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Recap of Recent Posts at Just Security (Mar 21–27)

I. Perfidy Under International Humanitarian Law

  1. Rogier Bartels, Guest Post: Killing With Military Equipment Disguised as Civilian Objects is Perfidy, Part II (Monday, March 23)
  2. Kevin Jon Heller, Guest Post: No, Disguising Military Equipment As Civilian Objects to Help Kill Isn’t Perfidy (Tuesday, March 24)
  3. Marty Lederman, Perfidy, Ambush, Snipers, and the COLE Bombing (al Nashiri) Case (Tuesday, March 24)

II. Surveillance, Technology, & Cybersecurity

  1. Michael Schmitt, Preparing for Cyber War: A Clarion Call (Monday, March 23)
  2. Beth Van Schaack, China’s Golden Shield—Is Cisco Systems Complicit? (Tuesday, March 24)
  3. Beth Van Schaack, Doe v. Cisco: The Legal Issues (Wednesday, March 25)
  4. Jennifer Granick, The Right Way to Share Information and Improve Cybersecurity (Thursday, March 26)
  5. Steve Vladeck, Ninth Circuit Grants En Banc Rehearing in Posse Comitatus/Unlawful Surveillance Case (Thursday, March 26)

III. Proportionality Surveys

  1. Laurie Blank, Geoffrey S. Corn, & Eric Jensen, Guest Post: Surveying Proportionality: Whither the Reasonable Commander? (Wednesday, March 25)
  2. Janina Dill, Guest Post: “Proportionate” Collateral Damage and Why We Should Care About What Civilians Think (Friday, March 27)

IV. Yemen

V. Diplomatic Assurances & Removal Proceedings

VI. Airstrikes in Syria

VII. Congressional Hearings

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Diplomatic Assurances, Torture, and Judicial Review:
The Bimenyimana Appeal

Later this year, the U.S. Court of Appeals for the Fourth Circuit will hear argument in one of the more quietly important torture cases to come before the federal courts in the past seven years (if not longer). At issue in Bimenyimana v. Holder is the role of “diplomatic assurances”–promises from a country that specific individuals will not be subject to torture or other forms of persecution if they are transferred there. Although the Third Circuit held in its 2008 decision in Khouzam v. Attorney General that due process requires the government to provide a non-citizen in removal proceedings with at least some opportunity to “test the reliability” of diplomatic assurances prior to his transfer, the government in Bimenyimana is seeking to send home three Rwandan nationals who were previously tortured by the Rwandan government (and whose criminal prosecution in the United States was thrown out largely because the only evidence was obtained through that torture), without providing the opportunity Khouzam held the Due Process Clause to require, largely (if not entirely) on the basis of diplomatic assurances from Rwanda. Although an immigration judge ruled that the three petitioners were entitled to “deferral of removal” because it was “more likely than not” that they would be tortured if returned to Rwanda, the Department of Homeland Security unilaterally terminated the deferrals–prompting the present appeal to the Fourth Circuit.

Last week, the ACLU Immigrants’ Rights Project, which represents the petitioners, filed its opening brief on the merits. The brief argues that (1) the petitioners’ claims are justiciable; (2) removal solely on the basis of diplomatic assurances would violate the U.N. Convention Against Torture, the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA), and the Due Process Clause of the Fifth Amendment; and (3) even if individuals could legally be removed solely on the basis of untested diplomatic assurances in the abstract, such removal would have to include significant procedural safeguards that have not been provided in the petitioners’ case.

Yesterday, a host of amicus briefs were filed on behalf of the petitioners, including separate briefs on behalf of (1) the current (and one prior) U.N. Special Rapporteur on Torture; (2) experts on the current legal and political situation in Rwanda; (3) an array of human rights NGOs (including Amnesty International, the Center for Constitutional Rights, Human Rights Watch, the International Commission of Jurists, and the World Organization Against Torture); and (4) 29 scholars of human rights law (a brief that I both signed and co-authored). [N.B.: I’ll add links to the briefs once the Fourth Circuit allows them to be publicly distributed.]

