Connect with us

International Law

Targeting Terrorist Leaders After Al-Baghdadi: Legal And Tactical Expectations

Prof. Louis René Beres

Published

on

“For By Wise Counsel, Thou Shalt Make Thy War.”-Proverbs, 24 (6)

Under the protective tutelage of an American president, any American president, “We the People” should expect reasonable levels of safety in world politics.  At a minimum, we should be able to assume that  wide and predictably capable circles of public authority remain ready to thwart terrorist attacks. Most urgently, of course, such assurances should apply with special clarity to mega-terrorist attacks.

Always.

By definition, such mega or WMD aggressions would involve chemical, biological or nuclear elements.[1]

Here, there are both legal and operational issues to be considered. In terms of United States law, the authoritative roots of any such presumptive  assurances go back to Roman statesman Cicero (“The safety of the people shall be the highest law.”) and to seventeenth century English philosopher, Thomas Hobbes. [2] Though plainly unfamiliar to America’s current president, Hobbes’ Leviathan was central to the education of Thomas Jefferson and other Founders.

Notwithstanding far greater difficulties of literary access and convenience in the eighteenth century, the author of America’s Declaration was impressively well read. He cared, really cared, about serious and dignified learning. In stark contrast to Donald J. Trump’s current inversion of US policy-making priorities, which  center on one conspicuous sort or other of “branding,” Jefferson believed in the primacy of intellectual “preparation.”

Expressly.

For Jefferson, erudition maintained an intrinsically serious meaning. It was never something to be used or exploited solely for private embellishment or public adornment.

For the nation’s third president, diplomacy and strategic bargaining  were analytic responsibilities. Accordingly, they were always about variously disciplined calculations. They were never merely about shallow bluster or feigned “attitude.”

Looking ahead to continuously effective US counterterrorist preparations, America’s national security establishment must remain ready for absolutely all contingencies. This needed preparedness includes building the conceptual foundations for any future Abu Bakr al-Baghdadi or Osama Bin-Laden “elimination-type” operations.[3] During the Obama years, one major targeted killing of a Jihadist terrorist was the September 2011 US drone-assassination of Anwar al -Awlaki in Yemen.[4] That case was notably “special” in one frequently overlooked aspect: The Jihadist al-Awlaki was born in New Mexico, and was ipso facto a US citizen.

Despite the US Constitution’s Fifth Amendment protections concerning “due process,”[5] al-Awlaki’s targeted killing represented a tactical option that could sometime need to be repeated.

There are other pertinent concerns. Regardless of clearly valid issues concerning legal permissibility, it is by no means certain that targeting terrorist leaders will prove continuously useful to supporting US national security objectives. What this means, in brief, is that the virulence and capacity of any relevant anti-American or anti-Western ideology (especially a Jihadist-type ideology) might not be removed or even meaningfully blunted by designated terrorist assassinations.

It is even conceivable, in these more-or-less singular matters, that the net security effect of any such “removal” could be markedly negative rather than reassuringly “cost effective.”

As a timely example, the recent elimination of al-Baghdadi could quickly or eventually bring to power in ISIS an even more capable and violent terrorist adversary. What then? In such an unexpected eventuality, the killing of al-Baghdadi will have produced various short-term political benefits for US President Donald Trump, but only at a significantly unacceptable national security cost.[6]

 There is more. For the United States, corollary legal issues must never be ignored. In relevant jurisprudential terms, we must already inquire: What explicit legal guidelines should we Americans expect our leadership to follow? To respond properly (among several other related and also intersecting concerns), Mr. Trump and his counselors would then need to ask: “Is it sufficiently legal to target and kill recognizable terrorists if verifiable linkages between prospective targets and discernible attack intentions can be reliably documented?”  

To properly answer this fundamental or core question, it will first be necessary for Mr. Trump’s relevant national security officials to ask whether a proposed terrorist killing plan would be gainfully preemptive or just narrowly retributive. If the latter, a judgment wherein national self-defense was not in any way the genuinely underlying action-rationale, authoritative determinations of legality could become more and more problematic.[7]

On occasion, matters could get even more complicated. After all, assassination is explicitly prohibited by US law.[8]  It is also generally a crime under international law, which, though not widely understood,[9] remains a legitimate and integral part of American domestic law.[10] Still, at least in certain more-or-less residual circumstances, the targeted killing of Jihadist terrorist leaders could be correctly excluded from certain ordinarily prohibited behaviors. Here, such peremptorily protective actions could be defended as a fully permissible expression of  national law-enforcement.

A similar defense might sometimes be applied to the considered killing of terrorist “rank-and-file,” especially where such selective lethality had already become part of an ongoing pattern of US counter-terrorism. Earlier, the United States had widened the scope of permissible terrorist targeting in parts of Iraq, Afghanistan and Syria. In part, at least, such a widened operational arc of permissibility – one which now modifies the more stringent prior rules of engagement that had once required specific human target identifications – has been an inevitable byproduct of continuously developing technologies.

Most obvious among these emergent technologies is the growing US reliance upon drone-based assassinations, and also on other related forms of long-range or long-distance killing.

In the best of all possible worlds, there would be no need for any such decentralized or “vigilante” expressions of international justice.  But we don’t yet live in such an ideal world. Instead, enduring uneasily in our present and still-broadly anarchic legal order – a context that we international law professors usually prefer to call “Westphalian”[11] – the only real alternative to precise self-defense actions against terrorists is likely to be certain steadily worsening “in-theatre” instabilities.

Ultimately, such expanding hyper-instabilities could include more flagrant and consequential escalations of Jihadist terror-violence. Such escalations could be unaffected or encouraged by future US targeted killings. This is to be expected even where “retributive justice” appeared as both reasonable and legal.

