Combatant Immunity in Non-International Armed Conflicts Past and Future

HOMELAND & NATIONAL SECURITY

LAW REVIEW

Articles by Rymn J. Parsons Amitai Etzioni Justin Burrows Peter A. Mommer

SPRING 2014 VOLUME 1 ISSUE 1

T H O M A S M. C O O L E Y L A W S C H O O L

HOMELAND & NATIONAL SECURITY LAW REVIEW Thomas M. Cooley Law School

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© 2014 Homeland & National Security Law Review. All Rights Reserved.

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HOMELAND & NATIONAL SECURITY LAW REVIEW

ARTICLES

COMBATANT IMMUNITY IN NON-INTERNATIONAL ARMED CONFLICT, PAST AND FUTURE

Rymn J. Parsons

LIBERAL COMMUNITARIAN APPROACH TO PRIVACY AND SECURITY

Amitai Etzioni

MATTER OF T-, THE NINTH CIRCUIT, AND ‘DEPARTURE’ FROM THE UNITED STATES

Justin Burrows

THE CANBERRA PROCESS

Peter A. Mommer



LAW REVIEW

September 2013-January 2014 EDITORIAL BOARD

Editor-in-Chief

PAUL POWERS

Articles Selection Editor

PETER A. MOMMER

Research Editor

MELISSA WINKLER

Managing Editor

CAPTAIN JAMES BRIGMAN

Publications Editor

GEORGE V. MOTAKIS

Senior Editors

TYLER PHILLIPS, JAMES SPRINGER

Associate Editors

HELEN BERRY CHRISTINA CALANDRO KAITLYN HARDER GREGORY LACEY

KATE MORTENSEN CAPTAIN CARMEN QUESENBERRY

CORY WESTMORELAND LINDSEY SCHALLER

PETER TOMASEK JENNIFER TOMCZYK

Director & Faculty Advisor

BRIGADIER GENERAL (RET.) MICHAEL C.H. MCDANIEL

Faculty Co-Advisor Library Liaison TAMMY BROWN ASHER ALISSA MARIE RAASCH-SCHMIDT

Senior Advisors

FRANK SPANO, HEIDI LOTT-PAGE, DANIEL SHAWL


HOMELAND & NATIONAL SECURITY LAW REVIEW


November 2012- August 2013 EDITORIAL BOARD

Editor-in-Chief

HEIDI LOTT-PAGE

Articles Selection Editor PAUL POWERS

Research Editor PETER A. MOMMER

Managing Editor CAPTAIN JAMES BRIGMAN

Publications Editor GEORGE V. MOTAKIS

Business Editors DANIEL SHAWL, TYLER PHILLIPS

Senior Editors ZACKERY HUGG, MELISSA WINKLER

Associate Editors

Director & Faculty Advisor BRIGADIER GENERAL (RET.) MICHAEL C.H. MCDANIEL

Faculty Co-Advisor Library Liaison TAMMY BROWN ASHER ALISSA MARIE RAASCH-SCHMIDT

Senior Advisor FRANK SPANO

HELEN BERRY CHRISTINA CALANDRO ALLISON DYKEHOUSE KATE MORTENSEN

CAPTAIN CARMEN QUESENBERRY PETER TOMASEK

CORY WESTMORELAND


LAW REVIEW


Cite as 1 HOMELAND & NAT’L SECURITY L. REV. __ (2014) The HOMELAND & NATIONAL SECURITY LAW REVIEW (HNSLR) is the first legal periodical by an LL.M. Program at Thomas M. Cooley Law School, in Lansing, Michigan. It is published biannually in digital form. Our mission is to publish timely, practical, and innovative scholarly articles and comments in the field of homeland and national security law. We will also publish a special edition, at least annually, on the legal issues of our Nation’s veterans. We strive to foster an intellectual forum for academics and practitioners in the field of homeland and national security law so that others may continue to learn and share in this ever-increasing study of law. The Editors of HNSLR can be contacted at:

Homeland & National Security Law Review Thomas M. Cooley Law School 300 South Capitol Avenue Lansing, Michigan 48901

http://homelandsecuritylawreview.cooley.edu [email protected] Submissions: Articles and comments submitted to the HNSLR Editors must be fully researched and of original thought. Footnotes should follow the form prescribed in The Bluebook: A Uniform System of Citation (19th ed. 2010). The HNSLR seeks submissions that will contribute to the field of homeland and national security law.

Articles, Comments, and other editorial correspondence should be addressed to the HNSLR Articles Editor by e-mail at [email protected].

mailto:[email protected]


LAW REVIEW

FOREWORD

While introducing General McDaniel as a new addition to the faculty, Cooley Law School President and Dean Don LeDuc made his marching orders quite clear when he said, “We intend to create the best homeland security law program in the nation.” This statement became our commander’s intent–our organizational touchstone–and has guided every aspect of the development and publication of this and future volumes.

Having transferred to Thomas M. Cooley Law School in order to study homeland and national security law under General McDaniel, the idea of starting a scholarly publication to support the developing academic program was never far from my mind. I would like to take a moment to thank a small number of the many talented professionals who made this possible.

To my mentor and friend, General McDaniel–from our

very first conceptual discussions, through countless revisions, and an approval process that surely added years to our lives–your guidance, top-cover, and faith made this dream a reality. To Heidi Page, Joe Brigman, Peter Mommer, Paul Powers, Dan Shawl, and George Motakis–you were hand-selected to serve as the first Editorial Board and have done an admirable job in carrying the vision through to successful publication–I am so proud of you and equally proud to call you my friends. To Dean Mickens and his team, thank you for helping us realize a truly global operating platform and organizational structure. To John Stavropoulos, I offer a special thanks for your assistance in digitally rendering our design work. Last but not least; to you, the reader–this Law Review exists to support your needs as a professional in

the emerging field of homeland and national security law. We look forward to supporting your mission through relevant, scholarly research long into the future. Thank you all.

Frank M. Spano, J.D. Co-Founder


LAW REVIEW

PREFACE

The terrorist attacks on the U.S. had such a compelling effect on the national economy and the national psyche that Congress quickly acted to restore balance and calm to the economy, to safeguard the nation’s infrastructure against future attacks, to reorganize and mobilize the government to prevent future terror attacks, and to give the government new powers and authority, both domestic and foreign, to not only prevent but also actively fight, terror organizations. The 9/11 Commission report had expressly called upon Congress to enact specific legislation to protect the health and welfare of the American public, and its critical infrastructure, by the prevention of future attacks. The resultant laws passed by Congress, together with delegations of authority to federal agency for extensive rulemaking, have created an entire new body of law, but thus far, one that is not studied as a separate discipline of law. While there has been a significant increase in the number of new laws, both state and federal, as a direct result of the attacks of 9/11, there has been little organized academic study of these laws. Prior to 9/11, the study of academic fields that would eventually comprise the field of homeland security was largely handled by criminal justice or national security studies. This journal, and the Homeland and National Security LL.M. program at Thomas M. Cooley Law School, is intended to assist with the creation of a distinct field of study in Homeland Security Law. In less than a decade, Homeland Security has become a distinctly-recognized profession, and over 400 colleges and universities now offer an associate’s, bachelor’s, or master’s degree or a certificate in Homeland Security or a related field.

Attorneys now realize that the laws passed by Congress in the 9/11 aftermath will continue to affect the American legal system for the next several decades. Just as terror attacks were found to have cascading, tertiary effects on sectors of infrastructure not expressly targeted by the terrorists, so, too, legislation passed in response to those attacks has affected areas of business and business clients in unanticipated ways. Consider also how the Congress has aggregated enforcement and regulatory functions in a single, new agency. One purpose in creating The Department of Homeland Security was to assure the prevention of further terror attacks upon industries, services, commercial operations, aggregations of its citizenry, and government and public facilities. The thousands of separate governmental decisions or actions that collectively comprise our governmental response to terror related issues will all affect the businesses and individuals in the U.S. Attorneys then must understand the interrelationships of the laws of homeland security, and to do so, must study and practice those laws collectively. Recognition of a separate body of law facilitates the growth and exploration of that area of law. It provides a forum for discussion of legal issues unique to that area; provides opportunities for legal education and discussion; improves the practice and ethical standards of legal services in the field; provides a forum for discussion of needed legislative change or judicial change through drafting amicus briefs on important issues; and thereby fosters and enhances the skills of lawyers practicing in this area, and thus, provides assurance to the public that the attorneys have special skills or training in this important area. Nor is the Homeland Security enterprise in the United States likely to diminish. It can be argued that the U.S. was attacked at least four times in 2009-2010 by agents of Al Qaeda: the November 5, 2009 Fort Hood shooting, the June 1, 2009 Little Rock recruiting center shooting, the 2009 Christmas Day attack on Delta flight 253 (which ended at Detroit Metropolitan Airport), and the October 30, 2010 discovery of bombs placed on two U.S.-bound cargo planes. Further, two of those attacks were by Al Qaeda agents who became radicalized, at least in part, through social networking and other Internet-facilitated means and one of the outcomes of the April 15, 2013 Boston bombing was a crowd-sourced terror investigation, resulting in the counter-terrorism efforts of local, state, and federal governments expanding into domains in which

the executive branch of the government continuously increases its reach while the Congress has repeatedly failed to enact omnibus legislation. There are, as well, multiple purposes for this Law Review. They range from the inspirational, to directly contribute to the creation and recognition of a new discipline of homeland security law, to the pragmatic, to assure that students in the Thomas M. Cooley Homeland Security LL.M. program have a venue to publish the results of their academic efforts. As discussed above, the first objective is to assist in the creation of the discipline of homeland security law. The Homeland and National Security Law Review will provide a means to encourage, foster, and disseminate the ever-evolving body of knowledge amassed by students, faculty, scholars, associated professionals, and staff in the emerging field of homeland and national security law. This journal will include, and encourages submission of, not just traditional law review articles, but essays by subject matter experts as well. Where necessary, we will encourage creativity over orthodoxy, to foster debate on key issues. This principle is exemplified by the essay by Dr. Amitai Etzioni applying the liberal communitarian approach to the balance between privacy and security. The journal will also focus, whenever possible, on the practical application of the law, whether by consideration of operational principles arising in its application or in consideration of the juxtaposition of the law and policy of homeland security. The second objective is to recognize the interrelationship between national and homeland security law. There is a well-defined body of law of national security, with clear and widely accepted principles based on an accessible historical and juridical background in support. With the attacks of 9/11 as a catalyst, “[w]ithin the legal academy, national security law [went] mainstream.”1 Homeland security law, however, had its genesis, not its maturation, on 9/11. As a result, homeland security law is often defined as a subset of national security law, or defined by exclusion, by comparison to national security law. Recognition of the homeland security as a separate discipline can only benefit from continued academic debate. Thus this journal will focus on those areas that are generally accepted as encompassing homeland

1 A. John Radsan, Afterword, J. OF NAT’L SEC. F., 37 WM. MITCHELL L. REV., 5362 (2011).

security law, 2 but will also include emphasis on national security law. The third objective is to provide encouragement for student research and writing by offering a forum for those articles that meet our objectives and standards. Independent and supervised research is a primary method to develop and guide future leaders committed to advancing the study and practice of homeland and national security law through knowledge, skills, and ethics. Finally, since we are a nation of laws, we have sought and will continue to seek legislative and regulatory solutions to these problems. Those efforts require a means to raise and address those issues and attorneys, both scholars and practitioners, to engage in this emerging area. This journal is an additional forum to sponsor and further this debate. BG (ret.) Michael C.H. McDaniel Co-Founder

2 Recognizing that there is some overlap in these fields, the HNSLR focus will be on critical infrastructure security, resiliency and risk management, aviation and transportation security, anti-terrorism, intelligence and privacy, information security and cyber security, immigration, maritime law, constitutional issues and civil rights impacted by governmental enforcement, and issues of administrative and contract law arising from the homeland security enterprise.


LAW REVIEW


TABLE OF CONTENTS

ARTICLES

1 COMBATANT IMMUNITY IN NON- INTERNATIONAL ARMED CONFLICTS PAST AND FUTURE Rymn J. Parsons 55 LIBERAL COMMUNITARIAN APPROACH TO PRIVACY AND SECURITY Amitai Etzioni 81 MATTER OF T-, THE NINTH CIRCUIT, AND ‘DEPARTURE’ FROM THE UNITED STATES Justin Burrows 95 THE CANBERRA PROCESS Peter Arthur Mommer

1

COMBATANT IMMUNITY IN NON-INTERNATIONAL ARMED CONFLICT, PAST AND FUTURE

Rymn J. Parsons*

I. INTRODUCTION

Asserting in the first sentence of an article on international humanitarian law that combatant immunity applies in non-international armed conflict (NIAC) is likely to cause a good many legal scholars to stop reading, right then and there, in utter disbelief. But combatant immunity does apply in NIAC, or at least it did, in some circumstances. Examples go back over several centuries. And what’s past, as Antonio recounts in The Tempest, is prologue.1

* Captain, Judge Advocate General’s Corps, U.S. Navy; Deputy Force Judge Advocate, Navy Reserve Forces Command (2012-present) and District Counsel, U.S. Army Corps of Engineers, Vicksburg District, Vicksburg, MS (2012-present). The views expressed in this article are the author’s, and do not necessarily reflect the official policy or position of the Navy Reserve Forces Command, the Department of the Navy, the U.S. Army Corps of Engineers, the Department of the Army, the Department of Defense, or the U.S. Government. The author gratefully acknowledges the mentorship of retired Canadian Armed Forces Brigadier General Ken Watkin, a former Charles H. Stockton Professor of International Law at the U.S. Naval War College (2011-2012). Most especially, the author acknowledges the untiring devotion of his wife, Joan Elizabeth. 1 WILLIAM SHAKESPEARE, THE TEMPEST act 2, sc. 1.

2 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014]

This article is about combatant immunity in NIAC, past and future.2 By looking at how and when combatant immunity was applied in NIAC, and when and why the practice ceased, we may begin to assess whether there is room—or need—for it again. But the future will not necessarily mirror the past. Armed conflict and international law in the 21st Century are not what they were in prior centuries, and, therefore, the circumstances in which, and the legal basis on which, combatant immunity may be applied in future NIAC—the how and the why—are likely to be different. Indeed, though combatant immunity in NIAC may seem like a crumbled relic of customary international law unsuitable for modern times, there are good reasons to re-examine it. In June 2011, military and civilian legal advisors, renowned international scholars, and others gathered at the U.S. Naval War College in Newport, Rhode Island, for the conference Non-International Armed Conflict in the Twenty-first Century.3 In July 2012, papers produced by conference panelists were published in Volume 88 of the Naval War College International Law Studies series, the highly regarded “Blue Book.” The papers addressed a variety of topics on NIAC including conflict types and the law pertaining to them; the legal status of actors; and means and methods of warfare, detention, and enforcement.

Combatant immunity, however, was little mentioned—outside of repeated references to the proposition that it does not

2 As to what constitutes non-international armed conflict (NIAC), see e.g., INTERNATIONAL INSTITUTE OF HUMANITARIAN LAW, THE MANUAL ON THE LAW OF NON-INTERNATIONAL ARMED CONFLICT WITH COMMENTARY 2-4 (2006) [hereinafter MANUAL ON THE LAW OF NON-INTERNATIONAL ARMED CONFLICT]. The San Remo Manual does not address the issue of combatant immunity or prisoner of war status in internal conflicts. Regarding detained persons generally, section 3.6 states that “[a]ny person interned or detained for reasons related to the hostilities must be treated humanely,” an obligation presumably applicable to state forces and to non-state forces. Id. at 50. 3 Then Stockton Professor Ken Watkin delivered opening remarks entitled, “‘Small Wars’: The Legal Challenges.” Kenneth Watkin, “Small Wars”: The Legal Challenges, in NON-INTERNATIONAL ARMED CONFLICT IN THE TWENTY-FIRST CENTURY 3-12 (Kenneth Watkin & Andrew J. Norris eds., 2012) (Vol. 88, US Naval War College International Law Studies). “One decade into the twenty-first century many countries are still engaged in ‘small wars,’ both long- and short-term, and the requirement to resolve these issues [of what law applies in NIAC] remains more important than ever.” Id. at 6.

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 3 apply in NIAC—until the last concluding paper by Yoram Dinstein, Professor Emeritus, Tel Aviv University.4 Professor Dinstein touched briefly on the notion that the whole jus in bello (and thus combatant immunity) comes into play in NIAC when a state of belligerency is recognized.5 In doing so, he harkened back to tenets of customary international law that are now mostly forgotten.6 Although they have fallen into disuse, as Dinstein suggested, the rules on recognition of belligerency remain relevant.7 And they are still useful.

The purpose of this Article is to re-examine recognition of

belligerency in NIAC and, by looking at civil wars in the 19th and 20th Centuries, come to a better understanding of why recognition of belligerency fell into disuse and why the practice is unlikely to be revived. But even if a revival of recognition of belligerency is impractical or unlikely, there is a legal process that is functionally, albeit unintentionally, equivalent: authorization of collective military intervention by the United Nations Security Council. Issued only when a threat to international peace and security has been found to exist, a United Nations Security Council resolution authorizing intervention in a NIAC attests, in practice, to the existence of hostilities that have reached levels of intensity, duration, and internationalization that historically were considered sufficient to bring the whole jus in bello into play.8

This Article begins by looking at the general rule that

combatant immunity is not afforded to non-State forces in NIAC.9

4 Yoram Dinstein, Concluding Remarks on Non-International Armed Conflicts, in NON-INTERNATIONAL ARMED CONFLICT IN THE TWENTY-FIRST CENTURY, supra note 3, at 399-421. 5 Id. at 408. 6 See discussion infra pp. 12-29. 7 Dinstein, supra note 4, at 409. 8 See discussion infra pp. 41-51. 9 See, e.g., ANTHONY CULLEN, THE CONCEPT OF NON-INTERNATIONAL ARMED CONFLICT IN INTERNATIONAL HUMANITARIAN LAW 21 (2010). See discussion infra pp. 12-16. There is no shortage of terms used to describe those fighting against a government: rebels, insurgents, dissidents, organized armed groups, fighters, and civilians directly participating in hostilities, to name the most common. The term “non-State forces” will be used in this article not only to distinguish them from forces of a State (and external forces fighting on behalf of the State), but also to suggest the possibility that such forces, having achieved high levels of organization, potency, and effectiveness, may approach, achieve,

4 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] The Article will then examine the thesis that customary international law permits combatant immunity and prisoner of war (POW) status to be conferred in high-intensity, long-duration, internationalized NIAC in which belligerency is recognized.10

The next section, “An Historical Perspective,” will look at

how combatant immunity and POW status were sometimes applied in NIAC. Analyses of The American Civil War and the Spanish Civil War will show how recognition of belligerency reached a

or exceed parity with State forces, as occurred in a number of civil wars in which belligerency was or could have been recognized. 10 “[H]igh-intensity, long-duration” is intended to convey something equivalent to or greater than “sustained and concerted military operations.” Article 1(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609, reprinted in DOCUMENTS ON THE LAWS OF WAR 481, 483 (Adam Roberts & Richard Guelff eds., 3d ed. 2000) [hereinafter DOCUMENTS ON THE LAWS OF WAR]. What internationalizes NIAC is an equally important consideration. It may occur by commission (intervention) and by omission (forbearance as a neutral). Perhaps the most common way non-international armed conflict is internationalized is by participation of a foreign power or powers on behalf of a State. Hans-Peter Gasser remarked that intervention “gives rise to great difficulties in determining what law is applicable.” Hans-Peter Gasser, Internationalized Non-International Armed Conflicts: Case Studies of Afghanistan, Kampuchea, and Lebanon, 33 AM. U. L. REV. 145, 147 (1983). “The traditional answer,” he wrote, “which makes the situation subject to the rules of non-international armed conflict, clashes with the undeniably international character of this type of relationship.” Id. NIAC is internationalized in many ways, including: non-State forces in State A engage in armed conflict with the forces of State A on behalf of State B (e.g., Viet Cong v. South Vietnam); and the forces of State A, with the consent of State B, engage in armed conflict with non-State forces in State B. The internationalization of NIAC may convert it to international armed conflict (IAC) (which would occur in armed conflict in State B between non-State forces and the forces of State A if State B withdraws its consent to the presence of State A forces) or may create parallel conflicts (IAC and NIAC), which occurred in Bosnia (Bosnia v. Bosnian Serbs (NIAC) and Bosnia v. Serbia (IAC)) and in Lebanon (Israel v. Hezbollah (NIAC) and Israel v. Lebanon (IAC)). See, e.g., Marko Milanovic, What Exactly Internationalizes an Internal Armed Conflict?, BLOG OF THE EUR. J. OF INT’L L. (May 7, 2010), http://www.ejiltalk.org/what-exactly-internationalizes-an-internal-armed-conflict/. See also Gasser, supra at 147. In the Tadić Appeal Judgement, the International Criminal Tribunal for the Former Yugoslavia put it this way: “[A]n internal armed conflict . . . may become international . . . if . . . some of the participants in the internal armed conflict act on behalf of that other state.” Prosecutor v. Tadić, T-94-1-A, Judgement, July 15, 1999, para. 84.

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 5 zenith and then retreated. 11 Similar analysis of the Vietnam War will show how difficult it is to resolve issues of combatant immunity and POW status when foreign forces intervene, especially in conflicts whose legal basis is disputed. Collectively, these cases illustrate, affirmatively, in one case, and obversely, in two others, that recognition of belligerency served a useful purpose and that it—or something similar—could still be useful.

The following section, “Non-International Armed Conflict and Recognition of Belligerency in the 21st Century,” considers NIAC in a post-9/11 context. The prominence of such conflicts in the 21st Century will be noted. Next, the Article will examine whether Geneva law affects recognition of belligerency, and the Article will finish by identifying trends pertaining to the application of international humanitarian law (IHL) to NIAC.

Finally, “A New Approach” will look at whether, under a

UN Security Council resolution, authorization of collective military intervention in a NIAC, has—or could have—an effect on the applicability of jus in bello similar to recognition of belligerency. Impediments will also be considered.

II. COMBATANT IMMUNITY AND PRISONER OF WAR STATUS

International armed conflict (IAC) is armed conflict between two States.12 NIAC is defined mostly by what it is not—something other than IAC.13 Combatant immunity is a legal rule

11 Recognition of belligerency and recognition of insurgency have been all but forgotten. Rosemary Abi-Saab, Humanitarian Law and Internal Conflicts: The Evolution of Legal Concern, in HUMANITARIAN LAW OF ARMED CONFLICT: CHALLENGES AHEAD: ESSAYS IN HONOUR OF FRITS KALSHOVEN 211 (Astrid Delisen & George Tanja eds. 1991). 12 Article Two is common to all four Geneva Conventions of Aug. 12, 1949. N.B. In the 2006 Targeted Killing case, the Israeli Supreme Court accepted that IAC may also involve non-State forces, e.g., a terrorist group. Pub. Comm. Against Torture in HCJ 769/02 Israel v. Gov’t of Israel [2006], available at http://elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf. 13 See discussion infra pp. 10-12.

6 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] that insulates certain participants in armed conflict from prosecution because of that participation.14

As the law is now interpreted, only some participants in armed conflict are immunized: combatants, that is, lawful combatants who, upon capture, are entitled to POW status.15 Combatant immunity and POW status were developed, in large part, to incentivize restraint and to encourage compliance with humanitarian protections, especially in regard to civilians—considerations that are no less relevant to NIAC than they are to IAC.16 In general, IHL is interpreted to hold that combatant immunity is not available to non-State forces in NIAC because non-State forces are not lawful combatants.17 Thus, warlike acts performed by non-State forces, even if compliant with IHL, may constitute crimes under domestic law.18

14 See, e.g., Geoffrey Corn, Thinking the Unthinkable: Has the Time Come to Offer Combatant Immunity to Non-State Actors?, 22 STAN. L. & POL’Y REV. 253, 256 (2011). 15 Combatant immunity may be claimed only by lawful combatants. See Article 43, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 10 [hereinafter Additional Protocol (AP) I]. 16 Corn, supra note 14, at 256. As will be noted later, denying such incentives and encouragement to non-State forces in NIAC not only defeats the desired humanitarian purposes, but may actually produce the opposite effect. See discussion infra pp. 32-37. 17 See, e.g., Waldemar A. Solf, The Status of Combatants in Non-International Armed Conflicts under Domestic Law and Transnational Practice, 33 AM. U. L. REV. 53, 54-55 (1983) (“[T]he rules applicable in internal armed conflict omit any reference to the combatants’ privilege and entitlement to prisoner of war status.”). Professor Solf was among those who describe the special status of combatants as a privilege, not an immunity. The lack of citation in the preceding parenthetical quotation suggests the idea that, at least to Professor Solf, the proposition was sufficiently clear and incontrovertible as to require no support. See EMILY CRAWFORD, THE TREATMENT OF COMBATANTS AND INSURGENTS UNDER THE LAW OF ARMED CONFLICT 3, 47 (2010). 18 Marco Sassòli & Laura Olson, The Relationship Between International Humanitarian and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts, 90 INT’L REV. RED CROSS 599, 616 (2008); John P. Cerone, Status of Detainees in Non-International Armed Conflict, and Their Protection in the Course of Criminal Proceedings: The Case of Hamdan v. Rumsfeld, AM. SOC’Y OF INT’L L. 2 (July 14, 2006), http://www.asil.org/ insights060714.cfm. Cerone observes that “non-state combatants in a non-international armed conflict may be prosecuted for all hostile acts, including violation of ordinary domestic law, irrespective of whether they have violated any norms of international law. In addition, they

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 7 Non-State forces are, therefore, sometimes referred to as unlawful combatants: “By definition any person who participates in an internal armed conflict who is not a member of the State’s armed forces is an ‘unlawful combatant’—that is, a person who is not immunized of their warlike acts.”19 And it is that very appellation—unlawful combatant—that suggests that immunity from punishment is inapt to the circumstances under which internal armed conflict occurs, if not also repugnant to the sovereignty of nations and to the exclusivity of the right to use armed force that States enjoy.20 But not all NIACs are or were the same, and it should not be presumed that all future NIACs will be the same as, or substantially similar to, those that have recently taken place or that are now occurring.21 POW status is likewise a by-product of lawful belligerency (viz., a result of being a lawful combatant).22 The concept, as it is generally understood today, is a fairly recent development in jus in bello, and traces its origins to Article 1 of the Regulations Respecting the Laws and Customs of War on Land Annexed to the

cannot be entitled to prisoner of war status, since such status does not exist in the law of international armed conflict.” The legal status of and detention obligations concerning State forces (and external forces fighting for the State) in the hands of non-State forces is of at least equal importance. The MANUAL ON THE LAW OF NON-INTERNATIONAL ARMED CONFLICT in section 3.6 does not distinguish State forces from non-State forces. MANUAL ON THE LAW OF NON-INTERNATIONAL ARMED CONFLICT, supra note 2. 19 CRAWFORD, supra note 17, at 68. “Combatant status and the attendant POW rights are categorically denied to non-State participants in non-international armed conflicts.” Id. at 69. 20 The underlying theory is that no State would willingly legitimize forces seeking to overthrow it or to form a breakaway State. CRAWFORD, supra note 17, at 73. Referring back to the terms in which non-State forces are described, it is much easier to imagine why insurgents branded as al-Qaeda and Taliban terrorists would be less deserving of combatant immunity than, for example, soldiers in Lee’s Army of Northern Virginia in the American Civil War. 21 See discussion infra pp. 29-54. 22 CRAWFORD, supra note 17, at 50, 53; see John C. Dehn, The Hamdan Case and the Application of a Municipal Offence, 7 J. INT’L CRIM. JUST. 63, 75 (2009). Some commentators say that there are four criteria for lawful combatancy in the Convention Relative to the Treatment of Prisoners of War of 12 August 1949; others say six. Compare KENNETH WATKIN, WARRIORS WITHOUT RIGHTS? COMBATANTS, UNPRIVILEGED BELLIGERENTS, AND THE STRUGGLE OVER LEGITIMACY 43 (Harv. Humanitarian Pol’y & Conflict Res. Occasional Papers Series No. 2, 2005) with Corn, supra note 14, at 254.

8 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] Hague Convention of 1899.23 As reflected by the view of the International Committee of the Red Cross (ICRC), combatant immunity and POW status go hand-in-hand, each being dependent upon and inseparable from the other.24 Upon capture by State forces, non-State forces, being unlawful combatants, are not accorded POW status.25 Rather, non-State forces, whose members are subject to prosecution by the State,26 may be detained pending adjudication and also, some submit, for reasons of preventative security.27 Unlawful combatants are perceived to be undeserving of the superior protections POW status confers.28 One view, however, is that those protections are not necessarily superior.29

23 Corn, supra note 14, at 258; Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2227, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 10, at 73. 24 Corn, supra note 14, at 261; see Geoffrey Corn & Chris Jenks, Two Sides of the Combatant Coin: Untangling Direct Participation in Hostilities from Belligerent Status in Non-International Armed Conflict, 33 U. PA. J. INT’L L. 313, 320 (2011). Whether the synonymy of combatant immunity and POW status is equally true in NIAC may be somewhat less certain. 25 See Derek Jinks, The Declining Significance of POW Status, 45 HARV. INT’L L.J. 367, 376 (2004). 26 See, e.g., Yair M. Lootsteen, The Concept of Belligerency in International Law, 166 MIL. L. REV. 109, 125 (2000). The burdens associated with prosecuting very large numbers of insurgents in domestic courts should not be underestimated, historically or prospectively. Jinks, supra note 25, at 434-35. Modern international judicial standards may make the undertaking even more difficult. 27 Sassòli & Olson, supra note 18, at 616, 618, 621. Customary international humanitarian law (IHL) bars arbitrary deprivation of liberty in NIAC and IAC; however, the law applicable to NIAC “is silent on the procedural regulation of internment.” 28 See, e.g., Max D. Maxwell & Sean M. Watts, ‘Unlawful Enemy Combatant’: Status, Theory of Culpability, or Neither?, 5 J. INT’L CRIM. L. 19 (2007). Status, such as an unlawful combatant, does not in and of itself equate with legal culpability. Status pertains solely to the determination of what legal regime applies (international humanitarian law (IHL) or domestic law). 29 Jinks, supra note 25. A related and somewhat contrasting view is that there are no clear rules to guide detention in NIAC, which could suggest that POW status is superior. See also John Bellinger & Vijay Padmanabhan, Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law, 105 AM. J. INT’L L. 201, 204 (2011). Keep in mind, however, the impracticability of prosecuting very large numbers of non-State forces: “If criminal prosecution were legally required for detention of

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 9 In 2004, University of Texas Law School Professor Derek Jinks, the Naval War College Stockton Professor from 2009 to 2010, argued that the standards of treatment for non-State detainees in NIAC are not much different from those accorded to lawful combatants in IAC. He concluded that “[t]he text, structure, and history of the Geneva Conventions strongly support two conclusions: (1) Geneva law protects unlawful combatants; and (2) this protection very closely approximates that accorded POWs.”30 Conversely, he suggested, denial of POW status means little by way of difference to the detainee and affords little advantage to the detaining State.31 Combatant immunity is the unique aspect of POW status that distinguishes POWs in IAC from detainees in NIAC, but this fact alone (that combatant immunity is bestowed in IAC only) may not be a sound basis to grant POW status in IAC and deny it in NIAC.32 Were combatant immunity conferred on non-State forces for warlike acts that are lawful under IHL, ample room would still exist to prosecute these forces for unlawful acts. Jinks points out the following:

[A]cts of terrorism in the context of armed conflict are always war crimes, as are all attacks directed against the civilian population as such. In addition, violations of the rule of distinction are also war crimes, as are acts of perfidy. The point is that there are no protective consequences associated with

non-State actors, numerous practical difficulties would ensue.” Matthew C. Waxman, Administrative Detention of Terrorists: Why Detain and When?, 3 NAT’L SECURITY L. & POL’Y 1, 11 (2009) (summarizing arguments against using criminal law in conflicts with terrorists). As previously noted, in high-intensity, long-duration, internationalized NIAC, in which belligerency is recognized, the entire jus in bello comes into play, and POW status can be accorded, whether it is superior or substantially similar to the protection afforded non-State forces detained in other NIACs. The point to be underscored here is that while POW status in IAC and detention of non-State forces in NIAC are legally distinguishable, the distinction is one whose difference, is diminishing, causing POW status to be a less useful differentiating factor between State forces captured in IAC and non-State forces captured in NIAC. 30 Jinks, supra note 25, at 375. 31 Id. at 368, 375. 32 Id. at 422.


