Legal AnalysisThis section provides an overview of the debate about the legality of the US targeted killing program and drone

campaign in Pakistan under both international[1] and US domestic law. The section is intended for a non-legal audience, and thus should not be seen as a comprehensive analysis of the complexities of international legal doctrine. It outlines the legal issues regarding:

whether the US use of force in Pakistan violates Pakistan’s sovereignty in contravention of the U.N. Charter. This is a question of jus ad bellum, the body of lawconcerning the recourse to force, and depends on whether Pakistan has consented to the strikes, or whether the US is lawfully acting in self-defense;

when and which individuals may lawfully be targeted under applicable international human rights or humanitarian law. Regardless of one’s assessment of the legality of the recourse to the use of force (jus ad bellum)–the use of force against a specific individual must also comply with either international humanitarian law (in the context of an armed conflict) or international human rights law (outside armed conflict). In this regard, the legality of so-called “signature strikes” is highly suspect, as are attacks resulting in significant civilian casualties, attacks on first responders and funerals, and the targeting of individuals not engaged in the Afghanistan theater, particularly those who do not pose an imminent threat;

the extent to which the US has met its legal obligations to operate transparently and to ensure accountability for alleged rights abuses;

whether current drone policy violates US domestic law, in light of its possible expansion of the role of the executive vis-à-vis the Congress, and the prohibition on assassination.

The US government’s extreme reluctance to provide details about particular strikes or the targeted killing program in general has impeded much-needed democratic debate about the legality and wisdom of US policies and practices, and stymied understanding about their actual impacts. The US has largely refused to answer basic questions aboutthe drone program posed in litigation or by civil society, journalists, or public officials.[2] US officials have made some public comments,[3] and there has been extensive reliance on selective, limited, and favorable leaks about the program to journalists.Yet discussions about the legality of the drones policy under both under

International Humanitarian Law (IHL), the body of law governing armed conflict, and International Human Rights Law (IHRL), often require fact-dependent contextual analysis. This report relies on information documented through extensive first-hand accounts to aid in its analysis.

Whether the US Use of Force in Pakistan Violates Pakistan’s SovereigntyArticle 2(4) of the U.N. Charter prohibits the threat or use of force by one state against another.[4] Two exceptions to the Article 2(4) prohibition on the use of forceare particularly relevant to the question of whether US targeted killings in Pakistan are lawful: (1) when the use of force is carried out with the consent of the host state;[5] and (2) when the use of force is in self-defense in response to an armed attack or an imminent threat, and where the host state is unwilling or unable to take appropriate action.[6]Pakistani consent: Some analysts, citing information released by Wikileaks,[7] maintain that Pakistan had, at some prior point, tacitly supported drone strikes.[8] It is not known whether Pakistan continues to consent privately to the program today. Repeated public statements by Pakistani officials, which intensified in 2012—declaring that US strikes are illegal, counter-productive, and violate the country’s sovereignty[9]—clearly cast doubt on whether Pakistan consents to ongoing operations.Self-defense: In the absence of Pakistani consent, US use of force in Pakistan may notconstitute an unlawful violation of Pakistan’s sovereignty if the force is necessary in self-defense[10] in response to an armed attack[11]–either as a response to the attacks of September 11, 2001,[12] or as anticipatory self-defense to mitigate threatsposed by non-state groups in Federally Administered Tribal Areas (FATA).[13] For the useof force to be lawful, the host state must also be shown to be “unwilling or unable totake [the appropriate steps, itself, against the non-state group].”[14] Legal experts,including the current U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, have questioned whether “killings carried out in 2012 can be justified as in response to [events] in 2001,” noting that “some states seem to want to invent new laws to justify new practices.”[15] “Anticipatory” self-defense has been offered as a narrow exception,[16] invoked to prevent an attack that is “instant, overwhelming, and leaving no choice of means, and no moment of delib-eration.”[17] There is little publicly available evidence to support a claim that eachof the US targeted killings in northwest Pakistan meets these standards. Indeed, on

currently available evidence, known practices–such as signature strikes, and placing individuals on kill lists for extended periods of time[18]–raise significant questionsabout how the self-defense test is satisfied.Further, it must be shown that the host state is “unwilling or unable to take [the appropriate steps against the non-state group].”[19] Pakistan has at times failed to act decisively against non-state groups,[20] raising questions about its ability and willingness to take necessary steps. At others, however, it has also shown a willingness to take action.[21] Any such action by Pakistan must, however, also comport with all IHRL and IHL concerning the use of force (see below for a discussion on jus in bello considerations).

Circumstances in Which Individuals May Lawfully Be Lethally TargetedSeparately from the question of whether US use of force in Pakistan violates Pakistanisovereignty, the legality of strikes against particular individuals turns on their compliance with IHL and/or IHRL. US strikes that occur outside the context of any armed conflict are governed by IHRL law. If an armed conflict exists, both IHRL, and IHL, as the lex specialis (“law governing a specific subject matter”), apply. [22]

The Existence of an Armed Conflict inPakistanThe existence of an armed conflict is determined according to objective legal criteria.[23] In the context of a non-international armed conflict (insofar as a “conflict” exists in Pakistan between the US and others, it is a non-international conflict because it involves non-state actors), factors such as whether the violence reaches a minimum level of intensity and duration,[24] and involves a sufficiently identifiable and organized non-state group,[25] are relevant.US officials have been quick to apply IHL without establishing that the requisite threshold for its application has been met. Yet numerous experts have raised questionsabout whether the US is, in fact, in an armed conflict with all of the groups whose members the US has targeted. This is because of factors such as the lack of centralization and organization within some non-state groups,[26] and the existence of only sporadic and isolated attacks by some groups.[27]

Drone Strikes under International Humanitarian LawIf there is an armed conflict, the legality of any drone strike must then be evaluatedin accordance with IHL, including particularly the fundamental principles of distinction,[28] proportionality,[29] humanity,[30] and military necessity.[31]

Distinction is particularly challenging in FATA, because fighters regularly intermingle with civilians, engage in routine activities and do not wear uniforms. Nonetheless, militaries engaged in an armed conflict must always attempt to distinguish between legitmate and illegitimate targets for an attack.

Generally, “the civilian population as such, as well as individuals civilians, shall not be the object of attack.”[32] Civilians lose this protection when they “take a direct part in hostilities.”[33] Under the formulation of the International Committee of the Red Cross (ICRC) of what constitutes direct participation in hostilities, the act committed must adversely and directly affect the opposing party in a concrete manner or lead to the loss of life or property as part of a campaign in support of oneparty to a conflict.[34] This definition adopts an approach focused on specific hostile acts of a certain magnitude rather than organizational membership or more indirect forms of support.[35] The ICRC has further distinguished between civilians who participated in specific acts and those who maintain a continuous combatant function (CCF) by virtue of involvement on a “persistently recurrent basis.”[36] While acivilian participating in a specific act becomes a permissible target during the execution of,[37] and, in some formulations, the preparation of and deployment to and from the particular act,[38] a person who maintains CCF status, under the ICRC formulation, may be targeted at any time. The recognition under IHL that, at times, a civilian can become akin to a regular combatant makes it “imperative that the other constituent parts of the [ICRC’s Interpretive] Guidance [on the Notion of Direct Participation in the Hostilities Under Humanitarian Law] (threshold of harm, causation, and belligerent nexus) not be diluted.”[39] Even when a person is deemed tobe a legitimate target of an attack, the attack must also satisfy IHL’s other core requirements. At a minimum, any attack must serve a legitimate military objective, andthe expected harm or risk to civilians must not outweigh the expected military objective.

The research conducted for this study raises serious concerns about the compliance of particular strikes, and targeted killing trends and practices, with IHL. These legal concerns include questions regarding:

individual strikes, including those on mosques, funerals, schools, or meetings for elders to gather and resolve community disputes, where large numbers of civilians are present. Even when such strikes are aimed at one or more individuals who may be deemed legitimate military targets, the presence of large numbers of civilians in such spaces may make the strike disproportionate. Strikes that result in large numbers of civilian deaths also raise questions about whether adequate precautions in attack were taken;

signature strikes, which reportedly are based on behavior patterns observed from on high and interpreted thousands of miles away. The practice of such strikes raises concerns about whether they are conducted with the proper safeguards to ensure that they strike lawful targets;[40]

strikes on rescuers and first responders, as documented in the Living Under Drones Chapter.[41] These may violate the principle of distinction, and also contravene specific rules protecting the wounded and humanitarian assistance.[42] It might be that, under the ICRC formulation of the CCF test, a fighter could be lawfully targeted even while the person is at that moment rescuing someone.[43] However, available evidence raises very serious concerns about such strikes, given that they occur in areas where civilians are very likely to be present. The short time betweenfirst and second strikes at rescue sites further raises questions over how an individual’s lawful target status could be properly determined. Evidence uncovered by our research team that humanitarian actors may not attend to strikes immediately because of second-strike fears is especially troubling.[44] As U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions Christof Heyns observed, “[I]f civilian ‘rescuers’ are indeed being intentionally targeted, there is no doubt about the law: those strikes are a war crime;”[45]

the proportionality of particular strikes, in light of the higher-end estimates of civilian casualties noted in the Numbers chapter.[46] Recent revelations regarding the Obama administration’s “guilt by association”[47] approach to counting drone-strike casualties, classifying ‘all military-age males’ as ‘combatants’ absent exonerating evidence, reinforce these concerns;[48]

the necessity of particular strikes, in light of research we conducted on the timingand intensity of drone attacks between January 2010 and June 2012, as well as analysis done by the Congressional Research Service. The data we gathered, reviewed in light of parallel political events and key moments in US-Pakistani relations, suggests a troubling correlation between events of political significance and the intensity of drone strikes. Take, for example, the events that followed the arrest of CIA contractor Raymond Davis, who reportedly killed two men in Pakistan on January 27, 2010. Pakistani authorities arrested Davis on that same day, January 27.Although the US had launched six strikes in the three weeks preceding his arrest

(January 6-27), it did not strike again for over three weeks after the incident. During this period, US authorities engaged in a high-level lobbying campaign to ensure the release of Davis.[49] Some attribute the pause in drone strikes to US efforts to secure Davis’s release and/or to “avoid angering a population already riveted by the Davis arrest.”[50] Then, in the period between February 20 and Davis’s eventual release on March 16, the US launched eleven strikes. Following the March 16 release, with the exception of the March 17 jirga strike,[51] the US did not authorize another strike afterwards for almost a month (until April 13).[52] The Congressional Research Service (CRS) reached a similar conclusion: “[m]essaging to Pakistan appears to continue to be part of the [drone] program’s intent.”[53] Apart from the Raymond Davis incident, CRS cited two additional examples of the intensification of drone strikes related to political events.[54]

In the Absence of Armed Conflict, Only International Human Rights Law AppliesIHRL permits the intentional use of lethal force only when strictly necessary and proportionate. Thus, “targeted killings” as typically understood (intentional and premeditated killings) cannot be lawful under IHRL, which allows intentional lethal force only when necessary to protect against a threat to life, and where there are “noother means, such as capture or non-lethal incapacitation, of preventing that threat to life.”[55] There is little public evidence that many of the targeted killings carried out fulfill this strict legal test. Indeed, and as described above, many particular strikes and practices suggest breaches of the test, including: signature strikes; strikes on rescuers; the administration’s apparent definition of “militant;” the lack of evidence of imminent threat; and the practice of extensive surveillance and presence on a list before killing.The nature and effect of the US targeted killing policy may also contravene in some instances other sections of the International Covenant on Civil and Political Rights (ICCPR),[56] an international human rights treaty ratified by the US. Sections of the ICCPR potentially violated by US drone practice include Article 7 (prohibition on cruel, inhumane, and degrading treatment or punishment), Article 9.1 (right to libertyand security), Article 17 (right to freedom from arbitrary or unlawful interference with privacy, family, and home), Article 21 (right to peaceful assembly), and Article 22 (right to freedom of association).[57] Thus, for example, Articles 21 and 22 might be violated where drone strike practices cause individuals to fear assembling in

groups—as described by many interviewees—out of concern that they might be assumed to be engaged in suspicious activity that might result in a signature strike.

US Domestic LawUS drone strikes must also comply with US domestic law. Under Article II of the US Constitution, the President wields significant authority over questions involving national security and the use of force.[58] The Constitution, though, also entrusts key responsibilities, including the authority to declare war, to Congress.[59] When acting pursuant to Congressional authorization in an area delegated to him under the Constitution, the President has relatively expansive authority to act.[60]

The principal domestic legislative basis offered to justify drone strikes is the Authorization to Use Military Force (AUMF), a joint resolution of both houses of Congress passed exactly one week after 9/11. The AUMF permits the President to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”[61] While subsequent legal and judicial developments expanded the government’s detention authoritybeyond the parameters of the AUMF,[62] the AUMF continues to provide the legal basis for the use of force against Al Qaeda. The 2012 National Defense Authorization Act (NDAA),for example, while affirming the President’s power to detain forces “associated” with Al Qaeda and Taliban and “engaged in hostilities against the United States or its coalition partners,”[63]notes that “nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.”[64] Congress, which has been more engaged recently in oversight of the drone program,[65] has yet to expand or limit the authorization for the executive to use force under the AUMF at this writing.US officials have cited the AUMF to support their position that the country is at ‘war’ not only with Al Qaeda and the Taliban, but also with all alleged affiliated groups, wherever they may operate, and at any point when they emerge.[66] For example, Jeh Johnson, General Counsel of the Department of Defense, has stated that the US government considers the AUMF to authorize force against “associated forces.”[67] An associated force, according to Johnson, is “(1) an organized, armed group that has entered the fight alongside Al Qaeda, and (2) is a co-belligerent with Al Qaeda in hostilities against the United States or its coalition partners.”[68] The plain language of the AUMF, though, would appear only to authorize the use of force against those tied to the attacks of September 11, 2001, and not any “associated forces” who may subsequently allegedly join with Al Qaeda.[69] While the AUMF would thus cover actions against Al Qaeda and the Afghan Taliban, strikes against groups not involved

with the 9/11 attacks, including, for example, the Haqqani Network and TTP, would not be covered under the currently existing language.The express legislative authorization in the AUMF, read in conjunction with the wartime powers of the executive under Article II, endow the President with expansive authority to act on use of force questions in the post-9/11 context.[70] In addition, the President has the authority to issue findings to authorize CIA action beyond the parameters of Congressional authorization as long as such action does not otherwise violate domestic law.[71] Some argue that this allows the President to authorize the CIA to take pre-emptive lethal action in self-defense against terrorists in response to an imminent threat, without first obtaining Congressional approval.[72] While all US presidents have embraced an executive order issued by President Gerald Ford in 1976[73] prohibiting political assassination,[74] at least two presidents have reportedly relied on classified legal memoranda to conclude that “executive orders banning assassination do not prevent the president from lawfully singling out a terrorist for death by covert action.”[75]

To the extent that strikes may occur pursuant to executive findings authorizing CIA action beyond the parameters of Congressional authorization, the legal framework guiding CIA engagement must be examined. Many have questioned what rules govern the CIA,[76] with some even suggesting that the express purpose of the CIA is to safeguard vital national interests by means of covert action that may go beyond the parameters of the law.[77] The CIA’s involvement in drone strikes in Pakistan does not absolve the US from its responsibility to adhere to binding domestic law. Although the CIA is governed by a different section of the US Code (Title 50) than that which regulates the armed forces (Title 10), the CIA “may not authorize any action that would violate the Constitution or any statute of the United States.”[78] Director of National Intelligence James Clapper explained in a January 2012 Senate Intelligence Committee hearing that the entirety of Harold Koh’s March 2010 speech at the American Society ofInternational Law’s annual conference, which laid out the legal requirements to which the US is bound and the administration’s legal justification for targeted killings, applied equally to intelligence agencies.[79]Executive orders to the CIA authorizing covert action (such as drone strikes), though,are not public, and thus their terms cannot be examined. Should they not provide a legal basis for actions of this sort or should the US invocation of self-defense be invalid in particular instances, individual strikes could constitute acts of illegal extrajudicial assassination. Assassination has long been condemned in the US. Thomas Jefferson wrote in a letter to James Madison in 1789 that “assassination, poison, [andperjury]” were all “legitimate purposes in the dark ages…but exploded and held in justhorror in the 18th century.”[80] As recently as 2001, the US Ambassador to Israel Martin Indyk declared that “the United States government is very clearly on record as against

targeted assassinations… they are extrajudicial killings, and we do not support that.”[81] Strikes of this sort occurring outside of authorized armed conflict would be subject to US domestic law.[82] If US citizens are targeted, constitutional protections and due process requirements also apply.[83]