We’ll see what position the government takes in its response… But if it’s anything short of a concession that the petitioners are entitled to at least some opportunity to test the reliability (if not the accuracy) of Rwanda’s diplomatic assurances (that is, if it’s anything other than a full-throated endorsement of the Third Circuit’s reasoning in Khouzam), then this will become a major test case on the relationship between diplomatic assurances and judicial review–and one that could quite easily attract the attention of the Supreme Court, almost no matter how the Fourth Circuit rules. And even if the government endorses the process required by Khouzam, the larger question whether diplomatic assurances can ever provide the basis to remove individuals such as the petitioners–even with some modicum of process–is a terribly significant one in its own right.

“Proportionate” Collateral Damage and Why We Should Care About What Civilians Think

In their recent blog post “Surveying Proportionality: Whither the Reasonable Military Commander?” Laurie Blank, Geoffrey S. Corn, and Eric Jensen level three criticisms against the study of collateral damage with surveys, in general, and against the survey I recently started circulating entitled “The Meaning of Proportionate Collateral Damage” in particular. First, they criticize that the scenarios presented in the survey lack context. Second, they find fault with the fact that the survey asks people to judge the consequences of attacks rather than to evaluate their anticipated results in accordance with international law. Third, and this is the main thrust of their criticism, they disapprove of the survey’s intended audience: I am interested in the judgments of lay people rather than only in the views of military experts. The three choices underlying these features of the survey are interconnected. Nonetheless, I will address the three criticisms in turn.

I.

Blank, Corn, and Jensen are, of course, right that proportionality calculations in the real world will often take contextual factors into account which are omitted in the survey. Crucially, after all the contextual factors have been considered, there is still a judgment to be made about the importance of the military advantage in light of the harm the attack is likely to cause. Unless collapsed into necessity, a proportionality judgment inevitably involves the weighing of human life and military gain. If a survey featured scenarios that elaborated on factors like “the broader enemy situation,” “the exigencies of the tactical situation,” or “the weaponeering process,” then the responses would be indicative at least partly of people’s interpretations of these factors, distorting what I am endeavoring to gauge: their views on arguably the hardest part of the proportionality judgment which is the decision of how much loss of life is commensurate to a military end. Moreover, while the contextual factors taken into account in a targeting decision obviously differ depending on the belligerent, the theatre, and the kind of targeting, I contest their implicit assumption that proportionality calculations are never based on just the kind of information provided in the scenarios. I want to stress though that the construction of the scenarios, namely the choice to strip the core question of context, is a methodological one, not an expression of the certainly equally false assumption that most proportionality judgments are made in this way most of the time. Continue Reading »

International Law on the Saudi-Led Military Operations in Yemen

On Wednesday night, Saudi Arabia launched a military intervention in Yemen to stop Houthi advances through the country. Calling it “Operation Decisive Storm,” Saudi Arabia acted in coordination with a coalition including the United Arab Emirates, Qatar, Kuwait, Bahrain, Jordan, Morocco, Sudan, Pakistan and Egypt. Gulf Cooperation Council (GCC) members announced that the military action was taken in response to Yemeni President Hadi’s request to the leaders of Saudi Arabia, the United Arab Emirates, Bahrain, Oman, Kuwait and Qatar: “I ask you, based on the principle of self-defence in Article 51 of the Charter of the United Nations … to provide instant support by all necessary means, including military intervention to protect Yemen and its people from continuous Houthi aggression ….”

The White House has said the United States will provide “logistical and intelligence support” to the coalition’s military operations. “While U.S. forces are not taking direct military action in Yemen in support of this effort, we are establishing a Joint Planning Cell with Saudi Arabia to coordinate U.S. military and intelligence support,” reads a White House statement on American support to the operation in Yemen. Saudi Arabia is said to have “relied heavily on U.S. surveillance ­images and targeting information” in carrying out its military operation.

In aid to the Houthis, Iran has reportedly been providing weapons, financial support and military advice.

These developments elicit a number of questions under international law, some of which are briefly explored in this post.