POW status for persons who have engaged in terrorism, attacked civilians, or committed warlike acts without adequately distinguishing themselves from civilians.33

If the bases for detaining POWs in IAC and unlawful combatants in NIAC are not appreciably different, it could be argued that, in NIAC, non-State forces, at least in certain cases, should receive POW status and, correspondingly, combatant immunity. In high-intensity, long-duration, internationalized NIACs, State forces and non-State forces may attain a high degree of similarity.34 Indeed, non-State forces, in terms of wearing uniforms and conducting military operations, could equal or possibly even exceed State forces in comporting themselves in the manner of lawful combatants. In situations in which the contending forces more nearly and intentionally conducted themselves as militaries of warring States, it would seem logical that POW status and combatant immunity should be given to both State and non-State forces. As discussed in the next section, non-State forces were given POW status and combatant immunity in certain NIACs—internal conflicts described as “classical” civil wars.35

The question of whether combatant immunity and POW status apply in NIAC is not a trivial one for several reasons, not the least of these is the legal mischief—and human misery—that may arise when a State attempts to define away the existence of a high-intensity, long-duration internal conflict, or even the existence of any armed conflict, as the Soviets purported to do in Afghanistan in the late 1970s and early 1980s.36 And further, when States

33 Id. at 437 (internal citation omitted). Such would be prosecutable, as to non-State forces, both under IHL and domestic law. 34 The fact that in many recent and ongoing NIACs, State and non-State forces have been quite dissimilar is in itself sufficient explanation for why detention distinctions (IAC v. NIAC) continue to be urged, despite the points Jinks makes. 35 See discussion infra pp. 10-24. In civil wars of the 17th, 18th, and 19th Centuries, the primary internationalizing component was the division of the State in two, with the rebelling forces pronouncing themselves to be a new State or the rightful State, or otherwise acting like a State. Another internationalizing component was the forbearance of third-party States (on grounds of neutrality, a legal stance having significant strategic consequences, especially in the maritime domain). 36 Gasser, supra note 10, at 149 (The less well regulated an armed conflict is, the more destructive it likely will be.).

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 11 attempt to deal with non-State forces solely under domestic law, experience shows it may worsen rather than improve respect for humanitarian considerations, a consequence that is no more desirable in NIAC than it is in IAC.37

All of this notwithstanding, it is evident still that combatant immunity and POW status, though integral to jus in bello in IAC, are not integral in NIAC. But this was not exclusively the case. In NIACs that were of high intensity, long duration, and had international character or consequences (i.e, in cases where NIAC resembled war waged by the armies; navies; and later, the air forces of two States) the contestants sometimes acted, and third-party States sometimes reacted, as if they were obliged (or at least compelled by circumstance) to bestow POW status and, concomitantly, combatant immunity on non-State forces.38 Non-State forces in NIAC were sometimes treated as POWs, as limited as that protection was before the 1929 and 1949 Geneva Conventions.39 The basis for doing so was recognition of belligerency.40 Recognition of belligerency acknowledged the existence of conditions equating NIAC with general war in IAC.41 It also may have reflected that domestic law, for practical reasons, was no longer suitable as the primary legal regime for regulating the conflict, affording humanitarian protections, or addressing

37 See, e.g., Corn, supra note 14, at 292. 38 LINDSAY MOIR, THE LAW OF INTERNAL ARMED CONFLICT 273 (2002) (The duration of an NIAC may have been the factor most influential in motivating States to accept greater legal regulation of internal conflicts). CULLEN, supra note 9, at 17. The magnitude of a conflict, especially its impact on vital interests of powerful third-party States, may have been most influential in motivating States to recognize belligerency. 39 Alex Peterson, Order Out of Chaos: Domestic Enforcement of the Law of Internal Armed Conflict, 171 MIL. L. REV. 1 (2002). 40 James B. Wager, Jr., Toward the Attenuation of Hardship: Is There Room for Combatant Immunity in Internal Armed Conflict 40 (Aug. 8, 2008) (unpublished LL.M. thesis), available at http://www.dtic.mil/dtic/tr/fulltext/u2/a381222.pdf (last visited March 25, 2013) (citing PIERINO BELLI, A TREATISE ON MILITARY MATTERS AND WARFARE at 62 (H. Nutting trans. 1563), reprinted in 18 THE CLASSICS OF INTERNATIONAL LAW 1 (J. Scott ed. 1950)). It would be difficult to say when soldiers, captured in NIAC, were first accorded treatment akin to POW status. Combatant immunity is pre-Westphalian; it dates back to at least 1563. 41 See discussion infra pp. 12-29.

12 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] accountability. The practice of bestowing combatant immunity in NIACs categorized as civil wars appears to have resulted from exigency and necessity, rather than legal compulsion per se, encouraged to some extent by humanitarian considerations and equally, or more so, by a desire for reciprocity. The heyday of recognition of belligerency was the 19th Century. It waned in the 20th Century, and, by the time of World War II, it had all but disappeared. III. AN HISTORICAL PERSPECTIVE

This section will look at how combatant immunity and POW status were sometimes applied in NIAC. Two examples, the American Civil War and the Spanish Civil War, will be used to illustrate recognition of belligerency before World War II, as its zenith and its denouement, respectively. A third example, the Vietnam War, will show how legally complex NIACs have become in the post-World War II period, perhaps due most importantly to the intervention of external forces. Historically, during high-intensity, long-duration NIACs, the contesting parties sometimes regarded each other’s forces as lawful combatants, as in IAC.42 Acceptance of the notion that a state of belligerency could exist in civil wars was already established by the English Civil Wars (1642-1651).43 There is evidence that in these wars, military prisoners on both sides were

42 Recognition of belligerency resulted in non-State forces being equated to lawful combatants for purposes of combatant immunity and POW status, largely in the same manner and to the same extent as State forces. 43 See, e.g., Rogier Bartels, Timelines, Borderlines and Conflicts: The Historical Evolution of the Legal Divide Between International and Non-International Armed Conflicts, 91 INT’L REV. RED CROSS 35, 48-52 (2009). Recall the differences among rebellion, insurgency, and belligerency. Belligerency connotes a level of violence that warrants both sides being treated as entities at war possessing belligerent rights as in IAC. Lootsteen, supra note 26, at 113-15; MOIR, supra note 38, at 4. An important consideration to bear in mind is the degree of legal anarchy that results as armed conflict intensifies, which eventually causes domestic law, while still applicable in theory, to be absent in practice. Into this vacuum, international law should, and has, been poured. See Richard R. Baxter, So-Called ‘Unprivileged Belligerency’: Spies, Guerrillas, and Saboteurs, 28 BRIT. Y.B. INT’L L. 323 (1951).

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 13 held without civil or military trial (other than for war crimes) and were paroled and exchanged.44

As historian Barbara Donagan described it, a general consensus prevailed that “the laws of war rather than the laws of the civil State were applicable, and Englishmen confronted each other as ‘lawful enemies.’”45 Interestingly, she also noted that the contestants’ views on combatant immunity (or “soldierly immunity,” as she put it) varied but persisted throughout, the temptation to try leading opponents for treason being occasionally irresistible (viz., exacting victor’s justice).46

In civil wars, combatant immunity and POW status were deemed necessary because the scope and scale of the conflict equated to general war.47 Regarding civil war, Emmerich de Vattel wrote the following:

When the nation is divided into two absolutely independent parties, who acknowledge no common superior, the State is broken up and war between the two parties falls, in all respects, in the class of public war between two different Nations. …. The obligation upon the two parties to observe towards each other the customary laws of war is therefore absolute and indispensable, and the same which the natural law imposes upon all Nations in contests between State and State.48

44 See PETER YOUNG & RICHARD HOLMES, THE ENGLISH CIVIL WAR: A MILITARY HISTORY OF THE THREE CIVIL WARS 1642–51 (1974). 45 Barbara Donagan, Atrocity, War Crime, and Treason in the English Civil War, 99 AM. HIST. REV. 1137, 1141 (1994) (citation omitted); see also BARBARA DONAGAN, WAR IN ENGLAND, 1642-49 (2008). 46 Donagan, supra note 45, at 1162-64. 47 See Lootsteen, supra note 26, at 110. Recognition of belligerency in a civil war could be said to presume the existence of a de facto government that is in conflict with a de jure government. CULLEN, supra note 9, at 17; see discussion supra p. 10. 48 Bartels, supra note 43, at 47 (citation omitted). Belligerency would be recognized when an NIAC possessed “the material characteristics of conventional warfare between two sovereign states.” CULLEN, supra note 9, at 15.

14 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] In discussing the evolution of IHL, as it pertains to civil wars, Lindsay Moir observed the following:

Towards the end of the eighteenth century there had been a distinct move toward the application of the laws of warfare to internal as well as international armed conflict, but this was based almost exclusively on the character of the conflicts and the fact that both were often of a similar magnitude, rather than any overriding humanitarian concern to treat the victims of both equally.49

Focusing on the character of the conflict, Oppenheim remarked that IHL would apply in civil war if a condition of belligerency between the contestants was recognized by others.50 Sir Hersch Lauterpacht identified four criteria for recognition of belligerency in civil war:

(1) existence of a state of general war; (2) control and administration by non-State forces of substantial territory; (3) adherence to IHL by non-State forces; and (4) conditions compelling third-party States to do so.51

Citing 19th Century South American, Greek, and U.S. civil wars, other commentators reinforced this view of international law.52

49 MOIR, supra note 38, at 3. 50 Bartels, supra note 43, at 5, 47-48 (Recognition, a discretionary act, could also come from the State. Recognition of belligerency does not equate to political recognition of a government or State.); see CULLEN, supra note 9, at 7 n.2 (regarding additional material on recognition of belligerency). 51 CULLEN, supra note 9, at 19; see also Lindsay Moir, The Historical Development of the Application of Humanitarian Law in Non-International Armed Conflicts to 1949, 47 INT’L & COMP. L.Q. 337, 344 (1998); RICHARD FALK, THE INTERNATIONAL LAW OF CIVIL WAR (1971); Richard Falk, Janus Tormented: The International Law of Internal War, in INTERNATIONAL ASPECTS OF CIVIL STRIFE (James N. Rosenau ed., 1964). It has been argued that the Lauterpacht criteria are objective—that is, that their fulfillment rendered recognition of belligerency obligatory. The more common view is that recognition of belligerency was (and is) wholly discretionary. CULLEN, supra note 9, at 21.

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 15 The approach emphasized recognition of belligerency by third-party States. More recently, Yair Lootsteen suggested the following approach to recognition of belligerency:

1. The four belligerency criteria: a) civil war within a state, beyond the scope of mere local unrest. b) occupation by insurgents of a substantial part of the territory of the state. c) a measure of orderly administration by that group in the areas it controls. d) and observance of the rules of the laws of war by the rebel forces, acting under responsible authority. [sic] 2. Tacit or explicit recognition by the de jure government of the insurgents’ belligerency[; and] 3. The armed conflict is not one in which a people are fighting against colonial domination, alien occupation or a racist regime, in the exercise of their right to self-determination.53

This approach emphasizes recognition of belligerency by the State. Both approaches allowed all concerned to recognize—or to refuse to recognize—belligerency as they saw fit, having no legal compulsion to do so and no legal consequence for failing to do so. And, thus, it could be said that belligerency was recognized only by unanimity, a fragile and unwieldy state of affairs.54

52 Abi-Saab, supra note 11, at 210-11; accord Moir, supra note 51. Both the United States and Great Britain recognized belligerency in a number of anti-colonial civil wars in South American starting in 1815. MOIR, supra note 38, at 6-7. 53 Lootsteen, supra note 26, at 134-35. The third criterion excludes NIACs converted by Additional Protocol I into IACs. The second criterion, in contrast with Oppenheim, emphasizes internal over external recognition. If a State recognizes the existence of a condition of belligerency involving non-State forces, that alone may be sufficient as between the two sides to bestow combatant immunity and POW status. As this article suggests, an internal armed conflict is not internationalized until both sides and third-party States recognize the existence of a condition of belligerency. And only when a high-intensity, long-duration NIAC was internationalized did the whole jus in bello become applicable. 54 MOIR, supra note 38, at 18. Recognition was purely discretionary, done mostly on the basis of reciprocity.


And so it was that when war was waged at very high levels of intensity within a State (by large and highly-organized forces on both sides) and produced international consequences, a state of belligerency could be was often recognized—the American Civil War is a prime example. Nonetheless, the practice of giving international recognition to belligerency within a State declined precipitously between the Boer War and the Spanish Civil War, and seems to have lain dormant ever since.55 This may have occurred because the recognition of belligerency triggered the law of neutrality, precluding intervention and creating other conditions and constraints vis-à-vis the exercise of belligerent rights that were unpalatable to third-party States.56

A. The American Civil War

The American Civil War (1861-1865), which was fought by large armies and had a significant naval component, lasted longer than expected and reached an unforeseen level of intensity. Both sides were unready to deal with large numbers of captured enemy soldiers, which they called prisoners of war.57 POW protections, in law or fact, were not then what they are (or purport to be) today; conditions in prison camps on both sides were notoriously deplorable. Union records indicate that some 96,000 or

55 The Boer War may have the distinction of being the last internal conflict in which belligerency was recognized. Id. at 19 n.75. It, too, had a very complex legal character. See, e.g., FRED R. VAN HARTESVELDT, THE BOER WAR: HISTORIOGRAPHY AND ANNOTATED BIBLIOGRAPHY 32 (2000); Frank McDonough, The Boer War: A Struggle for Mastery in South Africa?, 29 HIST. REV. 8 (1996). Van Hartesveldt indicates that the 1899 Hague Convention may not have applied, but was followed. See also Regulations Respecting the Laws and Customs of War on Land, Annex to Hague Convention, No. IV Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2227, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 10, at 69. 56 MOIR, supra note 38, at 7. A declaration of neutrality, as Great Britain issued during the American Civil War, was tantamount to recognition of belligerency. See also CULLEN, supra note 9, at 16-17, Dinstein, supra note 4, at 409. 57 See Bartels, supra note 43, at 53; Lootsteen, supra note 26, at 115. Holding prisoners of war and referring to them as such, by a de jure government, may constitute de facto recognition of belligerency. Dinstein, supra note 4, at 409. The U.S. Supreme Court, in Williams v. Bruffy, referred to “the treatment of captives as prisoners of war” as a “concession made to the Confederate government in its military character.” CULLEN, supra note 9, at 16 (quoting Williams v. Bruffy, 96 U.S. 176, 186-87 (1877)).

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 17 more POWs were confined by the Union Army, and the Union paroled 329,963 prisoners; however, the Confederacy paroled 152,015.58 The American Civil War greatly influenced how IHL was perceived to apply in NIAC.59 It is said to have shaped an American view of the time—that NIAC and IAC should be governed by similar standards—and a European view—that IHL applies in NIAC only when belligerency is recognized.60 One commentator concluded the following:

State practice and opinio juris were fairly uniform in accepting that the laws of war applied only in the case of the insurgents having been recognized as belligerents. Even those writers advocating that humanitarian law should always apply to civil war seem to have tied their idea closely to the status of belligerency.61

Belligerency between the Union and the Confederacy was recognized by France and Great Britain and, arguably, by the Union inter alia by imposition of a naval blockade on the South.62 Perhaps the greatest contribution of the American Civil War to international humanitarian law is the venerable Lieber Code, the Instructions for the Government of Armies of the United

58 See American Civil War Prisoners of War and Prison History, THOMAS’ LEGION: THE 69TH NORTH CAROLINA REGIMENT, http://thomaslegion.net/civil_war_prisoner_of_war_prison_union_confederate_prisoners_and_prisons_.html (last visited March 25, 2013); see also Records of the Union Commissary General of Prisoners, NAT. ARCHIVES, available at http://www.archives.gov/research/guide-fed-records/groups/249.html (last visited March 25, 2013). 59 Lootsteen, supra note 26, at 115 n.30 (discussing the idea that the application of IHL in civil wars did not originate with the American Civil War, but rather pre-dated it). 60 Moir, supra note 51, at 345 & n.36. The European view persisted up to the Spanish Civil War and still survives, in hibernation; the American view never gained ascendance, but endures. 61 Id. at 350. 62 Lootsteen, supra note 26, at 114-15. Recognition of belligerency by third-party States is a strong indication that an internal conflict has international character.

18 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] States in the Field.63 It is more than a little ironic that the first modern compilation of international humanitarian law was assembled expressly for an NIAC.64 Contemporaneous European thought was that the Lieber Code applied only to civil war and that it was an example of how a codification of laws pertaining to IAC could be assembled for NIAC.65 Although the Lieber Code does not define lawful combatants according to 21st Century standards,66 it has articles addressing POW:

The law of nations allows every sovereign government to make war upon another sovereign state, and, therefore, admits of no rules or laws different from those of regular warfare, regarding the treatment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and unjust assailant.67

The apparent nod to the Confederacy in this article expands marginally the notion that POW status was properly bestowed on State forces only.

Further, in the section on insurrection, civil war, and rebellion, the Lieber Code apprehends circumstances in which “humanity induces the adoption of the rules of regular warfare toward rebels.”68 Article 153 states the following:

Treating captured rebels as prisoners of war, exchanging them, concluding of cartels, capitulations, or other warlike agreements with them . . . or doing any other act sanctioned or

63 The Lieber Code, containing some 157 articles, was initially promulgated as Number 100 of the General Orders of the Adjutant General’s Office. The promulgating order of April 24, 1863, states that the instructions were “approved by the President of the United States.” U.S. DEP’T OF WAR, INSTRUCTIONS FOR THE GOVERNMENT OF THE ARMIES OF THE UNITED STATES IN THE FIELD, GENERAL ORDERS NO. 100 (1863) [hereinafter LIEBER CODE]. 64 Bartels, supra note 43, at 53. 65 Abi-Saab, supra note 11, at 210. 66 CRAWFORD, supra note 17, at 49. 67 LIEBER CODE, supra note 63, art. 67 (emphasis added). 68 Id. art. 152; see also Bartels, supra note 43, at 54.

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demanded by the law and usages of public war between sovereign belligerents, neither proves nor establishes an acknowledgement of the rebellious people, or of the government which they may have erected, as a public or sovereign power. Nor does the adoption of the rules of war toward rebels imply an engagement with them extending beyond the limits of these rules.69

In such circumstances, only “the leaders of the rebellion or chief rebels” could be tried for treason, not, apparently, POWs generally.70

The effect of the Lieber Code has been extensively analyzed, but whatever uncertainty there may be as to its accuracy or comprehensiveness as a statement of customary international law, it stands as emblematic of the idea that above a certain threshold of violence, IHL must of necessity apply in NIAC. This includes POW status for forces fielded by a rebel government, with a concomitant combatant immunity pertaining to all but the leaders of the rebellion.71

The American Civil War, in its military character and

international dimensions, demonstrated forcefully why customary international law permitted recognition of belligerency. As seen in the manner in which Union and Confederate forces fought one another—as regular armies and navies—and in the manner that two of the then most powerful European states, Great Britain and France—protecting vital naval and maritime interests—remained neutral, the American Civil War cried out for combatant immunity and POW status. Later, the Spanish Civil War was quite different. Here, too, the naval and maritime interests of third-party States played a significant role, though the result was the opposite.72

69 LIEBER CODE, supra note 63, art. 153. 70 Id. art. 154. 71 See Jinks, supra note 25, at 349 (“This protective logic helps explain why states sometimes choose to accord combatant immunity even in civil wars, as the United States did in the Civil War, and why some inter-governmental forces now assign all captured combatants POW status.”). 72 Moir, supra note 51, at 352-53.


Less than a century after the American Civil War, the Spanish Civil War sounded retreat for the recognition of belligerency. B. The Spanish Civil War The Spanish Civil War (1936-1939) was fought by air, land, and naval forces of the Second Spanish Republic (the Republicans), and was opposed by an even more powerful rebel coalition (the Nationalists) led by General Francisco Franco. Both sides received extensive external support, the greater favoring the Nationalists. Franco’s forces received appreciable and sustained military assistance from Nazi Germany and Fascist Italy, whose combat forces also operated in support of Franco in Spain and in Spanish waters.73 The Republicans received support from the Soviet Union and from international brigades comprised of foreign volunteers.

The conflict, which was won by the Nationalists after a bloody struggle, was a heavily internationalized civil war, presaging later proxy wars of the Cold War period.74 It resulted in a new government—Franco’s dictatorship—coming to power in Spain. Another very important aspect of the conflict was the toll taken on commercial shipping. Some 89 vessels sailing under 13 flags were lost, the vast majority by air attack, but several as a result of action by Nationalist and Republican warships.75 Closely related in importance was the imposition of naval blockades by both the Nationalists and Republicans, an exercise of belligerent

73 NORMAN PADDELFORD, INTERNATIONAL LAW AND DIPLOMACY IN THE SPANISH CIVIL STRIFE 201 (1939) (“From early in 1936, Spanish internal affairs were intimately related to the continental struggle between communism, fascism, and democracy.”). German aid flowed to the Nationalists almost from the beginning. Stephen Tonge, The Spanish Civil War, A WEB OF ENGLISH HISTORY, http://www.historyhome.co.uk/europe/spaincw.htm (last modified Oct. 26, 2013). 74 Tonge, supra note 73. In less than a month, the Nationalists controlled half the territory of Spain and declared a government purporting to assume the powers of state. See id. See also Gasser, supra note 10 (discussing internationalized civil war). 75 See RAFAEL ECHEGARAY, LA MARINA EN LA GUERRA DE ESPAÑA (1936-1939); Robert Whiston, International Naval and Protection Force 1936, WORDPRESS.COM (Feb. 17, 2010), http:// http://rwhiston.wordpress.com/2010/02/17/1/.

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 21 rights considered tantamount to de facto recognition of belligerency.76 Both the Republicans and Nationalists declared that they would comply with IHL and accord POW status to captured forces of the other side.77 That is not to say, however, that these prisoners were necessarily humanely treated.78 America, Great Britain, France, and other nations declined to recognize belligerency, though acutely aware that all-out war was being waged in Spain and on the surrounding seas.79

The international community (or at least a large portion of Europe) committed itself with varying degrees of fidelity to non-intervention.80 Leading powers, such as Britain and France, made a conscious and calculated decision to neither recognize belligerency nor declare neutrality.81 A desire to protect naval and maritime interests and prerogatives were a primary reason.82 Germany and Italy were, thereby, given wide latitude to aid the Nationalists,

76 See Dinstein, supra note 4, at 409-10. British and American statements regarding the blockades expressly declined to recognize belligerency. PADDELFORD, supra note 73, at 11. 77 Bartels, supra note 43, at 54-56. Bartels also chronicled that both the White and Red sides in the Finnish Civil War accorded POW status to captured opponents. Bartels suggests these conflicts as well as the American Civil War indicate the extent to which even the contestants perceived a need for IHL to apply. 78 Compliance with IHL by both sides was suspect. Lootsteen, supra note 26, at 117 n.39. In The Spanish Civil War: Reaction, Revolution and Revenge, Paul Preston recounts that tens of thousands of prisoners were summarily executed. See PAUL PRESTON, THE SPANISH CIVIL WAR: REACTION, REVOLUTION AND REVENGE (2006). 79 Lootsteen, supra note 26, at 115-17. In 1938, Great Britain and France recognized belligerency, but on condition (a condition that was never fulfilled) that all foreign forces be withdrawn. PADDELFORD, supra note 73, at 18; see MOIR, supra note 38, at 20 n.76 (regarding additional material on recognition of belligerency in this war). 80 See, e.g., DICK RICHARDSON & GLYN STONE, DECISIONS AND DIPLOMACY: ESSAYS IN TWENTIETH CENTURY INTERNATIONAL HISTORY 129-43 (1995). 81 PADDELFORD, supra note 73, at 3, 15. A non-intervention pact is not implicit recognition of belligerency. 82 For example, from Great Britain’s perspective, if belligerency were recognized, British merchant ships would be obliged to acquiesce in the exercise of belligerent rights by Nationalist warships, limiting the Royal Navy’s options. See, e.g., SEBASTIAN BALFOUR & PAUL PRESTON, SPAIN AND THE GREAT POWERS IN THE TWENTIETH CENTURY 96-118 (1999).

22 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] sacrificing the overmatched Republicans to avoid greater conflict on the Continent.83

Because third-party States carefully and calculatedly

declined to recognize belligerency under such compelling circumstances, though even Franco called for it, and because the international community did not act as if the contestants’ de facto recognition of belligerency required otherwise, the Spanish Civil War is regarded as the point of time at which the practice was thrown into doubt and disrepute:84

[B]y the time Civil War broke out in Spain in 1936, recognition of belligerency had fallen into such decline that it is difficult to equate the action of any State with the recognition of General Franco’s forces as belligerents despite the proportions of the struggle. Several States (e.g. Germany, Italy and Portugal) recognised Franco’s regime as the de jure government, but it is unclear whether this entailed an implicit recognition of belligerency. The military intervention and aid afforded by those States would certainly have been contrary to the neutrality required by such recognition.85 Belligerency has not been expressly recognized since the

Boer War.86 Neither the Boer War nor the Spanish Civil War,

83 PADDELFORD, supra note 73, at 53. 84 CULLEN, supra note 9, at 22. That belligerency was not recognized by third-party States demonstrates the malleability of the concept and the desire of third-party States to avoid the requirements of neutrality, even when the parties to the conflict clearly recognized belligerency (de facto if not also de jure). General Franco openly asserted that belligerency should have been recognized. Id. at 18. See BALFOUR & PRESTON, supra note 82, at 115 (“The non-intervention policy had essentially become an institutionalized and mutually accepted farce.”). 85 Moir, supra note 51, at 352. 86 See Lootsteen, supra note 26, at 133; discussion supra note 55. Writing that “recognition of belligerency has fallen into disuse,” Sassòli and Olson perceive that not only would it still make sense to resort to it in deserving cases, Common Article 3 actually encourages it. See Sassòli & Olson, supra note 18, at 623; see discussion infra pp. 32-55. Common Article 3 may owe much to the Spanish Civil War. “[T]he international community’s experience of the Spanish Civil War, which was in fact heavily internationalized . . . , contributed to a political willingness to at least superficially regulate some aspects of civil war.” James Stewart, Towards a Single

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 23 however, was the end of high-intensity, long-duration, internationalized civil war. For example, some twenty years after the Spanish Civil War, the Vietnam War, which started with a goal of overthrowing colonial domination, evolved into a long, intense, and highly internationalized civil war.

Unlike in the Spanish Civil War, communist-supported

forces prevailed in Vietnam despite massive intervention by foreign anti-communist forces. The Vietnam War stands out as an example of legal complexity and confusion in interpreting and applying the rules as to when is war IAC, when is it NIAC, and when may it be both or change from one to the other.

C. Vietnam War

The Vietnam War (1957-1975) was a continuation of hostilities predating World War II.87 The Agreement on the Cessation of Hostilities in Viet-Nam of July 20, 1954 (the 1954 Agreement)88 partitioned the country, placing North Vietnam and South Vietnam under the control of the Commander-in-Chief of the People’s Army of Vietnam and the Commander-in-Chief of the French Union Forces in Indochina, respectively, pending an internationally supervised re-unification plebiscite to be conducted in 1956.89 The 1954 Agreement prescribed that separate civil administrations, intended to be provisional only, would

Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict, 85 INT’L REV. RED CROSS 313, 317, 348 (2003) (citation omitted). 87 For a good overview of the history of armed conflict in Vietnam from World War II to 1956, see Daniel Partan, Legal Aspects of the Vietnam Conflict, in THE VIETNAM WAR AND INTERNATIONAL LAW 200-16 (Richard Falk ed., 1968). John Moore, looking farther back, noted that North and South Vietnam were divided from the 16th to the 18th Centuries in fundamentally the same manner as was done in 1954. John Moore, International Law and the United States Role in Vietnam: A Reply, in THE VIETNAM WAR AND INTERNATIONAL LAW, supra, at 401, 415 n.46. Superpower confrontation by proxy was another significant aspect of the conflict, an aspect that contributed to its international character. 88 Agreement on the Cessation of Hostilities in Viet-Nam, July 20, 1954, available at http://avalon.law.yale.edu/20th_century/inch001.asp [hereinafter the 1954 Agreement]. 89 South Vietnam was the successor to France, a colonial ruler, while North Vietnam was the successor to the Viet Minh, an indigenous nationalist insurgency.

24 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] temporarily govern the territories.90 The plebiscite never took place.

South Vietnam later declared itself to be the Republic of Vietnam while North Vietnam declared itself to be the Democratic Republic of Vietnam.91 Fighting resumed, with a coalition of forces from the United States, South Korea, Thailand, Australia, New Zealand, and the Philippines (the “Free World” forces) fighting in support of the South.92 The Soviet Union and China provided military and other aid to the North and to the National Liberation Front (the Viet Cong), a South Vietnamese insurgency.

Vietnam was reunified in 1976, following the military

victory by North Vietnamese and Viet Cong forces. The vanquished South had been left to defend itself as a result of the 1973 Paris Peace Accords.93 The legal character of the Vietnam conflict exacerbated the uncertain status of POWs, leading one author to make the following comment:

Politically, militarily, and in terms of international law, the Vietnam conflict posed problems of deep complexity. The inherent difficulty of attempting to apply traditional principles of international law to such a legally confusing conflict is well illustrated by the issue of prisoners of war.94 The legal character of the Vietnam War—a civil war

possibly combining NIAC (South Vietnam v. Viet Cong) and IAC (South Vietnam v. North Vietnam)—was hotly debated.95 The

90 The 1954 Agreement, supra note 88, art. 14. 91 During the war, neither republic was admitted to the United Nations, though not for lack of trying. South Vietnam’s bid was thwarted only by the Soviet Union’s veto. The Socialist Republic of Vietnam, successor to the Democratic Republic of Vietnam, was admitted to membership in 1977. 92 A “Pentalateral Agreement” among the United States, France, Cambodia, Laos, and Vietnam, signed December 23, 1950, was the legal basis for United States military intervention. Agreement for Mutual Defense Assistance in Indochina, December 23, 1950, reprinted in PRUGH, infra note 94 app. I. 93 Agreement on Ending the War and Restoring Peace in Viet-Nam, January 17, 1973, 24 U.S.T. 4. 94 GEORGE S. PRUGH, LAW AT WAR: VIETNAM 1964-1973 63 (1975). 95 See generally Richard Falk, Introduction, THE VIETNAM WAR AND INTERNATIONAL LAW, supra note 87, at 3 [hereinafter Introduction]. “The parties involved in civil wars

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 25 official American Government view—that the conflict was IAC—was laid out in a 1966 Department of State Legal Advisor memo entitled The Legality of the United States Participation in the Defense of Viet-Nam.96 A 1975 Army legal history further emphasized the factual and legal complexity:

Most difficult for us, however, was to determine applicable international law for much depended upon the legal characterization of the conflict and the American role in it. The traditional tests of internal conflict in contrast to an international conflict were clearly too imprecise in this situation where the country of Vietnam had been divided, purportedly temporarily, by the Geneva Accords of 1954, and both portions of the country claimed sovereignty and had received some supporting recognition. There were aspects of a civil war within South Vietnam and equally valid aspects of invasion by regular troops from North Vietnam; Free World forces were present at the invitation of the government, asserting the sovereignty of South Vietnam. Attacks on these Free World forces were made by "indigenous" Viet Cong and "foreign" North Vietnamese troops; the line between civilian terrorists and the military insurgents was so blurred as to be indistinguishable; and almost all of the traditional measures—uniform, organization, carrying of arms openly—failed to identify the combatants. Clearly we had a lot of loose ends to pick up before we could be certain of the legal

with foreign intervention rarely agree on either the facts or their interpretation.” Gasser, supra note 10, at 145, 157-58. “In practice, internal conflicts with foreign intervention are invariably the subject of fierce controversy of a political nature.” Id. at 157. “In these circumstances any legal categorization is likely to be unsound.” Id. at 157-58. The idea that NIAC and IAC can occur simultaneously (or horizontally) is not novel. See Dinstein, supra note 4, at 414-15. 96 Quincy Wright, Legal Aspects of the Viet-Nam Situation, in THE VIETNAM WAR AND INTERNATIONAL LAW, supra note 87 at 271, 273 n.7, 277. According to Quincy Wright, President Eisenhower stated that had a vote been taken in 1956, a decision to re-unify under the government of North Vietnam would have received 80% popular support. This suggests that most Vietnamese saw Vietnam as one country.


positions we should advocate, and we had few precedents to guide us.97

This analysis suggests that the contestants applied the legal regimes for IAC and NIAC with imprecise seams and troubling gaps.98

Because the United States held that the war was an IAC,99 it adopted the position that POW status was appropriate, even as to the Viet Cong insurgents,100 while North Vietnam continued to assert that the war was NIAC and on that basis denied POW status.101 Fundamental differences over interpreting the 1954 Agreement rendered the discord over the war’s character irresolvable.102

97 PRUGH, supra note 94, at v-vi. In 1965, President Johnson remarked that “the old distinction between civil war and international war has already lost much of its meaning.” Introduction, supra note 87, at 4. 98 As of 1956 and later, the legal status of North Vietnam and South Vietnam, remained unsettled. See, e.g., Eliot Hawkins, An Approach to Issues of International Law Raised by United States Actions in Vietnam, in THE VIETNAM WAR AND INTERNATIONAL LAW, supra note 87, at 163 (suggesting that both South Vietnam and North Vietnam became separate de facto States). Whether South Vietnam was ever a viable State (absent massive U.S. assistance) is open to speculation. Wright, supra note 96, at 279-80. 99 The United States also held that Vietnam was but a single state temporarily divided. Partan, supra note 87, at 216. Cf. John Moore, The Lawfulness of Military Assistance to the Republic of Viet-Nam, in THE VIETNAM WAR AND INTERNATIONAL LAW, supra note 87, at 238 (“[T]here can be no question but that the [Republic of Vietnam] is a separate international entity.”). 100 WATKIN, supra note 22, at 58 (“It is noteworthy that the importance of providing . . . [POW-type] treatment to insurgents was recognized during the Algerian conflict and by the United States armed forces in Vietnam.”) (citation omitted); PRUGH, supra note 94, at 63 (stating that an agency theory was used to link the Viet Cong to the forces of North Vietnam); id. at 67 (stating that South Vietnam remained desirous of prosecuting Viet Cong detainees, but lacked capacity to do so). 101 Id. at 62-64. Whether non-State forces have the capability and capacity to take and hold large numbers of POWs is an important question of fact. An equally important legal question is whether they have to do so, or whether they may, instead, detain them under Common Article 3. North Vietnam’s position raises an interesting issue as to the presumed entitlement to combatant immunity and POW status of the forces of third-party States who intervene in a conflict at the invitation of the de jure State. If intervention by external forces is lawful, then the presumption holds that they are ipso facto lawful combatants. 102 Hawkins, supra note 87, at 186. It is beyond the scope of this paper to resolve the debate any more authoritatively than many others have tried. This Article adopts, for illustrative purposes, the thesis that the Vietnam War was an internationalized NIAC. In the future, it is imagined that conflicts of this


The Vietnam War may be better understood not as IAC, but rather as internationalized NIAC, that is, a civil war fought for control of a country divided by an international agreement. This is despite the fact that 87 nations recognized the sovereignty of the Republic of Vietnam, and 27 nations recognized the sovereignty of the Democratic Republic of Vietnam;103 the fact that the “Free World” forces intervened massively on the South’s behalf; and the fact that the North also received extensive military support from outside sources.The 1954 Agreement resulted from what could now, under the 1977 Additional Protocol I to the 1949 Geneva Conventions, be labeled IAC, a war waged by the Viet Minh, an indigenous insurgency, against French colonial domination.104 But regardless of whether the conflict that preceded the 1954 Agreement was IAC or NIAC, the conflict that arose out of it (the war between North Vietnam and South Vietnam) was more NIAC than IAC, though in some respects it may have outwardly appeared to be the converse. Upon the military defeat of the French-directed colonial government North Vietnam and South Vietnam, were not two separate States, but rather two competing regimes vying for ascendancy over a temporarily divided State under conditions generally satisfying the objective Lauterpacht and Lootsteen criteria for recognition of belligerency.105 As to the fighting between the Viet Cong insurgents and the intervening “Free World” forces, it could be argued that these contestants, by their conduct and by the nature of their military operations, recognized de facto the existence of a state of belligerency between them.106

intensity and duration would arise differently, especially as to foreign intervention, and that the international community would be more likely to recognize such a conflict as an internationalized NIAC, rather than attempt to categorize it as an IAC. 103 PRUGH, supra note 94, at 61. 104 See Hawkins, supra note 87, at 183. 105 See Dinstein, supra note 4, at 414-15 (stating that an NIAC may pit two organized armed groups contending for control of a failed State). 106 Partan, supra note 87, at 220. The test for recognition of belligerency remained largely the same as at the time of the Spanish Civil War.

