The Libya Intervention: Legality and Lessons (Part II)

Posted on October 31, 2011 by Ryan Scoville

In my previous post, I discussed the legal merits and some of the practical consequences of NATO’s intervention in Libya. The legal analysis in that post focused exclusively on international law. The intervention, however, also raised important questions under U.S. domestic law, the most prominent of which concerned the applicability of the War Powers Resolution. In this post, I’ll discuss some of the main arguments regarding the Resolution’s applicability, and one of the practical consequences of the Obama Administration’s approach to the issue.

The War Powers Resolution has three basic components, the first of which is a requirement of consultation. “In every possible instance,” it reads, the President must consult with Congress before introducing U.S. Armed Forces into “hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” and must consult regularly with Congress after introducing U.S. forces until they are no longer engaged in hostilities. The second component is a reporting requirement. In the absence of a declaration of war, the President must report to Congress on the circumstances, legal authority, and estimated scope and duration of “hostilities or involvement” in “any case” in which U.S. forces are introduced into “hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.” The third basic component is a congressional termination power: within sixty days after reporting to Congress, the President must terminate any use of the U.S. forces, unless Congress (1) “has declared war or has enacted a specific authorization for such use”; (2) “has extended by law [the] sixty-day period”; or (3) “is physically unable to meet as a result of an armed attack upon the United States.” The President can extend the sixty-day period, but only in limited circumstances and for no more than thirty days.

The Obama Administration did not consult with or report to Congress on Libya under the terms of the War Powers Resolution. Rather, the Administration argued that the Resolution and its requirements did not apply because the U.S. involvement in Libya did not amount to “hostilities.” This position primarily rested on the relatively limited nature of the U.S. role, which entailed airstrikes during the early phase of the conflict, and then occasional drone strikes and the provision of surveillance, refueling and other logistical assistance to the forces of other NATO members thereafter. “Hostilities,” in the Administration’s view, requires something more substantial.

I am not necessarily persuaded; the ordinary meaning of “hostilities” seems to encompass the operations that U.S. forces carried out in Libya. The United States and its NATO allies used both manned and unmanned military aircraft to bomb significant numbers of military targets, and in doing so played a critical role in facilitating the Libyan rebels’ victory over Gaddafi and his supporters. Most would regard such conduct as hostile acts. Of course, the War Powers Resolution could in theory use “hostilities” as a term of art that carries some sort of non-ordinary meaning. But there is no textual evidence that it does. There is no statutory definition, for example, that would justify a departure from ordinary meaning. If Congress had intended the Resolution to apply only where U.S. forces are directly engaged in combat on a significant scale, it could have easily used more precise language.

Whatever its merits as a matter of statutory interpretation, the Administration’s position is significant for the way in which marginalizes the role of Congress in small- and even medium-scale warfare. If drone strikes and limited bombing campaigns by manned aircraft do not amount to “hostilities,” then the President can use some of the most important tools in modern warfare with little regard for congressional approval. To some, this development is necessary for national security. To others, it presents an accountability problem.

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The Libya Intervention: Legality and Lessons (Part I)

Posted on October 23, 2011 by Ryan Scoville

With the NATO action in Libya winding down, now seems to be a good time to take stock of the debate over the legality and practical implications of the intervention. What are the merits of the major legal arguments? What are the lessons for the future?

With respect to legality, the debate continues and has both international and domestic features, but I’ll focus exclusively on the former in this post. Here, Security Council Resolution 1973 has been the focal point because it authorized “all necessary measures” to protect civilians and civilian-populated areas under threat of attack from Gaddafi’s forces, and was the asserted basis for NATO’s intervention. The argument in favor of legality basically goes like this: Resolution 1973 was a permissible use of the Security Council’s powers under the U.N. Charter to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security,” and NATO acted in accordance with the Resolution by using only “necessary measures” to protect civilians from Gaddafi. I think the argument is pretty good. If NATO had acted without Security Council approval, as it did in Kosovo in the late 1990s, the international legal questions would be far more problematic. But even with Resolution 1973, legality is debatable. First, it’s not entirely clear that Libya’s internal conflict necessitated military action to maintain or restore “international” peace and security within the meaning of the Charter. Perhaps the fight between Gaddafi and the rebels would have spread across borders or sent an internationally destabilizing message of impunity if NATO had not intervened. Yet Libya was not a threat to international peace and security in the classic form of an armed conflict between states. Insofar as the U.N. Charter envisions that type of conflict as the basis for Security Council action, NATO’s action was problematic. Second, it is not entirely clear that NATO always honored the limits of Resolution 1973—some have reported that NATO bombings included military targets that were far removed from civilian populations and unlikely to present any direct threat to them. Whether eliminating those targets was “necessary” to protecting Libyan civilians is also debatable.