1. Does the coalition’s military intervention constitute a lawful use of force?

Assuming President Hadi retains government authority to request the intervention, his consent precludes a violation of the prohibition of the use of force enshrined in Article 2(4) of the United Nations Charter. In contrast, Iran’s view is that the military operations have violated Yemen’s sovereignty. As Claus Kress explained in a post last month, “State practice does not support the proposition that a government invariably loses the power to invite armed assistance from abroad when it is confronted by internal violence reaching the level of a non-international armed conflict.” Of course, it is important to recall that no invitation to use force would absolve any intervening state of its relevant obligations under IHL or international human rights law.

2. Is Iran’s support of Houthi rebels lawful?

According to the International Court of Justice (ICJ) in the Nicaragua case, training, arming, equipping, financing and supplying rebel forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against a State is a breach of the obligation under customary international law not to intervene in the affairs of another State. The ICJ also found that providing weapons and training armed groups amounts to a violation of Article 2(4) of the UN Charter, while financial support does not. [See also Ryan Goodman and Michael Schmitt’s post, “Having Crossed the Rubicon: Arming and Training Syrian Rebels”]

3. Does international humanitarian law apply to the military intervention?

A separate crucial question about the airstrikes and supporting military activities is whether they fall under international humanitarian law (IHL). In order to determine if any of these supporting countries’ operations are governed by IHL, the following questions need to be answered: Continue Reading »

News Roundup and Notes: March 27, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

YEMEN

Saudi Arabia-led coalition airstrikes on Yemen continue. Warplanes continued bombing Houthi targets in the country through a second night, and a spokesperson of the coalition has said strikes would continue “as long as necessary.” [Al Jazeera]  Al Arabiya has a guide to “Operation Decisive Storm.” [Be sure to check out Nathalie Weizmann’s post at Just Security this morning on the international law implications of the Saudi-led intervention.]

Saudi Arabia kept some of the details of the planned Yemen offensive from the U.S. until the last minute, said U.S. officials, adding that despite planning action for weeks the Kingdom informed Washington of the details just before the airstrikes took place. [Reuters’ Matt Spetalnick et al]

The conflict may escalate significantly as Egypt has expressed a willingness to commit ground troops to the operation, but Arab officials hope that the strikes will render a ground offensive unnecessary to defeat the Iran-backed Houthi rebels. The rebel leader declared that Yemen would become the “graveyard of the invaders” if a ground invasion took place. [The Guardian’s Kareem Shaheen and Saeed Kamali Dehghan]

White House Press Secretary Josh Earnest sought to defend the administration’s foreign policy in Yemen, saying it should not be judged on the success or stability of the country’s government, noting that Yemen has long been in a “chaotic situation.” [Politico’s Nick Gass] Continue Reading »

Ninth Circuit Grants En Banc Rehearing in Posse Comitatus / Unlawful Surveillance Case

Back in September, I wrote about the Ninth Circuit’s fascinating decision in United States v. Dreyer, which applied the exclusionary rule to suppress evidence obtained pursuant to surveillance conducted by NCIS agents in violation of the Posse Comitatus Act of 1878. With a hat tip to Howard Bashman, the Ninth Circuit today granted the U.S. government’s petition for rehearing en banc, which, among other things, wipes the earlier opinion off the books. Because the Ninth Circuit sits “en banc” in what are really super panels of 11 judges, the grant of rehearing doesn’t necessarily mean that the Court of Appeals will end up ruling for the government, even though a majority of the Court’s 29 judges voted to revisit the original panel decision, but it certainly raises the stakes (and profile) of this important case.

Stay tuned…

The Right Way to Share Information and Improve Cybersecurity

This year is turning out to be a banner one for flawed proposals that would allow businesses to share information about Americans’ online activity with the Department of Homeland Security (DHS) in the name of cybersecurity. First came the White House plan in January, then the Cybersecurity Information Sharing Act (CISA) — which passed the Senate Intelligence Committee on a 14-1 vote earlier this month — and on Tuesday, the House introduced the Protecting Cyber Networks Act.