Accountability and TransparencyInternational law requires states to ensure basic transparency and accountability for wrongs. States must investigate war crimes allegations, and prosecute where appropriate.[84] The obligation to be transparent is particularly relevant when there are civilian victims; indeed, some have argued that parties to an armed conflict are obligated to record civilian casualties.[85] IHRL further “places a particular emphasis on the obligation of states to investigate, prosecute and punish any alleged violationof the norms banning extrajudicial executions.”[86] A proper investigation requires transparency: as the European Court of Human Rights explained, “[t]here must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities’ adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts.”[87]

By failing to account adequately for their activities in any public forum and even refusing to acknowledge publicly the existence of targeted killing operations for years or to explain sufficiently their legal basis, the US has failed to meet its international legal obligations to ensure transparency and accountability. In addition, while Article 51 of the U.N. Charter, which the US has implicitly invoked tojustify strikes, requires that “measures taken by Members in the exercise of [their] right to self-defense . . . be immediately reported to the Security Council,”[88] the US has yet to make such a report. Recent public disclosures and the occasional willingness by public officials to discuss the program publicly is welcome progress, but more is still required.Partial and selective leaks to journalists and vague invocations of legal doctrine in talks in public fora are poor substitutes for proper transparency and oversight. Officials boast of the rigor of internal oversight mechanisms and decision-making processes,[89] but, as former U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions Professor Philip Alston concluded:Assertions by Obama administration officials, as well as by scholars, that these operations comply with international standards are undermined by the total absence of any forms of credible transparency or verifiable accountability. The CIA’s internal control mechanisms, including the Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the

issue; congressional oversight has given a ‘free pass’ to the CIA; judicial review hasbeen effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself.[90]

[1] See Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on Targeted Killings, Human Rights Council, UN Doc. A/HRC/14/24/Add.6 (May 28, 2010) (by Philip Alston), available athttp://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf (detailing the legal regime governing “targeted killing” in great detail, and providing an authoritative and comprehensive analysis of the legal regime governing both the legal—and illegal—use of drones to target and kill individuals in the context of counter-terrorism).[2] For questions and critiques from external actors, see, e.g., Special Rapporteur, Study on Targeted Killings, supra note 598; Owen Bowcott, Drone Strikes Threaten 50 Years of International Law, Says UN Rapporteur, Guardian (June 21, 2012), http://www.guardian.co.uk/world/2012/jun/21/drone-strikes-international-law-un#start-of-comments; US Drone Strikes ‘Raise Questions’- UN’s Navi Pillay, BBC News (June 8, 2012), http://www.bbc.co.uk/news/world-asia-18363003; Letter from Amnesty International et al. to Barack Obama, President of the United States (May 31, 2012), available athttp://www.madre.org/index/resources-12/madre-statements-57/news/letter-to-administration-pressing-for-transparency-on-drone-strikes-805.html; US: Transfer CIA Drone Strikes to Military, Human Rights Watch (April 20, 2012),http://www.hrw.org/news/2012/04/20/us-transfer-cia-drone-strikes-military.[3] See e.g., John Brennan, Assistant to the President for Homeland Security and Terrorism, The Ethics and Efficacy of the President’s Counterterrorism Strategy, Address at the Woodrow Wilson International Center for Scholars (Apr. 30, 2012), available at http://www.lawfareblog.com/2012/04/brennanspeech/; Eric Holder, Attorney General, Department of Justice, Address at Northwestern University School of Law (Mar. 5, 2012), available athttp://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html; Jeh C. Johnson, General Counsel, Department of Defense, National Security Law, Lawyers and Lawyering in the Obama Administration, Address at Yale Law School (Feb. 22, 2012), available at http://www.cfr.org/national-security-and-defense/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obama-administration/p27448; Harold K. Koh, Legal Advisor, Department of State, The Obama Administration and International Law, Address at the Annual Meeting of the American Society of

International Law (Mar. 25, 2010), available at http://www.state.gov/s/l/releases/remarks/139119.htm; Stephen W. Preston, General Counsel, Central Intelligence Agency, The CIA: Lawless Rogue or Regulated Business?, Address at Stanford Law School (Feb. 21, 2012).[4] UN Charter art. 2, para. 4. Some international lawyers interpret this language in Article 2(4) to indicate a prohibition only of a subset of acts of force—those that challenge the territorial integrity or political independence of the host state. Christine Gray, International Law and the Use of Force 24-25 (2008). This interpretation, though, has largely been rejected by the weight of international legalopinion, which views Article 2(4) as “outlawing any transboundary use of military force.” Sean D. Murphy, Terrorism and the Concept of ‘Armed Attack’ in Article 51 of the U.N. Charter, 43 Harv. Int’l L.J. 41, 42 (2002). The United Kingdom articulated a version of this interpretation in the Corfu Channel case in the first matter adjudicated by the International Court of Justice (‘ICJ’), arguing that its intrusion on Albanian territorial waters to recover evidence regarding the destruction of two British warships did not threaten Albania’s territorial integrity or political independence, and, therefore, did not violate Article 2(4).See generally The Corfu Channel Case (Alban.v. U.K.), 1949 I.C.J. 4, 194 (Apr. 9). The ICJ rejected this claim outright; while thelanguage leaves open the possibility of a narrow rejection based on the particular facts, the ICJ has subsequently construed Article 2(4) as a blanket ban on armed intervention. Id.;see generally Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. US), 1986 I.C.J 14, 202 (June 27); Case Concerning Armed Activities on the Territory of the Congo (Dem. Rep. of Congo v. Uganda), 2005 I.C.J. 168 (Dec. 19).[5] See, e.g., G.A. Res. 36/103, UN Doc A/RES/36/103 (Dec. 9, 1981) (further identifying the “duty of a State to refrain from economic, political, or military activity in the territory of another State without its consent.”); Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 35; Oscar Schachter, International Law in Theory and Practice 114 (1991); Ashley Deeks, ‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense, 51 Va. J. of Int’l Law 483, 492 (2012); Eliav Lieblich, Intervention and Consent: Consensual Forcible Interventions in Internal Armed Conflicts as International Agreements, 29 B.U. Int’l L.J. 337, 350 (2011) (“[C]onsent can be expressed in many forms, in different moments along the time continuum, and does not necessarilyhave to be explicit- as long as it is proven genuine.”).[6] Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 45. A third exception, involving collective security under Chapter VII of the UN Chapter, is inapplicable, since the US drone program in Pakistan lacks UN authorization.[7] Tim Lester, WikiLeaks: Pakistan Quietly Approved Drone Attacks, US Special Units, CNN (Dec. 1, 2010),http://articles.cnn.com/2010-12-01/us/wikileaks.pakistan.drones_1_drone-attacks-

predator-strikes-interior-minister-rehman-malik?_s=PM:US (quoting former US AmbassadorAnne Patterson’s recounting of a meeting with former Pakistani Prime Minister Yousaf Gilani, where he acknowledged “I don’t care if they do it as long as they get the right people. We’ll protest in the National Assembly and then ignore it.”).[8] See, e.g., Mohammad I. Aslam, Wazirstan: The Drone Delusion, 3 South Asia Journal 55 (Jan. 2012), available athttp://southasiajournal.net/issues/south-asia-journal-issue-3-january-2012/.[9] See, e.g., President Zardari Asks US to End Drone Strikes, Remove Mistrust, Dawn (Sept. 16, 2012),http://dawn.com/2012/09/16/president-zardari-urges-us-to-immediately-cease-drone-strikes/ (citing the spokesman to Pakistani President Asif Ali Zardari as sayingthat, in a meeting with US special envoy to Afghanistan and Pakistan Marc Grossman, Zardari “reiterated his call for an end to the drone attacks, terming them counterproductive in the fight against militancy and in the battle of winning hearts’”); Pakistan Condemns ‘Illegal’ US Drone Strikes, Reuters (June 4, 2012),http://tribune.com.pk/story/388730/pakistan-condemns-illegal-us-drone-strikes/ (referencing statement by the Pakistani Foreign Ministry, declaring drone strikes to be“illegal” and a violation of country’s sovereignty); Pakistan Says US Not Listening: Drone StrikesMust Stop, Reuters (Apr. 26, 2012), http://www.reuters.com/article/2012/04/26/us-pakistan-minister-drones-idUSBRE83P0AM20120426 (citing Pakistani Foreign Ministry HinaRabbani Khar, who declared in April 2012 that “[o]n drones, the language is clear: a clear cessation of drone strikes. I maintain the position that we’d told them categorically before. But they did not listen. I hope their listening will improve.”).[10] UN Charter art. 51. Note that there has been debate about whether Article 51 applies to the use of force against non-state actors; see, e.g., Legal Consequences of theConstruction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. 136, 194 (July 9) (holding that Article 51 had “no relevance” to attacks not “imputable to a foreign state.”); see also Barry E. Carter & Allen S. Weiner, International Law 981 (6th ed. 2011) (“[T]he international community has generally been critical of the use of force in self-defense against non-state terrorists.”); Oscar Schachter, International Law in Theory and Practice 165 (1991) (expressing “substantial doubts” about whether Article 51 sanctions the use of force against terrorist groups when no state has been “guilty of an armed attack” or has “directed or controlled the terrorists in question). But see Legal Consequences of the Construction of Wall, Advisory Opinion, 2004 I.C.J. 207, at 215 (July 9) (separate opinion of Judge Higgins) (“There is, with respect, nothing in the text of Article 51 that thus stipulates that self-defense is available only when an armed attack is made by a state.”).[11] International Court of Justice legal precedent also casts doubt on whether terrorist acts within Pakistan today can constitute “armed attacks” on the US and thus

are sufficient to give rise to a right to self-defense under Article 51. SeeMilitary and Paramilitary Activities in and Against Nicaragua, supra note 601, at 195 (distinguishing an ‘armed attack’ from mere ‘frontier incidents’); see also Gary Solis, The Law of Armed Conflict: International Humanitarian Law in War 153 (2010) (“The SLA was no more than a criminal conspiracy.”); Mary Ellen O’Connell, Unlawful Killing with CombatDrones14 (Notre Dame Law School, Legal Studies Research Paper No. 09-43, 2010) (arguingthat terrorist attacks “are generally treated as criminal acts because they have the hallmarks of crime, not armed attacks that give rise to the rights of self-defense”), available at http://ssrn.com/abstract=1501144. But see Nils Melzer, Targeted Killing in International Law 52 (2008) (“[M]ost authors agree that massive terrorist attacks, such as those carried out in New York City and Washington DC on 11 September 2001, or regular terrorist attacks of a comparatively minor scale, such as the frequent Palestinian suicide bombings carried out in Israel, can potentially qualify as an ‘armed attack’ within the meaning of Article 51 UN Charter.”).[12] See, e.g., Brennan, supra note 600 (“[T]he United States is an armed conflict with al-Qa’ida, the Taliban, and associated forces, in response to 9/11 attacks, and we mayalso use force consistent with our inherent right to self-defense.”); Holder, supra note 600 (“[A]nd international law recognizes the inherent right of national self-defense. . .”); Koh, supra note 600 (“[T]he United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law.”).[13] See, e.g., Brennan, supra note 600 (“[W]e conduct targeted strikes because they are necessary to mitigate an actual ongoing threat — to stop plots, prevent future attacks, and save Americans lives.”); Holder, supra note 600 (“[T]he US government’s use of lethal force in self defense against a leader of al Qaeda or an associated force who presents an imminent threat of violent attack would not be unlawful.”).[14] Deeks, supra note 602, at 487-88; see also Special Rapporteur, Study on Targeted Killings, supra 598, at ¶ 35 (“[A] targeted killing conducted by one state in the territory of a second state does not violate the second State’s sovereignty if . . . . the first, targeting, State has a right under international law to use force in self-defense under Article 51 of the UN Charter, because . . . . the second state is willing or unable to stop armed attacks against the first State launched fromits territory.”).[15] Bowcott, supra note 599 (citing the Special Rapporteur’s further warning that the US drone campaign threatens “50 years of international law,” and questioning whether “we [are] to accept major changes to the international legal system which has been in existence since world war two and survived nuclear threats”).

[16] See, e.g., Thomas M. Franck, Recourse to Force: State Action against Threats and Armed Attacks 2 (2002) (describing the UN Charter as a “constitutive instrument capable of organic growth”); William C. Bradford, The Duty to Defend Them: A Natural Law Justification for the Bush Doctrine of Preventative War, 79 Notre Dame L. Rev. 1365 (2004); Michael Glennon, The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, 25Harv. J.L. & Pub. Pol’y 539, 557-58 (2002). Note, however, that this interpretation isin tension with the text of Article 51 of the UN Charter, which permits invocations ofself-defense only in response to an armed attack. UN Charter art. 51 (“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.”). Many states have questioned the anticipatory self-defense doctrine. Scholar Christine Gray has observed that “the vast majority of states rejected [claims of anticipatory self-defense] before the events of 9/11.” Christine Gray, International Law and the Use of Force 10 (2008). Writing in 2008, Gray noted that despite the position in favor of anticipatory self-defense of powerful nations such as the US, the United Kingdom, and Israel, “differences persist today.” Id. at 160. Gray goes on to note that states rarely expressly invoke the doctrine, “a clear indication of the doubtful status of this justification for the use of force.” Id. at 161.[17] Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 45; see also Letter from Daniel Webster, US Secretary of State, to Lord Ashburton, (Aug. 8, 1842), in Carter & Weiner, supra note 607, at 936-37. Webster’s statement, which emergedfrom a diplomatic incident between the US and U.K. over the killing of US citizens in British Canada in 1837 (known as the Caroline case), has come to be the customary international legal standard for preemptive self-defense. A recent Congressional Research Service report has noted that US authorities have sought to expand the definition of imminence in the case of non-state terrorist threats. Jennifer Elsea, Cong. Research Serv., 7-5700, legal issues related to the lethal targeting of US citizens Suspected of Terrorist activities 14 (2012) That report notes that this “proposed redefinition of ‘imminence’ as a requirement for justifying the use of forcein self defense on the territory of another country may pose challenges to the international law regarding the use of force. The standard definition of imminence from the Caroline case, ‘instant, overwhelming, and leaving no choice of means and no moment for deliberation,’ appears to have been completely reversed in the case of a non-state actor). Id. at 20.[18] Jo Becker & Scott Shane, Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will, N.Y. Times (May 29, 2012),http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html?pagewanted=all.[19] Deeks, supra note 602, at 487-88. See also Special Rapporteur, Study on Targeted Killings, supra 598, at ¶ 35 (“[A] targeted killing conducted by one state in the

territory of a second state does not violate the second State’s sovereignty if . . . . the first, targeting, State has a right under international law to use force in self-defense under Article 51 of the UN Charter, because . . . . the second state is willing or unable to stop armed attacks against the first State launched fromits territory.”).[20] See, e.g., Jaysharee Bajoria and Eben Kaplan, Backgrounder: The ISI and Terrorism: Behind the Accusations, Council on Foreign Relations (May 4, 2011), http://www.cfr.org/pakistan/isi-terrorism-behind-accusations/p11644; Bob Gates, America’s Secretary of War, CBS News (May 17, 2009), http://www.cbsnews.com/2102-18560_162-5014588.html?tag=contentMain;contentBody (noting Defense Secretary Robert Gates conceding that “to a certain extent, [Pakistan] play[s] both sides”); Pakistan Helping Afghan Taliban- NATO, BBC News (Feb. 1, 2012),http://www.bbc.co.uk/news/world-asia-16821218 (citing a leaked 2012 NATO report claiming that “Pakistan’s manipulation of the Taiban senior leadership continues unabashed.”); Declan Walsh & Eric Schmitt, New Bold From Militants Poses Risk to US-Pakistan Ties, N.Y. Times (July 30, 2012), http://www.nytimes.com/2012/07/31/world/asia/haqqani-network-threatens-us-pakistani-ties.html?pagewanted=1&_r=2&nl=todaysheadlines&emc=edit_th_20120731 (maintaining that the Haqqani Network, a non-state group affiliated with the Taliban, operates“unmolested by the Pakistani military” in North Waziristan”).[21] Interview with Samina Ahmed, International Crisis Group, in Islamabad, Pakistan (Feb. 28, 2012) (“It’s a pattern we’ve seen since 2002, where the Pakistani military has delivered foreign Al-Qaeda in return for benefits.”). Pakistan has arrested dozensof senior Al-Qaeda leaders, including Khalid Sheikh Mohammed, and undertaken operations against militant groups in Swat Valley and parts of FATA.[22] Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 29; see also International Committee of the Red Cross, International Humanitarian Law and OtherLegal Regimes: Interplay in Situations of Violence (2003), available athttp://www.icrc.org/eng/assets/files/other/interplay_other_regimes_nov_2003.pdf (“In short, the participants [of the XXVIIth Round Table on Current Problems in Humanitarian Law] agreed that the existence of an armed conflict could permit the suspension of the application of derogable human rights but only to the extent necessary, for the limited duration of exceptional events justifying their suspension and subject to compliance with certain precise conditions. At the same time, a consensus emerged that, even in this hypothesis of conflict, at least the non-derogable rules of human rights law continue to apply and to complement IHL.”).[23] See Sylvain Vité, Typology of Armed Conflicts in International Law: Legal Concepts and Actual Situations, 91 Int. Rev. of the Red Cross 69, 72 (2009) (noting the Geneva Conventions specified that “international humanitarian law was. . . . no longer based solely on