At some indeterminable point, terror-violence escalations could lead to major or even unprecedented instances of chemical, biological or nuclear attack. Plausibly, these attacks might be undertaken by assorted sub-state adversaries or instead, by particular “hybrid” combinations of state and sub-state foes.

At the most basic level of any such issues and calculations, the very idea of assassination or targeted killing as remediation could seem paradoxical, almost an oxymoron.  Seemingly, at least, this understandably objectionable idea must preclude the input of all the more usual “due processes of  law” consideration. Yet, since the current or “Westphalian” state system’s original inception in the seventeenth century, international relations have never been governable by the same civil protections that are potentially available within democratic states.

In this persistently anarchic and prospectively chaotic world legal system, one which still lacks any duly-constituted and effective supra-national authority, assorted Jihadist leaders (ISIS, Hamas, Hezbollah, Islamic Jihad, al-Qaeda, etc) are already responsible for the mass killing of noncombatant men, women, and children of different nationalities. It follows, in at least some still-imaginable circumstances,  that where such leaders are not suitably “terminated” by the United States or by any of America’s key allies (e.g., Israel, in the tumultuous Middle East), incrementally egregious terror crimes could continue to multiply and also to remain unpunished.

Jurisprudentially, at least, any such predictable de facto impunity would be inconsistent with the universal legal obligation to punish international crimes, a jus cogens or peremptory obligation reaffirmed at the original 1945-46 Nuremberg Tribunal and subsequently in the 1946 and 1950 Nuremberg Principles.

 More formally, this lex talionis obligation, which comes to us from both ancient Roman law and the Hebrew Bible, is known correctly as Nullum crimen sine poena, or “No crime without a punishment.”[12]

Inevitably, complex considerations of law and tactics must inter-penetrate. In this particular connection, the glaring indiscriminacy of most jihadist operations is rarely if ever the result of enemy inadvertence. Rather, it is typically the intentional outcome of violent terrorist inclinations, unambiguously murderous ideals that lay deeply embedded in the Jihadist terrorist leader’s operative view of insurgency.

 For Jihadists, there can never be any meaningful distinction between civilians and non-civilians, between innocents and non-innocents. For these active or latent terrorist murderers, all that really matters are certain unassailably immutable distinctions distinguishing between Muslims, “apostates” and “unbelievers.”

As for the apostates and unbelievers, it is all quite simple.  Their lives, believe the Jihadists,  have literally no value. Prima facie, that is, they have no immunizing sanctity.  

In law, recalling Cicero, every government has both the right and the obligation to protect its citizens against external harms. In certain circumstances, this coincident right and obligation may extend derivatively to targeted killing. Actually, this point has long been understood (though also sometimes abused) in Washington, where every president in recent memory has given nodding or direct approval to “high value” assassination/targeted killing operations.

Certifiably, assassination is generally a tangible crime under international law. But in our essentially decentralized system of world law, self-help by individual states still remains altogether necessary, and is more-then-occasionally the only tangible alternative to suffering terrorist crimes. In the absence of particular targeted killings, terrorists could continue to create havoc against defenseless civilians almost anywhere, and do so with more-or-less complete impunity.

 A very specific difficulty here is this:  Jihadist terror criminals are usually immune to the more orthodox legal expectations of extradition and prosecution (Aut dedere, aut judicare).[13] This is not to suggest that the targeted assassination of terrorists will always “work” in tactical terms – indeed, there is literally nothing to support the logic of any such suggestion – but only that disallowing such targeted killing ex ante could not be operationally gainful or legally just.

In principle, if carried out with aptly due regard for pertinent “rules,” assassinating terrorist leaders could remain suitably consistent with the ancient legal principle of Nullum crimen sine poena, “No crime without a punishment.” Earlier, this original principle of justice had been cited as a dominant jurisprudential rationale for both the Tokyo and Nuremberg war crime tribunals. It was subsequently incorporated into customary international law, an authoritative legal source identified inter alia at Article 38 of the Statute of the International Court of Justice.[14]

 By both the codified and customary standards of contemporary international law, all terrorists are Hostes humani generis, or “Common enemies of humankind.”[15]  In the fashion of pirates, who were to be hanged by the first persons into whose hands they fell, terrorists are considered international outlaws who fall within the scope of “universal jurisdiction.” But choosing precisely which terrorists ought to be targeted remains a largely ideological rather than jurisprudential matter.

 Logically, in some current circumstances, tyrannicide could be seen as the “flip side” of American counter-terrorism. Historically, limited support for expressing assassination as a form of tyrannicide is not hard to discover.  It can be found, for example, in the classical philosophical writings of Aristotle and Plutarch as well as Cicero.

Overall, in his consideration of assassination or targeted-killing as counter-terrorism, President Donald Trump (or more realistically his designated counselors) should consider the clarifying position of Swiss scholar Emmerich de Vattel in his most famous work, The Law of Nations, or the Principles of Natural Law (1758): “The safest plan is to prevent evil where that is possible. A Nation has the right to resist the injury another seeks to inflict upon it, and to use force and every other just means of resistance against the aggressor.” 

Earlier, a similar view had been presented by Samuel Pufendorf in his seminal text, On the Duty of Man and Citizen According to Natural Law (1682): “Where it is quite clear that he is engaged in planning violence against me, even though he has not fully revealed his design, I shall be justified in immediately initiating self-defence by force, and in seizing the initiative against him, while he is still making preparations…..The aggressor will be taken to be the party which first conceived the intention to harm the other….To have the name of defender, it is not necessary to suffer the first blow, or merely to elude and repel the blows aimed at one.”

Even earlier, the right of self-defense by forestalling an attack had been established by the foundational Dutch scholar, Hugo Grotius, in Book II of The Law of War and Peace (1625). Recognizing the need for what later jurisprudence would reference as threatening international behavior that is “imminent in point of time” (See The Caroline Case, 1837), Grotius indicated that self-defense must be permitted not only after an attack has already been suffered, but also in advance, wherever “the deed may be anticipated.”