Oppenheim’s International Law states: The principles governing recognition of belligerency are essentially the same as those relating to the recognition of States and Governments. Certain conditions of fact not stigmatised as unlawful by

28 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] But as noted, the United States and South Vietnam held that the conflict was IAC, in which belligerency is presumed (making recognition unnecessary); North Vietnam considered the conflict to be NIAC and did not recognize a state of belligerency or otherwise apply IHL as in IAC; and no third-party States are known to have explicitly recognized belligerency. The legal vagary and discord attending the Vietnam War spawned a good deal of interest in the internationalization of NIAC,107 leading the ICRC, in 1971, to propose that all IHL be applied to NIACs in which one or more third-party States intervened.108 The ICRC's proposal was never adopted. Such a provision was thought to be unwise because it would encourage insurgents “to seek foreign assistance to enhance their legal status.”109 As it happens, foreign intervention post-Vietnam is a common feature of NIAC, whether it occurs under United Nations auspices or otherwise. It is also true that belligerency has not been recognized.

Collectively, the American Civil War, the Spanish Civil War, and the Vietnam War illustrate by contrast that recognition of

International Law—the Law of Nations does not treat civil war as illegal— create for other states the right and the duty to grant recognition of belligerency. These conditions of fact are: the existence of a civil war accompanied by a state of general hostilities; occupation and a measure of orderly administration of a substantial part of national territory by the insurgents; observance of the rules of warfare on the part of the insurgent forces acting under a responsible authority; the practical necessity for third States to define their attitude to the civil war.

Id. at 221 (stating that one reason for the parties to a NIAC (and even more so for third-party States) not to expressly acknowledge belligerency (or even to dispute the fact) is the non-intervention obligation that would flow from the duties required of neutrals) (citation omitted); see Tom Farer, Intervention in Civil Wars: A Modest Proposal, in THE VIETNAM WAR AND INTERNATIONAL LAW, supra note 87, at 509, 514 (reiterating the duty of neutrals to refrain from intervention); accord Dinstein, supra note 4, at 410-11. 107 Richard Falk, International Law and the United States Role in the Viet Nam War, in THE VIETNAM WAR AND INTERNATIONAL LAW, supra note 87, at 362 (“The central issue [in Vietnam] is whether an externally abetted internal war belongs in either traditional legal category of war—‘civil’ or ‘international.’”). 108 Gasser, supra note 10, at 146-47. 109 Id. at 146.

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 29 belligerency did serve a useful purpose (by bringing the whole jus in bello into play in IAC-like conflicts), while non-recognition of belligerency may have exacerbated undesirable humanitarian conditions and possibly produced unintended strategic consequences.110 In the main, the actions and reactions of the parties to these conflicts, especially third-party States, proceeded from highly pragmatic (dare one say contrived) legal positions.

IV. NON-INTERNATIONAL ARMED CONFLICT AND RECOGNITION

OF BELLIGERENCY IN THE 21ST CENTURY

This section discusses NIAC after 9/11; how, if at all, Geneva law affects recognition of belligerency; and other trends pertaining to the application of IHL to NIAC.

Since World War II, high-intensity, long-duration, internationalized NIACs have been prevalent, and this is likely to continue.111 In the wake of 9/11, NIAC received voluminous attention by legal and national security scholars, policy-makers, and others, who have focused on the current threat posed by terrorist organizations.

The terrorist threat is unquestionably a critically important subject, but NIAC in the 21st Century has been and will continue to be about more than terrorist organizations. NIAC in the 21st Century is also about “small” wars that grow to be quite big.112 In today’s NIAC, foreign forces are often involved, sometimes from

110 It would be very interesting and illuminating, but beyond the scope of this Article, to explore in greater detail why, in each of these cases, belligerency was or was not recognized. The important point is that recognition of belligerency did fall into disuse and because of that fact, perhaps due to a desire to avoid some of the consequences that recognizing belligerency would produce, a useful and sensible practice has been foregone. 111 JACK S. LEVY & WILLIAM R. THOMPSON, CAUSES OF WAR 12 (2010); see also Dinstein, supra note 4, at 416 (“There is no need to belabor the point that NIACs are taking place all over the world with startling frequency and with alarming intensity. NIACs are certainly more common today than IACs, and the trail of devastation that they leave behind is sometimes colossal. Winning domestic peace subsequent to a sanguinary NIAC may take decades.”). 112 Watkin, supra note 3.

30 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] many countries.113 Civilian casualties may be expected to be heavy.114 The duration may be two times or more the length of the World Wars.

The more-than-a-decade-old conflict in Afghanistan is but

one example.115 In very simple terms, it began as IAC involving a U.S.-led coalition under a UN mandate, arrayed against the then Taliban-ruled government of Afghanistan.116 Following the Taliban’s displacement from power in 2002, the conflict transformed into NIAC (the Karzai-headed government of Afghanistan v. the Taliban), with the Taliban fighters changing character from State forces to non-State forces, and, thus, from being lawful combatants to being unlawful combatants, though the circumstances in which the fighting occurred (and in which it continues) may be more similar than different.117

Belligerency has not been recognized, although it could be

argued, as it was in past NIACs, that the nature and extent of the military operations conducted by the UN-sanctioned, NATO-commanded International Security Assistance Force constituted de facto recognition of belligerency.118 Though the end of substantial

113 Stewart, supra note 86, at 316; id. at 334 (indicating that NIAC and IAC can occur simultaneously). 114 See, e.g., Wager, supra note 40, at 9-11. 115 Mississippi-born author Eudora Welty wrote that “[o]ne place understood helps us understand all places better,” available at http://www.goodreads.com/author/quotes/7973.Eudora_Welty. As insightful as this may be, too much should not be made of one example. One of the reasons for taking an historical approach is to remind ourselves that warfare is evolutionary. Recalling Ken Watkin’s opening remarks at the 2011 Naval War College conference, NIACs may be “small” wars, but they may also be large, bloody, long wars. What may work well for the former (small internal conflicts), legally speaking, may not be equally appropriate for the latter (big internal conflicts). See Watkin, supra note 3. 116 See, e.g., Marco Sassòli & Marie-Louise Tougas, International Law Issues Raised by the Transfer of Detainees by Canadian Forces in Afghanistan, 56 MCGILL L. J. 959, 968-70 (2011); Yoram Dinstein, Terrorism and Afghanistan, THE WAR IN AFGHANISTAN: A LEGAL ANALYSIS 43-57 (Michael N. Schmitt ed., 2009) (Vol. 85, US Naval War College International Law Studies). 117 Id. 118 An interesting question is by whom? By NATO? By the UN? By the States whose forces are operating under International Security Assistance Force command? The involvement in armed conflict of bodies like NATO and the UN

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 31 U.S. involvement is in sight, the war in Afghanistan remains a significant conflict whose ultimate duration and outcome may not be certain. Indeed, without massive, continuous international military assistance, the viability of the Karzai regime is open to question, not altogether unlike the case of South Vietnam. The continuing conflict, which is considered by many to be an insurgency and, therefore, not an IAC, could be an existential one for the Afghan State were similarly left to defend itself. A classic civil war may lie in Afghanistan’s future, though it might also be said that one has already been occurring, obscured perhaps by the legal rationale for foreign intervention (viz., contextualization as a campaign in a war against terror) and the trans-boundary elements of the fighting.

Some 50 countries, slightly more than one-quarter of the

193 UN member nations, contributed forces and other support to International Security Assistance Force.119 Without them, it would be hard to imagine how the conflict was, is, or could be within the capability and capacity of the Afghan State to prosecute, or one for which its domestic law (or domestic legal institutions) are best suited, or even competent, to govern the legal status of non-State forces. In circumstances such as these, it is difficult to see why such a heavily internationalized conflict is not right for the application of the entirety of the jus in bello.

The modern trend, then, as illustrated by the conflicts in

Afghanistan and elsewhere, includes high-intensity, long-duration, heavily internationalized NIACs commenced or continued under UN mandate without explicit recognition of belligerency. Such conflicts, however, whether or not they equate to classical civil wars, display characteristics (of nature and of scope) on which the theory and practice of recognizing belligerency was formulated. But, as noted, belligerency is not being recognized––certainly not explicitly. Tacit or de facto recognition may be occurring, but is declaimed or its implications and obligations are simply ignored.

adds another, likely permanent, internationalizing component: a non-State entity lawfully engaged in NIAC as a third-party. 119 See Troop Numbers and Contributions, INT’L SECURITY ASSISTANCE FORCE, http://www.isaf.nato.int/troop-numbers-and-contributions/index.php (last visited July 27, 2013).


On the other hand, the contestants in recent NIACs conducted military operations (as did many of their predecessors in preceding centuries) by means of a vigorous exercise of a variety of belligerent rights. By this measure, it could be said that belligerency was recognized de facto but ignored or overtly maneuvered around. As long as States are free to deny the existence of NIAC or the existence of a state of belligerency between State and non-State forces, and as long as third-party States can do likewise, the so-called “small” wars will remain different in legal contemplation from IAC. Many foreign forces may have intervened and the conflict may have spilled across borders and out onto the seas, but a state of belligerency goes unrecognized, despite the tortuous legal complexities that may arise.120

In the 21st Century, the nature of NIAC continues to evolve.

At present, the international community is focused primarily on NIACs involving transnational terrorist organizations and appears to be, despite progressive enlargement of the applicability of IHL to NIAC, disinclined to grant combatant immunity or POW status to non-State forces of that kind.121 But shadowy, scattered terrorist cells are not the only non-State forces engaged in NIAC. NIACs can be (and frequently have been) more than insurgencies; indeed, they can be larger and more destructive than IACs.122

It is at the threshold at which NIAC transforms from

insurgency into IAC-equivalent belligerency that a different legal regime is needed. But relatively little international law pertains to NIAC.123 Primarily, the humanitarian law that is applied—customary and conventional law applicable to IAC—is applied by analogy.124

120 Consider, for example, the Spanish Civil War, the Vietnam War, and the war in Afghanistan. 121 See, e.g., Corn, supra note 14, at 280. 122 See supra note 111. 123 See, e.g., Sandesh Sivakumaran, Re-envisaging the International Law of Armed Conflict, 22 EUROPEAN J. INT’L L. 219-20 (2011). Sivakumaran notes that prior to Common Article 3, “only internal armed conflicts recognized as reaching the level of belligerency or insurgency were regulated by international law.” 124 Corn, supra note 14, at 255; Sivakumaran, supra note 123, at 220.


Some conventional law was created for NIAC. Common Article 3 to the 1949 Geneva Conventions and Additional Protocol II, Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II), apply to conflicts “not of an international character.”125 But neither of these may apply to high-intensity, long-duration, internationalized NIAC. Also uncertain is whether they would apply in cases in which belligerency is recognized.126

Common Article 3 and Additional Protocol II did not exist

at the time of the American Civil War or at the time of the Spanish Civil War, and Additional Protocol II did not exist at the time of the Vietnam War. Common Article 3 is generally regarded as being reflective of customary law.127 It provides minimum protections to non-State forces such as humane treatment, a prohibition of torture and non-discriminatory treatment, recognition of the right to life, and fair trial guarantees.128 The limited scope of Common Article 3 and its drafting history reflect the then prevailing opinion that IHL does not fully apply to NIAC.129

Fundamentally important to the application of Common Article 3 is the phrase “not of an international character.” Though not defined, the phrase lies at the heart of the question “What is

125 Article Three common to all four Geneva Conventions of Aug. 12, 1949 for Protection of War Victims, Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 10, at 244; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609, reprinted in DOCUMENTS ON THE LAWS OF WAR, supra note 10, at 483 [hereinafter Additional Protocol II]. 126 Neither Common Article 3 or Additional Protocol II speaks to combatant immunity or prisoner of war status. Stewart, supra note 86, at 320. 127 MOIR, supra note 38, at 273; MANUAL ON THE LAW OF NON-INTERNATIONAL ARMED CONFLICT, supra note 2, at 3 (citing International Court of Justice jurisprudence). Common Article 3 has 189 party-signatories; Additional Protocol II has 150. Peterson, supra note 39, at 24, n.127. 128 Common Article 3 was not intended to confer belligerent status on non-State forces in NIAC. Peterson, supra note 39, at 18. 129 MOIR, supra note 38, at 23; see Commentary to Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949 (again indicating that Common Article 3 was not intended to confer belligerent status on non-State forces). Peterson, supra note 39, at 19, n.96.

34 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] NIAC?”130 The issue is whether internationalized NIAC has “international character” and, thus, falls outside the scope of Common Article 3. Hans Gasser, the then Legal Advisor to the ICRC, wrote on internationalized NIAC:

Common Article 3 of the Geneva Conventions and where relevant, Protocol II, apply to the relationship between the established government and the insurgents, the original parties to the conflict. A second relationship, between the insurgents and a foreign state that has been invited by the established government to help it overcome the rebellion, gives rise to great difficulties in determining what law is applicable. The traditional answer, which makes the situation subject to the rules of non-international armed conflict, clashes with the undeniably international character of this type of relationship.131

If Common Article 3 applies only to armed conflict lacking international character, it could be said that high-intensity, long-duration, internationalized NIAC is excluded.132 But if high-intensity, long-duration, internationalized NIAC is likewise excluded by Common Article 2 to the 1949 Geneva Conventions, because both parties to the conflict are not States, a serious gap would exist. An internationalized NIAC would be neither a Common Article 2 nor a Common Article 3 armed conflict.

130 Stewart, supra note 86, at 318. It cannot be conclusively established whether “international character” always and only means inter-State, or something broader. Returning to the idea that the drafters were aware of recognition of belligerency, the broader interpretation is as persuasive as the narrower would be, perhaps even more. If the drafters were cognizant of recognition of belligerency, then they did not intend Common Article 3 to cover NIACs to which IHL became applicable due to its international consequences. 131 Gasser, supra note 10, at 147. 132 One way to interpret “international character,” by virtue of the relation of Common Article 3 to Common Article 2, is to hold that it is strictly that which Common Article 2 covers. Because no armed conflict has been recognized as an Additional Protocol II conflict, it is hard to say if “international character” is so limited by Common Article 2 or whether it may prove to be more elastic.


As with Common Article 3, Additional Protocol II defines itself by reference to that to which it does not apply.133 Additional Protocol II purports not to modify Common Article 3 but rather sets a higher bar.134 Neither Additional Protocol II nor Common Article 3 expressly make mention of or special allowance for high-intensity, long-duration, internationalized NIAC of the kind for which belligerency was (or could have been) recognized.135 By establishing prescriptive criteria (responsible command, control of territory, and sustained and concerted military operations) and by imposing a qualification as to scale (above the threshold of armed conflict), Additional Protocol II seemingly excludes only rebellion. If so, it is, thereby, limited to insurgencies and belligerencies.136

Uncertainty continues as to what conflicts Common Article 3 and Additional Protocol II do cover.137 Non-Common Article 2 and non-Common Article 3-type belligerencies (internationalized and unrecognized) may thus fall into a special ungoverned category, an arguably undesirable state of affairs given the

133 Article 1 of Additional Protocol II provides that it applies to (1) armed conflicts not covered by Additional Protocol I (i.e., IAC); (2) that take place within the territory of a party to the convention; and (3) that involve the State party’s forces and non-State forces that are “under responsible command, [and] exercise such control over a part of . . . [the State’s] territory as to enable . . . [the non-State forces] to carry out sustained and concerted military operations and to implement this Protocol.” Additional Protocol II, supra note 125, art. 1.1. Additional Protocol I applies to conflicts covered by Common Article 2. Additional Protocol I, supra note 15. Common Article 2 applies primarily to armed conflict between two or more State parties. Additional Protocol II does not define combatant. Corn & Jenks, supra note 24, at 326. 134 Common Article 3 and Additional Protocol II overlap: Common Article 3 applies only when a NIAC falls below the Additional Protocol II threshold because the non-State forces do not meet the third criterion prescribed in Additional Protocol II art. 1.1. 135 Additional Protocol II, supra note 125, art. 1.2. Additional Protocol II, subject to the criteria enumerated above, applies to any conflict that constitutes armed conflict. Peterson, supra note 39, at 21. At least one commentator has suggested that Additional Protocol II will not apply to any internal conflict in which a state of belligerency exists between State and non-State forces. 136 See supra note 43. 137 See, e.g., Charles Lysaght, The Scope of Protocol II and its Relation to Common Article 3 of the Geneva Conventions of 1949 and Other Human Rights Instruments, 33 AM. U. L. REV. 9 (1983); Sylvie Junod, Additional Protocol II: History and Scope, 33 AM. U. L. REV. 29 (1983).

36 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] prevalence of such conflicts.138 Further, it cannot be stated authoritatively what result would be produced if belligerency were recognized, as this has not been done since well before World War II, prior to enactment of Common Article 3 and Additional Protocol II.139

Neither Common Article 3 nor Additional Protocol II explicitly allows or bars recognition of belligerency.140 But, since Additional Protocol II supplements Common Article 3 (and Common Article 3 does not apply to armed conflict possessing international character), and since Additional Protocol II does not apply to conflicts covered by Common Article 2 or Additional Protocol I, Relating to the Protection of Victims of International Armed Conflicts, it is difficult to say whether and how Common Article 3 and Additional Protocol II might apply if belligerency were recognized.141 Because belligerency was only recognized in cases of high-intensity, long-duration, internationalized NIAC, the answer may lie outside of Geneva law altogether (i.e., in customary law on recognition of belligerency).142

Applying the whole jus in bello to high-intensity, long-duration, internationalized NIACs under customary international law predates Geneva law and, thus, does not depend on Geneva law for its vitality. Conversely, applying the whole jus in bello to high-intensity, long-duration, internationalized NIACs does not

138 In this instance “ungoverned” means not covered by Common Article 2 or Common Article 3. 139 If belligerency is recognized, and an NIAC becomes “ex definitio an armed conflict of an international character,” Common Article 3 no longer applies. Lootsteen, supra note 26, at 125. Lootsteen argues that the drafters of Common Article 3 were “cognizant of the doctrine of belligerency and included its occurrence within the article.” Id. at 123. He concludes, however, that the doctrine of belligerency is no longer viable, asserting that “the full body of the laws of war” would therefore be replaced by “the more limited protections” in Common Article 3. Id. at 127. This may be an overstatement. See discussion infra pp. 35-36. 140 Solf, supra note 17, at 58-59. 141 One of the effects of Additional Protocol I is that it transforms wars to overthrow colonial domination (NIACs by almost any measure) into IACs. Additional Protocol I, supra note 15, art. 1.4. 142 Knut Dӧrmann, Detention in Non-International Armed Conflicts, in NON-INTERNATIONAL ARMED CONFLICT IN THE TWENTY-FIRST CENTURY, supra note 3, at 347-66 (“Due to the paucity of treaty rules, customary IHL plays a more significant role in NIAC than in international armed conflicts (IACs).”).

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 37 conflict with Geneva law much of which is considered to be customary international law. So the question whether high-intensity, long-duration, internationalized NIAC fits within Common Article 3 or Additional Protocol II, even if answered in the negative, will not preclude applying the whole jus in bello to high-intensity, long-duration, internationalized NIACs in which belligerency is recognized.143

Other trends reflect a variety of efforts to expand the application of IHL to NIAC. One of these could be described as a re-orientation of the focus of international law from States to individuals, manifested in the ascendance of the term “international humanitarian law.”144 Geoffrey Corn frames it as a shift in focus from the right type of conflict to the right type of person.145

With the possible exception of the law pertaining to

combatant status and belligerent occupation, it may also be that the law of IAC and the law of NIAC have become “fundamentally analogous.”146 As a matter of policy, most professional armed forces already apply the IAC-regulatory regime to military operations and to detentions in NIAC, except for conferring actual POW status or granting combatant immunity.147 The similarities in these military practices (applying the same rules and adhering to the same constraints) lend support to the idea (though it remains unpersuasive to many) that the mere existence of armed conflict (NIAC or IAC) justifies international legal regulation.148

143 None of this suggests that non-State forces are entitled to combatant immunity or POW status. See CRAWFORD, supra note 17, at 48; LIESBETH ZEGVELD, ACCOUNTABILITY OF ARMED OPPOSITION GROUPS IN INTERNATIONAL LAW 19 (2002) (citing decisions of several international tribunals). Accord Corn, supra note 14, at 276. At least one commentator perceives that a movement toward recognizing combatant immunity in NIAC is progressing more rapidly than is the idea that non-State forces in NIAC should be accorded POW status. Id. at 255. How the two may be separated is unclear. 144 Corn, supra note 14, at 276. 145 Id. 146 Id. at 277 (citing ROBERT KOLB & RICHARD HYDE, AN INTRODUCTION TO THE INTERNATIONAL LAW OF ARMED CONFLICTS 69-70 (2008)). 147 Id. 148 Id. at 284.


Collectively, these and other trends suggest an ongoing “progressive assimilation” of IHL—customary and conventional—into NIAC.149 The following principles of IHL are now widely considered customary in NIAC: distinction, the prohibition on indiscriminate attacks, proportionality and military necessity, and the prohibition on causing unnecessary suffering.150 There is also a discernible trend of downplaying the differences between IAC and NIAC.151 The International Criminal Tribunal for the Former Yugoslavia, for example, has gone so far as to suggest that such differences are now approaching irrelevance.152

It could also be argued that some of these trends may be

work-arounds because that belligerency is not being recognized in cases in which it could and should be. These efforts would achieve a similar end—applying the whole jus in bello to NIAC—that recognizing belligerency would accomplish. To that extent, these trends evince growing support for the objectives that recognition of belligerency used to fulfill: imposing on general war that is equivalent to IAC the same requirements, constraints, and immunities as in IAC.

As for the differences between State forces and non-State

forces, it should be remembered that not all non-State forces are (or will always be) of one size, dimension, or character. Their nature and capabilities vary, as does their ability to control and govern territory and to otherwise comply with IHL.153 In recent combat operation (as was seen in Iraq and Afghanistan) non-State forces often relied heavily on guerrilla and irregular tactics. 154 But this phenomenon is not confined to non-State forces.

149 CRAWFORD, supra note 17, at 6, 24-25, 41. 150 Id. at 31. 151 Id. at 3; see Sassòli & Olson, supra note 18, at 601-02. 152 CRAWFORD, supra note 17, at 1. 153 Sivakumaran, supra note 123, at 355-56 (comparing non-State forces in Sri Lanka, Columbia, and elsewhere, some of which also have air and naval forces). 154 Baxter, supra note 43, at 334-37 (explaining that guerrilla or irregular warfare has played a significant part in IAC as well as NIAC). In 1951, Richard Baxter wrote:

It must be assumed at the outset that guerilla activities are an inevitable concomitant of hostilities waged by regularly constituted armed forces . . . . Only a rigid legal formalism could lead to the characterization of the resistance conducted against Germany, Italy, and Japan as a violation of


By their use of special forces, States are also increasingly

employing indirect means and methods of warfare, as reflected by General Stanley McCrystal’s observation that “[i]t takes a network to defeat a network.”155 Widespread acceptance by States—in IAC and in NIAC—of special forces tactics and other covert and clandestine techniques, suggests that States are willing to tolerate—in themselves, at least—more than a little latitude in applying the criteria governing combatant status.156 The point here is that in 21st Century NIACs, State forces have increasingly, though by no means exclusively (or even primarily), operated in a manner that causes similarly employed non-State forces to be labeled unlawful combatants. Sometimes, this circumstance makes it harder to differentiate the one from the other, legally speaking, other than by the fact that State forces enjoy combatant immunity and are entitled to be treated as POWs, while non-State forces are denied those protections.

The closer high-intensity, long-duration, internationalized

NIAC is to IAC, and the more that State and non-State forces operate like one another, the more apropos is the concept of universal combatant status.157 This theory is predicated on the principle that the humanitarian function of IHL is as important in NIAC as it is in IAC.158 From a humanitarian perspective, the supposed deterrent function of not granting combatant immunity to

international law. . . . [A]s long as guerrilla activities are looked upon as licit and laudable by the [occupied] State on whose behalf they are undertaken and by third parties to the conflict, it is highly unreal to regard them as internationally criminal.

Id. (citations omitted). It could be asked why guerrilla warfare in NIAC conducted by non-State forces with all of the same issues as to combatant distinction, should be viewed any differently than it is in IAC. 155 Stanley McCrystal, It Takes a Network, FOREIGN POLICY (Feb. 22, 2011), http://www.foreignpolicy.com/articles/2011/02/22/it_takes_a_network. 156 WATKIN, supra note 22, at 38-40, 48-49. 157 CRAWFORD, supra note 17, at 162-63. A solution, modeled loosely on the Lieber Code, may be universal conditional immunity for properly constituted/IHL-compliant groups, an immunity that does not admit of an international personality or political legitimacy. Id. One of the conditions might be effective control of territory, as would likely occur in civil wars. Id. 158 Id. at 155.

40 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] non-State forces does not seem to have been very effective in reducing the number or adverse effects of NIACs.

On the contrary, there has been no shortage of persons

willing to take part in bloody internal wars.159 Curiously, granting combatant immunity in high-intensity, long-duration, internationalized NIACs may actually encourage restraint and compliance with IHL.160 Furthermore, granting combatant immunity to qualifying non-State force may also hasten and improve post-conflict accountability and reconciliation.161

Based on all these trends and circumstances, the directions

in which warfare and IHL are headed in the 21st Century are moving NIAC closer to IAC, but a gulf remains at the juncture of combatant immunity and POW status. The gulf, even if it is shrinking, may still be unbridgeable, unless belligerency is recognized.

When belligerency is recognized, combatant immunity and POW status have been, and could again be, bestowed on qualifying non-State forces. But this will occur only in high-intensity, long-duration, internationalized NIACs. And while there is good reason to think that high-intensity, long-duration, internationalized NIACs may be a fixture of armed conflict into the foreseeable future, there is no particular reason at present to expect that States (individually, or the international community, collectively) will change course and resume the practice of recognizing belligerency.

The next section examines the idea that belligerency is being objectively established (tantamount to recognition) when the Security Council authorizes military intervention to combat a threat to international peace and security.

159 Id. at 158. 160 Id. Combatant immunity is clearly important to State forces, and it is no less so to third-party State forces whose legitimacy derives from UN authority or from an invitation by the State. Id. While it should not be presumed that non-State forces will necessarily share the same sensitivity in all cases, it seems likely, certainly in the theater of lawfare, that combatant immunity would positively influence at least some non-State forces to better comply with IHL. Id. 161 CRAWFORD, supra note 17, at 159.

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 41 V. A NEW APPROACH When the intensity, duration, and international character of a NIAC reach levels that cause the Security Council to determine that it must authorize collective military action “necessary to maintain or restore international peace or security,” a state of belligerency likely exists.162 Indeed, in this context, the finding attests to the existence of hostilities that were historically judged sufficient to bring the whole jus in bello into play.163 The Security Council’s determination in these cases is, thus, similar in effect to, although it was not intended to or designed to replace, the now moribund practice of recognizing belligerency.164 And if this is so, combatant immunity and POW status could—and arguably should—be accorded to both State and non-State forces.

What had been a highly subjective, unwieldy, and eventually broken process (i.e., the hit-or-miss process of recognizing belligerency) would be objectified by relying instead on the Security Council’s independent assessment of the key issues, a logical predicate to letting loose a massive foreign intervention.165 From the beginning, foreign armed forces

162 U.N. Charter art. 42, reprinted in LAW OF WAR DOCUMENTARY SUPPLEMENT 165-66 (Sean Watts ed., 2006) (emphasis added). 163 See supra, notes 29 and 53. 164 This is not to suggest that every authorization for use of all necessary means is necessarily tantamount to recognition of belligerency. Not every instance in which the UN Security Council has authorized intervention by all necessary means in NIAC, has it been proper to recognize belligerency. Compare the conflict in Haiti in 1994 to the American Civil War (or to the Spanish Civil War or Vietnam War), for example. 165An important issue is whether the Security Council is competent to make a legally binding determination as to the existence of a state of belligerency. As powerful and important as the Security Council is, the full extent of its authority under Article 39 of the UN Charter remains unclear. See Christine Gray, Stefan Talmon & Thomas Franck, The Security Council and the Rule of Law, 103 PROC. OF THE ANN. MEETING – AM. SOC’Y OF INT’L L., Mar. 27, 2009, available at www.questia.com/read/1G1-244892318/the-security-council-and-the-rule-of-law. For more information regarding the Security Council’s exercise of Article 39 authority, consult the Repertoire of the Practice of the Security Council, available at www.un.org/en/sc/repertoire/actions.shtml (last visited Mar. 25, 2013). See also Hisashi Owada, Judge, Int’l Ct. of Justice, Keynote Speech at the Research Forum on International Law: The United Nations and the Maintenance of International Peace and Security—The Current Debate in the

42 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] intervening under UN mandate would know, and, regardless of what transpired before, State and non-State forces would also know, what their legal status would be.166 This could change, of course, as the conflict evolved, but it would provide clarity and focus, and lessen or obviate legal disputes, at the inception of foreign intervention.