the subjectivity inherent in the recognition of the state of war, but was to depend onverifiable facts in accordance with objective criteria”).[24] See Int’l Comm. of the Red Cross, How is the Term “Armed Conflict” Defined in International Humanitarian Law?(Mar. 2008) (laying out customary IHL); see also Additional Protocol II tothe Geneva Conventions of 12 August 1949, and Relating to the Protection of Non-International Armed Conflicts, June 8, 1977, art. 1(2), 1125 UNTS 609, available athttp://www.icrc.org/ihl.nsf/full/475?opendocument (requiring that the conflict amountto more than “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature”) [hereinafter Protocol II].The treaty has not yet been ratified by the US. See id. Nonetheless, its ratification has been recommended by both Presidents Reagan and Obama. See Message from Ronald Regan, President of the US, to the Senate Transmitting a Protocol to the 1949 Geneva Conventions (Jan. 29, 1987), available athttp://www.reagan.utexas.edu/archives/speeches/1987/012987b.htm; Press Release, WhiteHouse, Fact Sheet: New Actions on Guantanamo and Detainee Policy (Mar. 7, 2011), available at http://www.lawfareblog.com/wp-content/uploads/2011/03/Fact_Sheet_-_Guantanamo_and_Detainee_Policy.pdf. The treaty has been ratified by 166 countries. See Protocol II, supra. Further, many of its provisions have been incorporated into customary law. Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 52.[25] Int’l Comm. of the Red Cross, supra note 621, at 5; see Protocol II, supra note 621,at art. 1(2) (holding that the conflict must pit “armed forces” against “dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”); Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 52; Prosecutor v. Tadic, Case No.IT-94-1-I-A, Appeals Judgment, at ¶ 120 (July 15, 1999) (defining an organized group as one that “normally has a structure, a chain of command and a set of rules as well as outward symbols of authority.”).[26] Paul Pillar, Still Fighting Bush’s GWOT, Consortium News (June 23, 2012),http://consortiumnews.com/2012/06/23/still-fighting-bushs-gwot/ (“[T]here is no distinct entity called Al Qaeda that provides a sound basis for defining and delimiting an authorized use of military force.”); see also Kenneth Anderson, Targeted Killing in U.S Counterterrorism Strategy and Law 4 (Series on The Brookings Institution, Georgetown University Law Center and the Hoover Institution Series on Counterterrorismand American Statutory Law, No. 9, 2009), available athttp://www.brookings.edu/research/papers/2009/05/11-counterterrorism-anderson (“Islamist terror appears to be fragmenting into loose networks of shared ideology and

aspiration rather than vertical organizations linked by command central.”); Bruce Hoffman, The Changing Face of Al Qaeda and the Global War on Terrorism, 27(6) Stud. in Conflict & Terrorism 549, 552 (2004) (outlining that Al Qaeda is “more akin to an ideology,” “diffuse and amorphous,” and “less centralized with more opaque command and control relationships.”).[27] In addition, the US policy lumps together Al Qaeda, the Taliban, and associated forces, from the TTP and Laskhar-e-Taiba to the Haqqani Network and Hezb-e-Islami Gulbuddin, all of which have different agendas and methodologies. This characterization has been challenged. See, e.g., Amnesty International, United States of America: ‘Targeted Killing’ Policies Violate the Right to Life 12 (2012). Indeed, as one international law scholar has argued, to treat these disparate groups as a single entity would be “akin to claiming that not only could the Korean war, the Vietnam war,and the Cuban Missile Crisis . . . be considered part of a single armed conflict . . . but that anyone, or any group, suspected of holding Communist opinions,anywhere around the globe, would also be seen as party to the conflict.” Noam Lubell, Extraterritorial Use of Force Against Non-State Actors 96 (2010).[28] Protocol II, supra note 621, at art. 13(2) (“The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”).[29] Jean-Marie Henckaerts & Louise Doswald-Beck, International Committee of the Red Cross, Customary International Humanitarian Law: Vol. 1: Rules 46 (2006) (“Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”).[30] Robin Coupland, Humanity: What is it and How Does it Influence International Law?,83 Int. Rev. ofthe Red Cross 969, 984, http://www.icrc.org/eng/resources/documents/misc/57jrlm.htm (“Humanity . . . limits, to the greatest extent possible, the effects of armed violence on people’s security and health. Importantly, it extends to restraining the capacity for armed violence so that humans can live in a peaceable, constructive society in which, for instance, family life, education and commerce, i.e., humanity-humankind, can flourish.”).[31] Int’l Comm. of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in the Hostilities under Humanitarian Law 77 (2009) (“[T]he kind and degree of force which is permissible against persons not entitled to protection against direct attack must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing

circumstances.”), available at http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf.[32] Protocol II, supra note 621, at art. 13(2).[33] Id. at art. 13(3).[34] Int’l Comm. of the Red Cross, supra note 628, at 44.[35] Id. at 46; See also Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 63-64.[36] Int’l Comm. of the Red Cross, supra note 628, at 44. The principle of ‘continuing combatant function’ has been criticized by those who believe it provides too little and too much protection for civilians in situations of conflict. See, e.g.,Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 66 (“Creation of the CCF category also raises the risk of erroneous targeting of someone who, for example, may have disengaged from their function.”); Bill Boothby, “And For Such Time As”: The Time Dimension to Direct Participation in Hostilities, 42 N.Y.U. J. Int’l. L. & Pol. 741, 753-58 (2010) (questioning the ICRC formulation of CCF and counseling ‘consideration’ of the US position in opposition to the existence of the category); Human Rights Institute, Columbia Law School, Targeting Operations with Drone Technology: Humanitarian Law Implications 18-21 (Mar. 25, 2011) (Background Note for the American Society of International Law Annual Meeting), available athttp://www.law.columbia.edu/ipimages/Human_Rights_Institute/BackgroundNoteASILColumbia.pdf.[37] Id.[38] Kenneth Watkin, Opportunity Lost: Organized Armed Groups and the ICRC ‘Direct Participation in Hostilities’ Interpretive Guidance, 42 N.Y.U. J. Int’l. L. & Pol. 640, 692 (2010) (“Carrying outan attack or preparing to do so would constitute taking direct part in hostilities.”).[39] Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 67.[40] Becker & Shane, supra note 615.[41] See infra Chapter 3: Living Under Drones.[42] See Henckaerts & Doswald-Beck, supra note 626, at 79, 105, 396 (explaining the rules with regards to the search for, collection and evacuation of the wounded, sick and shipwrecked (Rule 109); Medical Personnel (Rule 25); and Humanitarian Relief Personnel (Rule 31)).[43] See e.g., Robert Chesney, Is DPH the Relevant Standard in Pakistan? An Important Element in the Debate Missing from BIJ’s report, Lawfare (Feb. 6, 2012), http://www.lawfareblog.com/2012/02/is-dph-the-relevant-standard-in-pakistan-an-important-element-in-the-debate-missing-from-bijs-report/.[44] See infra Chapter 3: Living Under Drones.[45] Jack Serle, UN Expert Labels CIA Tactic Exposed by Bureau ‘a War Crime’, The Bureau of Investigative Journalism (June 21,

2012), http://www.thebureauinvestigates.com/2012/06/21/un-expert-labels-cia-tactic-exposed-by-bureau-a-war-crime/.[46] See infra Chapter 2: Numbers; US Drone Strikes ‘Raise Questions’, supra note 599 (quoting UN High Commissioner for Human Rights Navi Pillay after a June 2012 trip to Pakistan as stating that “drone attacks do raise serious questions about compliance with international law, in particular the principle of distinction and proportionality”).[47] Becker & Shane, supra note 615.[48] Overly permissive criteria after the fact, together with serious public accountability and transparency deficits, provide little assurance that each use of lethal force strictly complies with the relevant law. Indeed, in many other contexts, a failure to examine carefully the legality of government use of force after a killinghas led to development of a culture of impunity and heightened the risk of unlawful killing. See, e.g., U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Study on Police Oversight Mechanisms, Human Rights Council, UN Doc A/HRC/14/24/Add.8 (May 28, 2010) (by Philip Alston), available athttp://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add8.pdf; Human Rights Watch, Urban Police Violence in Brazil: Torture and Police Killings in São Paulo and Rio de Janeiro After Five Years 13 (1993) (arguing that failure to sanction police officers, including one who had killed 44 civilians allegedly in acts of defense of human life, fostered a culture of impunity in São Paulo state, contributing to an increase in police killing, which totaled over 1400 in 1992 alone).[49] Mark Mazzetti, Ashley Parker, Jane Perlez & Eric Schmitt, American Held in Pakistan Worked With C.I.A., N.Y. Times (February 21, 2012), http://www.nytimes.com/2011/02/22/world/asia/22pakistan.html?_r=1&pagewanted=all.[50] Ishtiaq Mashud, Al Qaeda Figure Believed Killed in US Drone Strike, Wash. Times (Feb. 21, 2011),http://www.washingtontimes.com/news/2011/feb/21/al-qaeda-figure-believed-killed-us-drone-strike/?page=all.[51] See infra Chapter 3: Living Under Drones.[52] For full details, refer to Appendix C. In a similar vein, strikes fluctuated significantly during the time period immediately before and after the May 2012 New York Times investigative piece on targeted killing. Becker & Shane, supra note 615. The revelations in the Times piece were widely perceived as a boon to Obama’s popularity athome. See, e.g., Charles Krauthammer, Barack Obama: Drone Warrior, Wash. Post (May 31, 2012),http://www.washingtonpost.com/opinions/barack-obama-drone-warrior/2012/05/31/gJQAr6zQ5U_story.html. The US launched nine strikes across North Waziristan in the seven days before and after the Times piece although it had not launched a single strike in the two weeks preceding that period and only two in the subsequent two weeks. For full details, refer to Appendix B.

[53] K. Alan Kronstadt, Cong. Research Serv., R41832, Pakistan-US Relations 22 (2012), available athttp://fpc.state.gov/documents/organization/193708.pdf.[54] Id. (“major strikes closely followed … the Administration’s July 2011 announcementon partial suspension of US military aid to Islamabad;” and “a series of drone strikescame immediately after the May 2012 NATO summit where President Obama refused to meet with his Pakistani counterpart.”).[55] Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 33.[56] International Covenant on Civil and Political Rights, opened for signature Dec. 16, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976).[57] See generally id.[58] US Const. art. II, § 2, cl. 1 (“The President shall be Commander in Chief of the Army and Navy of the United States…”); see Youngstown Sheet & Tube Co. v. Sawyer, 343 US 579, 645 (1952) (Jackson, J., concurring) (“I should indulge the widest latitude ofinterpretation to sustain [the President’s] exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. . . His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-branch is a representative Congress.”).[59] See, e.g., US Const. art. I, § 8, cl. 1, 11 (“The Congress shall have the Power To. . . . declare War.”).[60] Youngstown Sheet, 343 U.S at 635 (“When the President acts pursuant to an expressor implied authorization of Congress, his authority is at its maximum.”).[61] Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).[62] See, e.g., Al-Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir. 2010) (holding that the AUMF grants the President authority to detain individuals who are “part of forces associated with Al Qaeda or the Taliban.”); Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) (defining an unlawful enemy combatant for the purposes of jurisdiction as a “a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda or associated forces)”). Al-Bihani and the Military Commissions Actdo not consider targeted killings.[63] National Defense Authorization Act Fiscal Year 2012, H.R. 1540, 112th Cong. § 1021(b)(2) (2012). Note, though, that the Constitutionality of this provision has beenchallenged. See, e.g., Hedges v. Obama, No. 12 Civ. 331(KBF), 2012 WL 3999839 (S.D.N.Y. 2012) (ruling that § 1021(b)(2) is unconstitutional and enjoining its enforcement). At

the time of this writing, the 2nd Circuit judge had issued a stay on the decision pending appeal. Hedges v. Obama, No. 12-3176, slip op. at 1 (2d Cir. Sept. 17, 2012).[64] Id. at § 1021(d).[65] Ken Dilanian, Congress Keeps Closer Watch on CIA Drone Strikes, L.A. Times (June 25, 2012),http://www.latimes.com/news/nationworld/world/middleeast/la-na-drone-oversight-20120625,0,7967691,full.story.[66] See, e.g., Jeh C. Johnson, General Counsel, Department of Defense, National SecurityLaw, Lawyers and Lawyering in the Obama administration, Address at Yale Law School (Feb. 22, 2012), available at http://www.cfr.org/national-security-and-defense/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obama-administration/p27448.[67] Id.[68] Id.[69] See, e.g., Jonathan Masters, Backgrounder: Targeted Killings, Council on Foreign Relations (Apr. 30, 2012),http://www.cfr.org/counterterrorism/targeted-killings/p9627 (quoting John Bellinger, former legal adviser for the US Department of State under Secretary ofState Condoleezza Rice from 2005 to 2009 and current Adjunct Senior Fellow at the Council on Foreign Relations, who argues that the AUMF is “still tied to the use of force against people who planned, committed, and or [sic] aided those involved in 9/11.”).[70] Youngstown Sheet, 343 US at 591.[71] 50 USC. § 413b(a) (2006).[72] W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, 27 Army Lawyer 4,7-8 (1989).[73] Exec. Order No. 11,905, 41 Fed. Reg. 7703 (Feb. 18, 1976).[74] See, e.g., Exec. Order No. 12,036, 43 Fed. Reg. 3674 (Jan. 24, 1978) (closing the loopholes on the US assassination ban and declaring that “no employee of the United States Government shall engage in, or conspire to engage in, assassination”); Exec. Order No. 12,333, 3 C.F.R. 200 (1981).[75] Barton Gellman, CIA Weights ‘Targeted Killing’ Missions, Wash. Post (Oct. 28, 2001),http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A63203-2001Oct27&notFound=true;see also Jeremy Scahill, The Democrats’ Selective Amnesia on Assassination: Clinton Did it and Obama Does it Too, Huffington Post (July 15, 2009), http://www.huffingtonpost.com/jeremy-scahill/the-democrats-selective-a_b_233708.html;US Policy on Assassinations, CNN (Nov. 4, 2002), http://articles.cnn.com/2002-11-04/justice/us.assassination.policy_1_assassination-prohibition-cia-lawyers?_s=PM:LAW/.[76] See, e.g., Michael McAndrew, Wrangling in the Shadows: The Use of United States Special Forces in CovertMilitary Operations in the War on Terror, 29 B.C. Int’l & Comp. L. Rev. 153, 161 (2006).