Each of these three proposals throw industry a bone by waiving liability for violating even our very inadequate privacy rules. None of these three narrowly and specifically identifies the categories of information that Congress wants to allow to be shared, despite privacy rules. As Sen. Ron Wyden (D-Ore.) aptly put it following his no vote on CISA, it’s “not a cybersecurity bill — it’s a surveillance bill by another name.” Don’t we have enough domestic surveillance already?

Information sharing on its own isn’t going to solve the network security problem. But it is a valuable tool, and a relatively easy starting point for improving digital security. I’ve spent my career advocating against rules that inhibit security information sharing, and even wrote a law review article about it in 2005. Pretty much everyone agrees that vulnerability information sharing is a good idea. So what does Congress need to do to get it right?

Good information sharing

First we need to be clear about what types of information we are talking about sharing in the name of enhanced security practices. We are talking about sharing vulnerability information: software flaws, virus signatures, threat signatures — stuff that system administrators need to know to check and protect their systems from attacks that others have identified or suffered.  Continue Reading »

News Roundup and Notes: March 26, 2015

Before the start of business, Just Security provides a curated summary of up-to-the-minute developments at home and abroad. Here’s today’s news.

YEMEN

Saudi Arabia has launched airstrikes in Yemen, targeting Shi’ite Houthi rebels fighting to oust the country’s president. A number of regional powers including Pakistan, Egypt, Jordan, and Sudan expressed a willingness to commit ground troops to the offensive. The United States is providing “logistical and intelligence support” to the Saudi-led forces attacking the rebels, the White House confirmed. [The Guardian’s Dan Roberts and Kareem Shaheen; Reuters’ Khaled Abdallah and Sami Aboudi]  To have Yemen fail “is not an option for us,” said the Saudi Ambassador. [AP]

China is deeply concerned by the worsening crisis in Yemen, said the country’s foreign ministry, calling on a diplomatic solution to the situation in accordance with UN Security Council resolutions on Yemen. [Reuters]  Iran’s foreign ministry has echoed this sentiment, saying that airstrikes are a “dangerous step” that will worsen the crisis. [AP]

Houthi rebels have seized control of secret files held by Yemeni security forces detailing U.S. intelligence operations in the country, exposing names of confidential informants and plans for American drone strikes, say officials. [LA Times’ Brian Bennett and Zaid Al-Alayaa]

The conflict gripping Yemen has sparked renewed calls for southern independence, with many in the south willing to fight, not to restore President Hadi’s rule, but to carve out their own independence. [AP’s Hamza Hendawi]

The Economist provides an overview of the situation in Yemen leading up to Saudi airstrikes, analyzing the parties involved and the challenging campaign to come.

“Is Yemen about to turn into a regional battleground?” asks Gregory D. Johnsen, noting that whether regional powers take a similar step back to the U.S. will determine if Yemen “merely implodes or if it explodes.” [Buzzfeed]

With the U.S. left with few avenues for tackling Islamist extremists in Yemen, questions are being asked about whether the “Obama administration pursued too narrow a strategy” in the fight against AQAP. [The Daily Beast’s Shane Harris and Tim Mak]

IRAQ and SYRIA

U.S.-led coalition launches airstrikes on Tikrit. At the request of Iraqi Prime Minister Haider al-Abadi, the coalition has launched airstrikes to support Iraqi security forces in their ground operations. [DIPNOTE]  Coalition and Iraqi air forces targeted Tikrit’s palace compound today, where ISIS militants have been holding out for over three weeks. [Reuters’ Saif Hameed and Ahmed Rasheed] Continue Reading »

Surveying Proportionality: Whither the Reasonable Commander?

At least two surveys gathering information about “public perceptions” of proportionality and collateral damage are making their way around the international arena by way of blogs, social media, and email. The surveys (one of which is available here, the other appears to have been taken down from here.) present hypothetical targeting scenarios with varying amounts of civilian casualties and ask the responder to assess whether the attack is proportionate. The principle of proportionality states that a commander must refrain from an attack if, in the circumstances ruling at the time, the expected civilian casualties from the attack are likely to be excessive (interestingly, a term that is not even mentioned, let alone emphasized, in these surveys) in relation to the anticipated military advantage to be gained.