Further on, in the same chapter, Grotius summarized : “It be lawful to kill him who is preparing to kill.”

Interestingly, Vattel, Pufendorf and Grotius were all taken into primary account by Thomas Jefferson in his critical fashioning of the American Declaration of Independence.

There is more. In all these matters, one must assume rational calculation. If the expected costs of a considered assassination should appear lower than the expected costs of  alternative resorts to military force, assassination could emerge as the distinctly gainful and moral choice. However odious it might appear in isolation, assassination or targeted killing in certain circumstances could still represent a security-seeking state’s best overall option.

Assassination will always elicit indignation, even by those who could find large-scale warfare appropriate. But the civilizational promise of some more genuinely centralized worldwide security is far from being realized, and existentially imperiled states could sometime still need to confront critical choices between employing assassination in measurably limited circumstances or renouncing such tactics at the foreseeable expense of national survival. In facing such inherently difficult choices, these states will inevitably discover that all viable alternatives to the assassination option could also include large-scale violence, and these these alternatives are apt to exact a substantially larger toll in human life and suffering.

 Naturally, in a presumptively better world than this one, assassination could have no defensible place as counterterrorism, either as a preemptive measure or ex post facto, that is, as a permissible retribution. But, as if anyone should still need a reminder, we do not yet live in the best of all possible worlds, and the obviously negative aspects of  targeted killing should never be evaluated apart from the foreseeable costs of other still-available options. More precisely, such aspects should always be closely compared to what could reasonably be expected of plausible alternative choices.

International law is not a suicide pact. Ubi cessat remedium ordinarium, ibi decurritur ad extraordinarium;  “Where the ordinary remedy fails, recourse must be had to an extraordinary one.”

President Trump is correctly expected to comply with the rules and procedures of humanitarian international law; yet, he must also continue to bear in mind that Jihadist enemies will remain unaffected by these or any other jurisprudential expectations. Assassination and other still broader forms of preemption may sometimes be not only allowable under binding international law, but also indispensable. Conversely, there are occasions when strategies of assassination or targeted killing could be determinedly legal but remain operationally ineffectual.

Now, recalling the close connections between international law and US law – connections that extend to direct and literal forms of  legal “incorporation” – an American president can never choose to dismiss the law of war on grounds that it is “merely” international. Always, President Trump should consider aptly decipherable connections between assassination, counter-terrorism and United States Constitutional Law. Unexpectedly or not, the targeted killing of Anwar al-Awlaki had been approved by US President Barack Obama  and also by a secret committee of advisors allegedly based within the US Department of Justice.

Under US law, we are now bound to inquire, should an American president ever be authorized to order the extra-judicial killing of a United States citizen – even one deemed an “enemy combatant” – without any at least perfunctory reference to “due process of law?” On its face, any affirmative response to this necessary query would be difficult to defend under the US Constitution.

Of necessity, such presidential approval would need to be based upon a reasonably presumed high urgency of terror threat posed by the prospective victim. Any such “authorized” targeted killing of  US citizens would express a potentially irremediable tension between theoretically indissoluble individual citizen rights and the increasingly peremptory requirements of national public safety.

 Always, US policy on assassination or targeted killing will have to reflect a very delicate balance. Most important, in any such equilibrating calculation, will be the protection of civilian populations from Jihadist terror-inflicted harms. In those fearful circumstances where such harms would involve unconventional weapons of any sort – chemical, biological or nuclear – the legal propriety of targeting Jihadist terrorists could become patently obvious and also “beyond reasonable doubt.”

Nonetheless, such proper legal assessments ought never be undertaken apart from various corresponding operational expectations. This means, inter alia, that before any “extraordinary remedies” should be applied, those presumptive remedies should appear to be not only legal, but also tactically and strategically sound. In this connection, it would make elementary good sense to extrapolate from classical Prussian strategist’s Carl von Clausewitz’s enduring mantra in On War.

Assassination, like war, should always be “…a continuation of political relations by other means.”

More specifically, the targeted killing of terrorist leaders should always be assessed against a determinable and pre-existing “political object.”

In the absence of tangible  “congruence” in any such assessment, there could be no valid reason to proceed with a considered force-based operation. This is the case even where the contemplated targeting would be presumptively lawful and/or where it could expect to produce positive military outcomes.

In his Utopia, published in 1516, Thomas More offered a curious but clarifying juxtaposition of foreign policy stratagems and objectives. Although the Utopians are expected to be generous toward other states, they also offer (in Book II) tangible rewards for the assassination of enemy leaders. This is not because Thomas More wished in any way to appear barbarous, but because he was a fully realistic “utopian.” Sharing with St. Augustine (whose City of God had been the subject of More’s 1501 lectures) a fundamentally dark assessment of human political arrangements, he constructed a “lesser evil” philosophy that favored a distinctly pragmatic and still plausible kind of morality.

Inter alia, Sir Thomas More understood that the truly tragic element of politics is constituted of certain conscious choices of evil for the sake of a greater good. With regard to our ongoing scholarly investigation of US national security and counter-terrorism,, this suggests that assassination must always remain disagreeable in the “best of all possible worlds” (for example, the Leibnizian world satirized by Voltaire in Candide), but that it may also represent a necessary expedient in a world that must remain irremediably imperfect. In any event, these are matters that need to be treated in broadly intellectual and historical terms, and not as seat-of-the-pants decisions based on momentary presidential whim or embarrassingly empty witticisms.


[1] On the plausible consequences of a full-scale nuclear war, by this author, see: Louis René Beres, Apocalypse: Nuclear Catastrophe in World Politics (Chicago: University of Chicago Press, 1980); Louis René Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy (Lexington, Mass., Lexington Books, 1983); Louis René Beres, Reason and Realpolitik: U.S. Foreign Policy and World Order (Lexington, Mass., Lexington Books, 1984); Louis René Beres, Security or Armageddon: Israel’s Nuclear Strategy (Lexington, Mass., Lexington Books, 1986); and Louis René Beres, Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd ed., 2018).