I think the practical implications are equally mixed. On one hand, the signaling effect of the intervention is a good one—the actions of the Security Council and NATO buttress the message that the international community will not allow even the highest-ranking national leaders to commit atrocities against their citizens. On the other hand, some heads of state might conclude that Gaddafi’s mistakes lay elsewhere—i.e., in his decision several years ago to give up on developing weapons of mass destruction that could have deterred a NATO attack, and his failure to establish close relations with Russia and China, two states that could have used their Security Council vetoes to block the intervention. To the extent that these are the lessons, the example of Libya will only strengthen the drive by some states to acquire WMD capabilities, and to develop strong relationships with veto-wielding members of the Security Council that tend to oppose the foreign policy of the West.

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Amanda Knox and the U.S.-Italian Extradition Treaty

Posted on October 5, 2011 by Ryan Scoville

With an Italian appellate court having just overturned Amanda Knox’s murder conviction, the prosecutor on the case, Giuliano Mignini, has stated that he will appeal to have the conviction and sentence reinstated. Meanwhile, Ms. Knox is back in the United States and out of the reach of the Italian government. Given that the prosecutor has not yet filed his appeal, its basis and likely result remain unclear. Assume for the sake of argument, however, that the Italian high court sides with the prosecutor and reinstates the conviction and sentence, and that Italy subsequently requests Ms. Knox’s extradition. Would the United States comply?

Most media reports suggest that the United States would refuse to extradite. But as a purely legal matter, it is questionable that such a move would be permissible. The United States and Italy are parties to a bilateral treaty in which the United States has agreed to extradite to Italy “persons whom [Italian] authorities . . . have charged with or found guilty of an extraditable offense.” The treaty defines “extraditable offense” to include an offense “punishable under the laws of both [countries] by deprivation of liberty for a period of more than one year or by a more severe penalty.” Murder is plainly punishable in the United States by imprisonment for over a year, and Ms. Knox’s original sentence of 26 years in prison demonstrates that the same is true in Italy. The crime for which the Italian high court might reinstate the Knox conviction, therefore, is an extraditable offense.

This analysis suggests that if Italy were to request extradition after reinstatement of the conviction and sentence, international law would pose no obstacle to fulfillment of the request.

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Palestine’s U.N. Membership: Why Does it Matter?

Posted on September 17, 2011 by Ryan Scoville

Palestinian officials have announced that they will seek a Security Council vote to approve Palestine as a full member of the United Nations next Friday. Israel has strongly opposed the move, and the United States has announced that, if necessary, it will use its veto powers to preclude approval. Why does the membership vote matter?

Because full-member status would establish broad, formal international recognition of Palestinian statehood. For Palestine, statehood would bring a number of benefits, including diplomatic immunity for many of its officials, the ability to join treaties and vote in the U.N. General Assembly, and standing to litigate with other states—including Israel—before the International Court of Justice. Even more significantly, statehood would establish Palestine’s sovereign equality with Israel and rights to self-determination and territorial integrity.

At least some of these effects are also the basis for opposition to Palestinian statehood on the part of Israel and the United States. Formal recognition as a sovereign state would empower Palestine in its dealings with Israel while circumventing the peace process. Because one of the classic elements of statehood is control over a specific territory, identification of Palestine’s borders is analytically prior to recognizing Palestine as a state. Palestine has therefore made clear that it seeks U.N. membership as a state based on its pre-1967 borders with Israel. If Palestine’s borders are formally settled by means of a U.N. vote, then Palestinian leaders have less reason to negotiate with Israel, and more leverage if they choose to negotiate.