[77] Kathryn Stone, “All Necessary Means” Employing CIA Operatives in a Warfighting Role Alongside Special Operations Forces (US Army War College Strategy Research Project #0704-0188, Apr. 7, 2003), available athttp://www.fas.org/irp/eprint/stone.pdf (“Whereas US military operations are more easily proven to be in compliance with both national and international law because they occur in the public domain, this is not the case with CIA covert operations . . . . there are overriding national interests (vital interests) that must be protected outside the framework of international law.”).[78] 50 USC. § 413b(a)(5) (2006).[79] Senate Select Intelligence Committee Holds Hearing on Worldwide Threats, 112th Cong. (2012) (statement of James Clapper, Director of National Intelligence).[80] Letter from Thomas Jefferson to James Madison (Aug. 28, 1789), in 15 The Papers ofThomas Jefferson 367 (Julian P. Boyd ed., 1958); see Philip Alston, The CIA and Targeted Killing Beyond Borders (New York Univ. Law Sch. Pub. Law & Legal Theory Research Paper Series, Working Paper No. 11-64, Sept. 16, 2011), available athttp://ssrn.com/abstract=1928963.[81] Jane Mayer, The Predator War, New Yorker (Oct. 26, 2009),http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer.[82] Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 71.[83] For a discussion of the additional constitutional legal considerations involved in the targeting of US citizens, see Complaint at ¶ 41-43, Al-Aulaqi v. Panetta, No. 12-cv-01192-RMC (filed on 07/18/2012), as well as Memorandum in Support of Plaintiff’s Motion for a Preliminary Injunction at 8-23, Al-Aulaqi v. Obama, 727 F.Supp.2d 1 (D.D.C. 2010). In an interview with Jessica Yellin of CNN on September 5, 2012, President Obama recognized, in response to a question about the standards that apply to drone strikes when ‘the target is an American’?’, that “[as an] American citizen, they are subject to the protections of the Constitution and due process.” Obama Reflects on Drone Warfare (CNN television broadcast Sept. 5, 2012), available at http://security.blogs.cnn.com/2012/09/05/obama-reflects-on-drone-warfare/.[84] Henckaerts & Doswald-Beck, supra note 626, at 607 (explaining Rule 158).[85] Susan Breau & Rachel Joyce, Discussion Paper: The Legal Obligation to Record Civilian Causalities of Armed Conflict 2 (Oxford Research Group, June 2011), available athttp://www.oxfordresearchgroup.org.uk/sites/default/files/1st%20legal%20report%20formatted%20FINAL.pdf; see alsoSusan Breau, Marie Aronsson, & Rachel Joyce, Discussion Paper 2: Drone Attacks, International Law, and the Recording of Civilian Causalities of Armed Conflict 2 (Oxford Research Group, June 2011), available at http://www.oxfordresearchgroup.org.uk/sites/default/files/ORG%20Drone%20Attacks%20and%20International%20Law%20Report.pdf.[86] Alston, supra note 677, at 22; see also Special Rapporteur, Study on Targeted Killings, supra note 598, at ¶ 15 (citing to the Israel High Court of Justice, The Public

Committee Against Torture et al. v. The Government of Israel, et al., HCJ 769/02, Judgment of 14 Dec. 2006 (PCATI) for the holding that “after each targeted killing, there must be a retroactive and independent investigation of the ‘identification of the target and the circumstances of the attack’”).[87] Anguelova v. Bulgaria, 38 Euro. Ct. H.R. 31, ¶ 140 (2002) (cited in Alston, supra note 677, at 23).[88] UN Charter art. 51.[89] See, e.g., Brennan, supra note 600 (“[T]he United States government has never been soopen regarding its counterterrorism policies and legal justification.”); Preston, supra note 600.[90] Alston, supra note 677, at 118.

Debate Map: Ukraine Use of Force 

Last Updated: 3 August 2014

The following index maps scholarly commentary on the legal arguments regarding the public international law (and some domestic constitutional law) aspects of the use of force in Ukraine, published in English language(except where stated) legal blogs and newspapers, and free content from OUP's online services.

Use this map to review scholarly arguments and to keep track of which issues have been covered and who has said what.

I. Overviews of Legal Issues

II. Characterising Russia's ActionsA) AS AGGRESSION

(1) Legal Effects of Aggression

(2) Relevance of the 1997 Black Sea Fleet SOFA

(3) Other Ukraine / Russia Treaties

B) AS AN INTERNATIONAL ARMED CONFLICT

III. Crimea's Independence and Absorption by Russia

A) BACKGROUND READING

B) CRIMEA'S DECLARATION OF INDEPENDENCE AND SECESSION REFERENDUM

C) (NON-)RECOGNITION OF CRIMEAN INDEPENDENCE

D) SECESSIONIST PRECEDENTS

IV. Possible Grounds for Legality of Russia's ActionsA) TO SUPPORT CRIMEA'S SELF-DETERMINATION

B) INTERVENTION TO PROTECT NATIONALS/SELF-DEFENCE

C) OTHER CASES OF INTERVENTION TO PROTECT NATIONALS

D) INTERVENTION BY INVITATION

E) OTHER CASES OF INTERVENTION BY INVITATION

V. Escalations and Implications

VI. The Downing of MH17

VII. Conduct of Hostilities in Eastern Ukraine

VIII. The (Ir)relevance of International Law 

I. Overviews of Legal Issues(i) 2 March 2014 Ashley Deeks at Lawfare (asks whether Russia breached Article 2(4), whether that triggers Ukraine's Article 51 right of self-defence, and discusses two grounds for Russia's intervention: the protection of Russian nationals, and intervention with the consent of Ukraine's government)

(ii) 3 March 2014 Ben Saul at The Drum (covers the same ground as Deeks, but adds a conclusion that Russia has committed an act of aggression).

(iii) 7 March 2014 Marc Weller at the BBC website (probably the most thorough and concise summary of legal questions listed here)

(iv) 12 March 2014 Boris Mamlyuk at Cambridge Journal of International andComparative Law Blog (surveys recent writings and gives more attention to Russian voices than other overviews)

(v) 15 March 2014 Simon Chesterman's article from The Straits Times (looksat questions of aggression, armed attack, the legality of secession in international law, and the difference between legality and effectiveness)

(vi) Regularly updated, London School of Slavonic and East European Studies Library provide a list of links to official statements.

(vii) 11 May 2014 Antonelli Tancredi at Questions of International Law (article looking at the law on the use of force, aggression, and occupation with respect to the annexation of Crimea)

II. Characterising Russia's ActionsA)AS AGGRESSION

(i) 11 June 2010 ICC Review Conference Resolution RC/Res.6 on the Crime ofAggression

(ii) 5 March 2014 Ukraine International Law Association memo published in English on EJIL: Talk! (characterises Russia's actions as aggression)

(iii) 6 March 2014 Aurel Sari at Opinio Juris (examines Russia's action inthe light of UNGA Resolution 3314 (XXIX) on the Definition of Aggression of 1974 and the 1997 Black Sea Fleet SOFA between Ukraine and Russia)

1) Legal Effects of Aggression

(i) Jens Ohlin on Aggression from Cassese (Ed.) The Oxford Companion to International Criminal Justice (free content)

(ii) 1997 Latvian Constitutional Court decision (with detailed analysis and English translation) from International Law in Domestic Courts (free content) (a case with echoes of the current crisis, finding inter alia that the 1940 Soviet stationing of troops in Latvia was an act of aggression and thus any territory gained thereby was not lawfully acquired)

(2) Relevance of the 1997 Black Sea Fleet SOFA

(i) 4 March 2014 comments from Olivier Daum on Daniel Wisehart at EJIL: Talk! querying whether the fact that Russian forces were already stationedin the Crimea alters the legal analysis

(ii) 5 March 2014 Eric Posner's blog (scanned English translation of the SOFA)

(iii) 6 March 2014 Aurel Sari at Opinio Juris (looks at arguments that a "material breach" of the SOFA is what escalates this to aggression)

(3) Other Ukraine/Russia Treaties

(i) 3 March 2014 Ukraine Ministry of Foreign Affairs statement "On Violations of Ukraine's Laws in Force and of Ukrainian-Russian Agreements by Military Units of the Black Sea Fleet of the Russian Federation in the Territory of Ukraine" (details how Russia breached three separate sets of treaty obligations)

B) AS AN INTERNATIONAL ARMED CONFLICT

(i) 9 March 2014 Remy Jorritsma at Opinio Juris (argues that this is an international armed conflict, triggering the application of international humanitarian law)

(ii) 19 March 2014 Laurie Blank at Just Security (supporting a low threshold for the application of the law or armed conflict in clashes between Ukrainian and Russian forces)

(iii) 31 March 2014 Marco Roscini at the OUP Blog (on what would be neededfor cyber attacks on Ukrainian networks to amount to an "armed attack").

(iv) 16 April 2014 Jose Alvarez at Just Security (on whether the UNGA could authorize sending peacekeepers to separatist parts of Ukraine since Russia would veto a UNSC resolution on the matter)

III. Crimea's Independence and Absorption by RussiaA) BACKGROUND READING

(i) Stefan Oeter on Self-Determination from Simma (Ed.) The Charter of the United Nations A Commentary 3rd Ed.(free content)

(ii) Daniel Thurer on Self-Determination from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law(free content)

(iii) James Crawford on Secession from The Creation of States in International Law 2nd Ed. (free content)

(iv) Canadian Supreme Court decision on Secession of Quebec from International Law in Domestic Courts (free content)

(v) Yves Beigbeder on Referendum from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law(free content)

(vi) Romain Yakemtchouk in the Annuaire francais de droit international 39 (1993) (IN FRENCH reviews boundary formation in post-Soviet republics; from pp 398-408 looks at Crimea and Ukraine specifically)

(vii) Malcolm Shaw in the British Year Book of International Law Volume 67 (looks at uti posseditis generally, with comments on how it applies to Ukraine and Crimea)

B) CRIMEA'S DECLARATION OF INDEPENDENCE AND SECESSION REFERENDUM

(i) 5 March 2014 John Quigley at the Cambridge Journal of International and Comparative Law blog (an account of the Russians of Crimea's long-termdesire for independence, and the CSCE's concerns about ethnic violence)

(ii) 6 March 2014 Chris Borgen at Opinio Juris (in the comments section itis pointed out that Article 73 of the Ukraine Constitution requires a referendum of the whole country for any territorial adjustment)

(iii) 9 March 2014 Gaiane Nuridzhanyan at Cambridge Journal International and Comparative Law (on the right to secession generally, but with a discussion of the interplay of Crimean and Ukrainian constitutions)

(iv) 13 March 2014 Peter Roudik at In Custodia Legis (blog of the Law Librarians of Congress) (an overview of Crimean sovereignty from the 15th Century to the present)

(v) 18 March 2014 English translation of President Vladimir Putin's speechto the Duma (providing a justification for Russia's support for Crimea's referendum, and a rebuttal of arguments from Western governments that thiswas in violation of international law)

(vi) 18 March 2014 Christian Marxsen at EJIL: Talk! (assesses the legalityof the DoI and secession in the light of the ICJ Advisory Opinion on Kosovo and the UNGA's Declaration on Friendly Relations).

(vii) 20 March 2014 Jure Vidmar at EJIL: Talk! (differentiates between DoI, referendum, and territorial change and discusses what determines the legality or otherwise of each)

(viii) 20 March 2014 Gregory Fox at Opinio Juris (analysis of the legal nature of the 16th March Treaty between Russia and Crimea by which Crimea is "adopted" into the Russian Federation)

(ix) 16 April 2014 Anne Peters at EJIL: Talk! (a very detailed post on howto assess the compatibility of the Crimea referendum and secession with public international law rather than simply with Ukrainian domestic law, citing theVenice Commission Opinion 762/2014 on the matter)

(x) 6 May 2014 Ilya Somin at the Volokh Conspiracy (points to a Russian government agency which posted an analysis of voting in the Crimea referendum suggesting that no more than 30% of eligible voters voted to join Russia)

C) (NON-)RECOGNITION OF CRIMEAN INDEPENDENCE

(i) 17 March 2014 Anna Dolidze at Opinio Juris (provides a review of recent examples of collective recognition and non-recognition)

(ii) 18 March 2014 Chris Borgen at Opinio Juris (provides an overview of the law on recognition of states, and how it applies to secession which may be distinguished from "separation").

(iii) 27 March 2014 EU statement to the UNGA (video) (EU states that it does not recognize Russia’s absorption of Crimea)

(iv) 11 May 2014 Enrico Milano at Questions of International Law (article in a new online journal uses the Crimea controversy to consider the way that doctrines of non-recognition work in the practice of the international community)

D) PRECEDENTS

(i) 9 March 2014 Rhodri Williams at Opinio Juris and a follow up at TerrusNullius (comparing Crimea's case with that of the Aaland Islands)

(ii) 17 March 2014 Jack Goldsmith at Lawfare (observing that even though the US took pains to avoid setting a precedent with the Kosovo intervention, the characterization by some commentators of that action as "illegal but legitimate" is influential in comparisons with Crimea)

(iii) 20 March 2014 Jure Vidmar at EJIL: Talk! (argues that Northern Cyprus is a closer analogy to Crimea than Kosovo)

(iv) 20 March 2014 Marko Milanovic at EJIL: Talk! (includes a detailed look at Russia's written and oral arguments before the ICJ in opposition to Kosovo's claim to independence)

(v) 22 April 2014 Anne Peters at EJIL: Talk! (rebuts the argument that Western actions in and attitudes towards Kosovo taint criticism of Russia over Ukraine/Crimea. She distinguishes Kosovo not only on the application of principles but also on the basis that the use of force/intervention in Kosovo are legally separate from Kosovo's secession whereas in Ukraine/Crimea the two acts are inseparable)

IV. Possible Grounds for Legality of Russia's Actions(i) 5 March 2014 Stefan Soesanto at Lawfare (a five part analysis of Russia's possible justifications)

A) TO SUPPORT CRIMEA'S SELF-DETERMINATION

(See also our Syria Debate Map)

(i) 26 February 1969 Soviet proposal on definition of aggression submittedto GAOR 24th Session Supp No 20 (UN Doc A/7620) Paragraph 9 (paragraph 6 of the Soviet proposal suggests that intervention in support of self-determination is not aggression)

(ii) 1 March 2014 notification in the minutes of UNSC Meeting 7124 of the Prime Minister of Crimea's request to President Vladimir Putin to provide assistance in "ensuring peace and tranquillity on the territory of the Autonomous Republic of Crimea"

(iii) 3 March 2014 Owen Schaefer at Practical Ethics (looking at procedural requirements for triggering a right to self-determination and considering the consequences of viewing the leaders of Crimea, the presentUkrainian government, and the exiled President as all illegitimate)

(iv) 6 March 2014 Chris Borgen at Opinio Juris (on the relationship between any right to secession and the right to self-determination)

(v) 10 March 2014 Robert McCorquodale at Opinio Juris (providing an overview of the status of the right to self-determination and the conditions under which it can be invoked)

(vi) 28 March 2014 Lauri Mälksoo at EJIL: Talk! (how Russia's stated foreign policy and leading scholarly writers assert that state sovereigntytrumps self-determination claims)

B) INTERVENTION TO PROTECT NATIONALS/SELF-DEFENCE

(i) Georg Nolte and Albrecht Randelzhofer on Article 51 from from Simma (Ed.) The Charter of the United Nations A Commentary (free content)

(ii) 1 March 2014 Russian Federation Council (upper house of parliament) resolution to use force to protect Russian forces, Russian citizens, and "compatriots"

(iii) 3 March 2014 David Luban at Just Security (commenting on Russia's 2010 Military Doctrine which declares its right to use force to protect its citizens abroad)

(iv) 5 March 2014 John Quigley at the Cambridge Journal of International and Comparative Law blog (points out that the Ukrainian Parliament's vote to nullify a law granting official status to minority languages – vetoed by the President – would have violated Russia and Ukraine's Treaty on Friendship, Cooperation, and Partnership, dating from 31 May 1997)

(v) 5 March 2014 Mark Kersten at Justice in Conflict (looks at R2P angles on Russia's actions)

(vi) 7 March 2014 Peter Spiro at Opinio Juris (on Russian legislation offering citizenship to Russian-speakers in Ukraine)

(vii) 9 March 2014 Sina Etezazia at Opinio Juris (analysis of claiming self-defence to defend nationals abroad)

(viii) 17 March 2014 Boris Mamlyuk at Opinio Juris (proposing a fact-finding mission to assess the exact level and nature of the risk of ethnicviolence in Ukraine)

(ix) 15 April 2014 UN Office of the High Commissioner for Human Rignts report on Ukraine (finding that, contrary to Russian claims, attacks on ethnic Russians in Ukraine are "neither systematic or widespread")

C) OTHER CASES OF INTERVENTION TO PROTECT NATIONALS

(i) Philip Leach on South Ossetia from Wilmshurst (Ed.) The Classification of Conflicts (free content)

(ii) Angelika Nussberger on South Ossetia from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law (free content)

D) INTERVENTION BY INVITATION

(i) Louise Doswald Beck on The Legal Validity of Military Intervention by Invitation of the Government from Brownlie and Crawford (Eds) The British Year Book of International Law Vol. 56 (free content)

(ii) Georg Nolte on Intervention by Invitation from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law (free content)

(iii) 1 March 2014 Vitaly Churkin in the minutes of UNSC Meeting 7124 (saying that Russia is responding to a request for intervention from the Prime Minister of Crimea)

(iv) 3 March 2014 Chris Borgen at Opinio Juris (looking at US policy on who is the "legitimate" authority speaking for a state)