Considering the likelihood that high-intensity, long-

duration, internationalized NIACs will be plentiful, and considering the likelihood these conflicts if internationalized will greatly expand UN-sanctioned intervention, then the idea of using objective triggering criteria for applying the whole jus in bello in high-intensity, long-duration, internationalized NIAC (as the ICRC previously proposed) merits re-consideration.167 And while it cannot be said that the UN Charter was written with the idea in mind that the Security Council’s power to authorize military intervention in NIAC necessarily entails recognition of belligerency in all cases, the Security Council’s determination that a threat to international security and breach of the peace has arisen, due to a NIAC, provides an objective basis upon which to conclude that the whole jus in bello should apply.168 The Security Council's determination in such cases would be predicated on the existence of a state of belligerency.

When a threat to international peace and security has

arisen, it suggests an ongoing armed conflict that has international consequences and international significance, even if, it does not have international character according to Common Article 3. Even though international consequences and international significance may not, by themselves, be sufficient to internationalize an internal conflict, they are likely to spur action by individual States,

Light of Reform Proposals (May 26, 2005), available at http://www.esil-sedi.eu/fichiers/en/Owada_051.pdf. 166 Dӧrmann, supra note 142, at 355 (explaining that views remain divided whether authorization to use all necessary means permits internment). 167 Gasser, supra note 10, at 246. 168 U.N. Charter art. 39; LAW OF WAR DOCUMENTARY SUPPLEMENT, supra note 162, at 165. NIAC, of course, is not the only type of conflict that could lead the Security Council to authorize intervention. Its power to do so extends to all armed conflict.

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 43 coalitions of States, or the UN (or other international organizations) that could internationalize the conflict.169

The UN has, thus far, authorized collective military intervention by all necessary means or measures in only a small number of countries. Collective military intervention is a UN authority that is exercised by the Security Council to redress threats to international peace and security.170 The Council first pronounces the gravity of a threat to international peace and security arising from an internal (or other) conflict.171 It may then authorize collective military intervention, a decision that is binding on all member States.172 This does not happen often, but it is an increasing likely route for foreign forces to intervene in NIAC, and

169 While it is war between States that the UN Charter prohibits in Article 2(4), the Security Council has seemingly been as interested in (viz., wary of the consequences of) NIAC as it has been in IAC. For an excellent overview of the UN Charter’s “two-tiered” or “bifurcated” system of collective security, see THOMAS M. FRANCK, RECOURSE TO FORCE: STATE ACTION AGAINST THREATS AND ARMED ATTACKS 3 (2002). Franck describes four “seismic” events (i.e., major developments affecting the security geology of the UN Charter, so to speak), one of which is “the ingenuity with which states effectively and dangerously substituted indirect aggression — the export of insurgency and covert meddling in civil wars.” Id. at 34. Franck goes on to argue that the UN Charter is amenable to radical adaptation, to be accomplished by States through “continuous interpretation and adaption through the member states' individual and collective practice: their actions, voting, and rhetoric.” Id. at 7. The result, it could be said, is that the UN Charter is as state practice does. As it relates to the point of this Artilce, the importance of state practice, in terms of effectuating a Security Council finding that, in effect, a state of belligerency exists in a NIAC, cannot be overstated. The UN Charter may not speak directly to the issue, but it is malleable enough to accommodate it, if state practice supports it. 170 See, e.g., John Cerone, International Enforcement in Non-International Armed Conflict: Searching for Synergy Among Legal Regimes in the Case of Libya, in NON-INTERNATIONAL ARMED CONFLICT IN THE TWENTY-FIRST CENTURY, supra note 3, at 369-95 (arguing that involvement in armed conflict under UN authority effectively circumvents the non-intervention principle). 171 It cannot necessarily be said that the UN Security Council finds threats to international peace and security only in cases where intense armed conflict is occurring, such as might happen in an internal armed conflict in the nature of an insurgency or belligerency. 172 U.N. Charter arts. 25, 103; LAW OF WAR DOCUMENTARY SUPPLEMENT, supra note 162, at 164, 173. See Lootsteen, supra note 26, at 126 (explaining that Lootsteen is among those who believe, as a practical matter, that the State within which a NIAC is occurring must recognize belligerency and act accordingly, because if it does not, combatant immunity and POW status will be denied unless and until other pressures compel it).

44 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] when they do intervene, they typically do so in large numbers, and they are drawn from multiple countries.173 The Security Council derives this authority from Article 39 of the UN Charter:

The Security Council shall determine the existence of any threat to peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.174

Articles 41 and 42 of the UN Charter state the following:

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.175 Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.176

173 See supra note 119. 174 U.N. Charter art. 39; LAW OF WAR DOCUMENTARY SUPPLEMENT, supra note 162, at 165. 175 Id. 176 U.N. Charter art. 42; LAW OF WAR DOCUMENTARY SUPPLEMENT, supra note 162, at 165-66. Note that these measures, e.g., blockade, include belligerent acts. It could be said that these measures were never intended to be implemented except by the forces contemplated by Article 43, but UN and state practice has been different, relying on coalitions, not standing forces. This also illustrates the importance of state practice to the interpretation and implementation of the UN Charter. Again, the UN Charter is as state practice does. See FRANCK, supra note 169, at 25-26.

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 45 A constraint on this authority is in Article 2(7) of the UN Charter, which states the following:

Nothing contained in the present [UN] Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present [UN] Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.177

As noted in Article 39, the purpose of Security Council action is to “maintain or restore international peace and security,”178 a phrase repeated in Article 42. By these terms, the Security Council may authorize military intervention only in conflicts of international consequence, since the conflict must first be outside the scope of Article 2(7), and second, it must threaten international peace and security.179 Neither Article 39 nor Article 42 is limited to Common Article 2-type conflicts.

Since its establishment, the Security Council has authorized collective military intervention in high-intensity, long-duration, internationalized conflicts in only a handful of cases, some of which were, or later became, NIACs.180 Recent examples of internationalized conflicts where the Security Council determined that a NIAC constituted a threat to international peace and security, and then authorized military intervention using all necessary means, include Yugoslavia in the 1990s; the war in Afghanistan

177 U.N. Charter art. 2(7); LAW OF WAR DOCUMENTARY SUPPLEMENT, supra note 162, at 161. The meaning of the variably interpretable term “domestic jurisdiction” poses its own complications. 178 U.N. Charter art. 39; LAW OF WAR DOCUMENTARY SUPPLEMENT, supra note 162, at 165. 179 FRANCK, supra note 169, at 25. 180 Imagine how the Spanish Civil War or the Vietnam War might have been different if the Security Council had authorized collective military intervention with all necessary measures. The first issue is on whose side intervention would be authorized, which in turn would appreciably influence the number and alignment of States participating. No Member States could intervene on behalf of or to provide militarily support to the other side.

46 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] after the ouster of the Taliban-run government; and the 2011 Libya campaign. Each of these was a high-intensity, long-duration, internationalized IAC, and all were significantly further internationalized by the UN-sanctioned intervention.181 Table 1 illustrates some of the most well-known cases.182

Table 1.

United Nations Security Council Resolutions Authorizing All

Necessary Means or Measures

Resolution No. Country Year

83 Korea 1950

678 Iraq 1990

743 Yugoslavia 1992

940 Haiti 1994

1386 Afghanistan 2001

1973 Libya 2011

Most of these interventions are relatively recent. Note the

absence of several high-intensity, long-duration, internationalized conflicts (Vietnam, for example) for which no such Security Council resolution was issued. Collective military intervention in NIAC by third-party States, under and within the bounds of a

181 Compared to the others, the Libyan campaign was relatively short. What, exactly, is the temporal dimension of “long-duration” is inexact, but the scope and scale of a conflict can rapidly magnify, such that it may not take a year or more for a conflict to reach the dimensions of general war. 182 SECURITY COUNCIL RESOLUTIONS, available at http://www.un.org/Docs/sc/ (last visited Dec. 23, 2013). The table is intended to show the relatively few countries, not the number of times, for which an “all means or measures” resolution was issued. Note, too, that not all of these were NIACs at the time of the resolution; some became NIACs at later points in time.

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 47 Security Council mandate, will be lawful, overcoming the non-intervention prohibition attending recognition of belligerency.183

A sticky question is whether collective intervention in NIAC under UN authority will, by itself, internationalize and, thereby, convert the conflict into one possessing international character within the meaning of Common Article 3. If it does, the conflict might be placed in an ambiguous context, falling into the gap between Common Article 2 and Common Article 3. Avoiding such an undesirable result is even more reason for belligerency to be recognized in high-intensity, long-duration, internationalized NIACs or for some other suitable—and most importantly, objective—triggering mechanism to be emplaced to bring the whole jus in bello into play. A Security Council determination that an NIAC constitutes a threat to international peace and security, followed by authorization to intervene militarily using all necessary means or measures is, in effect, a near equivalent to recognizing belligerency.184 Once foreign forces have intervened in an internal conflict under UN mandate, they will likely find themselves situated in the conflict as belligerents, conducting belligerent acts and exercising belligerent rights. Whereas express or de facto recognition of belligerency would have previously compelled third-party States to remain neutral and not intervene, when intervention is UN-sanctioned, the neutrality bar is lifted.185 Moreover, UN-sanctioned intervention enlarges and internationalizes (or further internationalizes) the conflict, making it one that is even more suitable for full application of IHL.186

183 Dinstein, supra note 4, at 409. Third-party States must display “impartiality” toward the State and to non-State forces if the State has recognized belligerency. See id. 184 Lootsteen, supra note 26, at 112, n.18 (discussing the United Nations’ role in IACs). Security Council Resolutions would be most useful if, by their objective clarity and binding nature, they removed the kind of ambiguity and disagreement that prevailed in the Vietnam War. Id. 185 This creates something of a have-your-cake-and-eat-it-too situation: intervention in an ongoing belligerency does not necessarily depend on consent of the State and does not run afoul of the demands of neutrality. A third-party State can involve itself in belligerency without violating the non-intervention prohibition that would otherwise apply. 186 See discussion supra p. 42.

48 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] Internal conflicts where the UN has authorized intervention (conflicts that because of their scope, scale, and character threaten security beyond the borders of a single State) may not be suitable (when it comes to the accountability of non-State forces) for applying primarily the domestic law of one State only or for applying only some of the jus in bello.187 Rather, these kinds of conflicts are ones in which belligerency should be recognized by some reliable mechanism. These cases are not run-of-the-mill NIACs at or below the level of insurgency, and when they have garnered UN recognition as conflicts threatening to international peace and security, they should be treated as what they are: armed conflicts with international character.188

It should be acknowledged that the UN, with its intricate political dimensions and procedural complexities (the veto power held by Security Council members, for example) would not necessarily make an efficient forum for determining (in every case) whether a conflict had reached a level that belligerency should

187 Keep in mind that it is possible that the scope and scale of NIAC may exceed the scope and scale of IAC. 188 Id. at 42-43. Though the drafters of the UN Charter may have thought otherwise, the Charter, as applied, is concerned with NIAC.

Despite this explanation, it is clear from the drafting history of the Charter's Articles 39, 42, 43, and 51 that the representatives at San Francisco had not intended to authorize a role for the United Nations in civil wars. Rather, Charter Articles 2(4) and 2(7) appear to forbid such intervention. In practice, however, the Congo was but the first of several UN military involvements in precisely those sorts of conflict: in Yemen, Iraq, the former Yugoslavia, Somalia, Haiti, and Sierra Leone.

See FRANCK, supra note 169, at 41. In its decision in the Tadic appeal, the International Criminal Tribunal for the Former Yugoslavia, referring to evidence that the practice of the Security Council is rich with cases of civil war or internal strife which it classified as a ‘threat to the peace’ and dealt with under Chapter VII . . . [concluded] . . . that the ‘threat to the peace’ of Article 39 may include, as one of its species, internal armed conflicts. This marks recognition of the role of practice in interpreting the Charter, sometimes in radical departure from original intent.

Id. (citation omitted).

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 49 effectively be recognized.189 Another considerable dimension is the reluctance (or even opposition) that States might express over a procedure that takes such a weighty matter out of the hands of the State and puts it into the hands of an inter-governmental organization. This might actually encourage more vetoes in the Security Council by (and for) those who remain opposed to bestowing combatant immunity and POW status on non-State forces in NIAC.

This could have the detrimental effect of precluding

military intervention in cases that call for it. But given the restraint with which the Security Council has acted in the past to authorize collective military intervention, the likelihood is that any move to reinvigorate recognition of belligerency in high-intensity, long-duration, internationalized NIACs would proceed deliberately and judiciously. And, it should be kept in mind, recognition of belligerency—or equivalent recognition of belligerency by the Security Council—is not permissible in all NIACs, as customary international law provides no foundation for doing so.

Another benefit of equating UN-sanctioned intervention

with recognizing belligerency is that more objectivity will be brought to establishing the legal status of an armed conflict, which will reduce ambiguity and uncertainty over the legal obligations and immunities of all concerned. This may also serve humanitarian purposes. And setting precedent in respect to Security Council-approved intervention could also have the effect of encouraging broader application of IHL rules in NIACs in which the UN does not authorize intervention.

For example, in 2004, the transformation of the war in Iraq

from IAC to NIAC altered the legal rules applying to it, although, the security situation did not much change. If IAC rules governed the occupation of Iraq up to that point, it is not evident why they should not have continued to do afterwards. In that case, as in Afghanistan and Vietnam, a single legal regime with combatant immunity and POW status for all captured personnel (including the forces of intervening third-party States) made sense and could have benefited all.

189 Lootsteen, supra note 26, at 119.


The Security Council could create an equivalent

recognition of belligerency, by specifying in resolutions authorizing intervention by all necessary means in IAC, what circumstances of the conflict make it appropriate for applying the whole jus in bello.190 This would include the requirement to provide POW treatment and combatant immunity, except for the commission of war crimes. All States that answer the Security Council’s call should then carry out the mandate and apply the full body of applicable IHL rules.191

It should initially be expected that a pronouncement of this kind by the Security Council may carry little weight. Until practice and opinio juris ripen into custom, States will not be obliged to accept the Security Council’s assessment. Rather, States may continue to ignore belligerency and refuse to recognize it, regardless of what the Council perceives or pronounces.192 Still, acknowledging a functional equivalency in NIAC between recognition of belligerency and Security Council-authorized intervention is a key first step toward building a useful framework on which to base, expand, and refine state practice.193 If it is true, as Professor Dinstein asserted, that recognition of belligerency may still have utility, the idea of an objective trigger mechanism to bring the whole jus in bello to bear. The advantage

190 FRANCK, supra note 169, at 28-30. Security Council Resolutions have been tailored to fit the circumstances, with great variation, demonstrating their elasticity and adaptability. Id. 191 See U.N. Charter arts. 25, 103. See also LAW OF WAR DOCUMENTARY SUPPLEMENT, supra note 162, at 164, 173. 192 It would certainly be problematic if one or more States refused to recognize belligerency, especially if the Security Council had explicitly done so. This, obviously, is one of several issues with the notion that a Security Council finding that a threat to international security has arisen in an NIAC, is the functional equivalent of recognizing belligerency. A functional equivalency is not a legal equivalency. Perceiving functional equivalence is, thus, merely a first step in a process leading to legal equivalence; the distance to be traveled to reach a point where such a Security Council finding is a formal (and even more tenuously, a binding) recognition of belligerency, will be long and undoubtedly slow. Whether the distance will ever be covered is uncertain. 193 FRANCK, supra note 169, at 30-31. The context in which this would occur is as follows: “This expansion of global jurisdiction has not happened at once and, like much legal reform, tends to occur in the guise of ‘legal fictions’.” Id.

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 51 in this approach, compared to advancing the idea that all IHL should apply to NIAC, is that recognition of belligerency is a long-standing principle of customary international law. All that needs to be made clearer is how and when the principle should be applied in the 21st Century NIACs. This is not to suggest that every NIAC in which the Security Council authorizes intervention is tantamount to “classical” civil war. As we have seen, the nature of warfare in the 21st Century is not what it was in the 19th Century; the civil wars of tomorrow will likely differ from their forerunners. But despite these differences, high-intensity, long-duration, internationalized NIACs will occur and with some of these so-called “small” wars will come ample reason to recognize belligerency and bestow combatant immunity and POW status on non-State forces.194 The notion that the Security Council’s actions under the UN Charter are similar in effect to, and can effectively substitute for, the now moribund practice of recognizing belligerency is indisputably novel, but it is also intriguing.195 A primary purpose of this paper is to lay a foundation for what could be called a hypothesis of functional equivalency. Testing that hypothesis will require much additional work. For example, it may be helpful to further explore why the practice of recognizing belligerency fell into disuse because the answer may determine whether the causes and conditions underlying this phenomenon still pertain. It would also be helpful to examine how, if at all, the Lauterpacht or Lootsteen criteria have figured into Security Council assessments of the nature and scope of NIACs into which intervention was authorized, and if not, whether and how they should.

194 Using a Security Council-based approach will serve humanitarian ends; the more that IHL is even-handedly and consistently applied, the better observed its constraints would be. 195 FRANCK, supra note 169, at 30-31. The United Nations is intended to be a “living institution, equipped with dynamic political, administrative, and juridical organs, competent to interpret their own powers under a flexible constituent instrument in response to new challenges.” Id.

52 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] VI. CONCLUSION

As Professor Richard Falk underscored in his discussion of the Vietnam War, “[n]o contemporary problem of world order is more troublesome for an international lawyer than the analysis of the international law of ‘internal war.’”196

This article has addressed whether combatant immunity

and POW treatment are available to non-State forces in NIAC. As a matter of law, combatant immunity does not apply in NIAC; however, there is an important historically based qualification. As illustrated by the American Civil War, when internal armed conflict crossed the threshold from insurgency to belligerency, that is, as it passed from low-intensity, short-duration NIAC to high-intensity, long-duration, internationalized NIAC, it acquired a character for which international law was deemed more apt to address the accountability of non-State forces.197 The practice of recognizing belligerency effectively ended with the Spanish Civil War, but the reasons for applying the whole jus in bello in such conflicts are no less compelling today.

Geneva law (Common Article 3 and Additional Protocol II) neither authorizes nor prohibits recognition of belligerency and provides neither encouragement nor discouragement for doing so. But there does appear to be a gap between Common Article 2 and Common Article 3 into which high-intensity, long-duration, internationalized NIACs will fall. Other modern trends, including the progressive assimilation of IHL into NIAC, and the lack of legal requirement or advantage for the distinction between POW status and detainee protections afforded to unlawful combatants, lend support to the notion that all NIACs (not just the kind of high-intensity, long-duration, internationalized NIACs in which belligerency was or could be recognized) are increasingly being treated the same as IACs for IHL purposes. Another important factor is the apparent likelihood that high-intensity, long-duration, internationalized NIACs will be prevalent, perhaps even more prevalent than IACs. This suggests that it is more important than ever to properly characterize this type of NIAC and the legal rules pertaining to it, alleviating the kind of legal ambiguity and

196 Falk, supra note 107, at 362 (citation omitted). 197 See Stewart, supra note 86, at 345-48.

[Vol. 1:1 2014] COMBATANT IMMUNITY IN NIAC 53 uncertainty seen in Vietnam, Afghanistan, and other places in which legally complex high-intensity, long-duration, internationalized NIACs occurred. Action by the Security Council to authorize collective military intervention by all necessary means could be an objective trigger mechanism to recognize belligerency in the kinds of high-order internationalized NIACs likely to lie ahead. An advantage to a functional equivalency approach over traditional recognition of belligerency is that a Security Council pronouncement carries weight across the entire international community and could, by its greater objectivity, eliminate much of the legal contortion, avoidance, and escapism that arise when contestants and their supporters characterize a conflict markedly differently.198 Clearly a question that must be addressed is why now, after 60 years of not recognizing belligerency in high-intensity, long-duration, internationalized NIACs, should we do so? Some may argue that taking this approach would be politically untenable; others might say that it would be superfluous or even harmful. The answer may lie in the general trend of the law toward greater concern for humanitarian considerations. To those who desire full application of IHL in NIAC, the proposed approach accomplishes that goal for internal conflicts at the higher end of the spectrum. This would not cover all NIACs, but it is an approach that is fundamentally no different than what the international community was willing to embrace centuries ago. An added advantage would be avoidance in recognized belligerencies of the neutrality-based prohibition on intervention by third-party States. How the Security Council might fully implement such a new approach is a subject for further research. One consideration, for example, is how Security Council resolutions should be crafted to signal a determination that belligerency is recognized. By simply prescribing certain measures, such as a blockade, de facto recognition of belligerency could occur, but a more direct approach may be preferable. A stronger, more explicit statement recognizing belligerency would underscore the significance of the determination the Security Council made, while at the same time,

198 It must be acknowledged that some States and other entities might prefer to perpetuate this state of affairs.

54 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] giving clearer guidance to all States and to all forces involved in conflict. While the focus of recent attention in NIAC has understandably been on terrorist groups, not all NIAC has been or necessarily will continue to be of that kind. When NIAC threatens international peace and security, and when the Security Council finally reaches (as it so infrequently has) a conclusion that it must authorize member States to intervene with all necessary means, the international character of the conflict is ripe for applying the whole jus in bello. By this method, combatant immunity and POW status would again be granted in those NIACs for which they are, were, and will be well-suited.

You see, combatant immunity in NIAC, has a past, and it has a future.

55

LIBERAL COMMUNITARIAN APPROACH TO PRIVACY AND SECURITY1

Amitai Etzioni

I. INTRODUCTION

This article asks which normative framework should be applied in determining whether privacy is unduly diminished in the American quest for enhanced protection against terrorist attacks; which specific criteria should be employed in determining whether the balance has tilted too far toward enhancing security or protecting privacy; and which measures can be taken to reduce the inevitable conflict between security and privacy. It also seeks to show that enhanced transparency is inferior to enhanced accountability, although there is some room for adding more of both kinds of scrutiny.

II. BALANCING PRIVACY AND SECURITY A. The Liberal Communitarian Approach

This article draws on a liberal communitarian philosophy (developed by the author2) that assumes that nations face several

1 I am indebted to Jesse Spafford for his extensive research assistance on this paper and to Ashley McKinless and Erin Syring for comments on a previous draft. 2 See generally AMITAI ETZIONI, THE NEW GOLDEN RULE: COMMUNITY AND MORALITY IN A DEMOCRATIC SOCIETY (Basic Books 1996).

56 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] fully legitimate normative and legal claims and that these claims can be neither maximized nor fully reconciled, as there is an inevitable tension among them. It follows that some balance must be worked out among the conflicting claims rather than assuming that one will always trump the others. This article applies this approach to the balance between security and privacy.3

In contrast to this balancing approach, contemporary liberals tend to emphasize individual rights and autonomy over societal formulations of the common good.4 And at the opposite end of the spectrum, authoritarian communitarians (mainly in East Asia) privilege the common good a priori and pay mind to rights mainly to the extent that they serve the rulers’ aims. Hence, when Gregory Ferenstein writes in The Daily Beast that communitarians grant priority to the common good over rights, he is both correct and mistaken.5 He is correct if he has in mind the likes of Bilahari Kauskian,6 but not when he attributes this position to those who have endorsed the responsive communitarian platform.7

The Fourth Amendment text provides a strong expression of the liberal communitarian philosophy, which is particularly relevant to privacy. It states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”8 By

3 See generally AMITAI ETZIONI, THE LIMITS OF PRIVACY (Basic Books 1999) (discussing this balance in the context of privacy and public health, public safety, sex offenders, and freedom of the press, among other rights); see also Amitai Etzioni, The Privacy Merchants: What Is To Be Done?, 14 J. CONST. L. 929-51 (Mar. 2012); See also AMITAI ETZIONI, HOW PATRIOTIC IS THE PATRIOT ACT?: FREEDOM VERSUS SECURITY IN THE AGE OF TERRORISM (Routledge 2004). 4 Gerald Gaus & Shane D. Courtland, Liberalism, STAN. ENCYCLOPEDIA OF PHIL. (Edward N. Zalta, ed. Spring 2011), available at http://plato.stanford.edu/entries/liberalism; see also JOHN RAWLS, A THEORY OF JUSTICE (Belknap Press 1999). 5 Gregory Ferenstein, Obama’s Shift Towards Communitarianism, DAILY BEAST (June 30, 2013), http://www.thedailybeast.com/articles/2013/06/30/obama-s-shift-toward- communitarianism.html. 6 See generally Russell A. Fox, Confucian and Communitarian Responses to Liberal Democracy, 59 THE REV. OF POL. 561-92 (Summer 1997) (discussing more broadly this strand of communitarianism). 7 See THE INST. FOR COMMUNITARIAN POL’Y STUD., Responsive Community Platform, http://www.gwu.edu/~ccps/rcplatform.html (last visited May 13, 2014). 8 U.S. CONST. amend. IV.

http://www.thedailybeast.com/articles/2013/06/30/obama-s-shift-toward-communitarianism.html



http://www.guardian.co.uk/commentisfree/2013/jun/13/prism-utah-data-center-surveillance



[Vol. 1:1 2014] PRIVACY AND SECURITY 57 banning only unreasonable searches and seizures, it recognizes, by extension, that there are reasonable ones, namely those that serve the common good or, to use a term more familiar to the legal community, the public interest. Liberal communitarianism is based upon the same fundamental premise. When it comes to the give and take over what qualifies as legitimate public policy, liberal communitarianism starts with the assumption that the public’s right to privacy must be balanced with concern for national security (and public health, among other common goods) rather than from the position that any breach of privacy contravenes an inviolable basic right.

B. The Advocacy Model

Deliberations about public policy, as carried out by elected officials in think tanks and in public discourse in the contemporary United States, often follow a model that differs sharply from the liberal communitarian one—one that emulates the advocacy model found in American courts. According to this model, interested parties are divided into antagonistic ideological camps with each side (and there are only two) presenting its respective interpretations of the facts in the way that will most strongly support its brief. Following the notion that one ought to “zealously” defend one’s client, each side feels free to make emotive points, provide stretched interpretations and selective facts, and advance particularistic normative arguments favorable to its case. The implicit assumption is that the proper judgment (if not “the truth”) will arise out of the clash of two extreme advocacy positions. The American judges act as neutral referees, and the jury is kept mum during the proceedings.

In public discourse, the advocacy model is reflected in the increasingly polarized debates between liberals and conservatives over numerous issues, including the role of government, gun control, abortion rights, and even climate change.9 Liberal communitarianism and other intermediary positions are often barely heard over the noise from the resulting clash.

This same advocacy model has been applied to the question of how to strike the proper balance between privacy and security—

9 See David R. Jones, Party Polarization and Legislative Gridlock, 54 POL. RES. Q. 125 (Mar. 2001).

58 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] an issue that has gained renewed front-page attention following the revelations in mid-2013 that the government has been collecting the phone records of millions of Americans and, via a program referred to as PRISM,10 the electronic communications and stored data of foreigners from major Internet companies, such as Google and Facebook.

The public discourse on the subject following the disclosure of the PRISM program and phone-records programs took an unusual form: instead of the common clash between conservative and liberal camps, major voices sharply critical of the government emerged from both the right (especially libertarians whose following has been growing in recent years)11 and the left (especially civil libertarians), and these voices were supported by editorials in the mainstream media and other outlets. At the same time, the government and those who supported the need for security were rather tongue-tied, especially compared to others in this particular public discourse.

Thus, on the right, Rush Limbaugh declared that the PRISM program revealed the “totalitarian nature” of the Obama administration. The Republican Senator from Kentucky, Rand Paul, suggested that the snooping demonstrated that the President “views our Constitutional ‘right of the people to be secure in their persons, houses, papers, and effects’ as null and void.”12 On the left, The Nation agreed, reporting on the PRISM program under the headline, “A Modern-Day Stasi State,”13 while Al Gore quipped, “Is it just me, or is secret blanket surveillance obscenely outrageous?”14 The Atlantic’s Conor Friedersdorf argued that, thanks to PRISM and the collecting of phone records, “the people

10 PRISM stands for Planning tool for Resource Integration, Synchronization, and Management. 11 Nate Silver, Poll Finds a Shift Towards More Libertarian Views, N.Y. TIMES (Jun. 20, 2011), http://fivethirtyeight.blogs.nytimes.com/2011/06/20/ poll-finds-a-shift-toward-more-libertarian-views/. 12 Hendrik Hertzberg, Snoop Scoops, NEW YORKER (June 24, 2013), http://www.newyorker.com/talk/comment/2013/06/24/130624taco_talk_hertzberg. 13 Id. (quoting Tim Shorrock, A Modern-Day Stasi State, NATION (June 11, 2013), http://www.thenation.com/article/174746/modern-day-stasi-state#axzz2WlXb09AW). 14 Gore, Albert Jr., “In digital era, privacy must be a priority. Is it just me, or is secret blanket surveillance obscenely outrageous? ow.ly/lKS13” June 5, 2013, 6:39 PM. Tweet.

http://fivethirtyeight.blogs.nytimes.com/2011/06/20/

http://fivethirtyeight.blogs.nytimes.com/2011/06/20/

[Vol. 1:1 2014] PRIVACY AND SECURITY 59 in charge will possess the capacity to be tyrants—to use power oppressively and unjustly—to a degree that Americans in 1960, 1970, 1980, 1990, or 2000 could’ve scarcely imagined.”15 Friedersdorf emphasized that “it could happen here, with enough historical amnesia, carelessness, and bad luck.”16 On the pages of The New York Times, Jennifer Stisa Granick and Christopher Jon Sprigman described the mass surveillance programs as “criminal.”17

On the other side of the debate, there were few in the media who forcefully stood up for the need of enhanced security against terrorism. National Review’s Andrew C. McCarthy dismissed the “caterwauling of privacy activists,”18 arguing that the collection of metadata fell well within the bounds of what is permitted by the Fourth Amendment19 and stating that concerns about the PRISM program were “overblown.”20 Similarly, the editorial board of The Wall Street Journal argued that “Mr. Obama is conceding too much to the folks who imagine the government is compiling dossiers on citizens and listening to calls a la ‘The Lives of Others.’”21

Senator Dianne Feinstein led the government’s charge, but did so with very short statements such as, “I think people want the homeland kept safe to the extent we can,” 22 and “It’s called

15 Conor Friedersdorf, All the Infrastructure a Tyrant Would Need, Courtesy of Bush and Obama, ATLANTIC (June 7, 2013, 9:45 AM), http://www.theatlantic.com/politics/archive/2013/06/all-the-infrastructure-a-tyrant-would-need-courtesy-of-bush-and-obama/276635/. 16 Id. 17 Jennifer Stisa Granick & Christopher Jon Sprigman, Op-Ed., The Criminal N.S.A., N.Y. TIMES (June 27, 2013), http://www.nytimes.com/2013/06/28/opinion/the-criminal-nsa.html?pagewanted=all&_r=0. 18 Andrew C. McCarthy, What Is Private, What Is Not, NAT’L REV. ONLINE (June 8, 2013), http://www.nationalreview.com/article/350546/what-private-what-not-andrew-c-mccarthy. 19 Id. 20 Interview by Hugh Hewitt with Andrew C. McCarthy, Author, National Review (June 8, 2013), available at http://www.hughhewitt.com/andrew-c-mccarthy-on-the-nsa-and-prism-controversies/. 21 Op-Ed.,‘Big Brother’ and Big Data, WALL ST. J. (June 9, 2013), http://online.wsj.com/article/SB10001424127887323495604578535552983978828.html. 22 Donna Cassata & Matt Apuzzo, Sen. Dianne Feinstein Defends NSA Phone Record Program, NBC BAY AREA (June 6, 2013, 5:49 PM),

60 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] protecting America.”23 In contrast, President Obama, rather than advocating on behalf of the security side, spoke in favor of a communitarian-like balance:

But I think it’s important to recognize that you can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience . . . . And in the abstract, you can complain about Big Brother and how this is a potential program run amuck, but when you actually look at the details, then I think we’ve struck the right balance.24

In comparing the advocacy and the liberal communitarian approaches to public discourse, one notes that intermediary or third positions (not necessarily compromises) find little room in the former. Moreover, the advocacy approach does not take into account the basic tenets of the balancing approach of the Constitution, especially the Fourth Amendment. Typical pro-privacy arguments run as follows: there is a right to privacy that is important both in its own right and as a necessary means for realizing various other values, such as democracy, creativity, and the flourishing of the self; the government is violating this right by this or that act; thus, the government should be made to desist. The implicit assumption is that the whole normative and legal realm is the domain of the right and any consideration of other values, such as security, constitutes an “intrusion.”