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International Law as a Tool for Ascertaining Gaddafi’s Whereabouts

Posted on September 9, 2011 by Ryan Scoville

In a prior post, I explained that the International Criminal Court (“ICC”) has jurisdiction to prosecute Muammar Gaddafi because the Security Council passed a resolution to that effect in February 2011. Utilizing that jurisdiction, the Court issued arrest warrants against Gaddafi, his son, and his military intelligence chief for crimes against humanity in connection with their suppression of an uprising in eastern Libya several months ago. With Gaddafi effectively out of power and in hiding, news media have begun to speculate on his whereabouts. The latest reports suggest that he may have headed by land into Niger, which shares part of Libya’s southern border. It is unclear whether Niger would be Gaddafi’s final destination, or whether he has even left Libya.

Wherever Gaddafi is headed, international law provides an intriguing tool for prediction. Under the Rome Statute—the ICC’s founding treaty—a state-party is generally obligated to comply with ICC requests for arrest and surrender. Of the states bordering Libya, Chad, Niger, and Tunisia are all party to the Rome State, and thus seem to be obligated to turn Gaddafi over to the Court if they find him within their borders. If international law is effective, we should anticipate that Gaddafi will avoid these states out of fear of arrest.

Consider, therefore, Libya’s remaining border-states—Egypt, Sudan, and Algeria. None of these are party to the Rome Statute. As a result, none of them have an obligation under the treaty to comply with the arrest warrant. All of these states, however, are signatories to the Rome Statute, and are thus are obligated, under generally accepted principles of international law, not to act in ways that would defeat the treaty’s “object and purpose.” There seems to be a fair argument that this obligation precludes Egypt, Sudan, and Algeria from providing exile to Gaddafi—to do so would seriously interfere with the Court’s ability to prosecute, and would thus defeat—at least in part—the Rome Statute’s purpose of ending impunity for individuals responsible for crimes against humanity. Whether this argument will ultimately persuade is unclear, but it should make Gaddafi hesitate before trying to take shelter in the territory of any of these neighbors.

Which leaves non-bordering states in Libya’s vicinity. If Gaddafi has indeed entered Niger by land, and if he did so for the purpose of traveling by land to another state to Libya’s south or west, only Togo, Mauritania, and Equatorial Guinea remain as reasonably proximate states that are not party to the Rome Statute. Exile in any of these countries would make sense to the extent that they lack a treaty obligation to arrest and surrender Gaddafi to the Court. Of the three, Togo is probably closest, and therefore might present the most attractive option. Ivory Coast and Cameroon are also non-parties in the region, but both have signed the Rome Statute, just like Egypt, Sudan, and Algeria. Thus, whether Gaddafi sees the Ivory Coast and Cameroon as attractive candidates for his state of exile should depend at least in part on whether those states view the provision of exile as an act that would impermissibly defeat the Rome Statute’s object and purpose—seemingly an open question.

Clearly, many variables will affect Gaddafi’s decision about where to attempt to secure exile. But if he has headed into Niger by land to secure exile in a state within the region, and if the Rome Statute has any influence on his choice of destination, then Togo, Mauritania, and Equatorial Guinea look like attractive candidates. As such, the search for Gaddafi might benefit from focusing on those states. If Gaddafi secures exile elsewhere in the region—particularly in a state-party to the Rome Statute—we might fairly question the efficacy of the Court, and even the Security Council resolution that established its jurisdiction in this case.

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Fukushima and the Law of the Sea

Posted on August 28, 2011 by Ryan Scoville

Two days ago, Japan’s nuclear regulatory agency disclosed estimates of the volume of radioactive material that has escaped from the Fukushima reactor complex since the March earthquake and tsunami. The agency estimates that the emitted volume of radioactive cesium is approximately 168 times higher than that of the atomic bomb dropped on Hiroshima at the end of WWII, and that the volumes of radioactive iodine and strontium are approximately 2.5 times higher. All are linked to cancer, and the cesium and strontium isotopes can persist in the environment for decades.