(v) 4 March 2014 Daniel Wisehart at EJIL: Talk! (looks at other case studies and considers the claims of the ousted president of Ukraine and the Prime Minister of Crimea to invite Russia to intervene)

(vi) 6 March 2014 Zachary Vermeer in EJIL: Talk! (looks at whether the "legitimacy" of the agent that requests intervention is a matter of domestic constitutional law or public international law)

(vii) 6 March 2014 Robert Chesney at Lawfare (suggesting that the questionof whether Russian soldiers removing their insignia is a breach of the Geneva Conventions depends on whether you accept the argument about invitation as that affects whether this is an international or non-international conflict)

(viii) 9 March 2014 Tali Kolesov Har-Oz and Ori Pomso at Opinio Juris (offering a full overview of the question of who is the legitimate authority, examining the situation where the choice is between an effective authority and a legal one)

(ix) 5 March 2014 Grigory Vaypan at the Cambridge Journal of Internationaland Comparative Law Blog (examines the application of the "effective control" and "popular sovereignty" theories)

(x) 10 March 2014 Gregory Fox at Opinio Juris (reviewing the literature and recent case studies, and concluding that the effective control theory is the most reliable way to determine who is the legitimate authority)

(xi) 2 April 2014 Marko Milanovic at EJIL: Talk! (on ousted Ukrainian president Viktor Yanukovych confirming that he did request intervention byRussia)

E) OTHER CASES OF INTERVENTION BY INVITATION

(i) Robert Beck on Grenada from Wolfrum (Ed.) The Max Planck Encyclopedia of Public International Law (free content)

(ii) ECOWAS in Liberia 1990 and Sierra Leone 1997 Karsten Nowrot and EmilyW. Schbacker in the American University International Law Review 14/2 1998

(iii) 4 March 2014 Douglas Cox at the Document Exploitation Blog (considers comparisons to the US invasion of Panama)

(iv) Sierra Leone: 6 March 2014 Zachary Vermeer in EJIL: Talk! (compares Russia's action in Ukraine to ECOWAS in Sierra Leone)

V. Escalations and Implications(i) For an overview of the Obligation of Non-Recognition of an Unlawful Situation see Martin Dawidowicz's commentary on Article 41 of the Articleson State Responsibility (free content)

(ii) 9 March 2014 Boris Mamlyuk at Cambridge Journal of International and Comparative Law Blog (on Russia invoking force majeure as a response to US sanctions to restrict inspections pursuant to New START Treaty)

(iii) 12 March 2014 Boris Mamlyuk at Cambridge Journal of International and Comparative Law Blog (on a possible Russian view that Ukraine's recent"revolution" amounts to a fundamental change of circumstance which calls into question treaty obligations such as the Budapest Memorandum and the Helsinki Final Act 1975)

(iv) 28 March 2014 Lauri Mälksoo at EJIL: Talk! (how Russia's attempts to alter the settlement following the Crimean War of 1853-1856 by arguing fundamental change of circumstances failed)

(v) 24 April 2014, Ryan Goodman at Just Security (argues that the UNGA Resolution rejecting the Crimea referendum has been presented as demonstrating overwhelming resistance to Russia's actions, whereas in factthe wording was very tame and support was far weaker than it might have been)

(vi) 3 May 2014 John Yoo at the OUP Blog (argues that the UNSC cannot prevent aggression by permanent members, proposed ways to stop treating

Russia as a superpower and the setting up of a “Concert of Democracies” toreplace the UNSC and which would exclude Russia and China)

(vii) 6 May 2014 Fionnuala Ní Aoláin at Just Security (a round of EU statements and positions, including non-recognition of Crimean independence, sanctions, financial aid to Ukraine, and efforts to reduce dependence on Russia for energy supplies)

VI. The Downing of MH17(i) 22 July 2014 Marko Milanovic at EJIL: Talk! (considering possible actions at either the ECtHR or ICC in response to the shooting down of theairliner; the comments include the text of a piece by Ruth Wedgewood also published in The American Interest magazine)

(ii) 22 July 2014 Sascha-Dominik Bachmann at the OUPblog (suggesting that the “accountability gap” could be filled by the US designating Russia as astate sponsor of terrorism

(iii) 23 July 2014 Jens Ohlin at Opinio Juris (how different theories of control – effective or overall – yield different answers to the question of who was legally responsible)

(iv) 25 July 2014 Alex Whiting at Just Security (on options for prosecuting those responsible; ICC being difficult due to requirement of intention to kill civilians, whilst domestic murder prosecutions would only need to show intention to kill whoever was on board)

VII. Conduct of Hostilities in Eastern Ukraine(i) 30 July 2014 Maya Brehm at EJIL: Talk! (on IHL implications of the useof Grad rockets which were criticised in a Human Rights Watch report for being indiscriminate)

VIII. The (Ir)relevance of International Law(i) 1 March 2014 Peter Spiro at Opinio Juris (explaining that just becauseinternational law is being breached with impunity it is still relevant, inresponse to Eric Posner's 1 March 2014 blog posting questioning the role of international law in the Ukraine crisis)

(ii) 2 March 2014 Julian Ku at Opinio Juris (agreeing with the argument that states' attitudes towards international law are guided by self-interest)

(iii) 2 March and 3 March 2014 two posts by Chris Borgen at Opinio Juris (responding to Ku and Posner, setting out ways in which Russia employs therhetoric of international law and arguing that international law provides a normative language that provides a context for states to assess what consensus exists among the international community)

(iv) 7 March 2014 Mary Ellen O'Connell at Opinio Juris (how Russia is ableto use many arguments employed by Western states to justify their interventions and violations of sovereignty)

(v) 10 March 2014 Nico Krisch at EJIL: Talk! (arguing that international law is playing a substantial role in the crisis but that the rules on the use of force have become vague and open to broad interpretation due to post-Cold War liberal interventions)

(vi) 12 March 2014 Priya Urs at Cambridge Journal of International and Comparative Law Blog (arguing nothing can or will be done about Crimea's secession, not only due to power considerations but the fact that it will be absorbed into Russia robs international law of the reaction of non-recognition)

(vii) 14 March 2014 Julian Ku at Opinio Juris (suggesting that disputed facts more than legal disagreements characterise the current phase of the crisis)

 

Nicaragua v. United StatesFrom Wikipedia, the free encyclopedia

Nicaragua v. United States

Court International Court of Justice

Full case name

Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America)[1]

Decided June 27, 1986

Citation(s)

1986 I.C.J. 14

Case opinions

Separate Opinion: Nagendra SinghSeparate Opinion: Manfred Lachs

Separate Opinion: José María RudaSeparate Opinion: Taslim Olawale Elias

Separate Opinion: Roberto AgoSeparate Opinion: José Sette-Camara

Separate Opinion: Ni Zhengyu

Dissent: Shigeru OdaDissent: Stephen SchwebelDissent: Robert Jennings

Court membership

Judges sitting

Nagendra Singh, Guy Ledreit de Lacharrière, Roberto Ago,Mohammed Bedjaoui, Taslim Olawale

Elias, Manfred Lachs,Kéba Mbaye, Ni Zhengyu, Shigeru Oda, José María Ruda, Stephen Schwebel, José Sette-Camara,Robert Jennings, Claude-Albert Colliard (ad hoc)

The Republic of Nicaragua v. The United States of America (1986) ICJ 1 is a public international law case decided by theInternational Court of Justice (ICJ).The ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to Nicaragua. The ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Nicaraguan government and by mining Nicaragua's harbors. The United States refused to participate in the proceedings after the Court rejected its argument that the ICJ lacked jurisdiction to hear the case. The U.S. later blocked enforcement of the judgment by the United Nations Security Council and thereby prevented Nicaragua from obtaining any actualcompensation.[2] The Nicaraguan government finally withdrew the complaint from the court in September 1992 (under the later, post-FSLN, government of Violeta Chamorro), following a repeal of the law requiring the country to seek compensation.[3]

The Court found in its verdict that the United States was "in breach of its obligations under customary international law not to use force againstanother State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed atManagua on 21 January1956."The Court had 16 final decisions upon which it voted. In Statement 9, the Court stated that while the U.S. encouraged human rightsviolations by the Contras by the manual entitled Psychological Operations in Guerrilla Warfare, this did not, however, make such acts attributable to the U.S.[4]

Contents  [hide] 

1 Background and History of US Intervention in Nicaraguao 1.1 Nicaragua's submissionso 1.2 United States' submissions

2 Judgmento 2.1 Findingso 2.2 The rulingo 2.3 Legal clarification and importanceo 2.4 How the judges votedo 2.5 Dissent

3 Certain witnesses against the USo 3.1 First witness: Commander Luis Carriono 3.2 Second witness: Dr. David MacMichaelo 3.3 Third witness: Professor Michael Glennono 3.4 Fourth witness: Father Jean Loisono 3.5 Fifth witness: William Hüper

4 UN voting 5 Significance

o 5.1 Third-party interpretations 6 See also 7 Notes 8 References 9 External links

Background and History of US Intervention in Nicaragua[edit]The first armed intervention by the United States in Nicaragua occurred under President Taft. In 1909, he ordered the overthrow of Nicaraguan President José Santos Zelaya. During August and September 1912, a contingent of 2300 U.S. Marines landed at the port of Corinto and occupied León and the railway line to Granada. A pro-U.S. government was formed under the occupation. The 1914 Bryan-Chamorro Treaty granted perpetual canal rights to the U.S. in Nicaragua and was signed ten days before the U.S.-operated Panama Canal opened for use, thus preventing anyone from building a competing canal in Nicaragua without U.S. permission.[5]

In 1927, under Augusto César Sandino, a major peasant uprising was launched against both the U.S. occupation and the Nicaraguan establishment. In 1933, the Marines withdrew and left the National Guard in charge of internal security and elections. In 1934, Anastasio Somoza García, the head of the National Guard, ordered his forces to capture and murder Sandino. In 1937, Somoza assumed the presidency, while still in control of the National Guard, and established a dictatorship that his family controlled until 1979.[6]

The downfall of the regime is attributed to its embezzlement of millions of dollars in foreign aid that was given to the country in response to thedevastating 1972 earthquake. Many moderate supporters of the dictatorship began abandoning it in the face of growing revolutionary sentiment. The Sandinista (FLSN) movement organized relief, began to expand its influence and assumed the leadership of the revolution.[7] A popular uprising brought the FSLN to power in 1979. The United States had long been opposed to the socialist FSLN, and after the revolution the Carter

administration moved quickly to support the Somocistas with financial and material aid. When Ronald Reagan took office, he augmented the direct support to an anti-Sandinista group, called the Contras, which included factions loyal to the former dictatorship. When Congress prohibited further funding to the Contras, Reagan continued the funding through arms sales that were also prohibited by Congress.[8]

Nicaragua's submissions[edit]Nicaragua charged:

(a) That the United States, in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitaryactions in and against Nicaragua, had violated its treaty obligations to Nicaragua under:Article 2 (4) of the United Nations Charter;Articles 18 and 20 of the Charter of the Organization of American States;Article 8 of the Convention on Rights and Duties of States;Article I, Third, of the Convention concerning the Duties and Rightsof States in the Event of Civil Strife.(b) That the United States had breached international law by1. violating the sovereignty of Nicaragua by:armed attacks against Nicaragua by air, land and sea;incursions into Nicaraguan territorial waters;aerial trespass into Nicaraguan airspace;efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua.2. using force and the threat of force against Nicaragua.3. intervening in the internal affairs of Nicaragua.4. infringing upon the freedom of the high seas and interrupting peaceful maritime commerce.5. killing, wounding and kidnapping citizens of Nicaragua.

Nicaragua demanded that all such actions cease and that the United States had an obligation to pay reparations to the government for damage to their people, property, and economy.

United States' submissions[edit]The U.S. argued that its actions were "primarily for the benefit of El Salvador, and to help it to respond to an alleged armed attack by Nicaragua, that the United States claims to be exercising a right of collective self-defense, which it regards as a justification of its own conduct towards Nicaragua. El

Salvador joined the U.S. in their Declaration of Intervention which it submitted on 15 August 1984, where it alleged itself thevictim of an armed attack by Nicaragua, and that it had asked theUnited States to exercise for its benefit the right of collectiveself-defence."[1]The CIA claimed that the purpose of the Psychological Operations in Guerrilla Warfare manual was to "moderate" the existing Contraactivities.[9]

The United States argued that the Court did not have jurisdiction, with U.S. ambassador to the United Nations Jeane Kirkpatrick dismissing the Court as a "semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don't." [9]

It is noteworthy that the United States, the defaulting party, was the only member that put forward arguments against the validity of the judgment of the court, arguing that it passed a decision that it 'had neither the jurisdiction nor the competenceto render'. Members that sided with the United States in opposingNicaragua's claims did not challenge the court's jurisdiction, its findings, nor the substantive merits of the case.[10]

Judgment[edit]The very long judgment first listed 291 points, among them that the United States had been involved in the "unlawful use of force." The alleged violations included attacks on Nicaraguan facilities and naval vessels, the mining of Nicaraguan ports, theinvasion of Nicaraguan air space, and the training, arming, equipping, financing and supplying of forces (the "Contras") and seeking to overthrow Nicaragua's Sandinista government. This was followed by the statements that the judges voted on.[11]

Findings[edit]The court found evidence of an arms flow between Nicaragua and insurgents in El Salvador between 1979-81. However, there was notenough evidence to show that the Nicaraguan government was imputable for this or that the US response was proportional. The court also found that certain transborder incursions into the territory of Guatemala and Costa Rica, in 1982, 1983 and 1984, were imputable to the Government of Nicaragua. However, neither Guatemala nor Costa Rica had made any request for US intervention; El Salvador did in 1984, well after the US had intervened unilaterally.[2]

"As regards El Salvador, the Court considers that in customary international law the provision of arms to the opposition in another State does not constitute an armed attack on that State. As regards Honduras and Costa Rica, the Court states that, in theabsence of sufficient information as to the transborder incursions into the territory of those two States from Nicaragua,it is difficult to decide whether they amount, singly or collectively, to an armed attack by Nicaragua. The Court finds that neither these incursions nor the alleged supply of arms may be relied on as justifying the exercise of the right of collective self-defence."[12]

Regarding human rights violations by the Contras, "The Court has to determine whether the relationship of the contras to the United States Government was such that it would be right to equate the Contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government. The Court considers that the evidence available to itis insufficient to demonstrate the total dependence of the contras on United States aid. A partial dependency, the exact extent of which the Court cannot establish, may be inferred from the fact that the leaders were selected by the United States, andfrom other factors such as the organisation, training and equipping of the force, planning of operations, the choosing of targets and the operational support provided. There is no clear evidence that the United States actually exercised such a degree of control as to justify treating the contras as acting on its behalf... Having reached the above conclusion, the Court takes the view that the Contras remain responsible for their acts, in particular the alleged violations by them of humanitarian law. For the United States to be legally responsible, it would have tobe proved that that State had effective control of the operationsin the course of which the alleged violations were committed."[12]

The Court concluded that the United States, despite its objections, was subject to the Court's jurisdiction. The Court had ruled on 26 November by 11 votes to one that it had jurisdiction in the case on the basis of either Article 36 (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua. The Charter provides that, in case of doubt, it is for the Court itself to decide whether it has jurisdiction, and that each member of the United Nations undertakes to comply with the decision of the Court. The Court also ruled by unanimity that thepresent case was admissible.[10] The United States then announced that it had "decided not to participate in further proceedings in

this case." About a year after the Court's jurisdictional decision, the United States took the further, radical step of withdrawing its consent to the Court's compulsory jurisdiction, ending its previous 40 year legal commitment to binding international adjudication. The Declaration of acceptance of the general compulsory jurisdiction of the International Court of Justice terminated after a 6-month notice of termination delivered by the Secretary of State to the United Nations on October 7, 1985. [13]

Although the Court called on the United States to "cease and to refrain" from the unlawful use of force against Nicaragua and stated that the US was "in breach of its obligation under customary international law not to use force against another state" and ordered it to pay reparations, the United States refused to comply. [3] As a permanent member of the Security Council, the U.S. has been able to block any enforcement mechanism attempted by Nicaragua.[14] On November 3, 1986 the United Nations General Assembly passed, by a vote of 94-3 (ElSalvador, Israel and the US voted against), a non-binding resolution urging the US to comply.[4]

The ruling[edit]On June 27, 1986, the Court made the following ruling:The Court

1. Decides that in adjudicating the dispute brought before it by the Application filed by the Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral treaty reservation"contained in proviso (c) to the declaration of acceptance of jurisdiction made underArticle 36, paragraph 2, of the Statute of the Court by theGovernment of the United States of America deposited on 26 August 1946;

