jurisdiction over them either.  Each court or tribunal has separate jurisdictional rules.  And one has to separate the jurisdictional point from the underlying legal norm.

The Nuremberg Scholars amicus brief comes closest to advocating my position, although personally I am interested in hearing more theory about the relationship between criminal and non-criminal norms within customary international law:

The absence of criminal penalties imposed by an international judicial tribunal against German corporations is more appropriately understood as a choice to sanction such corporations through other international law mechanisms, rather than through a criminal trial – and not as a rejection of the international law authority to hold corporations accountable….

The erroneous analysis of the Kiobel majority concludes that “[n]o corporation has ever been subject to any form of liability (whether civil, criminal, or otherwise) under the customary international law of human rights.” Kiobel, 621 F.3d at 148. In reaching this decision, the majority narrowly focused on the criminal trials and ignored other actions taken under customary international law against corporations and organizations outside the courtroom. The impression left by the majority opinion in Kiobel is an historically inaccurate conclusion that what came out of what we label in shorthand as “Nuremberg-era jurisprudence” is a rule that corporations are immune under international law. We respectfully submit that the Founders of Nuremberg and those working with them would have been dismayed by this conclusion.

Customary international law is not some amorphous mass; it is composed of different types of legal norms that might be vindicated in different fora with different sanctions.  Criminal norms are just one of the many flavors available.