The estimates are truly alarming. Some have argued that the impact on humans will be limited because the vast majority of the material has fallen or leaked into the ocean, where it will disperse and substantially dilute. But dilution is not a great reassurance. Given the extended half-lives of some of these materials, there is reasonable concern that radiation from Fukushima will damage marine habitats for years and, in turn, harm the citizens of Japan and other proximate countries.

Although not discussed in the media, the radiation leak may also violate international law. The United Nations Convention on the Law of the Sea, which entered into force in 1994, requires states-parties such as Japan to take steps to prevent and control pollution into the oceans. One of its provisions mandates that states take measures necessary “to prevent, reduce and control pollution of the marine environment,” including pollution involving the “release of toxic, harmful or noxious substances, especially those which are persistent, from land-based sources.” Another provision mandates that states-parties “take all measures necessary to prevent, reduce and control pollution of the marine environment resulting from the use of technologies under their jurisdiction or control.”

The Convention seems to cover the type of pollution coming from Fukushima. Radiation leaking from Japanese nuclear reactors into the ocean is a “toxic, harmful or noxious substance[]” from a “land-based source[].” It is also pollution that “result[s] from the use of technologies” under the jurisdiction and control of a state-party.

Whether the Japanese government took “all measures necessary to prevent, reduce and control” the Fukushima pollution is less clear. With the benefit of hindsight, it is obvious that the government did not do enough to prevent radiation from leaking from the nuclear plants into the ocean—if it had, the leaks would not have occurred. But the Convention does not itemize the specific measures that are deemed “necessary,” and there is often a difference between the necessary and the sufficient. The government could theoretically complete “all measures necessary to prevent” radiation leaks and yet still fail to do enough to completely preclude any possibility of a leak. The mere occurrence of pollution, in other words, may not demonstrate a violation, at least as a matter of textual interpretation.

One way to think about the problem is normatively, by asking simply whether there should be a difference between the necessary and the sufficient in this area. In the United States, tort law imposes strict liability for certain ultra-hazardous activities, and in doing so effectively closes the gap between necessity and sufficiency for purposes of liability determinations. But other areas of tort law leave a gap, and thus permit actors to avoid liability by meeting certain minimum standards of conduct even if harm still follows. What is your view? Is strict liability for environmental harms from accidents at nuclear plants the appropriate standard? Or should international law utilize some other standard?

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ICC Jurisdiction Over Gaddafi

Posted on August 22, 2011 by Ryan Scoville

Last week I wrote that the International Criminal Court (“ICC”) is unlikely to try Syria’s President Assad for crimes against humanity because the Court would probably lack jurisdiction. The Rome Statute—the ICC’s founding treaty—empowers the Court to exercise jurisdiction only with respect to crimes (1) committed within the territory of a state-party, (2) committed by a national of a state-party, (3) referred to the Court for prosecution by the UN Security Council, or (4) committed within a non-state-party’s territory or by one of its nationals, if referred to the Court by that non-state-party. In Assad’s case, jurisdiction is unlikely because Syria is not a state-party to the Rome Statute, and the UN Security Council is unlikely to refer the matter to the ICC because Russia and China would object. While it is possible that a post-Assad regime could refer Assad’s crimes to the Court for prosecution, Syrian domestic politics would probably push strongly in favor of domestic prosecution.

The question of ICC jurisdiction is also relevant to ongoing events in Libya. With Muammar Gaddafi’s regime in the midst of collapse and the Colonel himself in hiding, we should consider what role, if any, the ICC will play once Gaddafi is found. Here, the prospect of ICC prosecution seems significantly higher. Like Syria, Libya is not a state-party to the Rome Statute. But in February 2011, the Security Council passed a resolution referring Gaddafi’s use of military force against regime opponents in early 2011 to the ICC. The resolution ordered “Libyan authorities” to “cooperate fully with and provide any necessary assistance to the Court,” and “urge[d] all [other] States” to cooperate fully as well. Several months later, the Court issued arrest warrants against Gaddafi and two other Libyan officials for offenses including crimes against humanity.