When Nadine Strossen served as the president of the American Civil Liberties Union (ACLU), she was asked if she ever encountered any security measure of which she approved; she first responded with a firm “no” and then corrected herself and approved of fortifying the doors of commercial airliners that separate the pilot’s cockpit from the cabin holding the

http://www.nbcbayarea.com/news/local/Sen-Dianne-Feinstein-Defends-NSA-Phone-Record-Program-210477781.html. 23 Ellen Nakashima, Spying on citizens: ‘It’s called protecting America’, WASH. POST (June 6, 2013, 5:35 PM), http://www.washingtonpost.com/video/thefold/spying-on-citizens-its-called-protecting-america/2013/06/06/736102e0-ced6-11e2-8845-d970ccb04497_video.html. 24 President Barack Obama, Remarks on Health Care and Surveillance (June 7, 2013), available at http://www.nytimes.com/2013/06/08/us/obamas-remarks-on-health-care-and-surveillance.html?pagewanted=all.

[Vol. 1:1 2014] PRIVACY AND SECURITY 61 passengers.25 Similarly, the ACLU objected even to the use of handheld computers at Transportation Security Administration (TSA) checkpoints—describing them as “a violation of the core democratic principle that the government should not be permitted to violate a person’s privacy, unless it has a reason to believe that he or she is involved in wrongdoing,”—even though these computers were using the same data as all the other computers, and were simply reducing the distance that agents had to travel to review the data. In other words, the handheld computers merely added a bit of convenience, not a new intrusion.26 The Fourth Amendment and the liberal communitarian approach it reflects divide searches between those that are reasonable and those that are not, and hence reasonable searches do not constitute an intrusion and are not a violation of privacy. In other words, the normative and legal realm is divided between segments in which security ought to take precedence and those in which privacy should take precedence—and the discourse ought to be about where the boundary lies. Hence, it is misleading to argue as if the whole domain was that of privacy and any attention to security entails a diminution of privacy. The “turf” is divided between these two concerns from the very beginning. (Therefore, it is just as untenable to argue that the realm is one of security only and any concern for privacy ipso facto entails a diminution of security.) C. Anti-Balance Arguments Because the idea of balance is at the essence of the approach here followed—and because it has been directly challenged—a brief defense of the concept follows. Some critics contend that one should not think in terms of “balance” when weighing the values of privacy and security. For example, Marc Rotenberg wrote the following:

When we confronted the issue of privacy . . . we could not say that we needed to balance privacy and security. Both interests are substantial . . . often times in discussions where people said, “Well, privacy is important but so is the First

25 Good Morning America Sunday (ABC television broadcast Nov. 12, 1995) available at https://www.youtube.com/watch?v=K6IiG2k--dA. 26 STEWART BAKER, SKATING ON STILTS: WHY WE AREN’T STOPPING TOMORROW’S TERRORISM 27 (2010).


Amendment;” “Privacy is important but so is open government;” “Privacy is important but so is this other thing.” And on many of these issues we came to realize that if you look closely there may be a way to pursue both interests simultaneously.27

David Medine, the chairperson of the Privacy and Civil Liberties Oversight Board, made this point strongly when he stated, “The 9/11 Commission and President Obama have said—and I certainly believe—that we can have both strong security and strong protections on privacy and civil liberty, and our job is to try to maximize both.”28 One wonders if any value can be maximized, even when it is not in conflict with some other value, in the real world, which is full of constraints. Further, one notes that much of ethics is concerned not with delineating right from wrong but with exploring the tension between various goods, for instance trade-offs between equality and freedom. True, there are conditions in which both security and privacy can be enhanced. For instance, following the collapse of a regime, chaos and lawlessness prevail, and a measure of law and order is restored. But under most conditions, some balancing is needed, as both values cannot be maximized. Thus, numerous court cases weigh which side—privacy or the public interest—should take precedence in the given situation and the given conditions.

In this context, Benjamin Franklin is often quoted by privacy advocates as having stated, “Those Who Sacrifice Liberty For Security Deserve Neither.”29 This text is about as strong of an anti-balancing position as one can imagine. But Franklin actually said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety”—which is very much a balancing statement. In short, we must

27 Marc Rotenberg, Restoring a Public Interest Vision of Law in the Age of the Internet, 3 DUKE L. & TECH. REV. 1, 7-15 (2004). 28 Larry Abramson, Privacy Board to Scrutinize Surveillance Programs, NPR (July 9, 2013, 4:00 AM), http://www.npr.org/2013/07/09/200285740/privacy-board-to-hold-first-meeting. 29 See, e.g., Benjamin Wittes, Would Ben Franklin Trade Liberty for Wiretapping?, BROOKINGS INST. (June 12, 2013, 8:57 AM), http://www.brookings.edu/blogs/up-front/posts/2013/06/11-ben-franklin-liberty-wiretapping-security.

http://www.npr.org/2013/07/09/200285740/privacy-board-to-hold-first-meeting



http://www.brookings.edu/blogs/up-front/posts/2013/06/11-ben-franklin-liberty-wiretapping-security



[Vol. 1:1 2014] PRIVACY AND SECURITY 63 balance, and we cannot avoid the question of where the best point of balance lies. The answer changes over time.

D. Within History

The balance between privacy and security that the liberal communitarian paradigm seeks must be constantly adjusted as historical circumstances change (e.g., following the 9/11 attacks on the United States homeland) and technological developments occur (e.g., improvements in facial recognition technology). Thus, a society ought to afford more leeway to security measures if there are valid reasons for thinking that the threat to the public has significantly increased—and give less leeway once the threat has subsided. The article now turns to examine the criteria that can serve in sorting out where the balance lies in a particular historical situation.

III. THE FOUR CRITERIA: FINDING THE BALANCE The liberal communitarian approach draws on four criteria

to identify a proper balance between the competing values of security and privacy for a given nation in a given time period.30 First, a liberal democratic government will limit privacy only if it faces a well-documented and large-scale threat to the national security, not merely a hypothetical or limited threat to a few individuals or localities. The main reason this threshold must be cleared is because modifying legal precepts—and with them the ethical, social, and public philosophies that underlie them—endangers their legitimacy. Changes, therefore, should not be undertaken unless there is strong evidence that either national security or privacy have been significantly undermined.

The 9/11 attacks served as significant change in historical

conditions that revealed the serious threats posed by non-state actors determined to strike within the borders of the United States. Because there have been no new large-scale attacks within the country since 2001, there is a growing tendency to call for a re-balancing to oppose enhanced security measures (e.g., surveillance by the National Security Agency (NSA) and special judicial

30 See AMITAI ETZIONI, THE LIMITS OF PRIVACY (1999).

64 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] proceedings for suspected terrorists by the Foreign Intelligence Surveillance Act (FISA)), and to call for more attention to privacy concerns (e.g., by relaxing the standards of TSA searches and restricting the use of surveillance technologies such as drones). However, although the United States has done much to disrupt al Qaeda and other terrorist groups, the threat of terrorism still seems considerable. There are many hundreds of thousands of people around the world who deeply hate the United States and what it stands for, who consider it to be the “Great Satan,” and wish it harm, and who believe that using violence against it constitutes an act of martyrdom. It seems reasonable to assume that some of these individuals will act on their beliefs. At the same time, al Qaeda has regrouped and established new affiliates in Africa,31 the Arabian Peninsula,32 and in other parts of the world.33

Worse, there is a significant danger that these hostile

groups might get their hands on a weapon that is capable of inflicting far more damage than the planes that brought down the Twin Towers (i.e., a nuclear weapon). Both Russia and Pakistan have less-than-fully-secured nuclear arms within their borders.34

31 Sara Carter, Al Qaeda Gaining Strength in Mali, North Africa, WASH. TIMES (Mar. 26, 2013), http://www.washingtontimes.com/news/2013/mar/26/key-mali-lawmaker-challenges-obama-on-al-qaida-thr/?page=all; see also Sudarsan Raghavan, Nigerian Islamist Militants Return from Mali with Weapons, Skills, WASH. POST (May 31, 2013), http://www.washingtonpost.com/world/africa/nigerian-islamist-militants-return-from-mali-with-weapons-skills/2013/05/31/d377579e-c628-11e2-9cd9-3b9a22a4000a_story.html; see also Adam Entous, Drew Hinshaw, & David Gauthier-Villars, Militants, Chased From Mali, Pose New Threats, WALL ST. J. (May 24, 2013, 8:08 PM), http://online.wsj.com/article/SB10001424127887323336104578503464066163002.html. 32 Cory Bennett, How Al-Qaida in Yemen Became the Biggest Terrorist Threat to the U.S., NAT’L J. (Dec. 12, 2012), http://www.nationaljournal.com/political-landscape-podcast/how-al-qaida-in-yemen-became-the-biggest-terrorist-threat-to-the-u-s-20121214; see also Lt. Col. Douglas A. Pryer, The Rise of the Machines, MIL. REV. 14, 17 (Mar.–Apr. 2013), available at http://usacac.army.mil/CAC2/MilitaryReview/Archives/English/MilitaryReview_20130430_art005.pdf. 33 Bruce Riedel, Al Qaeda Comeback, DAILY BEAST (Apr. 12, 2013), http://www.thedailybeast.com/articles/2013/04/12/al-qaeda-comeback.html. 34 See PAUL K. KERR & MARY BETH NIKITIN, CONG. RESEARCH SERV., RL34248, PAKISTAN’S NUCLEAR WEAPONS: PROLIFERATION AND SECURITY ISSUES (2013), available at http://www.fas.org/sgp/crs/nuke/RL34248.pdf (for a detailed discussion of this point); see also AMY F. WOOLF, CONG. RESEARCH

http://www.washingtontimes.com/news/2013/mar/26/key-mali-lawmaker-challenges-obama-on-al-qaida-thr/?page=all



http://articles.washingtonpost.com/2013-05-31/world/39642133_1_northern-mali-boko-haram-nigerian-islamist

http://online.wsj.com/article/SB10001424127887323336104578503464066163002.html



http://www.nationaljournal.com/political-landscape-podcast/how-al-qaida-in-yemen-became-the-biggest-terrorist-threat-to-the-u-s-20121214



http://usacac.army.mil/CAC2/MilitaryReview/Archives/English/MilitaryReview_20130430_art005.pdf

http://usacac.army.mil/CAC2/MilitaryReview/Archives/English/MilitaryReview_20130430_art005.pdf

http://www.thedailybeast.com/articles/2013/04/12/al-qaeda-comeback.html

http://www.thedailybeast.com/articles/2013/04/12/al-qaeda-comeback.html

http://www.fas.org/sgp/crs/nuke/RL34248.pdf


[Vol. 1:1 2014] PRIVACY AND SECURITY 65 The situation in Pakistan seems to pose a particular threat, as the government has so far been either unable or unwilling to combat terrorists within its borders and has experienced at least six serious terrorist attempts to penetrate its nuclear facilities.35

In 2009, Najibullah Zazi, a Denver cab driver who was trained in explosives by al Qaeda, was caught constructing bombs that he planned to detonate in the New York City subways.36 The NSA intercepted an e-mail between Zazi and an al Qaeda operative that tipped off the government to the plot and prevented it from being carried out,37 apparently only days before Zazi and his accomplices planned to carry out the attack.38 At the same time, the government’s surveillance foiled a similar plot to bomb the New York Stock Exchange.39 Overall, United States intelligence officials claim that the PRISM program and the collection of phone company metadata disrupted 54 terrorist plots, one-fifth of which were to be carried out within the borders of the United States.40 This number does not include all those plots that were foiled by more traditional methods or those that were successfully carried out, such as the Boston Marathon bombing.

To conclude, it is impossible to reliably measure the scope of the terrorist threat, even for those who have full access to all the

SERV., RL32572, NONSTRATEGIC NUCLEAR WEAPONS, (2012), available at http://www.fas.org/sgp/crs/nuke/RL32572.pdf. 35 See Shaun Gregory, The Terrorist Threat to Pakistan’s Nuclear Weapons, CTC SENTINEL (July 15, 2009), http://www.ctc.usma.edu/wp-content/uploads/2010/06/Vol2Iss7-Art1.pdf. 36 House Select Intelligence Committee Holds Hearing on Disclosure of National Security Agency Surveillance Programs, 113th Cong. 10-11 (2013) (statement of Sean M. Joyce, Deputy Director, FBI), available at https://www.fas.org/irp/congress/2013_hr/disclosure.pdf, [hereinafter NSA Surveillance Programs]. 37 Id. 38 Id. 39 Id.; see also Erin McClam, Surveillance helped stop plots against NYSE and New York subway, official says, NBC NEWS (June 18, 2013, 5:11 PM), http://usnews.nbcnews.com/_news/2013/06/18/19022364-surveillance-helped-stop-plots-against-nyse-and-new-york-subway-official-says?lite. 40 Courtney Kube, NSA chief says surveillance programs helped foil 54 plots, NBC News (June 27, 2013, 6:04 PM), http://usnews.nbcnews.com/_news/2013/06/27/19175466-nsa-chief-says-surveillance-programs-helped-foil-54-plots?lite; see NSA Surveillance Programs, supra note 36, at 11, 14 (statement of General Keith Alexander, Director, NSA).



http://www.ctc.usma.edu/wp-content/uploads/2010/06/Vol2Iss7-Art1.pdf

http://www.ctc.usma.edu/wp-content/uploads/2010/06/Vol2Iss7-Art1.pdf

https://www.fas.org/irp/congress/2013_hr/disclosure.pdf

http://usnews.nbcnews.com/_news/2013/06/18/19022364-surveillance-helped-stop-plots-against-nyse-and-new-york-subway-official-says?lite



http://usnews.nbcnews.com/_news/2013/06/27/19175466-nsa-chief-says-surveillance-programs-helped-foil-54-plots?lite



66 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] intelligence that is available. However, it seems that the time has not yet come to re-balance by reducing security measures.

Second, once it has been established that national security

needs shoring up, one should determine if this goal can be achieved without introducing new limits on privacy. For instance, this balancing criterion could be satisfied as follows: data could be encrypted, locked up in computers, and made accessible only with a court order, allowing the data to be available on very short notice if one needs to track the movements and whereabouts of a particular individual. This is a procedure reportedly followed by those overseeing and carrying out the NSA program that holds American phone records.41

Third, to the extent that privacy-curbing measures must be

introduced, they should be as non-intrusive as possible. For example, in 2013, the TSA gave up its use of body scanners that revealed almost nude images and replaced them with scanners that produce “cartoon-like” images that mark the places where hidden objects are detected.42 In this way, the TSA is able to carry out the same thorough search in a way that is far less intrusive than full-body pat downs or scanning that revealed every contour of the traveler’s body.

Fourth, measures that ameliorate undesirable side effects of

necessary privacy-diminishing measures are to be preferred over those that ignore these effects. Thus, to the extent that those engaged in counter-terrorism searches are instructed to ignore misdemeanors, such as minor drug offenses or vandalism, this criterion is met.

Another way to think about balancing is to compare the

security benefits yielded by a given measure with the tangible harms it inflicts. Thus, the evidence suggests that enhanced

41 See Marc Ambinder, How the NSA uses your telephone records, WEEK (June 6, 2013, 1:07 PM), http://theweek.com/article/index/245285/how-the-nsa-uses-your-telephone-records. This is a bit of a simplification, but it largely captures the NSA’s operating procedures. 42 Jack Nicas, TSA to Halt Revealing Body Scans at Airports, WALL ST. J. (Jan. 18, 2013, 6:15 PM), http://online.wsj.com/news/articles/SB10001424127887323783704578250152613273568.

http://theweek.com/article/index/245285/how-the-nsa-uses-your-telephone-records

http://theweek.com/article/index/245285/how-the-nsa-uses-your-telephone-records

[Vol. 1:1 2014] PRIVACY AND SECURITY 67 surveillance has led to the disruption of 54 terrorist activities.43 At the same time, even Hendrik Hertzberg, the New Yorker’s liberal political commentator, notes,

[t]he threat that [the NSA’s programs] pose to civil liberties, such as it is, is abstract, conjectural, unspecified. In the roughly seven years the programs have been in place in roughly their present form, no citizen’s freedom of speech, expression, or association has been abridged by them in any identifiable way. No political critic of the Administration has been harassed or blackmailed as a consequence of them.

But Hertzberg refers only to the NSA programs. And there have been some abuses of other surveillance programs. For example, government surveillance has been used to target political dissenters.44 But this does not mean that all surveillance programs ought to be canceled or that they no longer serve an important anti-terrorism purpose. Instead, the measures that curb such abuses need to be enhanced. When presented with the preceding statement, strong privacy advocates often argue the following:

● This evidence is based on information that is released by the government, and the government cannot be trusted;

● Even if enhanced surveillance programs have caused little harm so far, they may do so in the future and hence should be avoided.

In fact, some privacy advocates go as far as calling for all enhanced programs to be all-but-canceled, not merely curbed and closely scrutinized.45

43 Kube, supra note 40. 44 Jameel Jaffer, Op-Ed., Secrecy and Freedom: Privacy Is Worth Protecting, N.Y. TIMES (June 9, 2013, 10:00 PM), http://www.nytimes.com/roomfordebate/2013/06/09/is-the-nsa-surveillance-threat-real-or-imagined. 45 David Greene & Carrie Johnson, Snowden’s Leaks Puts National Security Agency In A Bind, NPR, (July 9, 2013),

http://www.nytimes.com/roomfordebate/2013/06/09/is-the-nsa-surveillance-threat-real-or-imagined




The next two sections address how to verify these claims and how to further reduce the extent to which future security measures harm privacy.

IV. NARROWING THE GAP A. Generalized Searches are Legal and Legitimate

The privacy model most often employed by privacy advocates is that of probable cause and individualized search. These advocates argue that, before the government searches anyone, it must, as required by the Constitution, present to a court of law evidence demonstrating that there exists strong reason (enough to convince a judge) for believing that the particular person is likely to be a terrorist. Only then, according to these advocates, can a person be subjected to surveillance.46 The courts, however, have long established (employing, in effect, a rather similar line of analysis to the liberal communitarian analysis outlined above) that when there is both a clear public interest and a small privacy intrusion, “generalized searches” (i.e., of masses of people) are legal and are needed. This ruling has been applied to airport screening,47 sobriety checkpoints,48 drug testing of those whose jobs involve public safety,49 and the screening of mail and Internet communications. Generalized searches were further legitimized by section 215 of the PATRIOT Act and the National Security letters that it authorizes. This legislation allows the government to conduct surveillance without first identifying some individual as a

http://www.npr.org/player/v2/mediaPlayer.html?action=1&t=1&islist=false&id=200285742&m=200286159. 46 Fourth Amendment, LEGAL INFORMATION INSTITUTE, Cornell University Law School, http://www.law.cornell.edu/wex/fourth_amendment (accessed 12 July 2013). 47 See Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Security, 653 F.3d 1, 10–11 (D.C. Cir. 2011); see also, Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 674–75 (1989). 48 See Mich. Dep’t of State Police v. Sitz, 110 S. Ct. 2481 (1990). 49 See Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602 (1989); see also Von Raab, 489 U.S. at 656.

http://www.npr.org/player/v2/mediaPlayer.html?action=1&t=1&islist=false&id=200285742&m=200286159



http://www.law.cornell.edu/wex/fourth_amendment

[Vol. 1:1 2014] PRIVACY AND SECURITY 69 suspected terrorist while also granting the authority to search through third-party databases without notifying suspects, as long as the “information is relevant to a terrorism investigation.”50

B. Computers are Blind, Deaf, and Dumb

The incontrovertible fact that privacy and security pose conflicting demands and, hence, must be balanced, does not mean that one cannot find ways to reduce the conflict between these two core values. One major way is to draw a sharp line between what is stored in and processed by computers and what is revealed to human agents. Computers per se do not violate privacy. They do not gossip. They see no evil, hear no evil, and speak no evil. They can vastly facilitate the violation of privacy, but only as perpetrated by human agents. Indeed, with respect to much of the data collected by the NSA, “[t]hey park stuff in storage in the hopes they will eventually have time to get to it or that they’ll find something that they need to go back and look for in the masses of data . . . most of it sits and is never looked at by anyone.”51 Hence, those who are concerned with finding a reasonable balance between security and privacy should focus on the interface between computers and human agents, and ensure that once the computers flag particular individuals, this information is revealed only to law enforcement authorities and used by them in legal and accountable ways.

A very telling example is the way the government is reporting how the collection of metadata on phone records is set up. The government collected from Verizon—and likely from other companies as well52—records of the numbers dialed by Americans and the length of the call, but not the content of the calls, as claimed by some critics.53

50 Skinner, 489 U.S. at 613. 51 Scott Shane & David E. Sanger, Job Title Key to Inner Access Held by Snowden, N.Y. TIMES (June 30, 2013), http://www.nytimes.com/2013/07/01/us/job-title-key-to-inner-access-held-by-snowden.html?pagewanted=all. 52 Paul Rosenzweig, The NSA’s Phone Collection Order – It May be Legal, but is it Wise?, HERITAGE FOUND. (June 7, 2013), http://www.heritage.org/research/commentary/2013/6/the-nsas-phone-collection-order-it-may-be-legal-but-is-it-wise. 53 Bob Cesca, CNET Reporter Posts Wildly Inaccurate Yet Totally Viral ‘Bombshell’ About NSA Eavesdropping, DAILY BANTER (June 16, 2013),

http://www.nytimes.com/2013/07/01/us/job-title-key-to-inner-access-held-by-snowden.html?pagewanted=all






The government did not listen to the calls both because it did not collect the content of the calls, and analyzing the calls would be extremely labor intensive and likely require the combined labor force of the United States and Canada. The government reported that the storing of metadata is done so that analysts have rapid access to the information when needed and the ability to stitch together various data. (For some reason, the government failed to stress that the phone companies keep the records for only short periods of time54 and security concerns require longer storage.)55 If and when there is a suspect, the government reports that it requires a court order, which is in line with the particular individualized standard to which civil libertarians demand the government adhere. To the extent this pattern is followed for United States persons (defined as citizens of the United States, permanent alien residents, corporations that are incorporated in the U.S., and unincorporated associations with a “substantial number of members who are citizens of the U.S. or are aliens lawfully admitted for permanent residence”),56 the tension between privacy and security would be greatly reduced. The applicability of this operating procedure when dealing with non-

http://thedailybanter.com/2013/06/ cnet-reporter-posts-wildly-inaccurate-yet-totally-viral-bombshell-about-nsa-eavesdropping/. 54 See Allie Bohm, How Long Is Your Cell Phone Company Hanging On To Your Data?, ACLU BLOG OF RIGHTS (Sep. 28, 2011, 10:17 AM), https://www.aclu.org/blog/technology-and-liberty/how-long-your-cell-phone-company-hanging-your-data (discussing the data retention policies of the U.S. telecommunication giants, which vary from company to company, depending on the type of information). In 2011, the ACLU of North Carolina obtained, through a FOIA request, a chart created by the Department of Justice that details how long six major cellular service providers kept their data. Cell tower information was kept on a rolling one-year basis by Verizon; for 18-24 months by Sprint; and indefinitely since 2008 by AT&T. In contrast, the content of text messages was not retained at all by four of the companies, and kept for 3-5 days by Verizon and 90 days by Virgin Mobile (but only accessible to law enforcement with a warrant). Id. 55 ‘This Week’ Transcript: Sen. Dianne Feinstein and Rep. Mike Rogers, ABC This Week, ABC NEWS (June 9, 2013), http://abcnews.go.com/Politics/week-transcript-sen-dianne-feinstein-rep-mike-rogers/story?id=19343314&page=4#.Udsm2jtilJl. 56 SIGINT Frequently Asked Questions, NAT’L SECURITY AGENCY/CENT. SECURITY SERV. (Jan. 15, 2009), http://www.nsa.gov/sigint/faqs.shtml#sigint4.

http://thedailybanter.com/2013/06/cnet-reporter-posts-wildly-inaccurate-yet-totally-viral-bombshell-about-nsa-eavesdropping/

http://thedailybanter.com/2013/06/cnet-reporter-posts-wildly-inaccurate-yet-totally-viral-bombshell-about-nsa-eavesdropping/

http://abcnews.go.com/Politics/week-transcript-sen-dianne-feinstein-rep-mike-rogers/story?id=19343314&page=4%23.Udsm2jtilJl



http://www.nsa.gov/sigint/faqs.shtml%23sigint4

http://www.nsa.gov/sigint/faqs.shtml%23sigint4

[Vol. 1:1 2014] PRIVACY AND SECURITY 71 United States persons overseas is beyond the purview of this article.57

Further, using metadata for pattern recognition should not trouble rights advocates as long as the patterns are relevant to security. The Wall Street Journal correctly noted the paradox of data mining:

[T]he more such information the government collects the less of an intrusion it is. These data sets are so large that only algorithms can understand them. The search is for trends, patterns, associations, networks. They are not in that sense invasions of individual privacy at all.58

Thus, computers can extract and analyze all those instances when a person purchased a one-way ticket, paid with cash, and did so at the last moment. It is far from clear, at least to this sociologist, that finding such patterns can suffice to identify terrorists. However, such searches could suffice to lead to closer computerized scrutiny (e.g., to see if those who drew attention have also made calls to areas where terrorists train, traveled to these parts, or visited al Qaeda websites) and, if suspicious activity is found, the computers could then flag a human agent. C. Private is Not Secure

Numerous discussions of the issues at hand focus on the government as the threat to privacy and pay little mind to private actors, like ChoicePoint, Axiom, and RapLeaf, that have built very detailed dossiers on most Americans.59 But as the author has documented elsewhere, with just a click and a money order, public authorities can access private data banks. In fact, the government has contracts with a number of companies that have been building

57 See Amitai Etzioni, A Cyber Age Privacy Doctrine: A Liberal Communitarian Approach, I/S: A Journal of Law and Policy for the Information Society, 9 ISJLP ___ (2014), Forthcoming. 58 Op-Ed., Big Brother and Big Data, WALL ST. J. (June 9, 2013, 7:03 PM), http://online.wsj.com/article/SB10001424127887323495604578535552983978828.html. 59 For more on this point, see Amitai Etzioni, The Privacy Merchants: What Is To Be Done?, 14 U. PA. J. CONST. L. 929 (2014).





72 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] dossiers on millions of private citizens.60 ChoicePoint, for example, had at least 35 contracts with various government agencies, including the Department of Justice (which, by extension, made its data available to the Federal Bureau of Investigation (FBI)).61 Those who fear that the government’s data banks could, in the future, be used for nefarious purposes even if they are not presently—and oppose their creation even if they serve to enhance security—should note that, as long as these private data banks exist in the private sector (which the Constitution does not ban), they are just as open to abuse as if they were held by the public sector. Thus, if a tyrant were to take over the United States government tomorrow, or if J. Edgar Hoover were alive and reappointed Director of the FBI, it would matter little whether dossiers were kept by corporations or the government. To protect against abuse, privacy advocates cannot focus on the government’s access to what is already stored by corporations alone; they must look to public and private entities.

V. TRUST BUT VERIFY

A. Curb Abuses Critics have strong reason to hold that, once the

government is granted the power to collect information about the private lives of individuals, these powers will be abused. The critics have identified the following abuses:

● Using data to find and prosecute people of opposing

political views, what some have called the Nixon effect62;

● Using data to stigmatize people whose conduct violates established norms but not the law (e.g., information about adulterous affairs, abortions, or unusual sexual preferences. This type of information is sometimes referred to as the Scarlet Letter effect);

60 DANIEL SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE 169 (2006). 61 See Etzioni, supra note 59, at 935-36. 62 Jeffrey Rosen, The Naked Crowd: Balancing Privacy and Security in an Age of Terror, 46 ARIZ. L. REV. 607, 611 (2004).

[Vol. 1:1 2014] PRIVACY AND SECURITY 73

● Using data to keep around information that, in the past, would have been slowly forgotten, allowing people to develop new identities (e.g., the person whose “conviction of graffiti vandalism at age 19 will still be there at age 29 when [they’re] a solid citizen trying to get a job and raise a family”63); and

● Using data to go after crimes other than terrorist acts.

There is no question that, in the past, all of these abuses

have taken place. One should also note that they are not one and the same kind. The Nixon effect and Scarlet Letter effect are clearly troubling, and one must discuss, as this Article does next, how to curb and deter them. The status of a newly minted right by privacy advocates—the right to be forgotten—is much less clear because evidence shows that erasing the past often leads to repetitive malicious conduct, such as people who continue to abuse children, doctors who continue to practice medicine after killing patients due to their drug and alcohol abuse, and con artists who continue to abuse the elderly—rather than people who start new constructive lives.64

Regarding other crimes, the right to be forgotten raises a

serious question of balance. On the one hand, there is reason to hold that the extraordinary powers granted to the government to counter the special threat of terrorism should not be used for other purposes. On the other hand, in a society in which over 35% of homicide cases go unsolved, with that number rising to nearly 60% for cases of forcible rape and almost 90% for instances of burglary and motor-vehicle theft, some extension of powers to enhance public safety might be justified.65 Sorting out this particular balance between privacy and public safety, other than

63 Beth Givens, Public Records on the Internet: The Privacy Dilemma 5, PRIVACY RIGHTS CLEARINGHOUSE, available at http://www.cfp2002.org/proceedings/proceedings/givens.pdf. 64 See Amitai Etzioni & Radhika Bhat, Second Chances, Social Forgiveness, and the Internet, AM. SCHOLAR (Spring 2009), http://theamericanscholar.org/second-chances-social-forgiveness-and-the-internet/#.Udx70DtilJk. 65 Clearances, FBI (2011), http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2011/crime-in-the-u.s.-2011/clearances (discussing the most recent numbers from 2011 as indicated by this report).

http://www.cfp2002.org/proceedings/proceedings/givens.pdf

http://theamericanscholar.org/second-chances-social-forgiveness-and-the-internet/%23.Udx70DtilJk

http://theamericanscholar.org/second-chances-social-forgiveness-and-the-internet/%23.Udx70DtilJk

http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2011/crime-in-the-u.s.-2011/clearances

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74 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] counterterrorism, is beyond the purview of this article, but it deserves much more attention than it has gained so far.

The discussion next turns to what measures can be taken to further ensure that the counterterrorism powers will not be abused in any of the ways that they have been abused in the past. That is, instead of arguing that there is no need to re-balance security and privacy to minimize future terrorist attacks, the challenge now is, given the assumption that a re-balancing is called for (for a defined period), to determine what measures can be added to those already in place to ensure that the enhanced powers will be employed only for legitimate purposes. The reason the challenge is worded in terms of what measures should be “added” rather than which should be “employed,” is because many are already in place. The executive branch has layers upon layers of supervisors, who are the first line of accountability. In addition, there are Inspectors General and Privacy Officers who often serve as quite forceful critics of the practices of concern here.66 Congress has various committees charged with oversight, and there is also the investigative Government Accountability Office (GAO).67 The courts, too, play an important checking and balancing role. The media frequently

66 Interview by Jonathan Masters with Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy, Council on Foreign Relations (July 12, 2013), available at http://www.cfr.org/intelligence/has-fisa-court-gone-too-far/p31095; see also Shaun Waterman, Officials Say Americans Protected by Prism Surveillance Program, WASH. TIMES (June 10, 2013), http://www.washingtontimes.com/news/2013/jun/10/officials-say-americans-protected-by-prism-surveil/?page=all. 67 See, e.g., U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-05-866, DATA MINING: AGENCIES HAVE TAKEN KEY STEPS TO PROTECT PRIVACY IN SELECTED EFFORTS, BUT SIGNIFICANT COMPLIANCE ISSUES REMAIN (2005), available at http://www.gao.gov/assets/250/247433.pdf; U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-536, PRIVACY: ALTERNATIVES EXIST FOR ENHANCING PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION (2008), available at http://www.gao.gov/new.items/d08536.pdf; U.S. GOV’T ACCOUNTABILITY OFFICE GAO-12-961T, PRIVACY: FEDERAL LAW SHOULD BE UPDATED TO ADDRESS CHANGING TECHNOLOGY LANDSCAPE (2012), available at http://www.gao.gov/assets/600/593146.pdf; or U.S. GOV’T ACCOUNTABILITY OFFICE GAO-12-981, UNMANNED AIRCRAFT SYSTEMS: MEASURING PROGRESS AND ADDRESSING POTENTIAL PRIVACY CONCERNS WOULD FACILITATE INTEGRATION INTO THE NATIONAL AIRSPACE SYSTEM (2012), available at http://www.gao.gov/assets/650/648348.pdf.

http://www.cfr.org/intelligence/has-fisa-court-gone-too-far/p31095

http://www.cfr.org/intelligence/has-fisa-court-gone-too-far/p31095

http://www.washingtontimes.com/news/2013/jun/10/officials-say-americans-protected-by-prism-surveil/?page=all

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[Vol. 1:1 2014] PRIVACY AND SECURITY 75 acts as a major guardian against abuses. Investigative bodies such as Pike and Church Committees—as well as the 9/11 Commission—also serve to review and vet the government’s claims and behavior. In the past, all these institutions served to reveal abuses when they occurred and acted to curb them, but often only after considerable delay. Further, the fact that abuses occurred at all suggests that there is reason to further enhance scrutiny of the government and establish additional precautionary measures.