2. Rejects the justification of collective self-defence maintained by the United States of America in connection with the military and paramilitary activities inand against Nicaragua the subject of this case;

3. Decides that the United States of America, by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, inbreach of its obligation under customary international law not to intervene in the affairs of another State;

4. Decides that the United States of America, by certain attacks on Nicaraguan territory in 1983-1984, namely attacks on Puerto Sandino on 13 September and 14 October 1983, an attack on Corinto on 10 October 1983; an attack onPotosi Naval Base on 4/5 January 1984, an attack on San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30 March 1984; and an attack on San Juan del Norte on 9 April 1984; and further by those acts of intervention referred to in subparagraph (3) hereofwhich involve the use of force, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State;

5. Decides that the United States of America, by directing or authorizing over Rights of Nicaraguan territory, and by theacts imputable to the United States referred to in subparagraph (4) hereof, has acted, against the Republic ofNicaragua, in breach of its obligation under customary international law not to violate the sovereignty of anotherState;

6. Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua during the first months of 1984, the United States of America has acted, against the Republic of Nicaragua, in breach of its obligations under customary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce;

7. Decides that, by the acts referred to in subparagraph (6) hereof the United States of America has acted, against the Republic of Nicaragua, in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of Nicaragua signed at Managua on 21 January 1956;

8. Decides that the United States of America, by failing to make known the existence and location of the mines laid by it, referred to in subparagraph (6) hereof, has acted in breach of its obligations under customary international lawin this respect;

9. Finds that the United States of America, by producing in 1983 a manual entitled 'Operaciones sicológicas en guerra de guerrillas', and disseminating it to contra forces, has encouraged the commission by them of acts contrary to general principles of humanitarian law; but does not find a

basis for concluding that any such acts which may have beencommitted are imputable to the United States of America as acts of the United States of America;

10. Decides that the United States of America, by the attackson Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has committed acts calculated to deprive of its object and purpose the Treaty of Friendship,Commerce and Navigation between the Parties signed at Managua on 21 January 1956;

11. Decides that the United States of America, by the attackson Nicaraguan territory referred to in subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May 1985, has acted in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956;

12. Decides that the United States of America is under a dutyimmediately to cease and to refrain from all such acts as may constitute breaches of the foregoing legal obligations;

13. Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under customary international law enumerated above;

14. Decides that the United States of America is under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January 1956;

15. Decides that the form and amount of such reparation, failing agreement between the Parties, will be settled by the Court, and reserves for this purpose the subsequent procedure in the case;

16. Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in accordance with international law.[12]

Legal clarification and importance[edit]The ruling did in many ways clarify issues surrounding prohibition of the use of force and the right of self-defence.[15] Arming and training the Contra was found to be in breach with principles of non-intervention and prohibition of use of force, as was laying mines in Nicaraguan territorial waters.

Nicaragua's dealings with the armed opposition in El Salvador, although it might be considered a breach with the principle of non-intervention and the prohibition of use of force, did not constitute "an armed attack", which is the wording in article 51 justifying the right of self-defence.The Court considered also the United States claim to be acting incollective self-defence of El Salvador and found the conditions for this not reached as El Salvador never requested the assistance of the United States on the grounds of self-defence.In regards to laying mines, "...the laying of mines in the watersof another State without any warning or notification is not only an unlawful act but also a breach of the principles of humanitarian law underlying the Hague Convention No. VIII of 1907."

How the judges voted[edit]Votes of Judges - Nicaragua v. United States

Judge 1 2 3 4 5

President Nagendra Singh (India) Yes Yes Yes Yes Yes

Vice-President de Lacharrière (France) Yes Yes Yes Yes Yes

Judge Ago (Italy) Yes Yes Yes Yes Yes

Judge Elias (Nigeria) No Yes Yes Yes Yes

Judge Lachs (Poland) Yes Yes Yes Yes Yes

Judge Mbaye (Senegal) Yes Yes Yes Yes Yes

Judge Ni (People's Republic of China) No Yes Yes Yes Yes

Judge Oda (Japan) Yes No No No No

Judge Ruda (Argentina) No Yes Yes Yes Yes

Judge Schwebel (United States) Yes No No No No

Judge Sette-Camara (Brazil) No Yes Yes Yes Yes

Judge Sir Robert Jennings (United Kingdom) Yes No No No No

Judge ad hoc Colliard (France) Yes Yes Yes Yes Yes

Dissent[edit]Judge Schwebel’s dissent was twice as long as the actual judgment. Judge Schwebel argued that the Sandinista government came to power with support of foreign intervention similar to what it was now complaining about. He argued that the Sandinista government achieved international recognition and received large amounts of foreign aid in exchange for commitments they subsequently violated. He cited evidence that the Sandinista government had indeed supported the rebels in El Salvador and noted that Nicaragua’s own CIA witness contradicted their assertions that they had never at any point supported the rebels in El Salvador. The CIA witness said that there was no evidence of weapon shipments since early 1981, but Schwebel argued that hecould not credibly explained why opponents of Contra aid such as congressman Boland, who also saw the evidence, believed that weapon shipments were ongoing. He further argued that Daniel Ortega publicly admitted such shipments in statements in 1985 and1986. Furthermore, there was no dispute that the leadership of the rebels operated in Nicaragua from time to time.He stated that in August 1981 the U.S. offered to resume aid to Nicaragua and to not support regime change in exchange for Nicaraguan commitments to not support the rebels in El Salvador.

These proposals were rejected by the Sandinistas, and judge Schwebel argued that the U.S. was entitled to take action in collective self-defense with El Salvador by authorizing contra aid in December 1981. He stated that further U.S. proposals to resolve the issue made in early 1982 were also ignored by the Sandinistas. The Sandinista government in 1983 began advancing proposals in which it would undertake not to support the rebels, but Schwebel noted that these were coupled with demands that the U.S. cease supporting the lawful government of El Salvador. The judge noted that since early 1985 the U.S. had increasingly made regime change a primary objective but argued this was not inconsistent with self-defense because it was reasonable to believe that Nicaragua would not maintain any commitments unless Sandinista power was diluted.The judge said that both sides of the wars in Nicaragua and El Salvador had committed atrocities. He said the U.S. mining of Nicaraguan harbors was unlawful in regard to third parties, but not Nicaragua.[16]

Certain witnesses against the US[edit]First witness: Commander Luis Carrion[edit]The first witness called by Nicaragua was Nicaragua's first Vice Minister of the Interior, Commander Luis Carrion. Commander Carrion had overall responsibility for state security and was in charge of all government operations in the "principal war zone". He was responsible for monitoring United States involvement in military and paramilitary activities against Nicaragua, directingNicaragua's military and intelligence efforts against the contra guerrillas.Commander Carrion began by explaining the condition of the contras prior to United States' aid in December 1981. Commander Carrion stated that the contras consisted of insignificant bands of poorly armed and poorly organized members of Somoza's NationalGuard, who carried out uncoordinated border raids and rustled cattle (presumably for food).In December 1981, the U.S. Congress authorized an initial appropriation of 19 million dollars to finance paramilitary operations in Nicaragua and elsewhere in Central America. Becauseof this aid, Commander Carrion stated that the contras began to become centralized and received both training and weapons from the CIA. During 1982 the contra guerrillas engaged the Sandinista

armed forces in a series of hit and run border raids and carried out a number of sabotage operations including:

1. the destruction of two key bridges in the northern part of Nicaragua, and

2. the planting of bombs in Nicaraguan civil aircraft in Mexico and in the baggage area of a Nicaraguan port.

The United States Central Intelligence Agency, and Argentine military officers financed by the CIA, were engaged in the training of the contra forces. The guerrillas received both basicinfantry training as well as training in specialized sabotage anddemolition for "special operation groups".The U.S. Congress apportioned new funds for the contras to the amount of $30 million at the end of 1982. This made it possible for the contra forces to launch a military offensive against Nicaragua. According to Commander Carrion, the offensive known as"C Plan" had the objective of capturing the Nicaraguan border town of Jalapa in order to install a provisional government, which could receive international recognition. This plan failed.After the failure of the Jalapa offensive the contras changed their tactics from frontal assaults to economic warfare against State farms, coffee plantations, grain storage centers, road junctions, etc.The CIA began to support the contras by setting up and coordinating a communications and logistical system. The CIA supplied aircraft and the construction of airfields in the Honduran border area next to Nicaragua. This allowed the contras to carry out deep penetration raids into the more developed and populated areas of the Nicaraguan interior. U.S. Army engineers created this airfield. The purpose of these deep penetration attacks upon economic targets was to weaken the Nicaraguan economy, causing a shortages of goods.As a part of its training program for the contras, the CIA prepared and distributed a manual entitled Psychological Operations in Guerrilla Warfare. This manual included instructions in the "use of implicit and explicit terror", and inthe "selective use of violence for propaganda effects". CommanderCarrion explained that the manual was given to the Contras, "All of these terrorist instructions have the main purpose of alienating the population from the Government through creating a climate of terror and fear, so that nobody would dare support theGovernment". The manual calls for the "neutralization" (i.e. assassination) of Sandinista local government officials, judges,

etc. for purposes of intimidation. It was openly admitted by the President Reagan in a press conference that the manual had been prepared by a CIA contract employee.After the United States Congress approved an additional $24 million aid to the contras in December 1983, a new offensive was launched, named Plan Sierra. This offensive involved approximately 7000 members of the contra forces. As in earlier attacks, the initial objective of this offensive was to capture the border town of Jalapa to install a provisional government, which the CIA informed the contras would be immediately recognized by the United States Government. But this contra offensive was also repulsed by the Nicaraguan government forces.In the beginning of 1984, the contras made a major effort to prevent the harvesting of the coffee crop, which is one of Nicaragua's most important export products. Coffee plantations and state farms where coffee is grown were attacked, vehicles were destroyed, and coffee farmers were killed.Commander Carrion testified that the ability of the contras to carry out military operations was completely dependent upon United States funding, training and logistical support. Carrion stated that the U.S. Government supplied the contras with uniforms, weapons, communications equipment, intelligence, training, and coordination in using this material aid.In September 1983, CIA operatives blew up Nicaragua's only oil pipeline, which was used to transport oil from off-loading facilities to storage tanks on shore. The United States was also directly involved in a large scale sabotage operation directed against Nicaragua's oil storage facilities. This last attack was carried out by CIA contract employees termed by that organizationas "Unilaterally Controlled Latin Assets" (UCLAs). The CIA personnel were also directly involved in a helicopter attack on aNicaraguan army training camp. One of the helicopters was shot down by Nicaraguan ground fire resulting in the death of two U.S.citizens.Commander Carrion testified that the United States was involved in the mining of Nicaragua's ports between February - April 1984.The mining operation was carried out by CIA ships directing the operation from international waters, while the actual mining was carried out by CIA employees on board speedboats operating inshore. After the mine-laying was completed the speedboats returned to the mother vessel.[17][18]

Carrion stated that 3,886 people had been killed and 4,731 wounded in the four years since the contras began their attacks. Carrion estimated property damage at $375 million.[19]

Commander Carrion stated if the United States stopped aid, support and training, this would result in the end of the contrasmilitary activities within three months. Asked why he was so sureof this, Commander Carrion answered, "Well, because the contras are an artificial force, artificially set up by the United States, that exists only because it counts on United States direction, on United States training, on United States assistance, on United States weapons, on United States everything...Without that kind of support and direction the contras would simply disband, disorganize, and thus lose their military capacity in a very short time".[17]

Second witness: Dr. David MacMichael[edit]David MacMichael was an expert on counter-insurgency, guerrilla warfare, and Latin American affairs, he was also a witness because he was closely involved with U.S. intelligence activitiesas a contract employee from March 1981 - April 1983. MacMichael worked for Stanford Research Institute, which was contracted by the U.S. Department of Defense. After this he worked two years for the CIA as a "senior estimates officer", preparing the National Intelligence Estimate. Dr. MacMichael's responsibility was centered upon Central America. He had top-secret clearance. He was qualified and authorized to have access to all relevant U.S. intelligence concerning Central America, including intelligence relating to alleged Nicaraguan support for, and arms shipments to the anti-Government insurgents in El Salvador. He took part in high level meetings of the Latin American affairs office of the CIA. Including a fall 1981 meeting, which submitted the initial plan to set up a 1500 man covert force on the Nicaraguan border, shipping arms from Nicaragua to the El Salvador insurgents. This plan was approved by President Reagan.[19][20]

"The overall purpose (for the creation of the contras) was to weaken, even destabilize the Nicaraguan Government and thus reduce the menace it allegedly posed to the United States' interests in Central America..."Contra paramilitary actions would "hopefully provoke cross-borderattacks by Nicaraguan forces and thus serve to demonstrate Nicaragua's aggressive nature and possibly call into play the Organization of American States' provisions (regarding collectiveself-defense). It was hoped that the Nicaraguan Government would

clamp down on civil liberties within Nicaragua itself, arresting its opposition, so demonstrating its allegedly inherent totalitarian nature and thus increase domestic dissent within thecountry, and further that there would be reaction against United States citizens, particularly against United States diplomatic personnel within Nicaragua and thus to demonstrate the hostility of Nicaragua towards the United States".

In response to repeated questions as to whether there was any substantial evidence of the supply of weapons to the guerrilla movement in El Salvador- either directly by the Nicaraguan Government itself-or with the knowledge, approval or authorization of the Nicaraguan Government of either non-official Nicaraguan sources, or by third countrynationals inside or outside Nicaragua, using Nicaraguan territory for this purpose, Dr. MacMichael answered that there was no such evidence. In the opinion of the witness it would not have been possible for Nicaragua to send arms to the insurgents in El Salvador in significant amounts (asalleged by the U.S. Government) and over a prolonged period, without this being detected by the U.S. intelligence network in the area...Counsel for Nicaragua, asked the witness several times whether any detection of arms shipments by or through Nicaragua had taken place during the period he was employed by the CIA. (MacMichael) answered repeatedly that there was no such evidence. He also stated that after his employment had terminated, nothing had occurred that would cause him to change his opinion. He termed the evidence that had been publicly disclosed by the U.S. Government concerning Nicaraguan armsdeliveries to the El Salvadoran insurgents as both "scanty"and "unreliable". The witness did however state that based on evidence, which had been gathered immediately prior to his employment with the CIA, evidence he had already actually seen, there was substantial evidence that arms shipments were reaching El Salvador from Nicaragua - with the probable involvement and complicity of the Nicaraguan Government - through late 1980 up until the spring of 1981....But this evidence, which most importantly had included actual seizures of weapons, which could be traced to Nicaragua, as well as documentary evidence and other sources, had completely ceased by early 1981. Since then, no evidence linking Nicaragua to shipments of arms in any substantial quantities had resumed coming in.[20]

Third witness: Professor Michael Glennon[edit]

Mr. Glennon testified about a fact-finding mission he had conducted in Nicaragua to investigate alleged human rights violations committed by the contra guerrillas, sponsored by theInternational Human Rights Law Group, and the Washington Office on Latin America. Glennon conducted the investigation withMr. Donald T. Fox who is a New York attorney and a member of the International Commission of Jurists.They traveled to Nicaragua, visiting the northern region where the majority of contra military operations took place. The two lawyers interviewed around 36 northern frontier residents who haddirect experience with the contras. They also spoke with the U.S.Ambassador to Nicaragua, and with senior officials of the U.S. Department of State in Washington after returning to the United States.No hearsay evidence was accepted. Professor Glennon stated that those interviewed were closely questioned and their evidence was carefully cross-checked with available documentary evidence. Doubtful "testimonies" were rejected, and the results were published in April 1985. The conclusions of the report were summarized by Glennon in Court:

"We found that there is substantial credible evidence that the contras were engaged with some frequency in acts of terroristic violence directed at Nicaraguan civilians. These are individuals who have no connection with the war effort-persons with no economic, political or military significance. These are Individuals who are not caught in the cross-fire between Government and contra forces, but rather individuals who are deliberately targeted by the contras for acts of terror. "Terror" was used in the same sense as in recently enacted United States law, i.e. "an activity that involves a violent act or an act dangerous tohuman life that Is a violation or the criminal law, and appears to be intended to intimidate or coerce a civilian population, to Influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by assassination or kidnapping".