[2] Hobbes argued convincingly that the international state of nature is “less intolerable” than that same condition among individuals in nature because, in the latter, the “weakest has strength enough to kill the strongest.” Significantly, with the spread of nuclear weapons, this difference is disappearing. Interestingly, in the pre-nuclear age, jurist Samuel Pufendorf, like Hobbes, was persuaded that the state of nations “…lacks those inconveniences which are attendant upon a pure state of nature….” Similarly, Spinoza suggested that “…a commonwealth can guard itself against being subjugated by another, as a man in the state of nature cannot do.” (See: Louis René Beres, The Management of World Power: A Theoretical Analysis, University of Denver, Monograph Series in World Affairs, Vol. 10, No.3., 1972-73, p. 65.)

[3] See Louis René Beres, “The Killing of Osama Bin Laden,” Crimes of War, Crimes of War Project, August 2011, http://www.crimesofwar.org/commentary/the-killing-of-osama-bin-laden/; Louis René Beres, “Assassinating Terrorist Leaders: A Matter of International Law,” OUP Blog, Oxford University Press, May 4, 2011; and Louis René Beres, “After Osama Bin Laden: Assassination, Terrorism, War, and International Law,” Case Western Reserve Journal of International Law, 44 Case W. Res, J. Int’l 93 (2011).

[4] Although “assassination” and “targeted killing” are often used interchangeably, there are meaningfully core distinctions to be made. Using the precise scholarly criteria offered by Amos Guiora, an assassination is always an expressly political killing that involves treachery or perfidy, and is not directed toward any suspected terrorist. A targeted killing, on the other hand, is a violent and person-specific expression of preemptive self-defense, and is always oriented to preventing some future act of terrorism. Always, inter alia, the targeted individual must be presumptively involved in the planning and execution of new terrorist assaults. See Amos. Guiora, Legitimate Target: A Criteria-Based Approach to Targeted Killing (New York, Oxford University Press, 2013).

[5] In the U.S. Constitution, Amendments IV, V, VI and VIII comprise a “Bill of Rights” for accused persons, and the phrase “due process of law” derives from Chapter 29 of Magna Carta (1215),  wherein the King promises that  “no free man (nullus liber homo) shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him,  except by a legal judgment of his peers or by the law of the land (per legem terrae).”  See Coke,  Institutes,  Part 2:  50-51,  1669;  cited by E.S. Corwin,  The Constitution and What It Means Today  (New York:  Atheneum,  1963): 217.

[6] In this connection, it was surely not in overall US security interests for the American president to comment publicly  about al-Baghdadi that he “died like a dog….whimpering….like a coward.” Such inflammatory language was gratuitous at best, and could plausibly even incentivize future anti-American terrorism from various ISIS-related groups. Moreover, the language must assuredly have been invented by Trump.

[7] Here we must recall that criminal responsibility of leaders under international law is not limited to direct personal action nor is it limited by official position.  On the principle of command responsibility, or respondeat superior, see:  In re Yamashita,  327 U.S. 1 (1945);  The High Command Case (The Trial of Wilhelm von Leeb),  12 Law Reports Of Trials Of War Criminals 1 (United Nations War Crimes Commission Comp., 1949);  see Parks, Command Responsibility For War Crimes,  62 MIL.L. REV. 1 (1973);  O’Brien, The Law Of War, Command Responsibility And Vietnam,  60 GEO. L.J.  605 (1972);   U.S. Dept Of The Army, Army Subject Schedule No. 27 – 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907),  10 (1970).  The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense.  See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS,  Aug. 8, 1945,  59 Stat.  1544,  E.A.S.  No. 472,  82 U.N.T.S.  279,  art. 7.

[8] See Exec. Order No. 12333, 3 C.F.R. 200 (1988), reprinted in 50 U.S.C.  Sec. 401 (1988).

[9] The authoritative sources of international law are listed comprehensively (and can be most conveniently found) at art. 38 of the Statute of the International Court of Justice.

[10] In the words used by the U.S. Supreme Court in The Paquete Habana, “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.  For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.”  See The Paquete Habana, 175 U.S. 677, 678-79 (1900).  See also:  The Lola,  175 U.S. 677 (1900);  Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774,  781, 788 (D.C. Cir. 1984)(per curiam)(Edwards, J. concurring)(dismissing the action, but making several references to domestic jurisdiction over extraterritorial offenses), cert. denied,  470 U.S. 1003 (1985)(“concept of extraordinary judicial jurisdiction over acts in violation of significant international standards…embodied in the principle of `universal violations of international law.'”).

[11] After the seventeenth century (1648) Peace of Westphalia, which ended the Thirty Years’ War and created the present conflictual system of independent states. See: Treaty of Peace of Munster, Oct. 1648, 1 Consol. T.S. 271; Treaty of Peace of Osnabruck, Oct. 1648, 1, Consol. T.S. 119. Together, these two agreements comprise the Peace of Westphalia. Thomas Hobbes’ Leviathan was first published in 1651, just three years after the Peace of Westphalia. It is at Chapter XIII that Hobbes famously references the “state of nature” as an anarchic situation characterized by “continuall feare; and danger of violent death….”

[12] Nullum crimen sine poena is the principle that distinguishes between criminal and civil law.  Without punishment there can be no distinction between a penal statute and any other statute. (See Redding v. State,  85 N.W. 2d  647, 652; Neb. 1957)(concluding that a criminal statute without a penalty clause is of no force and effect).  The earliest statements of Nullum crimen sine poena can be found in the Code of Hammurabi (c. 1728-1686 B.C.); the Laws of Eshnunna (c. 2000 B.C.);  the even-earlier Code of Ur-Nammu (c. 2100 B.C.) and of course the Lex Talionis or law of exact retaliation presented in three separate passages of the Jewish Torah or biblical Pentateuch.  At Nuremberg, the words used by the Court,  “So far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished,”  represented an unambiguous reaffirmation of Nullum crimen sine poena.  For the Court statement, see:  A.P. d’Entreves,  NATURAL LAW (London: Hutchinson University Library, 1964), p. 110. 