B. Accountability vs. Transparency In searching for measures to enhance scrutiny, one ought to

make a sharp distinction between two major ways of proceeding. The first approach entails enhanced transparency, in which more information about counterterrorism measures is provided to the media and, hence, to the public, as well as to members of Congress in general (rather than only to a select few with security clearance who serve on specialized committees). Following the revelations of the NSA programs in 2013, there was a very considerable demand for increased transparency. The President emphasized that the programs were transparent,68 with aides stating that they were going to try to be even more transparent,69 and additional information was released by the government,70 on top of the continued stream of leaks. At the same time, more than one-quarter of the Senate has urged the White House to be more transparent about its surveillance practices.71

68 David Jackson, Obama: NSA Surveillance Programs are ‘Transparent,’ USA TODAY (June 18, 2013, 9:27 AM), http://www.usatoday.com/story/theoval/2013/06/18/obama-charlie-rose-program-nsa-surveillance/2433549. 69 Peter Baker, After Leaks, Obama Leads Damage Control Effort, N.Y. TIMES (June 28, 2013), http://www.nytimes.com/2013/06/29/us/politics/after-leaks-obama-leads-damage-control-effort.html?pagewanted=all. 70 Trevor Timm, The NSA Leaks Are Forcing More Transparency on Both Companies and the Government, FREEDOM OF THE PRESS FOUND. (June 15, 2013), https://pressfreedomfoundation.org/blog/2013/06/nsa-leaks-are-forcing-more-transparency-both-companies-and-government. 71 Ellen Nakashima, Bipartisan Group of Senators Urges Transparency on Phone Record Surveillance, WASH. POST (June 28, 2013), http://articles.washingtonpost.com/2013-06-28/world/40251889_1_phone-records-bulk-collection-senators.

http://www.usatoday.com/story/theoval/2013/06/18/obama-charlie-rose-program-nsa-surveillance/2433549/

http://www.usatoday.com/story/theoval/2013/06/18/obama-charlie-rose-program-nsa-surveillance/2433549/

http://www.nytimes.com/2013/06/29/us/politics/after-leaks-obama-leads-damage-control-effort.html?pagewanted=all

http://www.nytimes.com/2013/06/29/us/politics/after-leaks-obama-leads-damage-control-effort.html?pagewanted=all

https://pressfreedomfoundation.org/blog/2013/06/nsa-leaks-are-forcing-more-transparency-both-companies-and-government



http://articles.washingtonpost.com/2013-06-28/world/40251889_1_phone-records-bulk-collection-senators

http://articles.washingtonpost.com/2013-06-28/world/40251889_1_phone-records-bulk-collection-senators


The second approach entails increasing the power of, and adding layers to, institutional accountability and oversight. Although both might be called for, there are strong reasons to rely more on enhanced accountability and oversight than on much enhanced transparency. The distinction reflects the well-known difference between direct democracy (which is the idea behind transparency—the people will know all the details and judge the merit of the programs) and representative democracy (a good part of the judgment will be made by elected representatives, and the public will judge them).

Significantly higher levels of transparency present two

kinds of serious problems. One problem is well-known and plagues all efforts for direct democracy. There are sharp limits in the capacity of the public who are busy making a living and leading a social life, to learn the details of any government program and evaluate it—especially given that, in the end, they cannot vote any program up or down, but have only one "holistic" vote for their representatives based on all that those representatives favor and oppose. Second, high transparency is, on its face, incompatible with keeping secret that which must be kept secret.

Moreover, when the government responds to calls for more

scrutiny with the release of more information—so as to demonstrate that the secret acts did, in fact, improve security and did not unduly violate privacy—these releases encounter several difficulties. First, each piece of information released potentially helps the adversaries. This is, in effect, the way intelligence work is often done: by piecing together details released by various sources. Thus, the publication of information about which past terrorist operations were disrupted by the government could allow those groups to find out which of their plots failed because of US government interventions versus those that failed because of technical flaws, the weakness of their chosen agents, or some other reason. Second, it is next to impossible to spell out how these cases unfolded without giving away details about sources and methods. (That is, unless the government releases misleading details. But, sooner or later, some whistleblower would likely expose the ploy, undermining the whole enterprise, which was meant to build trust in government.) Thus, one intelligence official reports that the leaks regarding the NSA snooping programs have already led to terrorist groups “changing their communications behavior based on

[Vol. 1:1 2014] PRIVACY AND SECURITY 77 these disclosures,” meaning that we might “miss tidbits that could be useful in stopping the next plot.”72

Moreover, however much information about specific cases

the government releases, skeptics are sure to find details that need further clarification and documentation. (This is the reason public relations experts urge those whose misdeeds are under public scrutiny to “tell all” right from the start, a strategy that may well serve politicians who cheat on their spouses, but not those who deal with combating terrorism.) Thus, following the uproar over the PRISM program, technology companies sought to “reassure users” by releasing reports on the frequency of government data requests. According to the New York Times, the result was that “rather than provide clarity, the companies’ disclosures have left many questions unanswered.”73 When NSA Director General Keith Alexander released details about how the agency’s surveillance programs had thwarted terrorist plots, the media immediately asked for more.74 Moreover, there is no way for the media to determine whether the released cases are typical or were chosen because they reflect well on the government.

In contrast, a representative democracy approach suggests

that one ought to search for ways to enhance the accountability and oversight power of various institutions, including Congressional committees, the FISA appeal court, the GAO, various Inspectors General, and privacy officers. The involved government agencies must greatly expand the use of audit trails.

Increased briefings to more members of Congress may not

be the best way to proceed. First, many members of Congress do not have the security clearance possessed by the members and key

72 Scott Shane & David E. Sanger, Job Title Key to Inner Access Held by Snowden, N.Y. TIMES (June 30, 2013), http://www.nytimes.com/2013/07/01/us/job-title-key-to-inner-access-held-by-snowden.html?pagewanted=al. 73 Vindu Goel & Claire Cain Miller, More Data on Privacy, But Picture Is No Clearer, N.Y. TIMES (June 17, 2013), http://www.nytimes.com/2013/06/18/technology/more-data-on-privacy-but-picture-is-no-clearer.html. 74 Spencer Ackerman, Senators Press NSA Director for Answers on Secret Surveillance Program, GUARDIAN (June 12, 2013, 6:06 PM), http://www.guardian.co.uk/world/2013/jun/12/senate-nsa-director-keith-alexander.




http://www.nytimes.com/2013/06/18/technology/more-data-on-privacy-but-picture-is-no-clearer.html

http://www.nytimes.com/2013/06/18/technology/more-data-on-privacy-but-picture-is-no-clearer.html

http://www.guardian.co.uk/world/2013/jun/12/senate-nsa-director-keith-alexander

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78 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] staffers of the Congressional intelligence committees. Second, many members of Congress are known to be notorious leakers. And, third, the public’s trust in Congress is at an historical low point.

Rather, the media and the public would benefit from a

regular review conducted by an independent civilian review board. Such a board would be composed of the kind of people who served on the 9/11 Commission: bipartisan, highly respected by the public, able to work together, not running for office, and possessing the necessary security clearance. While not everyone agreed with the 9/11 Commission’s conclusions, it was still well-respected and largely trusted, with many of its recommendations being eventually implemented.

The new board would issue reports, perhaps annually, that

would advise whether the government collected information for political reasons (as opposed to security concerns) in the pursuit of minor crimes rather than terrorists, or for other legitimate and legal goals.

But instead of revealing detailed case studies, the civilian

review board would provide statistics. For example, if it reported that there were a large number of cases in which serious threats were averted, such as the planned attack on New York City’s subways, the public would learn that the threats to national security warranted increased efforts to enforce anti-leak legislation. If, on the other hand, the board reported that many cases involve fairly minor threats, this would tilt the consensus the other way.75 If the current Privacy and Civil Liberties Oversight Board would be

75 In 2001, six men from Buffalo, New York, took a trip to Pakistan for a spiritual retreat sponsored by Tablighi Jamaat—a group that, while associated with radicalism, was not designated as a terrorist organization. While there, however, the six men were accused of attending a terrorist training camp called Al Farooq and supposedly listened to a speech delivered by Osama bin Laden. No evidence was presented of a forthcoming plot on their part. There were no weapons found, no history of violence uncovered, nor was there any “clear and convincing evidence” that the six men were planning any sort of terrorist act. Yet they were still charged under the Antiterrorism and Effective Death Penalty Act, which has a potential maximum sentence of 15 years in prison and $250,000 fine. JoAnn Wypijewski, Living in an Age of Fire, MOTHER JONES (Mar.-Apr. 2003), http://www.motherjones.com/politics/2003/03/living-age-fire.

http://www.motherjones.com/politics/2003/03/living-age-fire

[Vol. 1:1 2014] PRIVACY AND SECURITY 79 properly staffed and funded, and its powers increased, it could serve as the proposed independent civilian review board.

C. Can We Trust the Government?

A common claim among civil libertarians is that, even if little harm is presently being inflicted by government surveillance programs, the infrastructure is in place for a less-benevolent leader to violate the people’s rights and set us on the path to tyranny. For example, it has been argued that the PRISM program “will amount to a ‘turnkey’ system that, in the wrong hands, could transform the country into a totalitarian state virtually overnight. Every person who values personal freedom, human rights and the rule of law must recoil against such a possibility, regardless of their political preference.”76 A few things might be said in response.

First, all of the data that the government is collecting is already being archived (at least for short periods—as discussed above) by private corporations and other entities. Second, if one is truly concerned that a tyrant might take over the United States, one obviously faces a much greater and all encompassing threat than a diminution of privacy. Finally, the response has to be similarly expansive: (a) One can join civic bodies that seek to shore up democracies; (b) one can work with various reform movements and public education drives; or (c) one can join groups that prepare to retreat to the mountains, store ammunition and essential foods, and plan to fight the tyrannical forces. But it makes no sense to oppose limited measures to enhance security on these grounds.

76 Kim Dotcom, Prism: Concerns Over Government Tyranny Are Legitimate, GUARDIAN (June 13, 2013, 4:01 AM), http://www.guardian.co.uk/commentisfree/2013/jun/13/prism-utah-data-center-surveillance.



81

MATTER OF T-, THE NINTH CIRCUIT, AND “DEPARTURE” FROM THE UNITED STATES

Justin Burrows

I. INTRODUCTION

Departing the United States is not as easy as driving through the Detroit-Windsor Tunnel or boarding an international airplane, train, or cruise ship. Rather, as established by Matter of T-, to “depart” the United States a person must not only physically enter another country, but also must be granted entry.1 Within the

1See Matter of T-, 6 I. & N. Dec. 638, 640 (B.I.A. 1955) (“In support of the administrative view that an entry had not been made under prior law when an alien had returned to the United States after having been denied entry into a foreign country to which he intended to proceed, although physically in such foreign country, reliance was had upon the case of Kaplan v. Tod, 267 U.S. 228 [(1928)]. . . the Board stating: ‘By analogy one who, departing from the United States, seeks admission to another country but is denied the right of entry, should be considered as not having entered that country even if physically within the jurisdiction thereof’. . . .”); see also id. (“In the view of the fact that the applicant in the instant case has testified he was refused entry at foreign ports and was confined on ship and was returned to the United States . . . we find that the applicant’s present arrival does not constitute an ‘entry’ into the United States under the present act.”); see, e.g., IRA J. KURZBAN, IMMIGRATION LAW SOURCEBOOK 61 (13th ed. 2012) (“A person who leaves the U.S. but does not enter another country also does not ‘enter’ the U.S. upon return.” (citing Matter of T-, 6 I. & N. Dec. 638 (B.I.A. 1955))); GORDON, MAILMAN, YALE-LOEHR, & WADA, IMMIGRATION LAW & PROCEDURE, CBP INSPECTOR’S FIELD MANUAL 17.11 (2005) (“The courts have long held that aliens who entered the United States, either legally or illegally, then traveled to a foreign country, who were

82 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] last decade, a nice string of cases has addressed Matter of T- and its requirements for departure. As a result, a coherent understanding of how to address Matter of T- is beginning to take shape, and two more recent cases from the Ninth Circuit represent a notable development in the case law related to departure. The problem, however, is that the relationship between Matter of T- and these two cases is veiled by the lack of a direct citation from the Ninth Circuit cases to the Board of Immigration Appeals’ (Board) decision, or its related case law.

The purpose of this essay is to provide a general outline of the existing case law that has addressed Matter of T- and the rule for departure within the last decade, and to tie the rule to the Ninth Circuit’s decisions in United States v. Ambriz-Ambriz2 and United States v. Gonzalez-Diaz.3

refused entry and are returned, are deemed not to have departed the United States.” (citing Matter of T-, 6 I. & N. Dec. 638 (B.I.A. 1955))); Handa v. Crawford, 312 F. Supp. 2d 1367, 1373 (W.D. Wash. 2004) aff’d 401 F.3d 1129 (9th Cir. 2005) (“The BIA held [in Matter of T-] that a person who leaves the United States but does not enter another country does not ‘enter’ the United States upon his return. Matter of T- acknowledges that there is a difference between ‘physical’ departure and ‘legal’ departure.”) (citations omitted); In re Alcides Marianos da Silva Baptista, File: A97914570, 2005 WL 3016029 at 2 (B.I.A. Aug. 15, 2005) (“In our decision in Matter of T- . . . the Board determined that in order for there to be a recognized departure from the United States, there must be an ‘entry’ into another country. Without such an ‘entry’ into another country, it cannot be said that an alien has departed the United States. The Board further noted that an ‘entry’ into another country cannot be said to have been made when an alien returns to the United States after having been denied entry into a foreign country to which he intended to proceed, although physically in such foreign country.”); id. at 1 (“[W]e find no evidence to support the Immigration Judge’s determination that Congress implicitly repealed our decision in Matter of T- . . . when it revised section 101(a)(13) of the Act [Immigration and Nationality Act]. In fact, we note that the term ‘entry,’ as discussed in Matter of T- . . . is still a necessary condition to the operation of section 101(a)(13) of the Act.”); see also In re You Theng Wang, File: A36340376, 2007 WL 2463946 at 1 (B.I.A. Aug. 3, 2007); but see, e.g., In re Cleve Ronald Simeon, File: A31171142, 2004 WL 1739041 at 2 (B.I.A. June 3, 2004) (failing to apply Matter of T- when the circumstances of an inadmissible permanent resident’s departure and return to the United States are immaterial to being declared an arriving alien); Margulis v. Holder, No. 12-3611, slip op. at 3-4 (7th Cir. Aug. 5, 2013) (noting that the regulatory definition of depart at 8 C.F.R. § 215.1(h) is broader than the rule established by Matter of T-). 2 586 F.3d 719 (9th Cir. 2009). 3 630 F.3d 1239 (9th Cir. 2011).

[Vol. 1:1 2014] MATTER OF T- 83 II. THE EXISTING CASE LAW

The recent line of cases to address Matter of T- began with Handa v. Crawford,4 which squarely addressed departure and associated it with requiring that an individual demonstrate that he or she legally entered another country. In Handa, the petitioner attempted to visit Vancouver, British Columbia, but he was turned away at the border and sent back to the United States.5 Before leaving the Canadian border station, the petitioner “signed a written withdrawal of his application to enter Canada” and “drove further into Canada, around the Canadian flagpole, and then back to the United States immigration inspection office.”6 The petitioner argued that this foray into Canada amounted to a departure,7 but the court was unconvinced. The court determined that the petitioner did not depart the United States, based on Matter of T-, because he never “legally entered Canada” after withdrawing his application to enter the country and taking an inconsequential drive around a flag pole.8

4 312 F. Supp. 2d 1367 (W.D. Wash. 2004). 5 See Handa, 312 F. Supp. 2d at 1369; but see Margulis v. Holder, 725 F.3d 785, 788 (7th Cir. 2013) (remanding a case with facts that mirrored Handa to the Board and suggesting that it conclude the petitioner departed the United States based on 8 CFR 215.1(h)). 6See id. 7See id. at 1373 (“Dr. Handa contends that he ‘departed’ from the United States, once he left the Canadian border, traveled into the interior of Canada, and drove around the Canadian flagpole. He argues that upon returning to the United States border . . . he was seeking ‘admission’ to the United States. Dr. Handa argues that because he ‘departed’ the United States he should be classified as an individual who has been refused admission, rather than individual that has been removed or deported.”). 8See id. at 1373 (“Dr. Handa was never admitted into Canada; he was instructed to return to the United States border to clarify his visa status. In fact, Dr. Handa signed a Canadian form withdrawing his application to enter Canada. The fact that Dr. Handa was physically permitted to drive past the Canadian border crossing and drive around the Canadian flag pole, does not change the fact that Dr. Handa had not legally entered Canada. Because Dr. Handa had not legally entered Canada, Dr. Handa did not legally depart from the United States.”); see generally Handa v. Crawford, 401 F.3d 1129, 1133 (9th Cir. 2005)(stating “we . . . agree with [the district court’s] conclusion that Handa’s departure-and-reentry argument is unpersuasive” and “[w]e . . . adopt the district court’s decision . . . as dispositive of that claim.”); but cf. Margulis v. Holder, No. 12-3611, slip op. at 3-4 (7th Cir. Aug. 5, 2013) (remanding a case to the Board with facts that generally parallel Handa, but disagreeing with the Board’s use of Matter of T- to


After Handa, a series of unpublished decisions by the Board addressed Matter of T-. While Handa linked departure to a person who has legally entered another country, these cases framed it differently, suggesting that an official admission to another country is required to depart the United States. Five of the six cases are very similar, as each involved respondents who entered Canada to pursue refugee protection and, as a result, claimed that they departed the United States.9 In each case, the Board disagreed, determining that the respondents failed to depart the United States based on Matter of T-, because they were ultimately denied admission to Canada when their claims were rejected, even though they were allowed to physically enter Canada to pursue refugee protection.10 The sixth case only differed slightly because

conclude that the petitioner “‘never effected a departure from the United States’”). 9See In re Ali Hasnain Naqvi, File: A095-970-119, 2005 Immig. Rptr. LEXIS 7487 at 1-2 (B.I.A. May 16, 2005) (outlining the facts of the case); In re Alcides Marianos da Silva Baptista, File: A97914570, 2005 WL 3016029 at 1 (outlining the facts of the case); In re Mohammad F. Khan, Muhammad A. Khan, Files: A097-303-820, A097-303-821, 2005 Immig. Rptr. LEXIS 7279 at 2-3 (B.I.A. Sept. 14, 2005) (outlining the facts of the case); In re Claudia F. Ramos, File: A79067647, 2005 WL 3802245 at 1-2 (B.I.A. Nov. 29, 2005) (outlining the facts of the case); Dimitrov v. Mukasey, 278 F. App’x 26, 27 (2d Cir. 2008) (referring to an unpublished Board decision, In re Ivaylo Dimitrov, No. A 74 727 162 (B.I.A. May 30, 2007), as following the same factual pattern). 10See In re Ali Hasnain Naqvi, File: A095-970-119, 2005 Immig. Rptr. LEXIS 7487 at 3-4 (“In the respondent’s case, although he was physically present in Canada…while seeking asylum, he was ultimately denied admission by Canada. The respondent was never granted admission to Canada and, therefore, pursuant to our decision in Matter of T- . . . he cannot now claim that he ‘departed’ the United States . . . . ”); In re Alcides Marianos da Silva Baptista, File: A97914570, 2005 WL 3016029 at 2 (B.I.A. Aug. 15, 2005) (“In the respondent’s case, although he was physically present in Canada for significant time while seeking asylum, he was denied admission by Canada. The respondent was never granted admission to Canada and, therefore, pursuant to our decision in Matter of T- . . . he cannot now be found to have ‘departed’ the United States.”); In re Claudia F. Ramos, File: A79067647, 2005 WL 3802245 at 2 (“In the respondent’s case, although she was physically present in Canada for significant periods of time while seeking asylum, she was denied admission by Canada each time. The respondent was never granted admission to Canada and, therefore, pursuant to our decision in Matter of T- . . . she cannot now claim that she ‘departed’ the United States . . . . ”); In re Mohammad F. Khan, Muhammad A. Khan, Files: A097-303-820, A097-303-821, 2005 Immig. Rptr. LEXIS 7279 at 2 (“We agree with the DHS that pursuant to the Board’s holding in Matter of T- . . . the respondents did not legally depart the United States.”); id. at 3-4 (relying upon an interpretation of Matter of T- that associates it with

[Vol. 1:1 2014] MATTER OF T- 85 the respondent was still in the process of seeking refugee protection in Canada at the time.11 Consequently, the Board postponed any decision based on Matter of T- because “there [was] insufficient evidence that the respondent [had] been officially or conclusively denied entry into Canada at [that] time.”12 In other words, the Board, remaining focused on the respondent’s admission, had to await Canada’s admissibility ruling to determine if a departure occurred.

Notably, about two years after the first of these unpublished decisions, the Board reversed its position. In In re R-D-, the Board affirmed that individuals who enter Canada from the United States to pursue refugee protection, depart the United States.13 The Board

‘admission’ to foreign countries to support its decision in the case) (quoting and construing Implementation of the Agreement Between the Government of the United States of America and the Government of Canada Regarding Asylum Claims Made in Transit and at Land Border Ports-of-Entry, 69 Fed. Reg. 10620, 10624 (proposed Mar. 8, 2004)); but see In re R-D-, 24 I. & N. Dec. 221, 224-25 (B.I.A. 2007) (rejecting DHS’s argument that Matter of T- is controlling precedent in cases involving failed Canadian refugee claimants as cited in 69 Fed. Reg. at 10624 (finalized at 69 Fed. Reg. 69480)); Dimitrov, 278 F. App’x at 27 (“On May 30, 2007, the [Board], relying on In re T- . . . affirmed the denial of the motion to reopen in this case in part because, ‘an alien who goes abroad but is returned to the United States after having been formally denied admission by foreign country to which he intended to proceed is not an applicant for admission, since, in contemplation of law, the alien did not leave the United States.’ The [Board] stated, ‘[t]he respondent’s motion to reopen does not cite any applicable case law that takes a contrary position.’”) (quoting and construing In re Ivaylo Dimitrov, No. A 74 727 162 (B.I.A. May 30, 2007)); In Re Claudia F. Ramos, File: A79067647, 2005 WL 3802245 *2 (“[W]e concur in the DHS’s argument that our decision in Matter of T- . . . promotes fairness and administrative efficiency. As occurred in this case, it allows an alien to be treated as never having left the United States, whether Canada refused entry to the alien immediately or whether Canada took significant time to consider an alien’s refugee claim.”). 11See In re Jamila Shakir, File: A74893694, 2005 Immig. Rptr., LEXIS 5098 (B.I.A. Nov. 1, 2005) *3 (“The respondent, in the instant case, appears to have an application for admission pending before the Canadian authorities.”). 12See id. 13See In re R-D-, 24 I. & N. Dec. at 227 (“The Immigration Judge correctly concluded that the respondent departed the United States when she traveled to Canada and pursued an application for refugee status in Canada.”); see also id. at 223 (“[The respondent] was given permission to go into Canada to apply for refugee status, was never detained, and remained there for several years, during which time she was free to move about the country. Under these circumstances,

86 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] believed that the factual differences between Matter of T- and the respondent’s case warranted its determination; the critical distinction was that whereas the respondent in In re R-D- was given permission or allowed to enter a foreign country, the respondent in Matter of T- was not.14 While the Department of Homeland Security (DHS) tried to argue that the respondent’s legal status in Canada did not support a finding that she had departed the United States, but was unpersuasive against the facts of the case.15 The Board’s decision in In re R-D- set a precedent for determining how and when a departure from the United States occurs,16 especially, of course, in cases involving unsuccessful Canadian refugee claimants.17

we find no error in the Immigration Judge’s conclusion that the respondent made a departure when she left the United States.”). 14See id. (“We find that Matter of T- . . . is clearly distinguishable from this case. The respondent, who is not a lawful permanent resident, is in a situation different from that of the alien in that case. She was given permission to go into Canada to apply for refugee status, was never detained, and remained there for several years, during which time she was free to move about the country.”); see also id. (“[T]he Immigration Judge determined that Matter of T- . . . is inapplicable to the respondent’s case. We agree.”). 15See id. at 225 n.4 (stating that “the DHS failed to establish the status of an alien who has been allowed into Canada to seek refugee status”); see also id. at 224 (“[T]he DHS fails to distinguish between the facts in Matter of T- and the situation of an alien who travels to Canada, is allowed into that country to seek refugee status, resides there for a period of time, frequently encompassing several years, receives benefits from the Government of Canada, and only later is informed by Canadian officials that his or her application for refugee status is denied.”); see also Sophie Feal, Sophie Feal on Matter of R-D-, 24 I. & N. DEC. 221 (BIA 2007), in MATTHEW BENDER: 2008 EMERGING ISSUES 1441, 2007 at 2 (“The primary issue considered by the Board in Matter of R-D- was whether the alien had departed the United States when she sought refuge in Canada. This question has been unclear for years because of Canadian law with respect to refuge claimants.”). 16See In re You Theng Wang, File: A36340376. 2007 WL 2463946 *1 (B.I.A. 2007) (where the respondent “was denied entry into Singapore and was returned to the United States,” the Board determined that Matter of T- controlled and that a departure did not occur because “this case [was] distinguishable from . . . [In re R-D-] because the alien in that case was given permission to go into Canada to apply for refugee status, was never detained, and remained there for several years, during which time she was free to move about the country.”); In re Chaoguang Wu Xiaoming Sha Yang Wu, File: A73220299, 2010 WL 1747378 at 2 (B.I.A. Apr. 21, 2010) (“Based on the totality of the undisputed evidence in the record, we conclude that the respondents’ removal proceeding should be terminated. The respondents’ departure from the United States and lawful entry

[Vol. 1:1 2014] MATTER OF T- 87

In addition to the cases outlined and cited above, two other cases have addressed Matter of T- and departure, but only in passing. Like the unpublished Board decisions prior to In re R-D-, they both associate the idea of admission as a necessary element in the analysis of a departure. The first case was Thiam v. Gonzales, where the court quickly dismissed the petitioner’s argument that she did not depart the United States by traveling to Senegal because it “[had] no evidence of [her] denial of admission at a foreign port, as would be required if the Matter of T- analysis were to be relevant.”18 And, similarly, in Castaneda-Lugo v. Mukasey, the court used Matter of T- in a footnote to explain its rejection of

into Canada in 1999, where they have since resided and attained citizenship, constituted [] a ‘departure’ from the United States in 1999.”) (citing In re R-D-, 24 I. & N. Dec. 221 (B.I.A. 2007)). 17See D’Cruze v. Holder, 387 F. App'x 382, 383 (4th Cir. 2010) (“We find the Board did not abuse its discretion denying the motion to reconsider. The Board’s decision in Matter of R-D- . . . clearly controls D’Cruze’s circumstance. D’Cruze departed the United States when he entered Canada in contemplation of being granted refugee status in that country. He remained in Canada several years, was not detained and was permitted to move about the country.”); In re Parveen Akhtar, File: A98424063, 2008 WL 2783082 *1-2 (B.I.A. June 10, 2008) (applying In re R-D- to “find that the respondent is not removable . . . because she is an arriving alien,” having departed the United States by entering Canada to seek refugee status); see also id. (“The Board held in Matter of R-D- . . . that an alien who leaves the United States and is admitted to Canada to seek refugee status has made a departure from the United States.”); Masoud v. Mukasey, 2009 U.S. Dist. LEXIS 124208 *3 (W.D.N.Y. Jan. 5, 2009) (noting that when a petitioner was returned to the United States from Canada following an unsuccessful refugee claim that “[the petitioner] was and is properly considered an ‘arriving alien’ from Canada” based on In re R-D-); Sagastume v. Holder, 490 F. App’x 712 at 716 (6th Cir. July 20, 2012) (noting that In re R-D- controlled the petitioner’s status upon his return to the United States from Canada following his attempt to claim refugee status); In re Suleiman M. Mosoud, File: A16066011, 2010 WL 673445 *1 (B.I.A. Feb. 2, 2010) (“We find that Matter of R-D-, 24 I. & N. Dec. 221 (B.I.A. 2007) applies to the respondent’s case. That decision did not overrule clear past precedent. It also did not decide an issue of first impression whose resolution was not clearly foreshadowed. Rather, Matter of R-D- merely clarified existing law concerning the definition of a departure, in the context of the agreement between the United States and Canada regarding asylum applicants.”) (citations omitted); In re Ali Mohammed Saeed Al Maktari, File: A98221482, 2008 WL 486873 *1 (B.I.A. Jan. 25, 2008) (stating that the respondent relied upon In re R-D- to assert that Canadian refugee claimants depart the United States); Dimitrov v. Mukasey, 278 F. App’x 26, 27 (2d Cir. 2008) (evidencing that In re R-D- was relied upon in an attempt to overcome a Board decision on departure that relied on Matter of T-). 18 496 F.3d 912, 914 n.1 (8th Cir. 2007).

88 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] the petitioner’s argument that he had been improperly charged as a removable alien; the court stated that “he never departed the United States” because he had been “denied admission to Canada.”19

III. THE NINTH CIRCUIT’S UNCONNECTED CONTRIBUTIONS

In 2009 and 2011, the Ninth Circuit added Ambriz-Ambriz and Gonzalez-Diaz, respectively, to the case law related to Matter of T-. While neither case cites directly to Matter of T-, their relationship is established by the United States’ reliance on Matter of T- in its briefs for both cases.

In United States v. Ambriz-Ambriz, the appellant attempted to enter Canada by car, but “was denied entry into Canada,” and “forced to proceed back into the United States.”20 The appellant argued that his trip to the Canadian border amounted to a departure, and as a result, that he was an arriving alien who was still “under ‘official restraint.’”21 The court disagreed and determined that “he was not entering the United States from a foreign country” because, while he may have “technically traveled onto Canadian land from the United States, he was never legally in Canada.”22 The court identified the official restraint doctrine as lending support to its determination that the appellant’s physical entry onto Canadian soil did not amount to a legal entry into the country.23 Although Matter of T- was not cited by the court in its

19 263 F. App’x 164, 165 n.2 (2d. Cir. 2008) (“It seems that petitioner was apprehended in the United States after being denied admission to Canada. In those circumstances, he never departed the United States . . . . ” (citing Matter of T-, 6 I. & N. Dec. 638, 639-40 (B.I.A. 1955))). 20 586 F.3d 719, 721 (9th Cir. 2009). 21 See id. at 722-23 (“Mr. Ambriz’s primary contention on appeal is that he was not ‘found in’ the United States because he was apprehended at a port of entry and thus was under ‘official restraint’ and had not officially entered the United States. This argument misconstrues the official restraint doctrine, which . . . pertains to an individual entering the United States from a foreign country, and thus is inapplicable to Mr. Ambriz’s situation.”). 22 See id. at 723. 23 See id. (“Indeed, the rationale underlying the official restraint doctrine compels our focus on Ambriz’s ‘legal’ status. An alien who gets off an airplane at an airport or who sneaks across the border is technically on United States land. The official restraint doctrine, however, distinguishes between a person’s

[Vol. 1:1 2014] MATTER OF T- 89 decision, the United States relied upon Matter of T- and Handa to advocate that the appellant did not depart the country.24

In the second case, the Ninth Circuit reapplied its ruling from Ambriz-Ambriz. In United States v. Gonzalez-Diaz, the appellant not only traveled to the Canadian border, but also entered the country for further examination over the course of two days.25 The appellant was transported, in custody, to another port of entry for further examination because the “port of entry was not equipped with personnel or equipment to handle [his] case.”26 Before transporting the appellant to Canada, the Canadian border officials issued him “an ‘Entry for Further Examination’ form,” which stated that “[t]his authorization to enter Canada does not confer status.”27 This was described in testimony by a Canadian officer as “a form that furthers the examination” when an alien is not legally admitted to the country.28 At his examination, the appellant was found to be inadmissible.29 As a result, he was issued an exclusion order, driven back to the border, and released into the custody of the United States.30 Based on these facts, the appellant argued that he “departed from the United States.”31

Once again, the Ninth Circuit disagreed, stating that “[t]hese factual distinctions are immaterial” and outlining the

physical presence and legal presence in the United States. This focus supports our determination that despite Ambriz’s physical trespass into Canada from the United States, he was never legally in Canada on February 28, 2008, and thus was not entering the United States from a foreign country.”); see id. at 725 (rejecting the appellant’s argument that the official restraint doctrine applied to his case, stating “[b]ecause [the appellant’s] travel on February 28, 2008 began in the United States and because he never officially entered another country, the official restraint doctrine is not applicable to his situation.”). 24 Brief of Appellee at 15, United States v. Ambriz-Ambriz, 586 F.3d 719 (9th Cir. 2009) (D.C. No.: CR 08-23-M-DWM) (relying upon Matter of T- and Handa to argue that the Appellant “never legally departed the United States.”). 25 630 F.3d 1239, 1241 (9th Cir. 2011). 26 Id. 27 Id. 28 Id. at 1244. 29 Id. at 1241. 30 Id. 31 Id. at 1243-44 (“Focusing on the Entry for Further Examination form, he argues that he gained legal entry into Canada, unlike Ambriz, and therefore should be deemed to have entered Canada and departed from the United States.”).