In talks with U.S. State Department officials, at those in Managua U.S. Embassy, and with officials in Washington, Professor Glennon had inquired whether the U.S. Government had ever investigated human rights abuses by the contras. Professor Glennon testified that no such investigation had ever been conducted, because in the words of a ranking State Department official who he could not name, the U.S. Government maintained a

policy of "intentional ignorance" on the matter. State Departmentofficials in Washington- had admitted to Glennon that "it was clear that the level of atrocities was enormous". Those words "enormous" and "atrocities" were the ranking State Department official's words.[21]

Fourth witness: Father Jean Loison[edit]Father Jean Loison was a French priest who worked as a nurse in ahospital in the northern frontier region close to Honduras.Asked whether the contras engaged in acts of violence directed against the civilian population, Father Loison answered:

"Yes, I could give you several examples. Near Quilali, at about 30 kilometers east of Quilali, there was a little village called El Coco. The contras arrived, they devastated it, they destroyed and burned everything. They arrived in front of a little house and turned their machinegun fire on it, without bothering to check if there were any people inside. Two children, who had taken fright and hidden under a bed, were hit. I could say the same thing of a man and woman who were hit, this was in the little co-operative of Sacadias Olivas. It was just the same. They too had taken fright and got into bed. Unlike ElCoco, the contras had just been on the attack, they had encountered resistance and were now in flight. During theirflight they went into a house, and seeing that there were people there, they threw grenade. The man and the woman were killed and one of the children was injured."

About contra kidnappings:"I would say that kidnappings are one of the reasons why some of the peasants have formed themselves into groups. Here (indicates a point on the map) is Quilali. Between Quilali and Uilili, in this region to the north, there are hardly any peasants left of any age to bear arms, because they have all been carried off"."

Father Loison described many examples of violence, mostly indiscriminate, directed at the civilian population in the regionwhere he resides. The picture that emerges from his testimony is that the contras engage in brutal violation of minimum standards of humanity. He described murders of unarmed civilians, includingwomen and children, rape followed in many instances by torture ormurder, and indiscriminate terror designed to coerce the civilianpopulation. His testimony was similar to various reports

including the International Human Rights Law Group, Amnesty International, and others.[22]

Fifth witness: William Hüper[edit]William Hüper was Nicaragua's Minister of Finance. He testified about Nicaragua economic damage, including the loss of fuel as a result of the attack in the oil storage facilities atCorinto, thedamage to Nicaragua's commerce as a result of the mining of its ports, and other economic damage.[23]

UN voting[edit]After five vetoes in the Security Council between 1982 and 1985 of resolutions concerning the situation in Nicaragua [5], the United States made one final veto on 28 October 1986[24] (France, Thailand, and United Kingdom abstaining) of a resolution calling for full and immediate compliance with the judgment.[25]

Nicaragua brought the matter to the U.N. Security Council, where the United States vetoed a resolution (11 to 1, 3 abstentions) calling on all states to observe international law. Nicaragua also turned to the General Assembly, which passed a resolution 94to 3 calling for compliance with the World Court ruling. Two states, Israel and El Salvador, joined the United States in opposition. At that time, El Salvador was receiving substantial funding and military advisement from the U.S., which was aiming to crush a Sandinista-like revolutionary movement by the FMLN. Atthe same session, Nicaragua called upon the U.N. to send an independent fact-finding mission to the border to secure international monitoring of the borders after a conflict there; the proposal was rejected by Honduras with U.S. backing. A year later, on November 12, 1987, the General Assembly again called for "full and immediate compliance" with the World Court decision. This time only Israel joined the United States in opposing adherence to the ruling.[26][27]

Significance[edit]Third-party interpretations[edit]Professor of International Law, Anthony D'Amato, writing for the American Journal of International Law, Vol. 80, 1986, commented on this case, stating that "...law would collapse if defendants could only be sued when they agreed to be sued, and the proper measurement of that collapse would be not just the drastically diminished number of cases but also the necessary restructuring

of a vast system of legal transactions and relations predicated on the availability of courts as a last resort. There would be talk of a return to the law of the jungle." The author also notesthat the case resulted in an unusual candor. A month after the announced withdrawal, Secretary of State Shultz suggested, and President Reagan later confirmed in a press conference, that the goal of U.S. policy was to overthrow the Sandinista Government ofNicaragua (see N.Y. Times, Feb. 22, 1985, at A10, cols. 1, 3). Although this was what Nicaragua had alleged to be the U.S. goal,while the case was actively pending, the United States could not concede that goal without serious risk of undermining its litigating position.[6]

The Kosovo crisis and the law of armed conflicts

31-03-2000 Article, International Review of the Red Cross, No. 837,by Sergey Alexeyevich Egorov Sergey Alexeyevich Egorov   is Professor of International Law at the Diplomatic Academy of the Ministry of Foreign Affairs, Russian Federation, Moscow. -- Translated by the ICRC from the Russian original.  

During a visit to the Federal Republic of Yugoslavia at the end of September 1999, theauthor of this article was able to take stock, on the spot, of the consequences of NATO's military operation known as “Allied Force”. 

From the standpoint of international law, the operation amounted to the use of armed force without the authorization of the United Nations Security Council, for the purpose of providing support to one of the parties to an armed conflict of a non-international nature which was taking place between the central authorities of the Federal Republic of Yugoslavia (FRY) and the armed separatists of the Kosovo Liberation Army (KLA). NATO's armed intervention, which took the form of an air and sea offensive, led to the internationalization of the armed conflict in Yugoslavia. 

Under Article 2 common to the four Geneva Conventions of 12 August 1949 for the protection of war victims, those Conventions and their Additional Protocol relating tothe protection of victims of international armed conflicts (Protocol I) “shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”. In addition, provisions laid down in the Hague Conventions

of 1907 and in a numbe r of other treaties are also applicable. The rules set forth inall these legal instruments and which, for the most part, have not only treaty but also customary law status, applied to the relations between the FRY and NATO after 24 March 1999, the day when the hostilities began. At the outbreak of the conflict all NATO countries were party to the 1949 Conventions, and the majority were also bound bythe Additional Protocols thereto.

 Despite the use of highly accurate weapons designed, according to a statement by the Alliance's leadership, to ensure that the operation was a bloodless one, NATO's military operations were accompanied by violations of fundamental rules and principlesof the law of armed conflicts (international humanitarian law). In particular, during the course of its operations NATO forces violated provisions of Part IV, Section I of Additional Protocol I, on the general protection of civilians against effects of hostilities. In the terms of its Article 49, para. 3, the provisions of Section I “apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land …”.

 Articles 51 and 52 of Protocol I stipulate that attacks (i.e. acts of violence) must be limited strictly to combatants and military objectives, and that the civilian population and civilian objects shall not be the object of attacks or of reprisals; the Protocol defines military objectives as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.

 According to information supplied by the Yugoslav authorities, during the 78 days of the military operation over 1,300 civilians -- including some 400 children -- died, and thousands were seriously injured. The civilian population of Yugoslavia is still at risk from cluster bombs which failed to explode during NATO rocket attacks. There are currently thought to be between 30,000 and 50,000 unexploded cluster bombs in Kosovo (in addition to the mines laid by the rebels fighting against the Yugoslav army). 

Furthermore, the question arises as to what “definite military advantage” (in the sense of Article 52) NATO forces acquired by disabling power stations, television centres, bridges and other such installations on Yugoslav territory. Clearly, the notion of targeting acquires new meaning where extremely accurate weapons are used.

 Use of certain weapons: risk of a “Kosovo syndrome”?   

The deployment of peace-keeping forces in Kosovo after over two months of NATO bombingand rocket attacks against Yugoslavia once again focused the attention of the foreign media on the so-called “Persian Gulf War syndrome”. This expression is used to refer to the symptoms of a mysterious illness which, eight years later, continues to affect numerous groups of military personnel who took part in Operation Desert Storm in 1991. Thus far, some 90,000 Americans have asked to undergo medical tests to determine whether their health was in some way damaged at that time. Coinciding with the conflict in Yugoslavia, a renewed interest in tracking down the causes of the illnesses arose when a number of Western military experts asserted that the root of the problem lies in the fact that the shells used during the military activities in the Gulf contained radioactive substances. According to their calculations, a total ofsome 700,000 such shells were fired at Iraqi troop positions during the war. Their structure included components consisting of depleted uranium. 

The story of the production of shells filled with depleted uranium goes back to the 1970s when, thanks to the efforts of Soviet specialists, ground troops began to enjoy the protection of tanks which the new “dynamic” armour-plating technology rendered virtually invulnerable to the existing anti-tank shells of the Western powers. This led American designers to develop the idea of using depleted uranium rods in their ammunition. Owing to its physical properties, depleted uranium has an extremely high density (2.5 times that of steel) and exceptional hardness. However, at the moment of impact such shells become a source of radiation sickness. Specialists believe that thesudden heating up of the depleted uranium produces a large number of radioactive particles (measuring between 1 and 5 microns), which spread out over a radius of up to50 metres from the point of explosion of the shell. The damage caused by these particles stems, on the one hand, from the immediate effect of radiation penetrating the human body and, on the other hand, from the radioactive contamination of the air and surroundings (items of equipment, fortified structures, etc.). There is therefore a risk not only of receiving a direct dose of radiation, but also, as a result of inhaling the dust, of suffering subsequent sickness due to radioactive isotopes lodgedin the body. 

The validity of these alleged causes of the “Persian Gulf syndrome” is backed up by recently published information concerning the results of tests carried out on British war veterans. It was found that the amount of radioactive substances contained in the bodies of former military personnel exceeded permissible levels. Of the thirty individuals tested, almost half were found to have suffered seriously from the effectsof radiation. Furthermore, the veterans'considerable concern about the consequences ofthe deterioration in their health is accentuated by the claims now being made by learned physicians that the active pres ence in the human body of radioactive substances may trigger genetic mutations which may then be passed on to the progeny.

It has been reported by the media that some 12,000 shells filled with depleted uraniumwere used in the bombardment of Yugoslavia. Whether their use will give rise to after-

effects will become evident in the very near future. NATO member countries should act speedily to prevent the emergence of a “Kosovo syndrome”. One of the first to have understood the risk of a “Kosovo syndrome” was the Belgian government. According to statements made by its military command, the Belgian units deployed to the Balkans to serve as a peace-keeping contingent were issued with directives ordering adherence to the following safety measures: “Avoid areas where bombing has taken place and where there are fragments of armour plating from tanks (do not go closer than 50 metres); ifit is necessary to operate in areas where destruction has occurred, use gas masks thatcan filter out radioactive dust, and protective gloves.” [1 ]

In the light of the foregoing, the question clearly arises as to whether there should not now be a further protocol to the 1980 Convention on the Use of Certain Conventional Weapons.

 Attacks against the civilian population and civilian objects, and their effects 

NATO's attacks have led to a significant increase in the number of displaced persons and refugees from all of Yugoslavia's ethnic communities and faiths, without exception. The partial destruction or total obliteration of dozens of civilian installations on Yugoslav territory (power stations, television centres, medical establishments, pharmaceutical, chemical and tobacco works, mechanical engineering facilities, car factories, construction sites and many other industrial sites), where some 600,000 people were previously employed, has resulted in some 2.5 million people being left virtually without any means of subsistence. According to preliminary information, the economic damage caused to Yugoslavia by NATO's military action exceeds 100 billion US dollars. 

There is every reason to believe that the NATO strikes resulted in the laying waste (for example, through the contamination by petrochemical substances of power stations,drinking water installations and ground water) of facilities that are essential to thesurvival of the civilian population, the protection of which is provided for under Article 54 of Protocol I.

Article 56 of Protocol I prohibits attacks on works and installations containing dangerous forces. Although this provision refers solely to the protection of dams, dykes and nuclear electrical generating stations, de lege ferenda it should also apply tosuch installations as the petrochemical plant in Panchevo, the destruction of which caused severe atmospheric pollution of the town and its surrounding area by chemical substances, some of which can result in cancerous diseases and genetic mutations. 

It should be noted that NATO has violated Article 55 of Protocol I, according to whichit is prohibited to use “methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population”. This relates first and foremost to the

destruction of oil refineries, petrochemical facilities and oil storage tanks on Yugoslav territory, as a result of which the natural environment was seriously contaminated, not only in the FRY itself but also in other European countries. The task of assessing the ecological situation should be entrusted to a competent international commission made up of independent experts.

The destruction during the course of NATO's military action of doze ns of historical and architectural monuments, schools, institutes of higher education and libraries is a violation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, and also of Article 53 of Protocol I, under the terms of which it is prohibited to commit any acts of hostility “directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples”.

 Attention should be drawn to the fact that some of the above-mentioned serious violations by NATO of the rules and principles of international humanitarian law (attacks of a non-selective nature affecting the civilian population or civilian installations, attacks on works and installations containing dangerous forces, the targeting of the civilian population or individual civilians, the targeting of undefended locations and demilitarized zones, etc.) are qualified by the 1949 Geneva Conventions and Additional Protocol I thereto as war crimes. This entails the materialresponsibility of the corresponding subject of international law and the criminal responsibility of the individual persons having committed the said crimes.

The main characteristic of the law governing armed conflicts, as one of the branches of modern international law, is that the process of its codification and progressive development over many years has had to take into account the confrontation between theprinciple of humanity and that of military expediency. In turn, one of the main forcesthat has driven this process over a period of centuries has been the continual improvement of the means and methods of conducting armed warfare. And now, as we leavethe second millennium behind us, specialists are talking -- not without justification -- about sixth-generation wars. The distinguishing feature of this stage in the development of means and methods of conducting warfare is the fact that, against a background of stockpile d nuclear weapons, there is now a process of creating, accumulating and using so-called high-accuracy weapons. The existence and use of precisely such means of annihilation and destruction (in Iraq in 1991, and in Yugoslavia in 1999) are what need to be covered by the scope and application of the rules and principles of the law of armed conflicts. 

As for the situation in Yugoslavia, such weapons were used in the course of a so-called internationalized armed conflict of a non-international nature, in the sense that prior to the start of the NATO operation there was an internal armed conflict in the FRY, the parties to which were the Yugoslav armed forces and the so-called Kosovo Liberation Army. After the intervention began, the subjects of international law who

were bound to observe the rules of the law of armed conflicts were Yugoslavia, the NATO member countries and the North Atlantic Alliance itself.

 As has already been pointed out, NATO's action took the form of an air and sea offensive, i.e., the type of military action that has thus far been the least subject to regulation by international law. All of the foregoing has been stated in an attemptto highlight the complexity of the circumstances and thus the context in which the NATO action against the FRY should be analysed, with reference to the current rules and principles of the law of armed conflicts.

 Humanitarian law in crisis?   

Did NATO's action in Yugoslavia give rise to a crisis in the system of rules and principles that constitute the law of armed conflicts? Obviously not. The situation should be viewed from a broad perspective, taking account of all the facts and circumstances that influence the development of modern international law (and at the same time the state of modern international law and order) in general, and the law of armed conflicts in par ticular. 

The terms “humanitarian intervention” and “humanitarian catastrophe” do not carry any significant legal weight from the standpoint of international law. At best, they may be ascribed to the conceptual vocabulary of political science, sociology and so on. International legal instruments in general, and the sources of the law of armed conflicts in particular, do not contain any definition of such concepts. 

Human rights law relies on the concept of flagrant and massive violations of human rights in a given State, the extent of which may constitute grounds for the international community to take action under Chapter VII of the United Nations Charter, i.e., to put a stop to such violations on the grounds that they affect the interests of the entire international community. In such a case, however, the United Nations Charter specifies that the corresponding decisions and measures shall be takenby the United Nations Security Council.

In the spring of 1999, for the first time since the beginning of the post-war period, this function was, so to speak, appropriated by NATO. However, according to the latestinformation, the situation in Yugoslavia did not involve flagrant and massive violations of human rights on a scale that would justify a military operation against that country, even on the basis of a Security Council decision. The figures put forward for the number of ethnic Albanians who were allegedly victims of the FRY's reaction to the activities of the KLA turned out to be exaggerated. 

In late 1999, the Organization for Security and Cooperation in Europe (OSCE) publishedtwo reports concerning human rights violations in Kosovo. The authors of the reports

concluded that, prior to the start of NATO's military action against Yugoslavia, the rebel province had not been affected either by violence against the civilian population or by any “ethnic cleansing”. Of course, there had been cases o f violations of the rights of Albanians and even killings, but these had not been on a massive scale. After 24 March, when NATO aircraft dropped the first bombs on Belgrade,the situation changed dramatically. The persecution of the inhabitants of Kosovo by the Serb authorities became systematic, more than a million people were driven from their homes, and several thousand were killed. The tragedy of those people was thus a direct result of the “humanitarian intervention” undertaken by the West. The fact thatthousands of civilians died -- not before, but after the start of the military operation -- constitutes grounds for invoking the responsibility of the leaders of NATO's member States and of the Alliance itself. [2 ]

 In any case, no right to a so-called “humanitarian intervention” may legitimately be asserted as a means of ensuring respect for the Geneva Conventions and Additional Protocol I, as mentioned in Article 1 of the said treaties, since coercive measures (and it is precisely such measures that are at issue here) involving the use of armed force can be brought to bear only after a decision to that effect by the United Nations Security Council. 