[13] The extradite or prosecute formula of international criminal law is deducible from Nullum crimen sine poena.  Existing since antiquity, it is an expectation with roots in both natural law (especially Jean Bodin, Hugo Grotius, and Emmerich de Vattel) and in positive law. See also: Resolution on Principles of International Cooperation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity,  G.A. Res. 3074,  28 U.N.  GAOR,  Supp. No.30 at 78, U.N. Doc. A/9030, 1973;  G.A. Res. 2840,  26 U.N. GAOR Supp. No. 29 at 88,  U.N. Doc. A/8429,  1971;  G.A. Res. 96,  U.N. Doc. A/64 at 188, 1946;  Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity,  adopted and opened for signature, ratification and accession by General Assembly Resolution 2391 (XXIII) of 26 November 1968,  entered into force,  11 November 1970.

[14] Article 38(1)(b) of the Statute of the International Court of Justice describes international custom as “evidence of a general practice accepted as law.”  59 Stat.  1031,  T.S. No. 993 (June 26, 1945).  Norms of customary international law bind all states irrespective of whether a State has ratified the pertinent codifying instrument or convention.  International law compartmentalizes apparently identical rights and obligations arising both out of customary law and treaty law.  “Even if two norms belonging to two sources of international law appear identical in content, and even if the states in question are bound by these rules both on the level of treaty-law and on that of customary international law, these norms retain a separate existence.”  See Military and Paramilitary Activities (Nicaragua v. U.S.),  1986 I.C.J. Rep.  14,  para. 178 (June 27).

[15] .On the concept of “common enemy of mankind,”  see:  Robert Alfert Jr.,  “Hostes Humani Generis:  An Expanded Notion of U.S. Counterterrorist Legislation,”  EMORY INTERNATIONAL LAW REVIEW,  Vol. 6,  No. 1,  Spring 1992,  pp. 171-214.

LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Emeritus Professor of International Law at Purdue. His twelfth and most recent book is Surviving Amid Chaos: Israel's Nuclear Strategy (2016) (2nd ed., 2018) https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy Some of his principal strategic writings have appeared in Harvard National Security Journal (Harvard Law School); International Security (Harvard University); Yale Global Online (Yale University); Oxford University Press (Oxford University); Oxford Yearbook of International Law (Oxford University Press); Parameters: Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Modern War Institute (Pentagon); The War Room (Pentagon); World Politics (Princeton); INSS (The Institute for National Security Studies)(Tel Aviv); Israel Defense (Tel Aviv); BESA Perspectives (Israel); International Journal of Intelligence and Counterintelligence; The Atlantic; The New York Times and the Bulletin of the Atomic Scientists.

Continue Reading
Comments

International Law

How To Get Away With Murder

Ankit Malhotra

Published

on

 The Enrica Lexie Case involved two Italian marines namely, Salvatore Girone and Massimiliano Latorre, who were accused of shooting two Indian fishermen, Jalastine and Ajeesh Binki, off India’s southeastern Kerala coast on February 15, 2012. “We have not heard a word from the PM or the Government of India on the matter. It sends a dismaying signal that Indian lives don’t matter to the Indian Prime Minister and that justice can be sacrificed at the altar of diplomatic expediency,” said Shashi Tharoor, Congress Member of Parliament from Thiruvananthapuram. On the contrary, India had detained the marines on board of the Italian tanker, Enrica Lexie for killing the fishermen on an Indian vessel, St Antony. The arrest and subsequent exercise of jurisdiction by Indian authorities had plagued relations with Italy for years.

Italy had alleged that India had violated United Nations Convention on the Law of the Sea (UNCLOS) provisions by ordering the detention of the Italian tanker, but this was rejected unanimously by the International Tribunal for the Law of the Sea (ITLOS). During the legal proceedings, the foremost legal issue that was raised was on the question of Indian jurisdiction to conduct criminal trials. India argued that it had jurisdiction over the case since the deceased fishermen were Indian, therefore, the case must be tried as per Indian laws. On the other hand, the Italians argued that shooting took place beyond Indian territorial waters, marines on-board were Italian and flying under an Italian flag. Thus, Italy had jurisdiction. Furthermore, the Italians argued, the marines acted to protect an Italian oil tanker as part of an anti-piracy mission.

ITLOS, a Tribunal created as per the provisions of the UNCLOS, is aimed by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea. Italy approached ITLOS and based on its request, ITLOS referred the Case to the Permanent Court of Arbitration (PCA), which was constituted under Annex VII of the UNCLOS on June 26, 2015.

ITLOS upheld the actions of the Italian marines, but in contrast, held that Italy was in breach of India’s Freedom of Navigation as per Articles 87(1)(a) and 90 of UNCLOS. On the question of jurisdiction, ITLOS observed that India and Italy had “concurrent jurisdiction” over the incident and a valid legal basis to institute criminal proceedings against the marines. ITLOS rejected Italy’s claim to compensation for the detention of the marines. Conversely, the Tribunal ruled that the accused enjoy diplomatic immunity that is granted to foreign State officials, which will act as an “exception to the jurisdiction of the Indian courts”. As a consequence, Indian courts cannot judge the case owing to diplomatic cover.