90 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] evidence weighing against the appellant’s alleged departure.32 The court concluded that the appellant “was never ‘legally in’ Canada and was in some form of custody throughout his physical presence there. He therefore remained ‘in’ the United States . . . . ”33 In reaching its decision, the court noted that the government “satisfied its burden at trial of establishing that [the appellant] did not gain legal entry into Canada within the meaning of Ambriz-Ambriz.”34 The court also cited Leng May Ma v. Barber as analogous support for its analysis of the appellant’s entry into Canada. Relying on Leng May Ma’s restatement of the rule, the court found “that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States.”35 Again, the Ninth Circuit did not cite Matter of T- in its decision, but Matter of T- and Handa both played the same role as foundational cases in the United States’ argument against departure in its brief.36

IV. LACK OF A DIRECT CITATION, BUT STILL INFORMS CASE LAW Two cases from the Ninth Circuit, Ambriz-Ambriz and

Gonzalez-Diaz, like Matter of T-, rely analogously on rules for lawfully entering the United States in their analysis of an alleged entry into another country. In Matter of T-, the Board referred to Kaplan 37 to support the rationale that a right of entry is required to depart the United States.38 Very similarly, the Ninth Circuit relied

32 Id. 33 Id. at 1244; see also id. at 1240-41 (“[W]e hold that [the appellant’s] unlawful presence in the United States was not affected by his relatively brief physical presence in Canada because he was never ‘legally in’ Canada. We also hold that [the appellant] was not under official restraint when he was arrested by U.S. immigration agents because, having been denied legal entry into Canada, he was not entering the United States from a foreign country.”). 34 Id. at 1244 n.3. 35 357 U.S. 185 (1958). 36 Brief of Appellee at 15-16, United States v. Gonzalez-Diaz, 630 F.3d 1239 (9th Cir. 2011) (D.C. No.: CR 09-92-GF-SEH) (relying upon Matter of T- and arguing that “[d]eparture from the United States requires both physical departure and legal departure-i.e., official entry into another country”). 37 See supra note 1. 38 See id. at 231 (providing that while the appellant was paroled into the United States after being ruled inadmissible, she was “[t]heoretically . . . in custody at

[Vol. 1:1 2014] MATTER OF T- 91 upon the official restraint doctrine in Ambriz-Ambriz and Leng May Ma in Gonzalez-Diaz to support its decisions.39 Like Kaplan, the official restraint doctrine and Leng May Ma are pieces of the many rules that define lawful entry to the United States. The official restraint doctrine provides that an individual does not legally enter the United States until he or she does so absent official restraint.40 Leng May Ma reaffirmed that an individual does not legally enter the United States if he or she does so while in custody, pending determination of admissibility.41 The Ninth Circuit’s reliance upon these rules addressed how to enter the United States legally and is consistent with the Board’s use of Kaplan in Matter of T-.

Ambriz-Ambriz and Gonzalez-Diaz also follow the same general pattern of analysis as the Matter of T- progeny for evaluating an alleged departure from the United States. In both Ninth Circuit cases, the appellants argued that they should be treated as arriving aliens based on their trips to Canada.42 The court evaluated the totality of the circumstances related to those trips, and it concluded that neither appellant departed the United

the limit of the jurisdiction awaiting the order of the authorities.”); see also Leng May Ma, 357 U.S. at 189 (“This Court previously has had occasion to define the legal status of excluded aliens on parole. In Kaplan v. Tod, an excluded alien was paroled to a private Immigrant Aid Society pending deportation. The questions posed were whether the alien was ‘dwelling in the United States’ within the meaning of a naturalization statute, and whether she had ‘entered or [was] found in the United States’ for purpose of limitations. Mr. Justice Holmes disposed of the problem by explicitly equating parole with detention.”); Menon v. Esperdy, 413 F.2d 644, 647 (2d Cir. 1969) (superseded by statute) (“[A] parole does not constitute an admission into the United States . . . .” (citing Kaplan, 267 U.S. at 230-31)). 39 See supra note 26 & 40 and accompanying text. 40 See, e.g., Correa v. Thornburgh, 901 F.2d 1166, 1172 (2d Cir. 1990) (“‘Freedom from official restraint’ means that the alien who is attempting entry is no longer under constraint emanating from the government that would otherwise prevent her from physically passing on.”); Matter of Sanchez, 17 I. & N. Dec. 218, 220 (B.I.A. 1980) (“It is true that an alien makes an ‘entry’ for immigration purposes only when he comes into the United States ‘free from actual or constructive restraint.’”). 41 See Leng May Ma v. Barber, 357 U.S. 185, 188 (1958) (“For over a half century this Court has held that the detention of an alien in custody pending determination of his admissibility does not legally constitute an entry though the alien is physically within the United States.”). 42 See supra notes 24-26, 35-38 and accompanying text.

92 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] States because neither had been legally in Canada.43 This is the same analysis used in existing precedent. For instance, in Handa, the petitioner argued that he departed the United States. The court evaluated all of the circumstances related to his trip to Canada, including his drive around the flagpole, and it concluded that a departure did not occur because he never legally entered the country.44 Similarly, in In re R-D-, the respondent claimed that a departure occurred. The Board analyzed the totality of the circumstances surrounding the respondent’s time in Canada, and this time it agreed with the respondent.45 Ambriz-Ambriz, Gonzalez-Diaz, Handa, and In re R-D- evaluated whether an entry occurred by assessing the totality of the circumstances of each trip to Canada to determine whether a departure resulted. By doing so, these cases complement each other and augment the existing case law related to Matter of T-.

Finally, Gonzalez-Diaz bears special significance because it serves as a natural counterpart for In re R-D-. As outlined above, the Board concluded that the available evidence in In re R-D- was sufficient to establish that a departure occurred.46 The evidence demonstrated that the respondent was permitted to enter Canada,47 and the DHS did not present persuasive opposing evidence.48 As a result, the case set a standard for how to depart the United States.49 The opposite occurred in Gonzalez-Diaz, where the Ninth Circuit heard enough evidence to conclude that a departure did not occur. The court relied upon the trial record, including the language of the entry document that the appellant was issued in Canada and the testimony by Canadian immigration officials, to conclude that the appellant was never legally in Canada.50 Consequently, the Ninth Circuit rejected the appellant’s argument that he departed the United States.51

43 See supra notes 24-26, 35-38 and accompanying text. 44 See supra notes 8-9 and accompanying text. 45 See supra notes 13-14 and accompanying text. 46 Id. 47 Id. 48 See supra note 15 and accompanying text. 49 See supra notes 16-17 and accompanying text. 50 See supra notes 35-38 and accompanying text. 51 Id.

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The Board and the Ninth Circuit reached opposite conclusions despite using a similar analytical framework. The critical difference between the two cases was the availability of evidence to substantiate the Canadian legal status of the respondent or appellant. In In re R-D-, the respondent presented sufficient evidence to establish that a departure occurred. By comparison, in Gonzalez-Diaz, the United States was able to present enough evidence to establish the appellant did not depart the United States. Gonzalez-Diaz and In re R-D- are models of how to present evidence in future cases. Individuals seeking to prove that a departure occurred can look to In re R-D- for an example of a successful departure argument. Those charged with opposing such arguments, however, should rely upon the blueprint in Gonzalez-Diaz to overcome them.

V. CONCLUSION

Ambriz-Ambriz and Gonzalez-Diaz are an integral part of the case law supporting Matter of T- and the requirements for departure. It is important that they be recognized as such. Both Ambriz-Ambriz and Gonzalez-Diaz have been recognized as authority on the issue of departure, even though Matter of T- was not cited by either court in those subsequent decisions.52 Other cases will follow, and the case law related to Matter of T- can only

52 See United States v. Avila-Rivera, 359 F. App’x 841, 843 (9th Cir. 2009) (“We recently decided that an alien who is denied entry into Canada from the United States has not left the United States, as a matter of law, even if he has ‘technically traveled onto Canadian land.’ Because Avila had not left the United States, he was ‘found in’ the United States when he was found and detained at the . . . Port of Entry.” (citation omitted)); United States v. Macias, 12-CR-90-A (W.D.N.Y. Aug. 17, 2012) at 5-6 (citing United States v. Gonzalez-Diaz, 630 F.3d 1239 (9th Cir. 2011)) (concluding that “[t]hough [the defendant] was on Canadian territory, he failed in his attempt to leave the United States” by being “denied entry to Canada during inspection on the Canadian side of the Rainbow Bridge”) rev’d 2014 U.S. App. LEXIS 736 (2d Cir., Jan. 14, 2014) at pp. 7-12 (citing United States v. 1903 Obscene Magazines, 907 F.2d 1338, 1340 (2d. Cir. 1990)) (rejecting the rationales behind Ambriz-Ambriz and Gonzalez-Diaz, and applying a rationale applied to imported goods, to conclude that the appellant was entering the United States despite being denied entry to Canada); see generally Brief of Appellee at 34-37, United States v. Avila-Rivera, 359 F. App’x 841 (9th Cir. 2009) (D.C. No.: CR 08-154-GF-SEH) (relying upon Handa to argue that the appellant did not depart the United States).

94 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] benefit from assessments of all available precedent, as well as arguments that focus on In re R-D- and Gonzalez-Diaz as counterpoints on the issue.

95

THE CANBERRA PROCESS

Peter Arthur Mommer, J.D., M.I.S.

I. INTRODUCTION

Since their introduction to the world stage in 1945, the legality of nuclear weapons has been the subject of more than 24 international treaties.1 Yet, in 2012, there were a total of nine nuclear-weapon states (NWS): five recognized nuclear powers and four unrecognized nuclear weapon states. There are also three states suspected of actively seeking to acquire nuclear weapons programs.2 In other words, the sum of nuclear disarmament efforts has not achieved a desired result. For example, the jewel of these disarmament regimes, the Nuclear Non-Proliferation Treaty (NPT),3 continues to have its legitimacy withered away by

1 Arms Control Treaties, ATOMICARCHIVE.COM, http://www.atomicarchive.com/Treaties/index.shtml (last visited June 9, 2012). 2 Nuclear Weapons: Who Has What at a Glance, ARMS CONTROL ASS’N (Apr. 2013), http://www.armscontrol.org/factsheets/Nuclearweaponswhohaswhat (According to the Arms Control Association (ACA), the five recognized NWS include: Russia, China, The United Kingdom, The United States, and France. The unrecognized NWS include: India, Pakistan, and Israel. The States of immediate proliferation concern includes: Iran, North Korea, and Syria.). 3 Jack I. Garvey, A New Architecture for the Non-Proliferation of Nuclear Weapons, 12(3) J. OF CONFLICT & SECURITY L. 339, 342 (2007) (The NPT is an international treaty calling for “non-nuclear weapon states [to] renounce nuclear weapons acquisition, and agree to [International Atomic Energy Agency] IAEA safeguards on related technologies in exchange for peaceful uses of nuclear energy and nuclear disarmament of the nuclear weapons states.”).

96 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] agreements such as the Nuclear Security Group’s (NSG) 2008 decision to exempt India from uranium acquisition.4

The more imminent concern, however, is the immediate proliferation threats posed by the continuity of these weapons. Australia’s 1996 Report of the Canberra Commission on the Elimination of Nuclear Weapons (Canberra Report) suggests that the continued possession of nuclear weapons by NWS creates a “constant stimulus to other states to acquire them.”5 Furthermore, the Canberra Commission on the Elimination of Nuclear Weapons (Canberra Commission) notes that the “emergence of any new nuclear weapon state during the elimination process would seriously jeopardize the process of eliminating nuclear weapons.”6

Most pressing are the fears sparked by the nuclear programs in the Democratic People's Republic of Korea (North Korea) and Iran. The Canberra Report acknowledged this fear when it noted the following:

[P]roliferation pressures in South Asia, the Middle East and the Korean peninsula may prejudice the prospects for eliminating nuclear weapons. Determined efforts, particularly on the part of the states in these regions and the nuclear weapon states, are urgently needed to address the long-standing differences that fuel proliferation in these regions.7

4 Anupam Srivastva, PacNet #46 – NSG Waiver for India, CTR. FOR STRATEGIC & INT’L STUDIES (Sept. 8, 2008), available at https://csis.org/publication/pacnet-46-september-8-2008-nsg-waiver-india (Srivastva describes how the NSG, an organization created in response to India’s conversion of uranium acquired for peaceful use into its first nuclear weapon, exempted India from trading constraints with Canada, thus allowing further acquisition of uranium. Many scholars in the disarmament community viewed this decision as a blow to the disarmament movement–especially to Australia who had been viewed as spearheading many of the nuclear disarmament debates, yet supported the decision.). 5 AUSTRALIAN DEP’T OF FOREIGN AFFAIRS, REPORT OF THE CANBERRA COMM’N ON THE ELIMINATION OF NUCLEAR WEAPONS 7 (1996) (CANBERRA REPORT), available at http://www.dfat.gov.au/publications/security/canberra-commission-report/CCREPORT.PDF. 6 Id. at 54. 7 Id.

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In October 2006 and May 2009, this fear was realized when North Korea detonated nuclear devices.8 In 2013, the Congressional Research Service reported that North Korea has the capacity to build between four and seven more bombs.9 In addition, Iran has been refusing to cooperate with the International Atomic Energy Agency (IAEA)10 and actively seeking weapons grade fissile materials and detonator components; conducting high explosive experiments; modeling weapons designs; and covertly planning for a future nuclear test.11 While Iranian nuclear capabilities remain ambiguous, experts believe that Iran has not yet been able to create the bomb.12

The proliferation realities created by a nuclearized Iran and North Korea pose potentially catastrophic consequences. Acquisition by these states would likely result in a systemic power imbalance. Iranian acquisition would lead to an immediate instability in the Middle East13 and would open the door to unprecedented proliferation. Additionally, the acquisitions by states unwilling “to follow the logic of nonproliferation norms”14 create the additional fear of nuclear terrorism.15 Nevertheless, in February 2012, the North Korea’s new leader, Kim Jong-Un,

8 MARY BETH NIKITIN, CONG. RESEARCH SERV., RL 34256, NORTH KOREA’S NUCLEAR WEAPONS: TECHNICAL ISSUES 1-2 (2013), available at http://www.fas.org/sgp/crs/nuke/RL34256.pdf. 9 Id. at 5. 10 Srikanth Hariharan, Nuclear Safety, Liability and Non-Proliferation: A Legal Insight, 3 INT’L ENERGY L. REV. 108, 108 (2012) (IAEA is an independent international regime that employs scientific and technical mechanisms to oversee, verify, and police nuclear materials capable of being converted for military use.). 11 Anthony H. Cordesman, The New IAEA Report and Iran’s Evolving Nuclear and Missile Forces, CTR. FOR STRATEGIC & INT’L STUD. (Nov. 8, 2011), available at http://csis.org/files/publication/111108_irans_evolving_nuclear_forces.pdf. 12 Id. at 18-20. 13 Id. at 49. 14 John R. Bolton, Under Sec’y for Arms Control and Int’l Security, Nuclear Weapons and Rogue States: Challenge and Response, Remarks to the Conference of the Inst. for Foreign Policy Analysis and the Fletcher School’s Int’l Security Stud. Program (Dec. 2, 2003), available at http://merln.ndu.edu/archivepdf/wmd/State/26786.pdf. 15 Charles Ferguson, Preventing Catastrophic Nuclear Terrorism, COUNCIL ON FOREIGN RELATIONS (2006), available at http://www.cfr.org/weapons-of-mass-destruction/preventing-catastrophic-nuclear-terrorism/p10067.

98 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] expressed his willingness to step-down North Korea’s nuclear program in exchange for humanitarian aid.16 Consequently, North Korea’s nuclear capability and its nuclear activities continue to remain ambiguous.

The glimmer of hope regarding the North Korea’s willingness to bargain now offers a narrow window and the international community must act with haste if it ever wants to realize complete disarmament. Now is the time for the disarmament community to invite new, bold, and creative disarmament solutions. While the world has seen many laudable attempts to disarm, limit, and prevent the further proliferation of nuclear weapons–many have fallen victim to hesitation by the nuclear weapon states (NWS). But there has been a single attempt that stands apart from the rest; the Canberra Commission. As the first of its kind, the Canberra Commission moves a step beyond the political jargon that has paralyzed disarmament efforts for years by setting forth a series of real and practical steps that are essential for a complete elimination of nuclear weapons.

This analysis will examine the strengths and weaknesses of the Canberra Report’s legal framework. The analysis will then lend itself to a revitalization of the “Canberra Process.”17 This process will be the starting point for a workable disarmament agenda. The analysis will then recommend the need for a major focus-shift from NWS to Non-Nuclear Weapon States (NNWS). It will be argued that this shift will strengthen disarmament leverage and bolster the confidence required by NWS to achieve a practical timeframe for complete disarmament. Furthermore, it will be noted that the Canberra Process will incorporate additional disarmament treaties as well as the International Court of Justice (ICJ) Advisory Opinion on the legality of the threat or use of nuclear weapons. During this process, it will be argued that a revitalized Canberra Process, under progressive and expanding membership, will open the door for a new international law and strengthen normative customary law against the use or threat of use of nuclear weapons.

16 NIKITIN, supra note 8, at 2. 17 As used by the author, the term “Canberra Process” refers to the revitalization of Australia’s 1996 Canberra Commission coupled with a new focus toward non-nuclear weapon states and an implementation of Canberra’s comprehensive approach to a new international disarmament treaty modeled after its recommendations.

[Vol. 1:1 2014] THE CANBERRA PROCESS 99 II. HISTORY OF THE CANBERRA COMMISSION

In 1996, the Australian government, under Prime Minister Paul Keating, assembled a group of world leaders, weapons experts, and highly respected academics to create a practical model toward the complete elimination of nuclear weapons.18 Australia formed the Canberra Commission as a direct response to public outrage over French nuclear testing in the South Pacific in June 1995.19 Then Australian Prime Minister Keating reasoned that “nuclear weapons were only the symptom of the problem” and that what was needed was a “concrete program to achieve a nuclear free world.”20

True to his word, Prime Minister Keating and Australian Foreign Minister Alexander Downer created the framework of the Canberra Commission.21 The Commission was comprised of 17 commissioners22 including high ranking officials from all five NWS and eight prominent officials from NNWS. The goal was to create a comprehensive, practical, and constructible step-by-step process aimed at fully eliminating nuclear weapons from the world stage.23

18 Jayantha Dhanapala, U.N. Under Sec’y Gen. for Disarmament Affairs, The Canberra Comm’n: Lessons Learned for a Future Comm’n, Luncheon Keynote Address before the Ideas-Institutional Nexus (May 18, 2002), available at http://www.un.org/disarmament/HomePage/HR/docs/2002/2002May18_Ontario.pdf. 19 Marianne Hanson & Carl J. Ungerer, The Canberra Comm’n: Paths Followed, Paths Ahead, 53 AUSTL J. INT’L AFF. 5, 7 (1999), available at http://espace.library.uq.edu.au/eserv.php?pid=UQ:10785&dsID=mh_cu.pdf. 20 Dhanapala, supra note 18. 21 Id. 22 CANBERRA REPORT, supra note 5, at 109-14 (The 17 Commissioners included the following: Brazilian Ambassador Celso Amorim, United States General (Ret.) Lee Butler, Australian Ambassador Richard Butler, Field Marshal Lord Michael Carver, Captain Jacques-Yeves Cousteau, Sri Lanka Ambassador Jayantha Dhanapala, Swedish Ambassador Rolf Ekeus, Egyptian Ambassador Nabil Elaraby, Japanese Ambassador Ryukichi Imai, Malaysian Datuk Ronald McCoy, Former US Secretary of Defense Robert McNamara, Professor Robert O’Neill, Chinese Ambassador Qian Jiadong, Former French Prime Minister Michel Rocard, Nobel Peace Prize winner Professor Joseph Rotblat, Russian Professor Roald Sagdeev, and Former Swedish Ambassador Maj Britt Theorin.). 23 Dhanapala, supra note 18.


While there have been many arms control treaties since the introduction of nuclear weapons, former Australian Foreign Minister and the architect of the Commission, Gareth Evans, marked the Canberra Commission as “the first ever [arms control agreement] commissioned by a sovereign state squarely to address the common assumption that because the world has nuclear weapons, it continues to need them to deter their use.”24

During the construction of the Canberra Report, the commissioners were receptive to both the political and legal implications the project would have on both the internal-domestic politics of member-states as well as the potential impact it would have on international law.25 The Canberra Report offers a series of general goals followed by a series of six steps recommended for immediate implementation and three additional reinforcing steps that focus specifically on the verification process.26 This paper will analyze all nine steps.

While the Canberra Commission was constructed during what seemed an ideal time for the disarmament movement,27 its Australian birth was not well-conceived. According to Marianne Hanson and Carl Ungerer, the report was delivered during a change in the Australian political system, and it quickly lost its original political sponsors.28 Yet, despite the Commission’s internal drawbacks, the report was transmitted to the United Nations General Assembly (UNGA) on September 30, 1996.29

24 Hon. Gareth Evans, The Canberra Comm’n on the Elimination of Nuclear Weapons and Subsequent Int’l Developments, Paper Presented to the NIRA Roundtable (Oct. 2000), available at http://www.gevans.org/speeches/speech319.html. 25 Dhanapala, supra note 18. 26 CANBERRA REPORT, supra note 5. 27 Hanson & Ungerer, supra note 19 (noting that this period saw the negotiation of the Intermediate Range Nuclear Forces Treaty, the Conventional Forces in Europe Treaty, the Strategic Arms Reduction Treaties (START I and START II), the Chemical Weapons Convention, and the Nuclear Non-Proliferation Review and Extension Conference; however, progress was stalled due to complications between India and Pakistan over the Comprehensive Test Ban Treaty, a slow ratification of START II, and the 1998 nuclear crisis in South Asia). 28 Id. 29 Carl J. Ungerer, Following the Leader: The Canberra Commission and the (Renewed) Case for Eliminating Nuclear Weapons, 33 DISARMAMENT


The Australia government followed the Canberra Report by submitting questions on the legality of nuclear weapons to the ICJ.30 While the ICJ opinion will be analyzed in more detail, the ICJ accepted the challenge and concluded that “the threat or use of nuclear weapons is prohibited by international law, subject to a possible exception for legal reliance on such weapons in extreme circumstances of self-defense in which the survival of a state is at stake.”31

Unfortunately, as 1996 faded, the Canberra Report became collateral damage of the Australian political-shift and was not subsequently adopted by the incoming Howard government.32 Today, however, not only has the Canberra Commission been praised for initiating the 1996 ICJ advisory opinion on the legality of nuclear weapons, but many scholars contend that the Canberra Report has been the model behind subsequent disarmament agreements such as the Irish-led New Agenda Coalition (NAC),33 the Japanese sponsored Tokyo Forum,34 and the Weapons of Mass Destruction (WMD) Commission.35

DIPLOMACY (Jan. 1999) (discussing the strengths of the Canberra Commission and calling for the Commission to be reconvened), available at http://www.acronym.org.uk/dd/dd33/33canb.htm. 30 Hanson & Ungerer, supra note 19, at 5. 31 1996 I.C.J. 226, 227, 1996 WestLaw 2013). 32 Richard Tanter, The Re-Emergence of an Australian Nuclear Weapons Option?, NAUTILUS INST. FOR SECURITY AND SUSTAINABILITY (Nov. 7, 2007), available at http://nautilus.org/napsnet/napsnet-special-reports/the-re-emergence-of-an-australian-nuclear-weapons-option-2/. 33 Summary of the Report of the Standing Committee on Foreign Affairs and International Trade of the Canadian House of Commons, An Overview Of Canada And The Nuclear Challenge: Reducing The Political Value Of Nuclear Weapons For The Twenty-First Century, 31 CASE W. RES. J. OF INT’L L. 697, 700 (1999). 34 Amb. Peggy Mason, The Nato Alliance, No First Use, And Nuclear Non-Proliferation, 31 CASE W. RES. J. INT’L L. 633, 644 (1999) (The 1998 report of the Tokyo Forum for Nuclear Proliferation and Disarmament is modeled off the Canberra Commission’s recommendations. The Tokyo Forum calls for the immediate implementation (with a focus on India and Pakistan) of the recommendations of the Canberra Commission’s disarmament process in South Asia.). 35 See id.; Ungerer, supra note 29 (discussing the strengths of the Canberra Commission and calling for the Commission to be reconvened).

102 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] III. STRENGTHS OF THE CANBERRA COMMISSION

A. The Canberra Commission’s Basis in International Law: Calling for an International Treaty

The Canberra Report was essentially a non-binding

exploratory report, created under the authority of the Australian government, calling for and recommending the adoption of a treaty to be modeled after the framework it created. But the Canberra Report’s function was not aimed at becoming a treaty in itself but rather a template for a new workable disarmament treaty.

To spark a new, practical disarmament effort, Annex B of the Canberra Report (Annex B) addressed the legal framework that would be required for the Canberra Commission’s recommendations to take proper treaty effect.

First, Annex B notes that a multilateral treaty modeled off the Canberra Report can only “bind . . . those parties which become party to the amending instrument.”36 This is true of most international treaties that have yet to be marked as a normative international law. Annex B then acknowledges the difficulty posed by the “two tiers” that generally resonate from the amending process of multilateral treaties: the problem faced by joining member-states being bound by the original treaty language as well as the tailored version that is ratified to conform to the adopting state’s domestic laws.37 The Canberra Report acknowledges that this occurs because “all multilateral treaties are necessarily the product of much compromise.”38

For example, the United States has been unable to secure ratification of the Comprehensive Test Ban Treaty (CTBT)39 due

36 CANBERRA REPORT, supra note 5. 37 Id. at 99-108. 38 Id. 39 Angelique R. Kuchta, A Closer Look: The U.S. Senate’s Failure to Ratify the Comprehensive Test Ban Treaty, 19 DICK. J. INT’L L. 333, 337 (2001) CTBT is an international treaty whereby “each State Party undertakes not to carry out any nuclear weapon test explosion or any other nuclear explosion. In addition, the treaty prohibits and prevents any such nuclear explosion at any place under its jurisdiction or control. Further, the treaty's State Parties are to refrain from causing, encouraging, or in any way participating in the carrying out of any nuclear weapon test explosion or any other nuclear explosion.”).

[Vol. 1:1 2014] THE CANBERRA PROCESS 103 to Congressional resistance over conflicts with U.S. nuclear deterrent policy and the continued maintenance protocols of its aging arsenal.40 But, this is not to say a non-signatory escapes liability. The Canberra Commission provides the NPT’s negative language that is “refraining in nature” and binds members and non-members alike. It gives the benefit of the treaty to non-party States while remaining unenforceable by non-signatories.41 This, the Canberra Report suggests, “may lessen the incentive for each state party to assume further obligations by ratifying an amending instrument, thereby perpetuating the messy two-tier situation.”42

The Canberra Report further suggests that this “two-tier” amending problem can be lessened by the negotiation and adoption of a new treaty modeled on the Canberra Commission’s recommendations. Of course, as in all legal instruments, a treaty would be subject to interpretation problems. The Canberra Report addresses this reality by referring to Article 31.3 of the Vienna Convention on the Law of Treaties,43 which notes that a new treaty “must take into account any subsequent agreement between parties regarding its interpretation, and any subsequent practice in the application of the treaty establishing such agreements.”44 Finally, the Canberra Report notes that such a treaty would likely take significant negotiation if it wants to generate universal acceptance.45

40 Ryan Chorkey Burke, Losers Always Whine About Their Test: American Nuclear Testing, International Law, and the International Court of Justice, 39 GA. J. INT’L & COMP. L. 341, 342-44 (2011) (discussing the ICJ opinion on American nuclear testing, the CTBT, and international normative law). 41 CANBERRA REPORT, supra note 5. 42 Id. at 99-108. 43 Richard W. Edwards, Jr., Reservations to Treaties, 10 MICH. J. INT’L L. 362, 364-65 (1989) (The Vienna Convention on the Law of Treaties of 1969 codifies customary international law as it had developed up to 1969. The rules of customary international law regarding reservations were sufficiently uncertain as of 1969 due to de lege ferenda (with a view to the future law). In other words, customary international law is, as applied to nuclear weapons, still in its infancy stage.). 44 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, 343-345, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf. 45 CANBERRA REPORT, supra note 5, at 99-108.


B. The Driving Force Behind the Canberra Commission: Commitment

The Canberra Commission has been praised as being the first disarmament plan to offer the world a practical means of achieving total nuclear disarmament.46 Outside of the Canberra Commission’s recommendations for the general workings of a new disarmament treaty, the Canberra Report proposes a series of general goals, followed by six additional steps for immediate implementation and three reinforcing steps. The general goals require a commitment to the following:

(1) The driving force behind the treaty must come from the nuclear weapon states [particularly the United States and Russia]; (2) The Anti-Ballistic Missile Treaty 47 [must be adopted at the soonest possible date by all nuclear weapon states]; (3) The five nuclear weapon states . . . must commit themselves unequivocally to proceed with all deliberate speed to a world without nuclear weapons; (4) [Nuclear weapon states] should [conduct] a series of phased, verified reductions that allow states to satisfy themselves . . . at each stage of the process . . . [so that reduction can be made] safely and securely; (5) [Nuclear weapon states must make] political commitment[s] and allocate adequate resources to overcome technical constraints;

46 Dhanapala, supra note 18. 47 Maj. John E. Parkerson, Jr., International Legal Implications Of The Strategic Defense Initiative, 116 MIL. L. REV. 67, 98 (1987) (The Anti-Ballistic Missile Treaty (ABM) “bans a territorial ballistic missile defense system, but permits the development, testing, and deployment of fixed, ground-based radars, interceptor missiles, and interceptor missile launchers under very tight constraints. The development, testing, or deployment of sea-based, air-based, space-based, or mobile land-based systems or of components for such systems is prohibited.”).


(6) The [current] rate of dismantlement should not be a factor that determines the rate of elimination . . . . [Procedures should be established for new dismantling targets]; (7) [A]ll states must contribute to the development and support of an environment favorable to nuclear weapons elimination, including an end to nuclear testing and prevention of further horizontal proliferation; [and] (8) [I]mmediate and consequential steps [toward negotiations should be taken] . . . that should not be made contingent upon changes in the international security environment.48

C. The Canberra Commission’s Six Additional Steps: A Call for Immediate Implementation

In addition to the general steps set forth in Part Two of the

Canberra Report, the following six additional steps, are urged at NWS for immediate implementation:

(1) Taking nuclear forces off alert; (2) Removal of warheads from delivery vehicles; (3) Ending deployment of non-strategic nuclear weapons; (4) Ending nuclear testing; (5) Initiating negotiations to further reduce United States and Russian nuclear arsenals; and (6) Agreement amongst the nuclear weapon states of reciprocal no first use undertakings, and of a non-use undertaking by them in relation to the non-nuclear weapon states.49

The first additional step—taking nuclear forces off of alert—seeks to build mutual confidence among NWS by reducing the fear of a preemptive first-use as well as concerns of accidental

48 CANBERRA REPORT, supra note 5, at 49-73. 49 Id.

106 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] or unauthorized use.50 This stage also recommends that NWS have their stand-down compliance “verified by national technical means and nuclear weapon site inspection arrangements.”51

The second phase—the removal of warheads from delivery systems—is a reinforcement of the first provision, but it goes one step further by requiring the actual physical separation of warheads from delivery vehicles.52 It, too, is a confidence-building mechanism that seeks to appease a mutual trust between NWS during the reduction process. But as the Report suggests, this phase can only be implemented during mutually acceptable timeframes. It is important to note that specific timeframes for implementation were excluded. Instead, the Canberra Commission did not set any timeframe,53 effectively making this step unworkable for the time being.