How does one go about getting the parties to a conflict to recognize the applicabilityof international humanitarian law in each individual case? First and foremost, a decision in that regard has to be taken by the United Nations in the form of a Security Council resolution. In practice, however, the applicability of humanitarian law to a given conflict is frequently confirmed by the ICRC, whose opinion is largely heeded. Influence can also be brought to bear on the State in question by third countries, but without the use of force. In the interests of clarifying the legal situation it would be desirable to enlist the services of the United Nations International Court of Justice in The Hague. [3 ]

 Concluding remarks   

Throughout the military operations in spring 1999, the United States and NATO did not lose a single soldier, whereas avoiding casualties among the civilian population of Yugoslavia proved to be impossible. Thus, anyone wishing to qualify this conflict as the “first war without casualties” must make that assertion subject to a major reservation. Will situations similar to the conflict in Yugoslavia be the norm in the future? 

Clearly, we can deduce that the triumph of modern technology is conducive to bringing about a decline in the moral values of politicians. 

Furthermore, the question of banning or limiting the use of the most barbaric forms ofconventional weaponry remains high on the agenda, as does the need to resolve the issue of implementing the rules of the law of armed conflicts and of strengthening theprocedures for determining responsibility for their violation. This is true at both the national and international levels. It is vital to further improve the legal basis for solving humanitarian problems that arise during armed conflicts of a non-international nature, in particular also in internal armed conflicts which take on an international dimension.

WAR CRIMES AND COMMAND RESPONSIBILITY

I. OBJECTIVES

A. Understand the history of the law of war as it pertains to war crimes and war crimes prosecutions, focusing on enforcement mechanisms.

B. Understand the definition of “war crimes.”

C. Understand the doctrine of command responsibility.

D. Understand the jurisdictions and forums in which war crimesmay be prosecuted.

II. HISTORY AND DEVELOPMENT OF WAR CRIMES AND WAR CRIMES

PROSECUTIONS

A. General. Although war is not a compassionate trade, rules regarding its conduct and trials of individuals for specific violations of the laws or customs of war have a long history.

B. American War of Independence. The most frequently punished violations were those committed by forces of the two armies against the persons and property of civilian inhabitants. Trials consisted of courts-martial convened by commanders of the offenders.1

C. American Civil War. In 1865, Captain Henry Wirz, a former Confederate officer and commandant of the Andersonville, Georgia, prisoner of war camp, was convicted and sentenced to death by a federal military tribunal for “having ordered, and permitted the torture, maltreatment, and death of Union Prisoners of War in his custody.”.2

1 See George L. Coil, War Crimes of the American Revolution, 82 MIL. L. REV. 171, 173-81 (1978).

2 W. Hays Parks, Command Responsibility for War Crimes, 62 Mil. L. Rev. 1, at 7 (1973), citing The Trial of Captain Henry Wirz, 8 American State Trials 666, as cited in THE LAW OF WAR: A DOCUMENTARY HISTORY 783 (L. Friedman ed. 1972). See J. MCELROY, ANDERSONVILLE

(1879); W.B. HESSELTINE, CIVIL WAR PRISONS (1930); 1 LAW OF WAR: A DOCUMENTARY HISTORY 783–98 (Leon Friedman, ed. 1972).

171 War Crimes

D. Anglo-Boer War. In 1902, British courts-martial tried Boersfor acts contrary to the usages of war.3

E. Counter-insurgency operations in the Philippines. BrigadierGeneral Jacob H. Smith, U.S. Army, was tried and convicted by court-martial for inciting, ordering, and permitting subordinates to commit war crimes.4

F. World War I. Because of German resistance to extradition—under the 1919 Versailles peace treaty—of persons accused of war crimes, the Allies agreed to permit the cases to be tried by the Supreme Court of Leipzig, Germany. The accused were treated as heroes by the German press and public, and many were acquitted despite strongevidence of guilt.

G. World War II. Victorious allied nations undertook an aggressive program for the punishment of war criminals. This included the joint trial of 24 senior German leaders (in Nuremberg) and the joint trial of 28 senior Japanese leaders (in Tokyo) before specially created International Military Tribunals; twelve subsequent trials of other German leaders and organizations in Nuremberg under international authority and before panels of civilian judges; thousands of trials prosecuted in various national courts, many of these by British military courts and U.S. military commissions.5

H. Geneva Conventions. Marked the codification—beginning in 1949 when the Conventions were opened for signature—of specified international rules pertaining to the trial and punishment of those committing “grave breaches” of the Conventions.6

I. U.S. soldiers committing war crimes in Vietnam were tried by U.S. courts-martial under analogous provisions of the UCMJ.7

J. Panama. In a much-publicized case arising in the 82d Airborne Division, a First Sergeant charged, under UCMJ, art. 118,

with murdering a Panamanian prisoner, was acquitted by a general court-martial.8

3 See THE MILNER PAPERS: SOUTH AFRICA, 1897-1899, 1899-1905 (1933).

4 See L. C. Green, Command Responsibility in International Humanitarian Law, 5 TRANSNAT’L L. & CONTEMP. PROBS. 319, 326 (1995); S. Doc. 213, 57th Cong. 2nd Session, p. 5.

5 NORMAN E. TUTOROW, WAR CRIMES, WAR CRIMINALS, AND WAR CRIMES TRIALS:AN ANNOTATED BIBLIOGRAPHY AND SOURCE BOOK 4-8 (1986).

6 See GC I Commentary 357-60. 7 See MAJOR GENERAL GEORGE S. PRUGH, LAWAT WAR: VIETNAM 1964-1973 76-77 (1975); W. Hays Parks, Crimes in Hostilities, MARINE CORPS GAZETTE, Aug. 1976, at 16-22.

War Crimes 172

K. Persian Gulf War. Although the United Nations Security Council (UNSC) invoked the threat of prosecutions of Iraqi violators of international humanitarian law, the post-conflict resolutions were silent on criminal responsibility.9

L. Former Yugoslavia. On Feb. 22, 1993, the UNSC established the first international war crimes tribunal since the Nuremberg and Far East trials after World War II.10 On May 25, 1993, the Council unanimously approved a detailed report by the Secretary General recommending tribunal rules of procedure, organization, investigative proceedings, and other matters.11

M. Rwanda. On Nov. 8,1994, the UNSC adopted a Statute creatingthe International Criminal Tribunal for Rwanda.12 Art. 14 of the Statute for Rwanda provides that the rules of procedure and evidence adopted for the Former Yugoslavia shall apply to the Rwanda Tribunal, with changes as deemed necessary.

N. Sierra Leone. On Aug. 14, 2000, the UNSC adopted Resolution1315, which authorized the Secretary General to enter into an agreement with Sierra Leone and thereby establish the Special Court

for Sierra Leone (agreement signed Jan. 16, 2002). The court is a hybrid international-domestic Court to prosecute those allegedly responsible for atrocities in the Sierra Leone.

O. International Criminal Court. The treaty entered into forceon July 1, 2002. At the time of this writing, 121 States have ratifiedthe Rome Statute of the International Criminal Court.13 Although the U.S. is in favor of a standing permanent forum to address war crimes, the U.S. is not a party to the Statute of the ICC. The United States signed the Rome Treaty on Dec. 31, 2000. However, based on numerous concerns, President George W. Bush directed, on May 6, 2002, that notification be sent to the Secretary General of the United Nations, as the depositary of the Rome Statute, that the United States does notintend to become a party to the treaty and has no legal obligations arising from its previous signature. The United States has taken a significant step back from a hardlined position with regard to the ICC. Although the United States is still not a party, the United States has been participating in ICC proceedings in an Observer statussince 2009.14

8 See U.S. v. Bryan, Unnumbered Record of Trial (Hdqtrs, Fort Bragg 31Aug. 1990) [on file with the Office of the SJA, 82d Airborne Div.].

9 See S.C. Res. 692, U.N. SCOR, 2987th mtg., U.N. Doc. S/RES/692 (1991), reprinted in 30 I.L.M. 864 (1991); see also Theodore Meron, The Case for War Crimes Trials in Yugoslavia, FOREIGN AFFAIRS, Summer 1993, at 125.

10 S.C. Res. 808, U.N. SCOR, U.N. Doc. S/RES/808 (1993).

11 S.C. Res. 827, U.N. SCOR, U.N. Doc. S/RES/827 (1993).

12 S.C. Res. 955, U.N. SCOR, U.N. Doc. S/RES/955 (1994).

13 Reprinted in the Documentary Supplement.

173 War Crimes

P. Military Commissions. In October 2006, President Bush signed the Military Commissions Act (MCA) of 2006, significantly amending the original military commissions order issued in 2001. In January 2009, President Obama paused prosecutions while his administration reviewed the cases and whether to continue or change the military commissions. In November 2009, Congress amended the Military Commissions Act. In 2010, the Secretary of Defense approved the 2010 Manual for Military Commissions, implementing the 2009 Military Commissions Act. In July 2010, prosecutions under the 2009 Military Commissions Act began.

New Manual for Military Commissions Disregards the Commander-in-Chief, Congressional Intent and the Laws of WarPosted: 06/29/2010 5:12 am EDT Updated: 05/25/2011 4:20 pm EDT

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Late Monday, on the eve of Omar Khadr's suppression hearing, the first major military commission hearing at Guantanamo since President Obama took office, the Defense Department released the new Manual for Military Commissions. The Manual is the primary implementing regulation for the Military Commissions Act of 2009, containing detailed procedural guidance, rules of evidence, and a penal code with explanations of the offenses which may be prosecuted in these military tribunals.On the whole, the 2009 MCA is substantially fairer than the 2006 version of the law and the new Manual also contains some significant improvement over the previous version. The standards for admissibility of coerced statements and hearsay evidence, for example, now are much closer to the standards which apply in general courts-martial and federal court. There is, however, some very troubling language in the new Manual relating to the proof required to convict for certain offenses, which undermines the Obama Administration's claims of respect for the law of war and adherence to the rule of law.

On May 21, 2009, in an important national security speech at the National Archives President Obama explained his rationale for seeking to amend the MCA and keeping military commissions availableas one option for trying detainees, "[D]etainees who violate the laws of war. . .are best tried through Military Commissions. Military commissions. . . are an appropriate venue for trying detainees for violations of the laws of war." As Assistant AttorneyGeneral David Kris explained to the Senate last July, "The President has made clear that military commissions are to be used only to prosecute law of war offenses."What President Obama may not have realized, or at least neglected to mention in his speech, is that very few detainees are actually suspected of violating the laws of war. Last summer, I was invited to testify before a Congressional Subcommittee considering proposals to reform the military commissions and I tried to explainthis point: "The Obama administration has talked about military commissions being a suitable forum for law of war offenses, and I agree with that. They are a legitimate forum for law of war offenses. But what gets left out of the debate is that there are virtually no law of war offenses to be tried." While I encouraged

Congress to limit military commissions to true war crimes, I warnedthe lawmakers that if reformed military commissions "are limited tolaw of war offenses. . .there is not going to be anybody to try."Unfortunately, in enacting the Military Commissions Act of 2009, Congress did not strictly limit the jurisdiction of the military commissions to law of war violations and included non-war crimes like "Providing Material Support to Terrorism," a crime which even the Justice Department was forced to admit was not a traditional law of war offense. The Secretary of Defense, in publishing the newManual for Military Commissions, has done Congress one better, attempting by regulation to broaden the scope of a real war crime to include conduct that does not violate the law of war in order toensure convictions where they would otherwise be doubtful. In so doing, Secretary Gates has subverted the will of Congress and undermined the President's law of war justification for military commissions.Under a 2003 DoD Instruction defining the crimes eligible for trialby the military commissions created by executive order of PresidentBush, the President attempted to create a new war offense called "murder by an unprivileged belligerent."The theory underling this offense was that any attempt to fight Americans or coalition forces was a war crime. This status-based definition conflated two different concepts - unprivileged belligerents and war criminals. Under Article 4 of the Geneva Prisoner of War Convention it is clear that while a member of an organized resistance movement or militia may be an unprivileged belligerent (because of not wearing a uniform or failing to carry arms openly, for example) he may still comply with the laws and customs of war, so not all hostile acts committed by unprivileged belligerents are war crimes. Attacks by unprivileged belligerents which comply with the law of war (in that they attack lawful military targets with lawful weapons) may only be tried in domesticcourts. In Iraq, for example, insurgents who try to kill Americans by implanting roadside bombs are properly arrested and tried beforethe Central Criminal Court of Iraq as common criminals. Attacks by unprivileged belligerents which violate the law of war, such as attacks on civilians or soldiers attempting to surrender, or using prohibited weapons like poison gas, can be tried in a war crimes tribunal.In the 2006 MCA, Congress rejected the status-based crime of Murderby an Unprivileged Belligerent, replacing it with the related, but

more narrowly defined, "Murder in Violation of the Law of War." Thestatute made it plain, as the name implies, that this offense applied only to killings that violated the law of war. Despite thisclear distinction, military commission prosecutors argued in three separate cases convened under the 2006 law that "Murder in Violation of the Law of War" really was just "Murder by an Unprivileged Belligerent" by another name, explicitly claiming thatthe mere status of a person as an unlawful combatant rendered any hostile acts committed by him violations of the law of war. Three separate military judges in three commissions (Salim Hamdan, Mohammed Jawad and Ali al Bahlul) rejected the government's argument, each ruling that the mere status of unprivileged belligerency was insufficient to prove a violation of the law of war. (I was the lead defense counsel in both the Jawad and al Bahlul cases). Congress was well aware of these rulings when it enacted the 2009 MCA -- I specifically mentioned them in my testimony -- but left the definition of "Murder in Violation of theLaw of War" unchanged, reflecting their comfort with these judges' interpretation of the crime.Now, the Department of Defense has once again attempted to revive this discredited interpretation of the offense with a slight twist.In the new Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: "an accused may be convicted in a military commission. . . if the commission finds that the accused engaged in conduct traditionally triable by military commission (e.g., spying; murder committed while the accused did not meet the requirements of privileged belligerency) even if such conduct does not violate the international law of war." Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they didnot actually violate the law of war. It is gratifying that DoD has finally acknowledged officially that status as an unprivileged belligerent --"merely failing to meet the requirements of privileged belligerency" -- does not equate to a violation of the law of war, an argument that I made repeatedly before the commissions and in my congressional testimony. But it is deeply troubling that DoD has nevertheless opined that a non-law of war violation can still constitute murder in violation of the law of war. The commentary also directly contradicts the elements of the offense which specifically include a requirement that the prosecution prove beyond a reasonable doubt that the killing was in

violation of the law of war. Although comments in a regulation do not have the force of law, the inclusion of this commentary is clearly intended to send a message to the military commission judges that they are not to let the law of war get in the way of a conviction.It is no coincidence that this provision was published on the eve of the recommencement of the Omar Khadr commission. Khadr, a Canadian who was just 15 when he was captured in 2002, is charged with murder in violation of the law of war. Khadr allegedly threw ahand grenade which killed a U.S. soldier, but there is no evidence that he violated the law of war in doing so and in court filings the prosecution has admitted to relying solely on his status as an unprivileged belligerent to prove this element of the offense.

The absurdity of claiming that no actual violation of the law of war is required to commit murder in violation of the law of war severely undermines the Administration's claims of commitment to adherence to the rule of law and their pledge to use military commissions only to prosecute law of war offenses. The Administration's alleged devotion to transparency was also undercutby the release of the new manual. The DoD rejected the plea of the National Institute for Military Justice and other civil liberties groups for a public comment period on the draft manual and chose topublish the document as a final product. The obvious contradiction between the legislative intent and the Pentagon's interpretation ofthis offense demonstrates precisely why a public comment period wasneeded.The Administration's decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible.

David Frakt is Associate Professor of Law at Western State University College of Law and a Lieutenant Colonel in the U.S. Air Force Reserve JAG Corps. He previously served as lead defense counsel with the Office of Military Commissions. His views are his own and do not reflect the views of the Air Force or the Department of Defense.