Furthermore, the PCA enabled India to seek compensation and asked India and Italy to consult on the amount of compensation due. In a close 3:2 vote, ITLOS President Jin-Hyun Paik and former President Vladimir Golitsyn and Professor Francesco Francioni voted in favour of Italy,  whereas Judge Patrick Robinson and Judge Pemmaraju Sreenivasa Rao voted in favour of India on the note of “commitment expressed by Italy” to resume a criminal investigation into the incident in Italy. ITLOS held India must cease to exercise its jurisdiction on the Italian marines.

Disclosing the details of the verdict, Indian Ministry of External Affairs spokesperson Anurag Srivastava stated, that the court upheld the conduct of the Indian law enforcement authorities, declared that Italy had breached Freedom of Navigation and concluded that ITLOS rejected Italy’s claim for compensation for the detention of the marines. “However, it found that the immunities enjoyed by the Marines as State officials operate as an exception to the jurisdiction of the Indian Courts and, hence, preclude them to judge the Marines.” In a statement on Thursday, the Italian Foreign Ministry said, “Italian Marines Massimiliano Latorre and Salvatore Girone, are entitled to immunity from the jurisdiction of Indian courts concerning the acts which occurred during the incident of 15 February 2012. India is therefore precluded from exercising its jurisdiction over the Marines. The Arbitral Tribunal has therefore agreed on the Italian position that the Marines, being members of the Italian armed forces in the official exercise of their duties, cannot be tried by Indian courts.” Acknowledging the breach of freedom of navigation, it said, “As a result of the breach, India is entitled to payment of compensation in connection with loss of life, physical harm, material damage to property and moral harm suffered by the captain and other crew members of the Indian fishing boat St. Anthony.” “Italy stands ready to fulfil the decision taken by the Arbitral Tribunal, in a spirit of cooperation,” the Italian Foreign Ministry said.

In reaction to the verdict, Senior Advocate K.N Balagopal mourned with distaste and said; “What happened was a cold-blooded murder”. Balagopal represented the State in the case before the Supreme Court in the matter. “Compensation is anyway granted in such cases; the marines should have stood trial in our courts for the crime committed”, he added. He called the verdict less than a victory “though there is some vindication to an extent”.

Continue Reading

International Law

Reassessing Sustainable Governance Models for the Post-COVID 19 World Order

Published

on

Authors: Manini Syali and Aaditya Vikram Sharma*

The Coronavirus pandemic is not the first occasion when human civilizations are witnessing the outbreak of a deadly disease. This becomes even more crucial in the present day era, dominated by technological and scientific advancement, when cures for a number of life threatening ailments have successfully been discovered. Yet, a virus, because of its highly contagious nature has brought human life to a complete halt and even specialised international organisations like the World Health Organisation, devoted towards the sole objective of maintaining health care standards worldwide, more or less appear to be helpless in containing it. The pandemic can be called a watershed moment, after recovering from which, the way human beings have been living in industrialist societies will change drastically. Signs of this change can be felt in the form of increased awareness towards environmental issues, which in spite of having been a subject matter of policy consideration for more than fifty years now, largely remained being seen as ancillary in front of ‘crucial issues’ like peace, security, poverty etc., which demand swifter actions. The need of the hour, therefore, is to broaden the horizons of ecological analyses, as it is being done traditionally, and to realise that pathogens need to be made an integral part of eco-system management.

Further, it is a well-known fact that the consequences of environmental degradation have always been seen in anticipatory terms, reducing the gravity of the situation further. Moreover, the environmental doctrines like ‘sustainable development’, themselves are worded in such a manner that they portray sufferings of the generations yet to come instead of being seen as a present day problem. It will also not be wrong to say that there exists a resemblance between environmental principles like the polluter pays principle, precautionary principle, transboundary environmental pollution etc. and the classic common law doctrines having their basis in the tort of negligence. This has further strengthened the perception that non-abidance with the said doctrines will merely give rise to claims of compensation which can be easily settled in monetary terms. Alternative jurisprudential theories like green-criminology, which advocate criminal remedies in case of environmental destruction, or imbibing sustainability in all kinds of regulatory frameworks, therefore, majorly remain limited to academic discussions.

An attempt will, therefore, be made in the present article to trace the evolution of the already existing models of environmental governance and give a critique, highlighting their non-applicability in the post-Corona world order, which would demand alternative models of sustainability and would not only help in containing the spread of similar diseases in the future but will also supplement effective implementation of the already existing environmental law instruments. 

Technocratic Progress and Altered Human Conditions

In the 18th century, the human kind encountered a life changing turn of events in the form of Industrial Revolution. The repercussions of the revolution were such that it did not remain limited to the economic front and left its impact on the social and cultural life of individuals as well. Moreover, the changes which the society underwent as a result of the revolution were rather quick and demanded implementation of regulatory frameworks, covering different aspect of human life. A few examples of the same are family laws for regulating altered family ties, alien to the pre-industrial society, establishment of a legal regime for intellectual property rights, banking and commercial laws for facilitating the contemporary financial activities etc. The way nation states interacted with each other also witnessed drastic changes due to increased dependence on technology.

The gravity of the situation, however, was only realised in the year 1962, in the aftermaths of the Cuban missile crises, when around two dozen experts met in Santa Barbara, California during a Conference to discuss the impacts of technology on human affairs. The conference ended on an optimistic note, but also received a highly sceptical submission from the side of French sociologist Jacques Ellul, who argued that human life had become dangerously dependent on Technology and no aspect of it had the capacity to escape ‘the technique’.

Early Years of Environmental Governance

The criticisms against the technocratic notions of ‘progress’, however, remained limited to sociological fronts for a long time despite emergence of early signs of Climate Change in the late 1950s itself.The United Nations (UN)-centric international legal regime also remained silent on these issues till the advent of the UN Conference on Human Environment (Stockholm Conference),held in the year 1972. The Conference was the first occasion when global environmental issues were discussed as a matter of concern at the global level. Before this also environmental treaties existed, but they largely remained limited to localised issues like wildlife preservation, migratory birds, conservation of wetlands etc. Multiple factors like extinction of the Blue Whale due to indiscriminate hunting, rampant nuclear bomb testings in the 1960s and use of chemical warfare during the Vietnam War which adversely impacted environment as well as human health, finally resulted in a proposal from the side of the Swedish government to organise the Conference.

