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Peter Margulies on Boundaries of the Battlefield

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Friday, January 18, 2013 at 7:25 AM

Peter Margulies of Roger Williams School of Law writes in from The Hague with the following account of the Boundaries of the Battlefield symposium he has been attending there:

Although some members of Congress speak of criminal justice as a relic of a “September 10” mentality, Europe has never subscribed to that view. European officials sometimes depict law enforcement and international human rights law (IHRL) as the twin holy grails of counter-terrorism, obviating the need for a more comprehensive repertoire that includes recourse to force. Boundaries of the Battlefield, a conference sponsored last week by The Hague’s Asser Institute and coordinated by Asser researcher and Opinio Juris contributor Jessica Dorsey, tackled the intersection of the law of armed conflict (LOAC) and IHRL, offering diverse perspectives from both sides of the Atlantic on targeted killing. I blogged about this the other day at Opinio Juris.   A blue-chip roster of participants at the conference, co-sponsored by the International Centre for Counter-Terrorism, IHCL Platform, Konrad Adenauer Foundation, City of The Hague, and the Dutch Foreign Ministry, also debated the default legal regime for drone strikes, the future of detention, and the balance between military action and law enforcement.

Conference participants like Marko Milanovic of the University of Nottingham and the ACLU’s Hina Shamsi contended that IHRL was the overarching legal regime governing targeted killing.  In contrast, the US official view has been that LOAC is what scholars call lex specialis, i.e., a body of law that preempts the field. The difference is crucial. IHRL and the law enforcement paradigm feature a far higher threshold for resort to lethal force. They require a showing that force is necessary to defend oneself or others against a particular target. IHRL rules also severely limit permissible collateral damage. Unless LOAC has a preemptive position, US officials and scholars assert, commanders wary of IHRL’s restrictions will lack the clarity that their responsibilities demand. Milanovic declared that the lex specialis position, despite its Latin nomenclature, was of relatively recent vintage, and did not do full justice to the competing demands of international law. Moreover, he noted, the lex specialis view could not trump IHRL when no armed conflict was present. For Milanovic, the episodic nature of Al Qaeda in the Arabian Peninsula (AQAP) attacks on the U.S. removed such incidents from the LOAC realm, leaving IHRL as the default position.

Following up on this point, Milanovic and Belgium’s Tom Ruys argued that U.S. drone strikes in Yemen are illegal because they cannot meet IHRL’s higher thresholds for the use of force. Nor, as most presenters agreed, does state consent necessarily alter this analysis. Milanovic and others acknowledged that if violence between the Yemeni regime and insurgents rose to the level of a noninternational armed conflict (NIAC) and the regime consented to U.S. use of force, those strikes would be permissible if they met LOAC requirements like distinction and proportionality.  However, he and others warned, that states consent cannot transform violence below the LOAC floor into an armed conflict. In that event, state consent would not dislodge IHRL from its default position.

Another issue was the role of IHRL in governing the tactics of ground troops. IHRL applies to European forces extraterritorially after the decisions of the European Court of Human Rights (ECHR) in Al-Jedda v. United Kingdom and Al-Skeini v. United Kingdom. In these two decisions the ECHR held respectively that the European Convention on Human Rights governed detention procedures and investigation of deaths connected with UK forces participating in the occupation of Iraq. Al-Skeini found investigations wanting under the Convention, even though two resulted in courts martial and the others dealt with soldiers who had to make split-second decisions at checkpoints or in raids.

Mike Lewis of Ohio Northern warned about this trend, contending that soldiers who had to comply with both LOAC and IHRL would fail in their central war-fighting mission. Mike cited the American experience in Iraq as proof of this proposition. Chris De Cock, Chief of Operational Law at Belgium’s Ministry of Defense, urged participants to strive for clarity at the operational level. Chris feared that introducing IHRL would muddy the waters, making troops less safe. Pushing back, a number of speakers pointed to the Colombian armed forces’ experience combating the terrorist FARC organization. Gary Corn, currently head of operational law for the US Army, has spoken at past gatherings about his work and the efforts of his brother, Geoff Corn, Harvey Rishikof, and Canada’s Ken Watkin in advising the Colombian military on tailoring particular operations to either IHL or IHRL. Factors governing this inquiry included the location of the mission, the level of anticipated resistance, and possible collateral harm to civilians.  Dr. (and Colonel) Paul Ducheine of the Dutch Defense Academy cited the Colombian example as evidence that armed forces can shift between the two paradigms. Marco Sassoli of the University of Geneva argued that shifting between paradigms is nothing new; in counterinsurgency, soldiers may encounter groups of civilians who are indignant about night searches or other tactics. Military personnel will need to manage nonviolent civilian protests under IHRL. Indeed, as Canada’s Watkin elucidated in a recent article, IHRL and LOAC have traditionally overlapped in the law of belligerent occupation.