There is little doubt that the principle of proportionality is an essential component of civilian protection during armed conflict. What qualifies as excessive civilian risk in the context of a military operational attack decision remains one of the most elusive questions in international law, which is the ostensible motive for these surveys. To that end, the authors of these surveys and their proponents must assume that introducing the concepts to more people — most notably the people they target with these surveys — will make a positive contribution to defining proportionality, promoting greater dissemination and deeper analysis of law of war issues.

The essence of the proportionality principle is, however, inherently linked to military operational art. The complexity of the rule is simply a consequence of the broader complexity of planning and executing military operations. As a result, these surveys and the presumptions and methodologies on which they rely are highly problematic and risk producing an even greater attenuation between scholarly discourse and public perception on one side, and the realities of military operations and operational law on the other.  Continue Reading »

Doe v. Cisco: The Legal Issues

Part 1 of this post introduced a set of cases against Cisco Systems, which has been sued for being complicit in the design and implementation of China’s Golden Shield surveillance network. The Northern District of California dismissed one such suit on the grounds that it did not overcome the presumption against extraterritoriality first identified in Kiobel. At issue in plaintiffs’ motion for reconsideration in Doe v. Cisco are a number of open questions being considered by courts across the nation in Alien Tort Statute (ATS) litigation involving corporate defendants accused of being complicit with repressive regimes. These include:

The Amenability of Corporations (vice Natural Persons) to Suit under the Alien Tort Statute. Corporations have been sued under the ATS ever since the Second Circuit’s 1995 opinion in Kadić v. Karadžić confirmed that state action is not an essential element for some international torts. This ruling laid the groundwork for victims of human rights violations to sue corporations under the ATS, either for the defendants’ own depredations or for being complicit in the human rights violations of the abusive governments with which they do business. In Doe v. Unocal, for example, the Ninth Circuit in 2002 confirmed that Unocal could be liable for aiding and abetting violations of international law committed by the Burmese military in connection with the construction of a pipeline in Burma. (The case ultimately settled.)

In 2010, however, the Second Circuit appeared to change course in Kiobel v. Royal Dutch Petroleum Co. Noting that no corporations were criminally prosecuted following World War II, a panel of judges ruled that corporate liability was not part of customary international law. Purporting to follow the Supreme Court’s guidance on customary international law in Sosa v. Alvarez-Machain, the court concluded that the ATS did not confer jurisdiction over corporations. Every other Circuit to consider the issue, however, has rejected this line of reasoning. In Flomo v. Firestone National Rubber Co., for example, 23 Liberian children sued the company for tolerating the use of child labor on its rubber plantations. In a detailed opinion drawing upon precedent from the post-WWII period and beyond, the Seventh Circuit confirmed that corporations could be sued under the ATS, but ruled that the alleged conduct did not violate international law.

Given the circuit split, the issue of corporate liability under the ATS was ripe for certiorari, and Kiobel was to be the vehicle to resolve this question. However, after oral argument, and in a surprise move, the Supreme Court requested supplemental briefing and a second round of argumentation on the question of the extent to which the ATS applies extraterritorially. It was this issue that ultimately disposed of the case: the Court ruled that ATS cases must in fact overcome a presumption of extraterritoriality. (In another case originally taken up with Kiobel, Mohamad v. Palestinian Authority (2012), the Supreme Court determined that only natural persons may be sued under the Torture Victim Protection Act given the strict wording of that treaty.) In Kiobel, the Court further held that a company’s “mere corporate presence” (e.g., being listed on the NYSE or having a public relations office in New York City) was insufficient to overcome the presumption against extraterritoriality.

Most commentators and lower courts have concluded that by sidelining the question of corporate liability, the Supreme Court in Kiobel clearly contemplated that Continue Reading »