It will not be wrong to state that the Stockholm Declaration, the legal instrument produced as a result of the Stockholm Conference appears more to be a Human Rights instrument rather than an environmentally oriented regulatory framework. Moreover, the anthropocentric nature of the declaration, which otherwise is popularly known as Magna Carta of environmental law, gets reflected in its preamble itself.

Evolution of Sustainable Governance Models

This spirit of the declaration, was further carried forward in the Brundtland Commission report, published in the year 1987, which gave the concept of ‘sustainable development’ a concrete shape. Through this concept it was realised that developmental activities cannot be given up in absolute terms and the need of the hour, therefore, was to adopt environmentally sustainable activities to create a balance. The next milestone in environmental regulation, achieved by the World Community, was the UN Conference on Environment and Development. The conference gave birth to three important environmental law instruments namely, the Rio Declaration, the Convention on Biological Diversity (CBD) and the United Nations Framework Convention on Climate Change (UNFCCC). Further, all three of the above mentioned instruments had ‘sustainability’ as their theme. 

Despite receiving a good response from nation states in the form of substantial number of ratifications, the objectives of the above mentioned international instruments has remained a distant dream and the natural environment continues to witness deterioration, so much so, that it is about to reach the stage of irreversibility. Further, rampant developmental activities, which are being carried out at a global scale have also totally disregarded the principles of ‘conservation’ and ‘sustainable use’, as enshrined in the preamble of CBD. The UNFCCC mandate of ‘stabilization of greenhouse gases’ has also not received a collective effort from the side of the World Community.

Sustainability in the Times of Coronavirus Pandemic

The significance of these issues increases multifold in the contemporary times when the World is witnessing a humanitarian crises in the form of the COVID19 pandemic. Establishing a connection between ‘development’, ‘environmental degradation’ and the Corona Virus pandemic is  important because in the roots of this virus spread lies the illegal wildlife trade in which China has remained engaged for decades. In the past also the scientific community has attributed origination of several contagious diseases to Chinese wet markets where exotic and vulnerable species are sold at commercial levels. This deadly disease outbreak is, thus, being seen as an eye opening moment, having the capacity to halt wildlife trade as well as habitat destruction. 

The other linking point between the Coronavirus pandemic and sustainability is the issue of sanitation and hygiene.  Insanitary conditions can be called both a cause and an effect of the pandemic. The connection between unhygienic practices and disease outbreak does not require much explanation, however, the bio-medical waste management and related issues have emerged as a major regulatory hassle in the present day crisis, which are demanding a detailed policy framework for proper management. This also gets reflected in the ‘Goal 6’ of the Sustainable Development Goals (SDGs), established in the year 2015 by the United Nations General Assembly, which talks about ‘Ensuring availability and sustainable management of water and sanitation for all.’

It has further been reported that due to the lockdowns imposed in several nation states, economic and industrial activities came to a complete standstill, which resulted in drastic reduction in greenhouse emissions worldwide. Certain reports were also rejoicing by citing positive signs being shown by ozone layer recovery and giving the Corona pandemic a credit for the same. In those moments of temporary happiness, the years which national jurisdictions spent in implementing the Montreal Protocol on Ozone Depletion were discredited.  Moreover, if latest reports are to be believed catastrophic rise in greenhouse gases has further worsened the condition of ozone levels in the environment. This raises a very pertinent question with respect to how the mankind plans to deal with climate change, because of the simple reason that such arguments are simply based on devaluing persistent application of sustainable governance models, which will not merely improve the degraded environmental conditions but will also result in improvement of living condition of millions of individuals living under perilous circumstances.

*Aaditya Vikram Sharma, Assistant professor, Vivekananda Institute of Professional Studies.

Continue Reading

International Law

Kashmir conundrum and the international law

Abdul Rasool Syed

Published

on

The scrapping of article 370 and subsequent annexation and illegal occupation of the state of Jammu and Kashmir by India has once again, brought the seven-decades-old Kashmir issue, a prime cause of friction between two nuclear states India and Pakistan into international limelight. Before this constitutional catastrophe, the state had special status, separate laws, constitution, and flag. This special status has been revoked in utter contravention of UNSC resolutions and international law.

This mala fide move by Modi government is indubitably aimed at eclipsing the importance of the issue of Kashmir by localizing it and thereby   putting it on backburner.  However, the irrefutable fact is that the Kashmir is a disputed territory between India and Pakistan, and recognized as such, without any reservation, by international community.

Amid Indo-Pak partition, Under Article 2 (4) of the independence act of India, the princely states were given choice to join “either of the new Dominions”. While it was an easy decision for some princely states due to their geographical proximity, territorial contiguity or political and religious affiliation of the rulers and subjects, the accession of the State of Jammu and Kashmir emerged as a chronic conundrum and a nuclear flash point between two nuclear countries India and Pakistan.

 To add, in the beginning, the ruler of the state, Maharaja Hari Singh, toyed with the idea of remaining independent. However, Indian machinations spearheaded by Congress leaders including Nehru and Patel created such circumstances for maharaja that left him with no option but to capitulate to their demand of  “ Accession of state of Jammu and Kashmir  to India”.  Hence, Hari Singh, due to unwarranted conditions, forged by the Indian Machiavellian masterminds, had to agree to sign the instrument of accession with India.  Thus, On October 27, 1947, the governor general of India approved the accession with the condition that “as soon as law and order were restored in Kashmir…the question of [the] state’s accession should be settled by a reference to the people [of Jammu and Kashmir].”