The third stage—ending the deployment of non-strategic nuclear weapons—would require NWS to remove all warheads currently stored on ships, submarines, or other strategic sites and return them to storage within their sovereign borders.54 The fourth stage—ending nuclear testing–calls on NWS to ratify and adhere to the CTBT.55 The fifth stage–initiating negotiations to further reduce U.S. and Russian nuclear arsenals—directly refers to bilateral reductions under the START I and START II treaties.56 Finally, the sixth stage—agreements on no first use and non-use of nuclear weapons—invites assurances from NWS to agree not to use nuclear weapons preemptively against NNWS and to give

50 Id. 51 Id. 52 Id. 53 Gareth Evans, The Canberra Commission On The Elimination Of Nuclear Weapons And Subsequent International Developments (2002), available at http://www.gevans.org/speeches/speech319.html. 54 CANBERRA REPORT, supra note 5. 55 Id. at 49-73; Masahiko Asada, CTBT: Legal Questions Arising From Its Non-Entry-Into-Force, 7 J. CONFLICT & SECURITY L. 85, 87 (2002) CTBT is a multilateral international treaty that mandates “[e]ach State Party to undertake not to carry out any nuclear weapon test explosion or any other nuclear explosion.”). 56 CANBERRA REPORT, supra note 5, at 49-73; David A. Koplow, How Do We Get Rid Of These Things?: Dismantling Excess Weapons While Protecting The Environment, 89 NW. U. L. REV. 445, 455-57 (1995) START I and START II are bilateral U.S.-Russian nuclear arms reduction treaties.).

[Vol. 1:1 2014] THE CANBERRA PROCESS 107 positive assurances to NNWS that the weapons will not be used against them under any circumstances.57

D. The Canberra Commission’s Three Reinforcing Steps: Building Confidence Through Staged Verification

In addition to the eight general provisions and the six

additional steps, Part Two of the Canberra Commission Report (Part Two) recommends a series of three verification steps to “build on the solid foundation of commitment, accomplishment, and goodwill . . . recommended for immediate [implementation,]” which include the following:

(1) Action to prevent further horizontal proliferation; (2) Developing verification arrangements for a nuclear free world; [and] (3) Cessation of the production of fissile material for nuclear explosive purposes.58

The first reinforcing step—action to prevent further horizontal proliferation—addresses the immediate concern over protecting and controlling civil and military nuclear activities.59 This includes an obligation to safeguard sensitive nuclear material, equipment, and technologies within the states jurisdiction in order to protect the acquisition from terrorist or other sub-state groups.60 This step also reinforces adoption and adherence to the NPT as well as the IAEA safeguards and inspections.61

The second reinforcing step—developing verification arrangements—is primarily a confidence building mechanism that seeks to eradicate the fear of cheating, nuclear hedging, and nuclear blackmail.62 This step proposes an in-depth model for an international verification regime. In Annex A of the Canberra

57 CANBERRA REPORT, supra note 5, at 49-73. 58 Id. 59 Id. 60 Id. 61 Id. 62 Etel Solingen, Middle East Denuclearization? Lessons from Latin America’s Southern Cone, 27 REV. INT’L STUD. 3, 375-94 (2001).

108 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] Report (Annex A), analyzes the priority areas for an effective verification regime by evaluating the following issues:

(1) Effective, cost efficient non-proliferation controls on the civil nuclear industry in all states; (2) Detection of undeclared nuclear activity; (3) Ceasing production of fissile material for nuclear weapons; (4) Nuclear warheads dismantlement and elimination; (5) Disposition of warhead uranium and plutonium; (6) Controls on nuclear weapons components other than nuclear material; [and] (7) Dismantlement of nuclear weapons infrastructure.63

This is perhaps the Canberra Report’s most essential

feature because the uncertainty and fear of cheating is the single largest barrier to any disarmament agreement. Therefore, the Canberra Commission sought to address verification mechanisms to generate the confidence building that a treaty would require. Nevertheless, the Canberra Report is also realistic in realizing that “no verification system can be perfect [and] it is inevitable that some risk will have to be accepted.”64 The Canberra Report does not seek to be a definitive verification plan, but rather a process to identify the issues that should be addressed during development of an effective verification plan.65

While each step in the verification process bears considerations of equal importance, this paper will briefly address the more legally apt proposals, and it will examine (1) the call for a substitute conventional deterrent, (2) the phased elimination of civil infostructures, (3) the creation of a legal monitoring authority, and (4) the proposal of a nuclear “cut-off convention.”66

63 CANBERRA REPORT, supra note 5. 64 Id. at 74-98. 65 Id. 66 Infostructure is a term used in the Australian context that describes the mechanism used to manufacture nuclear weapons, delivery systems, and everything else that goes along with it.


For starters, the Canberra Report suggests that the advanced capabilities of multilateral conventional response would deter springing nuclear powers.67 Here, it is suggested that the advancement in conventional weaponry—its accuracy, penetrating power, and destructive force of its payload—would act to sufficiently deter a would-be cheater.68 It is likely that this step not only sought to provide assurances for states fearing cheaters but also to act as a substitute for NWS’ reliance on the seductive attraction of a nuclear deterrent.

The identifying and sharing of information is the next phase to assure a workable verification process. Here, the Canberra Report notes that “nuclear information is so complex, technical, and tightly controlled that it would make approaching verification possible whilst providing adequate assurances.”69 To support this process, techniques; safeguards; and lessons formed from past disarmament regimes and agreements should be incorporated into the verification regime.70

The first step toward verification—control and phased elimination of civil nuclear infostructures—suggests monitoring and policing of domestic facilities capable of producing weapons-grade fissile materials.71 There are two purposes of this step: to guard facilities from nuclear terrorism and to limit capabilities of nuclear hedging. According to the Canberra Report, this stage is limited to current detection technologies.72 Limited verification technologies may cause problems such as the inability to detect secret undisclosed sites, concealable and movable weapons, and material components.73

To address these verification problems, the Canberra Report recommends the creation of a legal authority, such as the IAEA’s “93+2” program,74 that will conduct and enforce

67 Id. 68 Id. 69 Id. 70 Id. 71 Id. 72 Id. 73 Id. 74 The 1997 IAEA Additional Protocol at a Glance, ARMS CONTROL ASS’N (Dec. 2012), http://www.armscontrol.org/factsheets/IAEAProtoco (The IAEA's “93+2” program was created in 1993 to better constrain NPT member states'

110 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] verification safeguard inspections and disseminate information to build assurances among its members.75

The hopeful result of the verification process, as noted by Annex A, is the formation of a nuclear “cut-off convention.”76 This cut-off convention would be the first step toward extending the verification regime safeguards to NNWS and creating the scope of a legal basis for IAEA inspections.77 Although the idea for a cut-off convention has been proposed over the years, its significance has been drowned out by a deadlock in the Conference on Disarmament (CD)78 as well as failure to define its scope and verification.79

While the Canberra Report offers many realistic steps, it also bears some internal weaknesses. The next phase of this analysis will suggest that the primary downfall to implementing the Canberra Report is its overemphasis on NWS and its failure to include NNWS as a basis for generating an environment conducive for the total elimination of nuclear weapons.

ability to illicitly pursue nuclear weapons programs after secret weapons programs in Iraq and North Korea exposed weaknesses in existing safeguards. This program created a voluntary Additional Protocol which was designed to expand, monitor, and verify NNWS facilities used for “peaceful purposes.”). 75 CANBERRA REPORT, supra note 5. 76 Id. at 74-98. 77 Id. 78 Jonathan Granoff, The Nuclear Nonproliferation Treaty and its 2005 Review Conference: A Legal and Political Analysis, 39 N.Y.U. J. INT’L L. & POL. 995, 999 (2007) (The CD is an international “subsidiary body with a mandate to deal with nuclear disarmament.”). Id. 79 Annette Schaper, A Treaty on the Cutoff of Fissile Material of Nuclear Weapons–What to Cover? How to Verify? (July 1997), available at http://kms1.isn.ethz.ch/serviceengine/Files/ISN/28871/ipublicationdocument_singledocument/c01ff48f-a645-4c1c-9ec7-924609b6f935/en/prifrep48.pdf.

[Vol. 1:1 2014] THE CANBERRA PROCESS 111 IV. INHERENT VULNERABILITIES OF THE CANBERRA

COMMISSION A. The Canberra Commission’s Overemphasis on Nuclear Weapon States While the Canberra Commission remains one of the most

creative and laudable disarmament reports to date, it also has its faults. At first read, the Canberra Report is targeted solely at NWS. Throughout the document, the Canberra Report mentions NWS more than 114 times while NNWS are mentioned a mere 17 times. Additionally, the Canberra Report specifically refers to the United States and Russia more than 139 times while mentioning the other NWS by name roughly 16 times. While these references could be attributed to a number of factors, such as the historic elements, the current nuclear environment, the focus on bilateral U.S.-Russian arms-control agreements, or the fact that U.S.-Russian forces have more than three thousand warheads on high alert,80 the point is that the Canberra Report is overly focused on NWS while neglecting NNWS.

The Canberra Commission’s overemphasis on NWS is problematic. The problem with narrowing the focus on NWS is that “none of the nuclear-weapon state [are] willing to relinquish its nuclear weapons.”81 For example, many in the disarmament community had high hopes that then President-Elect Barack Obama, who repeatedly pledged his willingness to begin the disarming process, was the key to kicking off disarmament efforts. But, in April 2010, President Barack Obama released its Nuclear Posture Review (NPR), stating that the United States will continue to use nuclear weapons for the indefinite future.82 Further, Obama’s NPR “does not refer or appear to take into consideration the requirements of international law.”83 Instead, Obama’s NPR

80 Lipin Tien, On the Legality of Development of Nuclear Weapons, 6 NAT’L TAIWAN U.L.REV. 521, 569 (2011). 81 Ved P. Nanda, Nuclear Weapons, Human Security, and International Law, 37 DENV. J. INT’L L. & POL’Y 331, 334 (2009). 82 Charles J. Moxley Jr., Obama’s Nuclear Posture Review: An Ambitious Program for Nuclear Arms Control but a Retreat from the Objective of Nuclear Disarmament, 34 FORDHAM INT’L L.J. 734, 736 (2011). 83 Id. at 744.

112 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] focuses on nuclear weapons deterrent capabilities against other NWS, terrorism, and rogue state acquisition.84

It is important to note that policies such as the recent U.S. NPR are not unique. In fact, current Russian nuclear postures “imperfectly mirror” those of the United States: both view the weapons as a strategic part of their identity, give military value to the weapons, devote sizable budgets to nuclear programs, have plans for significant modernization, and deploy the bombs strategically.85 Yet China, India, and the United Kingdom have all released statements affirming their progress and commitment toward achieving nuclear-disarmament goals.

It must be noted, however, that the United States has suggested that “reducing international tension and strengthening trust between States would be a prerequisite to realizing the [disarmament] goal.”86 Such conflicting statements are usual to the discourse of international relations, but they often stall or paralyze realistic efforts to properly influence the creation of a treaty such as one modeled after the Canberra Commission’s recommendations.

As with all past disarmament agreements, CTBT, Chemical Weapons Convention (CWC),87 Fissile Material Cut-Off Treaty (FMCT),88 SALT I and SALT II,89 START I and START II, and

84 Id. at 745. 85 Joseph Cirincione, Strategic Turn: New U.S. and Russian Views on Nuclear Weapons, NEW AMERICA FOUNDATION (2011), available at http://newamerica.net/publications/policy/strategic_turn. 86 Nanda, supra note 81, at 344. 87 James D. Fry, Sovereign Equality Under The Chemical Weapons Convention: Doughnuts Over Holes, 15(1) J. OF CONFLICT & SECURITY L. 45, 46 (2010) (The CWC is a multilateral treaty seeking to abolish all chemical weapons by prohibiting their development, production, acquisition, stockpiling, transfer, and use without interrupting trade in chemicals used for peaceful purposes.). 88 Craig H. Allen, A Primer on the Nonproliferation Regime for Maritime Security Operations Forces, 54 NAVAL L. REV. 51, 63 (2007) (The FMCT is a multilateral treaty that seeks “to reduce availability of fissile material, and therefore the threat of such materials finding their way into an illicit nuclear weapon.”). 89 Byard Q. Clemmons, Sea-Launched Cruise Missiles: An Arms Control Proposal, 38 NAVAL L. REV. 195, 198, 210 (1989) (The SALT I and SALT II are bilateral U.S.-Russian agreements to limit entire classes of weaponry and delivery vehicles. These two treaties initiate verification mechanisms to ensure

[Vol. 1:1 2014] THE CANBERRA PROCESS 113 the NPT; Canberra Report’s narrowed focus on NWS was doomed to stall from the very beginning. This leads to the Canberra Report’s second major fault–its failure to call for a specific timeframe to make of a new treaty modeled after its recommendations.

B. Addressing the Canberra’s Recommended Timeframe Options

Like the NPT before it, the Canberra Commission danced

around the issue of setting a firm timeframe for state parties to create the practical disarmament treaty based on its recommendations. While the Canberra Report was not a multilateral international treaty like the NPT,90 many of its commissioners carried the force of a sovereign power behind them. Five of the participating commissioners were ambassadors to the United Nations (UN), one was a former head of state, and two were government officials currently serving in office.91

Instead of setting a definitive date for the drafting of a multilateral treaty, Part One of the Canberra Report recommended “that negotiation of the nuclear weapon states' commitment to a nuclear weapon free world should begin immediately, with the aim of first steps in its implementation being taken in 1997.”92 Additionally, in Part Two of the Canberra Report, the Canberra Commission set another ambiguous timeframe for its “agreed targets and guidelines . . . [for the] objective of final elimination” by using the dreaded NPT language “at the earliest possible time.”93

It is unclear why the Canberra Commission excluded a timeframe for negotiations when its members were so keenly aware of NPT’s blunder. It likely served the same purpose as the

compliance with the reductions. These negotiations were the precursors for START I and START II.). 90 Sergio Duarte, Nuclear Weapons and the Rule of Law, 33 FORDHAM INT’L L.J. 573, 582 (2010) (According to Sergio Duarte, the United States and the Soviet Union negotiated the NPT.). 91 CANBERRA REPORT, supra note 5 at 110-13. 92 Id. at 11. 93 Id. at 71.

114 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] NPT provision on indefinite extension94—to gain the support of the NWS that otherwise would have disregarded a firm timeframe. In fact, the lack of a definite timeframe has been attributed to the weight the Canberra Commission lent to the NPT’s 1995 indefinite extension.95 The Canberra Commission's “targets and guidelines” to negotiate “at the earliest possible date . . . [are] consistent with the Nuclear Non-Proliferation Review and Extension Conference (NPTREC)96 decision on strengthening the NPT review process.”97 There is, however, good reason why the Canberra Commission kept the NPT language at the forefront of its Report.

The Canberra Commission had intended to comport its Report with the language of the NPT because, in Annex B, one of its new treaty options was an “incremental approach” to “build upon the existing NPT and other related treaties.”98 Therefore, the Canberra Report's recommendations were designed to be used to “transform the NPT [into] a central treaty outlawing nuclear weapons,” which means that the Report had to be consistent with the NPT’s indefinite extension.99

To fix the timeframe issue, Annex B of the Report also offers a “comprehensive approach” that calls for negotiating a new treaty to essentially replace the NPT.100 The Canberra Report does acknowledge the real risks such a treaty would have on the existing NPT regime, which has been essential to the disarmament movement.101 The Canberra Commission lessens this risk by setting out a period of phased implementation of the new treaty, which would not enter into force until it has been adhered to by all

94 Amb. Thomas Graham, Jr., International Law and the Proliferation of Nuclear Weapons, 33 GEO. WASH. INT’L L. REV. 49, 60 (2000) (Attributing negative security assurances as a “quid pro quo for indefinite extension of the NPT and central to the viability of the [NPT] regime”). 95 Dhanapala, supra note 18. 96 Masahiko Asada, The Treaty on the Non-Proliferation of Nuclear Weapons and the Universalisation of the Additional Protocol, 16(1) J. OF CONFLICT & SECURITY L. 3, 8 (2011) (The 1995 and 2000 NPTREC was a UN conference of NPT member states who gathered to discuss, review, and amend the perceived “loopholes” of the NPT.). 97 Id. 98 CANBERRA REPORT, supra note 5. 99 Id. at 103. 100 Id. at 104. 101 Id.

[Vol. 1:1 2014] THE CANBERRA PROCESS 115 parties that are currently members to the NPT. In effect, this would entirely replace the NPT.102

While timing issues were not the end of the Canberra Commission, they were definitely an obstacle that the Canberra Report and all other nuclear disarmament agreements face. Despite these perceived weak points, the Canberra Report contains too many unique and practical disarmament goals to throw it by the wayside. The creative and practical ideas borne from the Canberra Report still hold weight and remain useful. The fruits of the Canberra Commission can be constructed into a “Canberra Process” to be used by NNWS to build the confidence and leverage required to gain the support of NWS. V. REVITALIZING THE “CANBERRA PROCESS”

One of the major mistakes made by the Canberra Commission was deemphasizing the important role NNWS can play in the nuclear-disarmament movement. The practical solutions offered by the Canberra Commission can and should be used as a model to be adopted by NNWS. Of course, much of the Canberra Report’s model addresses the process by which NWS could achieve a staged dismantling and disarmament of their arsenals. but such provisions need not be immediately applicable to all States that chose to adopt the legal instrument. In fact, most member states to the NPT and other disarmament treaties are NNWS.

In this respect, the steps and staged verification of the Canberra Report could be negotiated and implemented by a group of NNWS under the flag of a Canberra Process. The goal of this Process would be threefold: (1) to give NNWS a bargaining chip against NWS, (2) to create the confidence and environment conducive to achieving the Canberra Commission’s practical steps, and (3) to build a source of international customary law of the illegality of nuclear weapons.

102 Id. at 104-06.


A. Refocus: Giving Leverage to the Nuclear “Have-Nots”

The Canberra Process will require a shift in focus from the NWS to NNWS. Shifting the focus to NNWS will (1) revitalize the momentum of a Canberra Process, (2) bolster support for a new disarmament regime, (3) provide NNWS with political and legal leverage necessary to negotiate a disarmament agreement with NWS, (4) generate the legal framework for a new treaty based on the Canberra Commission’s recommendations, (5) boost confidence-building measures necessary to implement a disarmament process, (6) lay the groundwork for experimental and innovative verification infostructures, and (7) strengthen the case for the illegality of nuclear weapons within the international system.

The formation of a “Canberra Alliance” would achieve this goal.103 This Alliance could be comprised of a group of NNWS that would lead the way toward revitalizing the Canberra Commissions goals and recommendations. Australia should lead this Alliance because it initiated the Canberra Commission and continues to carry the most authority of “any other country in refocusing the international debate on the final goal of eliminating nuclear weapons.”104

In addition to Australia’s leadership, member-states of the Irish-led New Agenda Coalition (NAC)105 and the Japanese-sponsored Tokyo Forum106 should join under the banner of a Canberra Process. Each of these regimes has either adopted recommendations from or given considerable weight to the Canberra Commission.107 Additionally, NAC gained the consent of

103 The “Canberra Alliance” is a term coined by this author to refer to a proposed new coalition of member states whose agenda is to form, adopt, and implement the workings of the Canberra Commission recommendations under the revitalized Canberra Process. 104 Ungerer, supra note 29 (discussing the strengths of the Canberra Commission and calling for the Commission to be reconvened). 105 Id. (NAC is comprised of Ireland, Brazil, Egypt, Mexico, New Zealand, Slovenia, South Africa, and Sweden.). 106 Id. The Japanese government created the Tokyo Forum, which included semi-official representatives from India and Pakistan. 107 Id.

[Vol. 1:1 2014] THE CANBERRA PROCESS 117 114 additional states (with 18 against and 38 abstentions) in the First Committee at the UNGA’s 53rd session.108

In addition to the combination of the NAC and Tokyo Forum regimes, the Canberra Alliance should find additional membership in states that are part of the five NWFZ109. These zones include 119 states that currently cover over 50% of the earth’s landmass.110 The Canberra Alliance membership should consist of all NWFZ states, as the Canberra Commission recognized their vital role to the disarmament process.111

The Canberra Alliance has the potential to generate a powerful alliance by drawing from the 114 NNWS supporters of NAC and the 119 NWFZ states. These NNWS could build an incentive for other NNWS to join, especially those member states already party to the NPT. The theme of this Canberra Alliance is similar to the concept of NWFZs—spread across the map to generate enough leverage and confidence to bargain with NWS. After a large enough alliance is built, the political and legal pressure could eventually create enough leverage to cause an NWS, such as the United Kingdom or France, to join its ranks. The eventual membership of an NWS would cause the Canberra Alliance to eventually achieve the goals of practical disarmament that the Canberra Commission sought to create in the first place.

108 Id. 109 Janet Bloomfield & Pamela S. Meidell, Nuclear Weapon Free Zones: The Untold Story of Nuclear Disarmament and Non-Proliferation, ATOMIC MIRROR BRIEFING PAPER (2004), available at http://www.nuclearfiles.org/menu/key-issues/nuclear-weapons/issues/arms-control-disarmament/nwfz/PDFs/EngNWFZ%5B1%5D.pdf (NWFZ agreements are multilateral treaties in which sovereign states “commit themselves not to develop, deploy, manufacture, acquire, test, authorize, or possess nuclear weapons.”). 110 Scott Parrish & William Potter, Central Asian States Establish Nuclear-Weapon-Free Zones Despite US Opposition, CTR. FOR NONPROLIFERATION STUD. (2006), available at http://cns.miis.edu/stories/060905.htm (NWFZ include the Central Asian Free Zone, the Latin American Free Zone, and the African Nuclear Weapon Free Zone.). 111 CANBERRA REPORT, supra note 5.


B. Creating an Environment of Confidence Conducive to Achieving Total Disarmament

In addition to gathering a firm membership base committed

to the goals of the Canberra Process, the growing Canberra Alliance would create an environment of confidence that NWS need to initiate the disarmament, dismantling, and verification process recommended by the Canberra Commission. The Canberra Process should incorporate the language of NWFZ agreements, that sovereign states “commit themselves not to develop, deploy, manufacture, acquire, test, authorize, or possess nuclear weapons” in order to more readily appeal to NNWS.112

Much of the Canberra Report, especially Annex A, lends itself to creating workable components of verification. The core of the Canberra Commission’s verification recommendations are centered on using existing IAEA capacities and technologies. Furthermore the IAEA verification recommendations thus contains an enforcement component.113 More importantly, the Canberra Report emphasizes the creation of an information sharing network that would be open to all states during the verification process to build the confidence during the elimination phase.114 The Canberra Alliance would be able to establish, test, and perfect the construction of an efficient information sharing network. This would enable NWS to see the potential benefits of secured information and provide NWS with the data and confidence they will require to join the movement.

In addition to giving NNWS leverage to bargain with NWS, build confidence through the Canberra Alliance, and open channels of information necessary for the beginnings of a verification process, a Canberra Process would also be another building block of customary international law on the illegality of nuclear weapons.

112 Bloomfield & Meidell, supra note 109. 113 CANBERRA REPORT, supra note 5. 114 Id. at 74-98.


C. Building a Source of International Law and Customary International Law on the Illegality of Nuclear Weapons

The most essential part of a Canberra Process would be the contributions it will lend to creating an international law or customary international law on the illegality of nuclear weapons. The creation of a customary international law refers to the following:

[T]he body of law creating legal obligations binding on a state in its relationship with other states. No single international organization exists to create, enforce, and interpret the body of international law. Instead, customary international law derives from treaties, custom, general principles of law recognized by nations, judicial decisions, and scholarly writings. These sources of law reflect the consensus of the international community as to particular rules or practices applicable to foreign relations.115

As discussed above, customary international laws are

bolstered by international treaties. Therefore, to accomplish this result, the Canberra Alliance would have to negotiate a multilateral treaty with a provision stating and accepting the illegality of the possession, creation, transfer, use, or threat of use of nuclear weapons. Such a treaty would be necessary because “there is no positive law that prohibits the use of nuclear weapons, and . . . the use of nuclear weapons does not require any authorizing from any authority.”116 Moreover, “[a] provision of a convention or a treaty may attain universal acceptance as binding customary international law, even though only a handful of states initially conclude the convention or treaty.”117 Furthermore, “[s]tate practice does not need to be unanimous in order to become a customary rule, but it should be extensive and virtually uniform.”118

115 Jill Sheldon, Nuclear Weapons and the Laws of War: Does Customary International Law Prohibit the Use of Nuclear Weapons in All Circumstances?, 20 FORDHAM INT’L L.J. 181, 201-02 (1996) (emphasis added). 116 Tien, supra note 80, at 536. 117 Sheldon, supra note 115, at 202. 118 Id. at 203.


A multilateral treaty on the illegality of nuclear weapons under a Canberra Process would create a positive international law that would be recognized as customary international law more quickly than arguing for illegality under the laws of war or as against international humanitarian law. While the humanitarian law argument is meritorious, it is held hostage to NWS rhetoric. In 1996, at the ICJ, States argued for the illegality of nuclear weapons based on the UN Charter as contrary to sources of international humanitarian laws.119

The problem is that the NWS accepted this prohibition, stipulating that use of nuclear weapons against innocent civilian populations would raise issues of international humanitarian law violations.120 Despite this rhetoric, NWS are unlikely to allow the decision to influence their actions during the exercise of the ICJ extreme self-defense exception to non-use. In this scenario, NWS will likely cite the ICJ decision “[as] advisory . . . [and] is not directly binding on the United Nations or its member states.”121 Nevertheless, the ICJ opinion “can still be cited as an authoritative statement of the law.”122

A further blow to the humanitarian argument derives from the dicta of the of the Permanent Court of International Justice S.S. Lotus decision,123 which recognized that “restrictions upon the independence of States cannot . . . be presumed . . . and that international law leaves to [s]tates . . . a wide measure of discretion which is only limited in certain cases by prohibitive rules.”124 In other words, sovereign nations accept and obey the humanitarian argument at their convenience. Nevertheless, the Court decided that “there is no expressed prohibition or authorization of use of

119 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 239-43 (July 8), available at http://www.icj-cij.org/docket/index.php?sum=498&code=unan&p1=3&p2=4&case=95&k=e1&p3=5 [hereinafter Legality of the Threat]. 120 Tien, supra note 80, at 556. 121 Id. 122 Id. 123 S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7), available at http://www.worldcourts.com/pcij/eng/decisions/1927.09.07_lotus.htm. 124 Id. at 31-33.

[Vol. 1:1 2014] THE CANBERRA PROCESS 121 nuclear weapons by international law, but use of nuclear weapons is contrary to U.N. Charter and the rules of humanitarian law.”125

Consequently, the Court also concluded that “the threat or use of nuclear weapons is prohibited by international law, subject to a possible exception for legal reliance on such weapons in extreme circumstances of self-defense in which the survival of a state is at stake.”126 The Court’s exception for defensive use is troubling–it undercuts the legitimacy not just of a Canberra Process–but any treaty seeking to ban nuclear weapons as contrary to international law.

The difficulty for marking a class-ban on the weapons lies in the customary law doctrine of opinio juris that “provides that states conform to a pattern of conduct due to a feeling of obligation. A rule of customary international law may not bind states if they have expressly dissented from the rule’s formation.”127 Yet there is a principle in international law that revives the binding nature of a customary international prohibition.

The Martens Clause128 “provides that in the absence of a specific international convention limiting a particular type of weapon or method of warfare, general principles of customary international law continue to bind states.”129 Elaina I. Kalivretakis notes that the Martens Clause is applicable:

The clause assures that, no matter what states may fail to agree upon, the conduct of war will always be governed by existing principles of international law. The Martens Clause is significant because it recognizes that certain principles may be broader than any existing treaty provision and may apply in

125 Tien, supra note 80, at 553. 126 Legality of the Threat, supra note 119, at 227. 127 Sheldon, supra note 115, at 203-04. 128 Bartram S. Brown, Intervention, Self-Determination, Democracy and the Residual Responsibilities of the Occupying Power in Iraq, 11 U.C. DAVIS J. INT’L L. & POL’Y 23, 47 (2004) (Martens Clause is a principal of international law originating in the 1899 and 1907 Hague Conventions regarding the Laws of Armed Conflict. The Clause essentially affirms that binding rules of armed conflict exist beyond codified treaties, and perhaps even beyond uncodified customary international law.). 129 Sheldon, supra note 115, at 204.


situations in which there is no applicable treaty provision at all. Thus, in response to the argument set forth by nuclear states that nuclear weapons should not have been included within the prohibited weapons category because they were not specifically prohibited by customary international law or treaty provision, the Martens Clause provides for the prohibition of certain weapons even in the absence of such specific provisions. The Martens Clause does more, however, than merely remind states of the continuing role of customary international law. It also provides authority for considering principles of humanity and dictates of public conscience as factors in determining whether a means of warfare not expressly addressed by treaty--such as the use of nuclear weapons--is nevertheless prohibited or regulated by international law.130

In other words, arguments for humanitarian prohibition and

a treaty dictating a universal prohibition should be read together as strengthening the case for a normative prohibition. The Martens Clause, therefore, prescribes that an international agreement, such as a Canberra Agreement encompassing a universal understanding between signatory states who join the Canberra Process, would not be limited by the opinio juris doctrine. This opens the door to the possibility of creating a treaty that is not only binding to the parties’ signatory to it—but also one that is eventually binding under customary international law.

This task could not be accomplished by an international agreement alone; instead it would be another instrument to join the disarmament regime’s orchestra of international agreements. The force of a multilateral treaty, a “Canberra Treaty,” would strengthen the NPT, NWFZs, and CBWC.131 Taken together, the

130 Elaina I. Kalivretakis, Are Nuclear Weapons Above the Law? A Look at the International Criminal Court and the Prohibit Weapons Category, 15 EMORY INT’L L. REV. 683, 716-18 (2001). 131 Mirko Sossai, Drugs As Weapons: Disarmament Treaties Facing The Advances In Biochemistry And Non-Lethal Weapons Technology, 15 J. CONFLICT & SECURITY L. 5 (2010) (CBWC refers to two separate conventions: the 1997 CWC, and the 1975 Biological Weapons Convention .).

[Vol. 1:1 2014] THE CANBERRA PROCESS 123 force of these laws and the 1996 ICJ Advisory Opinion, make the case that the possession, creation, transfer, and use or threat of nuclear weapons are prohibited both expressly by international law and implicitly by customary international law.

VI. CONCLUSIONS & RECOMMENDATIONS

Australia’s 1996 Canberra Commission on the Elimination of Nuclear Weapons must be revitalized if the world is ever to see a world free of nuclear weapons. The Canberra Commission formulated a disarmament plan that is innovative, practical, feasible, and realizable. The Canberra Report caused the ICJ to issue an advisory opinion and laid the framework for subsequent agreements, such as NAC and the Tokyo Forum, but its narrowed focus on NWS sowed the seeds for its own destruction. Australia should continue to press for the reemergence of a Canberra Process. This revitalization, however, should consider shifting the focus from NWS to NNWS.

Shifting the focus to NNWS will (1) revitalize the momentum of a Canberra Process, (2) bolster support for a new disarmament regime, (3) provide NNWS with political and legal leverage necessary to negotiate a disarmament agreement with NWS, (4) generate the legal framework for a new treaty based on the Canberra Commission’s recommendations, (5) boost confidence-building measures necessary to implement a disarmament process, (6) lay the groundwork for experimental and innovative verification infostructures, and (7) strengthen the case for the illegality of nuclear weapons within the international system.

This Canberra Process could find its membership in the ranks of the 114 supporting states of NAC, the 119 states party to NWFZ, and supporting members of the NPT. The result would be a Canberra Alliance—a new disarmament regime whose aim would be to create a new treaty based on the general principles, six additional steps, and three reinforcing steps recommended in the Canberra Report.

This new regime should adopt the comprehensive approach as recommended in the Canberra Report–not the incremental

124 HOMELAND & NAT’L SECURITY L. REV. [Vol. 1:1 2014] approach. The new treaty should make a good-faith effort to set a time frame for disarmament and avoid ambiguous language such as “to be achieved at the earliest possible date.” The treaty should also avoid setting an indefinite timeframe. A firm date for implementation should be set.

The new treaty should also incorporate the language from NWFZ agreements, which will further strengthen the confidence required by NWS to start the disarming process. This provision will attract further membership from States under current NWFZ agreements. Once the Canberra Alliance is formed and a treaty is negotiated, the Alliance should immediately start to implement verification technologies under the IAEA and open a secured line of communication and documentation of all nuclear related activities—both civil and military. This would enable NNWS to create, adapt, and perfect the system for its future implementation at a level acceptable to NWS.

The Canberra Process is exactly that–a process. It will take time to gain the support of its membership and negotiate a treaty based on the Canberra Commission’s recommendations. Because the regime is comprised of NNWS with a common purpose, this process is likely to advance at a rate much more rapidly than the disarmament agreements of the past.

Combatant Immunity in Non-International Armed Conflicts Past and Future

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