Now that Gaddafi has lost control of the government and is in hiding, it will be interesting to see whether the ICC is able to make use of its established jurisdiction. With the Libyan government obliged to adhere to the Security Council’s resolution and all other states urged to do likewise, Gaddafi may have few places to hide.

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Syrian Culpability for Crimes Against Humanity

Posted on August 19, 2011 by Ryan Scoville

Like a handful of other states in the Middle East, Syria has experienced significant domestic political turmoil in recent months, with a sizable and seemingly increasing percentage of its population openly protesting against the autocratic government of Bashar al-Assad. The Syrian government has responded with a crackdown comprised of some of the most violent and repressive tactics seen anywhere since the start of the Arab Spring several months ago. In a report issued yesterday, the High Commissioner for Human Rights at the United Nations described this crackdown as a systematic campaign of murder, torture, deprivation of liberty, and persecution that spans from March to July 2011. The report, which is based on a series of field investigations conducted by the Office of the High Commissioner, concludes that the Syrian government’s conduct “may amount to crimes against humanity” under Article 7 of the Rome Statute of the International Criminal Court.

The report seems to raise three questions for most readers: First, what is a “crime against humanity”? Second, how might the Syrian government have engaged in such conduct? And third, what consequences, if any, follow from culpability?

The Rome Statute of the International Criminal Court (“ICC”) answers the first question. Article 7 of the Statute provides that a “crime against humanity” occurs when (1) a government makes an attack against a civilian population; (2) the attack is widespread or systematic; (3) the government makes the attack knowingly; and (4) the attack includes any of the following: murder, extermination, enslavement, deportation, severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, persecution, enforced disappearance of persons, apartheid, or “other inhumane acts of a similar character.”

The High Commissioner’s report shows that the Syrian government has likely engaged in conduct proscribed by Article 7. The report recounts violent attacks on hundreds and possibly thousands of civilian protestors by the government’s military forces. It recounts evidence of these attacks in locations such as Damascus, Dara’a, Homs, Hama, Idlib, and several other localities, and thereby suggests that the attacks are widespread and systematic. It suggests by the pervasiveness of the attacks, the level of their coordination, and their repetition over the course of several months that the government has knowingly carried them out as a national policy aimed at suppressing dissent and affirming the rule of President Assad. And it recounts a substantial body of direct evidence of murder; torture; persecution on religious, ethnic, and political grounds; and enforced disappearance of persons. Among other acts, the report describes hundreds of summary executions; disproportionate and indiscriminate use of military force against unarmed civilians; mass graves; and official torture by means of electric shocks, beatings, and psychological abuse.

Assuming the accuracy of the report, the argument that Syria has violated its international legal obligations seems persuasive, for two reasons: First, it is widely accepted that customary international law prohibits states from committing crimes against humanity. Second, there is an established principle that signatories of a treaty must refrain from acts that defeat the treaty’s “object or purpose.” Syria has not ratified the Rome Statute, and therefore has no treaty obligations to violate. It has, however, been a signatory to the Rome Statute since November 2000, and thus might be vulnerable under Article 7 on the view that the crackdown defeats the Statute’s purpose of deterring and holding governments accountable for crimes against humanity.

Perhaps the most intriguing question, however, is not whether the Syrian government has engaged in crimes against humanity, or whether the government has violated its international legal obligations in doing so, but instead whether there is anything the international community can do to hold the government accountable. It seems unlikely that the ICC will be able to exercise jurisdiction over culpable members of the Syrian government. Typically, jurisdiction exists under the Rome Statute where an accused is a national of a state party, an alleged crime occurs within a state party’s territory, or the United Nations Security Council refers the matter to the Court. Because Syria has not ratified, it is not a state party over which the Court can exercise jurisdiction in the absence of a referral from the Security Council, and there is no sign that the Security Council will make a referral anytime soon. Absent ICC jurisdiction, unilateral or coordinated state action seems to be the primary option for meaningful penalties. And it looks like national governments are already beginning to utilize this option: President Obama issued an executive order yesterday that freezes certain Syrian government assets and prohibits Americans from transacting business with the government. Several European countries are anticipated to follow suit.

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