The purported Instrument of Accession (which India has failed to produce) denies the authority of any unilateral action by India. The terms of this Instrument would not be varied by any amendment of the Indian Independence Act, 1947 without acceptance of the ruler of the state (clause 5). Further, nothing in the Instrument could have been deemed to be a commitment as to acceptance of any future constitution of India and nothing could affect the sovereignty of the Maharaja over the state (clause 7 and 8).

 So far as the internationalization of the issue of Kashmir is concerned, it is India that took the issue to international forum by knocking at the door of UN security council back in January 1, 1948, resultantly the Council, via UNSCR 38, called upon the contending governments to refrain from aggravating the circumstances and report any material changes on the ground. Thereafter, the Security Council over a number of years issued a total of 17 resolutions on the disputes status of Kashmir. UNSCR 47 of 1948, the most important of roughly all resolutions on kashmir, calls for the resolution of the dispute of Kashmir’s accession to either India or Pakistan through effecting the democratic means of a free and impartial plebiscite.

Simla agreement is another worth quoting document ,deemed as  the premier bilateral accord between the warring nations, it holds that “principles and purposes of the Charter of the United Nations shall govern the relations between the countries”, hence shining light on the validity of the UNSC resolutions on Kashmir. The disputed nature of the issue is further reiterated as, “In Jammu and Kashmir, the Line of Control resulting from the cease-fire of December 17, 1971 shall be respected by both sides without prejudice to the recognized position of either side.

Moreover, the same Simla Agreement also forbids unilateral action to change the status of the state. Clause 1(ii) of the agreement specifically states that neither side shall unilaterally alter the situation. Clause 6 further emphasizes that both the countries should discuss modalities for a final settlement of the state through diplomatic means. Thus, India’s claim that the revocation of Occupied Kashmir’s ‘special status’ is its internal issue negates its commitment under the agreement.

 Additionally, the right of self-determination is the basic principle of the united Nation charter which has been reaffirmed in the universal declaration of human rights, and applied countless times to the settlement of international issues. The concept played significant role in post-world war I settlement, leading for example to plebiscite in a number of disputed areas.

However, in 1945 the establishment of UN gave a new dimension to the principal of self-determination. It was made one of the objectives which the UN would seek to achieve, along with equal rights of all nations.

The principle of self-determination and the maintenance of international peace and security are inseparable. For example, the denial of this right to self-determination to the people of Kashmir has brought the two neighboring countries in South Asia — India and Pakistan to the brink of nuclear catastrophe.

Apart from the specific UN resolutions which guarantee Kashmiris’ the right to self-determination, the UN Charter in Article 1(2) declared one of its purposes as, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. This serves as the biggest impetus to the said right under international law.

In 1952, the General Assembly further expounded this principle and stated in Resolution 637A(VII), that ‘the right of peoples and nations to self-determination is a prerequisite to the full enjoyment of all fundamental human rights’ and recommended that UN members ‘shall uphold the principle of self-determination of all peoples and nations’. The Declaration on the Granting of Independence to Colonial Countries and Peoples enshrined in GA resolution 1514 of 1960 upheld the right to self-determination. The resolution explicitly says, “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.

What’s more to say is that the principle of self-determination was given overwhelming protection in Article 1 of both International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). In 1966, these two covenants enshrined the self-determination principle verbatim as was laid in GA resolution 1514. The Declaration of Principles of International Law Concerning Friendly Relations (GA Resolution 2625 of 1970) went further in recognizing that peoples resisting forcible suppression of their claim to self-determination are entitled to seek and receive support in accordance with the purposes and principles of the Charter. Since the adoption of the Declaration in 1970, the ICJ has, on a number of occasions, confirmed that the principle of self-determination constitutes a binding norm of customary international law and even a rule of jus cogens- peremptory rule of international law. Thus, international law and the specific UNSC resolutions on Kashmir uphold and provide the Kashmiris with the overriding principle of right to self-determination.

Inter alia, by the revoking the state’s ‘special status’, the situation has now become an ‘occupation’ with an ‘unlawful annexation’. India is an Occupying Power and it has unlawfully annexed the state. From international legal opinion on the issue of self-determination, as developed in the aftermath of the Second World War and the process of decolonization, the fate of millions of people cannot be left to the whims of India. Given the UN General Assembly’s resolution of 1960 concerning Declaration on the Granting of Independence to Colonial Countries and Peoples, the people of Jammu and Kashmir have every right to self-determination.

India has no title on the state under international law. India’s illegal occupation since 1947; denial of the right to self-determination of the people; application of India’s constitution by removing the state’s special status, makes India an Occupying Power and its army a hostile force. The BJP’s recent attempt to include the territory of the state within the Union’s territory of India is an act of ‘occupation’ and ‘illegal annexation.

 While commenting on Article 47 of the Geneva Convention IV, jurist Jean S Pictet explains that the Occupying Power is the administrator of the territory and is under various positive obligations towards the Occupied Population (ie the Occupying Power cannot annex the Occupied Territory or change its political status). Jean elaborates that the Occupying Power must respect and maintain the political and other institutions of the Occupied Territory. Therefore, India being an Occupying Power cannot annex the state’s territory and is bound to keep the state’s institutions and territorial boundaries intact till the conduct of plebiscite under the UNSC resolution 1948.

The International Commission of Jurists has categorically stated that “the Indian government’s revocation of the autonomy and special status of Jammu and Kashmir violates the rights of representation and participation guaranteed to the people [of Jammu and Kashmir] under… international law”.

To cap it all, the world powers should take a leaf from the statement made on June 15, 1962 by American representative to the UN, Adlai Stevenson” the best approach is to take for a point of departure the area of common ground which exists between the parties. I refer of course to the resolutions which were accepted by both parties and which in essence provide for demilitarization of the territory and a plebiscite whereby the population may freely decide the future status of Jammu and Kashmir.”

Continue Reading

Publications

Latest

Trending