IHRL may also help shape the playing field for detention overseas, as John Bellinger and Vijay Padmanabhan suggested in a paper in 2011. While U.S. courts have declined to extend the habeas corpus regime of Boumediene to the Parwan facility in Afghanistan, the U.S. has introduced more robust review procedures. Moreover, the Copenhagen Principles recently announced by the United States and a number of its allies offer a useful additional step by providing for prompt initial review and periodic review thereafter by an “impartial and objective authority.” However, even more safeguards may be necessary. The NDAA includes a little-known provision that requires legal counsel for long-term detainees, which Geoff Corn has also recommended in a recent piece. The ECHR’s Al Jedda decision will accelerate this trend. The ECHR ruled that detention in an armed conflict overseas violated the European Convention (absent an express derogation by a member state), because detention in an armed conflict was not among the narrow grounds, such as quarantine and detention pending deportation or criminal trial, that the European Convention recognizes.  The ECHR may at some point find that even turning over individuals to US custody abroad violates a European state’s duties.  This concern should trigger a further review of US detention policy.

Another factor that may impel new U.S. reforms is the ICRC’s new project on detention in NIACs. Jelena Pejic of the ICRC, who has written with great discernment about the protective scope of Common Article 3 of the Geneva Conventions, reminded the audience that the ICRC, in consultation with states, is weighing whether detention should require more formal safeguards, such as judicial review and legal representation. The ICRC’s guidance may pivot more toward incorporating IHRL guarantees, on the reasoning that detention is less exigent than targeting and therefore requires less deference to military authorities. Interestingly, Geneva’s Marco Sassoli was not a cheerleader for this approach. Sassoli, though rejecting a strict lex specialis view, believed that introducing IHRL into detention could spur unintended consequences. Echoing concerns that Jack and others have expressed about the interaction of Boumediene and targeted killing, Sassoli argued that states faced with elaborate detention safeguards might turn to alternatives worse than the status quo, including summary executions and secret detention. Since LOAC has always hinged on states’ voluntary compliance, Sassoli feared that making compliance unduly onerous would backfire. Nonetheless, most Europeans and some American scholars agreed that a greater role for IHRL in detention was both likely and desirable.

Rhetorical differences between Europe and the U.S. escalated in identifying the optimal mix of counter-terrorism measures, although substantive differences may have been more muted. Gilles de Kerchove, European Union (EU) Counter-Terrorism Coordinator, suggested that criminal prosecution should be the default strategy for combating terrorism. Both de Kerchove and his Advisor, Christiane Höhn, cited the pedigree and perception of legitimacy that accompanied criminal justice institutions, such as Article III courts in the US, and the concomitant alienation triggered by drones and targeting killing. Each also worried about the precedent for other countries set by a targeted killing regime. De Kerchove and other Europeans repeatedly cited former Pentagon General Counsel Jeh Johnson’s recent Oxford speech suggesting that there might eventually be an end-point to the conflict with Al Qaeda (AQ). De Kerchove also questioned the linkage between “core” AQ and “franchises” in Yemen and elsewhere. Moving to  specifics, de Kerchove expressed concern about Congress’s impatience with Article III courts, reflected in the initial versions of the NDAA. De Kerchove also deplored the NDAA’s restrictions on transfer of detainees to third countries, while noting that the EU had worked with the Obama administration to insert waivers into the legislation that preserved recourse to civilian courts.

Mike Lewis, pondering the appropriate balance of Article III courts and LOAC approaches, submitted that while seeing an end to the conflict with AQ was plausible, real-life events like the recent attack on the US mission in Benghazi revealed that AQ affiliates were not cooperating with this scenario. Indeed, Mike pointed out, those affiliates were gaining in sophistication. Showing his diplomatic side, Mike also refrained from pointing out that European states do not invariably confine themselves to criminal prosecution as a counter-terrorism tool. France, for example, might have sought to indict members of the growing Al Qaeda offshoot in Mali. French officials apparently rejected this approach, believing that military action would be more effective.

The focus on substantive convergence between Europe and the U.S. continued with Syracuse’s Bill Banks, who explained that criminal prosecutions in Article III courts have long been a reliable counter-terrorism weapon. Studies like this one by Jim Benjamin and Rick Zabel for Human Rights First on domestic terrorism prosecutions demonstrate the continuing relevance of Article III courts. Bill expressed concern, however, that even criminal justice approaches could overreach. He cited the decision of the U.S. Supreme Court in Holder v. Humanitarian Law Project, which ruled that even teaching on nonviolent dispute resolution could be material support (see Bobby’s paper here) of a foreign terrorist group. Bill did not reject Chief Justice Roberts’s claim in his opinion for the Court that such teaching could unwittingly aid the terrorist group’s marketing itself as a “kinder, gentler” entity and funding renewed violence with fresh donations. Bill acknowledged that the Court’s opinion was narrow, leaving space for independent speech and precluding the statute’s application to purely domestic groups (see my analysis here). However, Bill warned that the mere prospect of liability might impair needed humanitarian assistance, implying the need for a statutory fix or some new administrative guidance. (See my proposal for coupling such guidance with due diligence by humanitarian groups.)

Rhetoric aside, the Hague conference revealed much common ground between Europe and the U.S. on counter-terrorism. However, differences remain. Gaps between allies are rarely salutary, especially in a domain such as counter-terrorism, in which international cooperation is vital.  Closing those gaps may require movement on both sides of the Atlantic.